Pescatore v. Pineda

345 F. Supp. 3d 68
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 1, 2018
DocketCivil Action No. 08-2245 (RMC)
StatusPublished
Cited by7 cases

This text of 345 F. Supp. 3d 68 (Pescatore v. Pineda) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pescatore v. Pineda, 345 F. Supp. 3d 68 (D.C. Cir. 2018).

Opinion

ROSEMARY M. COLLYER, United States District Judge

Frank Thomas Pescatore, Jr., was working as a geologist in the Republic of Colombia in 1996 when he was kidnapped, held for ransom, killed, and eviscerated in an effort to take "life like" photos to support ransom demands. The perpetrators were members of the Fuerzas Armadas Revolucionarias de Colombia (FARC), a group since found to be terrorists by the United States Department of State. In 2008, his family sued FARC and Juvenal Ovidio Ricardo Palmera Pineda, also known as Simon Trinidad, under the Antiterrorism Act. After this Court found Defendants liable for Mr. Pescatore's death, this case trailed a related case in Florida *70for years; that case has now settled.1 Returning to the District of Columbia, Mr. Pescatore's family seeks $240 million in damages. Based on the evidence provided, the Court will grant their motion in part and award lesser sums.

I. BACKGROUND

Defendants' liability in this case has already been established through default. See Order [Dkt. 17]. Therefore, the facts of this case will be recounted only briefly here.

In December 1996, decedent Frank Pescatore was working as a geologist at the Cerrejon coal complex in La Guajira Department, Colombia. Compl. [Dkt. 1] ¶ 28. On or about December 19, 1996, members of FARC's Caribbean Bloc under the command and control of Defendant Palmera Pineda attacked the coal complex. While none of the Colombians at the site was injured, FARC captured Mr. Pescatore and took him into the Colombian jungle. Id. ¶ 29.

FARC then attempted to obtain a ransom for Mr. Pescatore. Id. ¶ 31. When, in February 1997, he attempted to escape, he was shot dead. Id. ¶ 32. To continue its ransom demands, FARC had his body eviscerated and makeup applied to have the body appear alive. Id. ¶¶ 32-34. Two months later, when Mr. Pescatore's ransom had not been paid, FARC dumped his body, which was then discovered on or about February 23, 1997. Id. ¶ 35.

Plaintiffs are members of the Pescatore family, including: Olivia Pescatore, Mr. Pescatore's surviving spouse; Josh Pescatore, Jada Pescatore, Jarrod Pescatore, and Jordan Pescatore, his children; the Estate of Frank Pescatore, Sr., his father; Carol Pescatore Harpster, his sister; and his brothers Richard and John Pescatore.

Defendants are FARC and Mr. Pineda, a senior FARC commander who was partially responsible for Mr. Pescatore's kidnapping and murder. See Second Decl. of Olivia Pescatore [Dkt. 40-8] ¶ 5; Letter from Christopher Carbonneau, Special Agent, Federal Bureau of Investigation, to Olivia Pescatore (Apr. 21, 2004) [Dkt.40-8]. According to the U.S. Department of State, as of September 1, 2017, FARC had agreed to a peace accord, disarmed, and reincorporated as a political party. See U.S. Dep't of State, Colombia 2017 Human Rights Report 14-15 (2017) available at https://www.state.gov/documents/organization/277563.pdf. Mr. Pineda is currently serving out a sixty-year prison term at the United States Penitentiary, Administrative Maximum Facility in Florence, Colorado. See Mem. Op. [Dkt. 16] at 4. Neither Defendant has appeared before this Court.

II. LEGAL STANDARD

A default judgment under Fed. R. Civ. P 55 establishes the defaulting party's liability for every well-pled allegation in the complaint. Int'l Painters & Allied Trades Indus. Pension Fund v. Newburgh Glass and Glazing, LLC , 468 F.Supp.2d 215, 217 (D.D.C. 2007) (citing Adkins v. Teseo , 180 F.Supp.2d 15, 17 (D.D.C. 2001) ). However, it does not automatically establish liability in the amount claimed by the plaintiff. Id. Rather, "unless the amount of damages is certain, the court is required to make an independent determination of the sum to be awarded." Adkins , 180 F.Supp.2d at 17 (citing SEC v. Mgmt. Dynamics, Inc. , 515 F.2d 801 (2d Cir. 1975) ). The court has considerable latitude in determining the amount of damages. Fanning v. Wegco, Inc. , 5 F.Supp.3d 1, 4 (D.D.C. 2013) (citing *71Jones v. Winnepesaukee Realty , 990 F.2d 1, 4 (1st Cir. 1993) ). The court may determine the appropriate sum by hearing, see Fed. R. Civ. P. 55(b)(2), but it may also rely on detailed affidavits or other documentary evidence. Fanning , 5 F.Supp.3d at 6. Ultimately, what matters is that the court "ensures that there is a basis for the damages specified in the default judgment." Id. at 4.

III. ANALYSIS

The family of Mr. Pescatore now seeks "damages from the Defendants solely for their emotional loses." Pls.' Mot. for Default J. Regarding Damages (Dmg. Mot.) [Dkt. 40] at 7. Plaintiffs suggest their own figures for damages: Olivia Pescatore seeks $15 million in damages for her loss. Cf. Estate of Bayani v. Islamic Republic of Iran , 530 F.Supp.2d 40, 46 (D.D.C. 2007) (awarding $30 million to widow of American held captive for 2 years before his brutal murder). She argues that a large award is justified because "larger awards are typically reserved for cases with aggravating circumstances that appreciably worsen the surviving spouse's pain and suffering, such as cases involving torture or kidnapping," Greenbaum v. Islamic Republic of Iran , 451 F.Supp.2d 90, 108 (D.D.C. 2006), and notes that here FARC not only kidnapped and killed her husband but also eviscerated his body in order to prolong ransom negotiations with his family.

Each of Mr. Pescatore's children seeks $10 million for their loss. Cf. Higgins v. Islamic Republic of Iran , No. 1:00-CV-00377, 2000 WL 33674311 at *8 (D.D.C. Sept.

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345 F. Supp. 3d 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pescatore-v-pineda-cadc-2018.