Rojas-Buscaglia v. Taburno-Vasarely

39 F. Supp. 3d 208, 2014 U.S. Dist. LEXIS 117503, 2014 WL 4100899
CourtDistrict Court, D. Puerto Rico
DecidedAugust 21, 2014
DocketCivil No. 13-1766 (FAB)
StatusPublished
Cited by2 cases

This text of 39 F. Supp. 3d 208 (Rojas-Buscaglia v. Taburno-Vasarely) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rojas-Buscaglia v. Taburno-Vasarely, 39 F. Supp. 3d 208, 2014 U.S. Dist. LEXIS 117503, 2014 WL 4100899 (prd 2014).

Opinion

MEMORANDUM AND ORDER

BE SOSA, District Judge.

I. Procedural History

On July 3, 2014, United States Magistrate Judge Camille L. Velez-Rive issued a Report and Recommendation (“R & R”) (Docket No. 190), 2014 WL 4187615, recommending that the plaintiffs’ motion to dismiss, (Docket No. 62), be granted in part and denied in part. Specifically, the magistrate judge recommends:

[211]*211(1) that Defendant Taburno’s counterclaims against all plaintiffs pursuant to 18 U.S.C. § 1513 be dismissed with prejudice;
(2) that Defendant Taburno’s counterclaims against plaintiffs Inart Corporation and Inart Services pursuant to 18 U.S.C. § 1962(a), (b), and (c), as well as § 1962
(d) for conspiring to violate §§ 1962(a), (b), and (c), be dismissed with prejudice;
(3) that Defendant Taburno’s counterclaims against plaintiff Rojas pursuant to 18 U.S.C. §§ 1962(a) and (b), as well as § 1962(d), for conspiring to violate § (a) and (b), be dismissed with prejudice;
(4) that Defendant Taburno’s counterclaims against plaintiff Rojas pursuant to 18 U.S.C. § 1962(d), for conspiring to violate § 1962(c), be allowed to survive plaintiffs’ motion to dismiss; and
(5) that all state law claims against all plaintiffs be allowed to survive plaintiffs’ motion to dismiss.

(Docket No. 190 at p. 21.) Defendant Ta-burno failed to file any objections to the R & R. Accordingly, she has waived any objections to the magistrate judge’s findings. See Davet v. Maccarone, 973 F.2d 22, 31 (1st Cir.1992) (“Failure to raise objections to the Report and Recommendation waives the party’s right to review in the district court....”). On July 22, 2014, plaintiffs filed an objection to the R & R, noting their disagreement with several of the magistrate judge’s conclusions. (Docket No. 207). On August 4, 2014, defendant Taburno opposed plaintiffs’ objections. (Docket No. 213.)

II. Standard of Review

A district court may refer a pending dispositive motion to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. R. 72(a). Any party adversely affected by the report and recommendation may file written objections within fourteen days of being served with the magistrate judge’s report. See 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). Failure to comply with this rule precludes further review. See Davet, 973 F.2d at 31. In conducting its review, the Court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(a)(b)(1); Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985); Alamo Rodriguez v. Pfizer Pharm., Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing LaCedra v. Donald W. Wyatt Det. Facility, 334 F.Supp.2d 114, 125-126 (D.R.I.2004)).

III. Discussion

Of plaintiffs’ numerous objections to the R & R, only one even approaches the appropriate level of development warranting district court review:1 that the [212]*212magistrate judge erred in denying plaintiff Rojas’ motion to dismiss the 18 U.S.C. § 1962(c) and (d) claims against him. (Docket No. 207 at pp. 7-8.) Plaintiffs are thus entitled to a de novo determination of that proposed recommendation. See Sylva, 389 F.Supp.2d at 191.

A. R & R Analysis

The magistrate judge began by properly setting forth the requirements of an 18 U.S.C. § 1962(c) claim in her R & R:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

(Docket No. 190 at p. 12.) She then found that defendant Taburno validly alleged enterprises operating in interstate commerce2—Inart Corporation, Inart Services, and Globar—and with which plaintiff Rojas associated. Id. Rojas, as the racketeer, allegedly engaged in “several predicate acts,” which the magistrate judge and this Court find to be more than adequately plead. Id. at p. 13 (setting forth ten acts that qualify as “racketeering activity” and violations of 18 U.S.C. § 1961(1)).

The magistrate judge also properly conveyed the additional requirement to a RICO claim set forth by the Supreme Court: the “continuity plus relationship” standard. (Docket No. 190 at p. 13) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). Pursuant to that standard, the “pattern” of racketeering element of a RICO claim requires a party to establish “that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” Giuliano v. Fulton, 399 F.3d 381, 386-87 (1st Cir.2005) (citing Northwestern Bell, 492 [213]*213U.S. at 239, 109 S.Ct. 2893).

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39 F. Supp. 3d 208, 2014 U.S. Dist. LEXIS 117503, 2014 WL 4100899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rojas-buscaglia-v-taburno-vasarely-prd-2014.