United States District Court, N.D. Alabama, Southern Division
DRUMMOND COMPANY, INC., et al. Plaintiffs,
TERRENCE P. COLLINGSWORTH, et al., Defendants.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
court has before it Motions to Dismiss filed by Defendants
Albert van Bilderbeek and Francisco Ramirez Cuellar. (Docs. #
121 and 122). The Motions have been fully briefed (Docs. #
125, 126, 128 and 129), and are ripe for decision.
March 27, 2015, Plaintiffs Drummond Company, Inc. and
Drummond Ltd. (hereinafter collectively referred to as
''Plaintiff'' or “Drummond”)
filed its Complaint in this action. The Complaint alleges (1)
violations of RICO, 18 U.S.C. § 1962(c) (Count I), (2)
conspiracy to violate RICO, 18 U.S.C. § 1962(d) (Count
II), (3) willful and/or reckless misrepresentation in
violation of Alabama Code ' 6-5-101 (1975) (Count III),
(4) fraudulent concealment/suppression of material facts in
violation of Alabama Code ' 6-5-102 (1975) (Count IV),
and (5) civil conspiracy (Count V). (Doc. # 1-1). Van
Bilderbeek and Ramirez, like Ivan Alfredo Otero Mendoza
before them, seek to have the claims against them dismissed
for lack of personal jurisdiction and failure to state a
claim. (See Docs. #121 and 122).
Standard of Review
12(b)(2) motion tests the court's exercise of personal
jurisdiction over a defendant. See Fed.R.Civ.P.
12(b)(2). “A plaintiff seeking the exercise of personal
jurisdiction over a nonresident defendant bears the initial
burden of alleging in the complaint sufficient facts to make
out a prima facie case of jurisdiction.” United
Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th
Cir.2009); see also Posner v. Essex Ins. Co., 178
F.3d 1209, 1214 (11th Cir.1999) (“A plaintiff seeking
to obtain jurisdiction over a nonresident defendant initially
need only allege sufficient facts to make out a prima facie
case of jurisdiction.”). If a plaintiff satisfies his
initial burden and a defendant then submits affidavit
evidence in support of its position, the burden traditionally
shifts back to the plaintiff to produce evidence supporting
jurisdiction. See Meier ex rel. Meier v. Sun Int=l
Hotels, Ltd., 288 F.3d 1264, 1268 (11th Cir.2002);
see also Posner, 178 F.3d at 1214 (“‘The
plaintiff bears the burden of proving ‘by affidavit the
basis upon which jurisdiction may be obtained= only if the
defendant challenging jurisdiction files ‘affidavits in
support of his position.'” (citation omitted)).
When the issue of personal jurisdiction is decided on the
record evidence, but without a discretionary hearing, a
plaintiff demonstrates a “prima facie case of personal
jurisdiction” by submitting evidence sufficient to
defeat a motion made pursuant to Rule 50(a) of the Federal
Rules of Civil Procedure. See Snow v. DirecTV, Inc.,
450 F.3d 1314, 1317 (11th Cir.2006). At this evidentiary
juncture, the court construes the complaint's allegations
as true if they are uncontroverted by affidavits or
deposition testimony, id. at 1317; where there are
conflicts, the court “construe[s] all reasonable
inferences in favor of the plaintiff.” Whitney
Info. Network, Inc. v. Xcentric Ventures, LLC, 199
Fed.Appx. 738, 741 (11th Cir.2006) (quoting Meier,
288 F.3d at 1269).
Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint for failure to state a claim upon which relief may
be granted. Fed.R.Civ.P. 12(b)(6). A court may dismiss a
complaint under Rule 12(b)(6) if a plaintiff fails to provide
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). That is, if a
plaintiff “ha[s] not nudged [her] claims across the
line from conceivable to plausible, [her] complaint must be
dismissed.” Id; see Ashcroft v. Iqbal, 139
S.Ct. 1937, 1953 (2009) (holding that Twombly was
not limited to antitrust cases but rather was based on an
interpretation and application of Federal Rule of Civil
deciding a Rule 12(b)(6) motion, the court must “accept
all well-pleaded factual allegations in the complaint as true
and construe the facts in a light most favorable to the
non-moving party.” Dacosta v. Nwachukwa, 304
F.3d 1045, 1047 (11th Cir. 2002) (citing GJR Invs., Inc.
v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th
Cir. 1998)). “[Unsupported conclusions of law or of
mixed fact and law have long been recognized not to prevent a
Rule 12(b)(6) dismissal.” Dalrymple v. Reno,
334 F.3d 991, 996 (11th Cir. 2003) (citing Marsh v.
Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)
(en banc)). Further, “[a] complaint may not be
dismissed because the plaintiffs claims do not support the
legal theory he relies upon since the court must determine if
the allegations provide for relief on any
[plausible] theory.” Brooks v. Blue Cross &
Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th
Cir. 1997) (emphasis in original) (citing Robertson v.
Johnston, 376 F.2d 43 (5th Cir. 1967)). Nevertheless,
conclusory allegations, unwarranted deductions of facts, or
legal conclusions masquerading as facts will not prevent
dismissal. Oxford Asset Mgmt, Ltd. v. Jaharis, 297
F.3d 1182, 1188 (11th Cir. 2002); see Kane Enters. v.
MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003)
(“[A] plaintiff must plead specific facts, not mere
conclusional allegations, to avoid dismissal for failure to
state a claim. We will thus not accept as true conclusory
allegations or unwarranted deductions of fact.”)
(internal citations omitted); Kirwin v. Price Commc=ns.
Corp., 274 F.Supp.2d 1242, 1248 (M.D. Ala. 2003)
(“[A]lthough the complaint must be read liberally in
favor of the plaintiff, the court may not make liberal
inferences beyond what has actually been alleged.”),
aff=d in part, 391 F.3d 1323 (11th Cir. 2004).
Relevant Factual Allegations
court addresses separately the allegations made against the
two moving Defendants.
Allegations Regarding Albert van Bilderbeek
Bilderbeek is defined in the Complaint as one of the
“RICO Defendants.” (Doc. # 1-1 at & 1.
Therefore, all general allegations regarding the “RICO
Defendants” made in the Complaint apply to van
Bilderbeek. Additionally, the Complaint contains very
specific factual allegations about van Bilderbeek:
Defendant Albert van Bilderbeek is a citizen and resident of
the Netherlands. Albert van Bilderbeek and his brother,
Hendrik van Bilderbeek, are the principals of Llanos Oil
Exploration Ltd. (“Llanos Oil”), a Dutch entity
that views Drummond as a competitor in Colombia. Llanos Oil
has made the wild accusation that Drummond conspired with the
Colombian government to steal oil and gas rights from Llanos
Oil. [Defendant] Collingsworth has a contract with the van
Bilderbeeks which entitles him [Collingsworth] ¶ 33.3%
of any recovery obtained by Llanos Oil in relation to these
oil and gas rights. In furtherance of the RICO
Defendants' massive extortion campaign, Albert van
Bilderbeek has in fact paid at least one witness - Jaime
Blanco Maya - at least $95, 000 in exchange for Blanco's
false testimony against Drummond. Van Bilderbeek's
personal interest in such payments was to use this false
testimony to not only harm Drummond, but also to cause the
Colombian government to cancel Drummond's oil rights in
Colombia and give them to Llanos Oil. At Collingsworth's
direct request, Albert van Bilderbeek paid money to Blanco,
using Otero as a conduit, with the purpose of obtaining false
testimony against Drummond that the RICO Defendants could
utilize in their multifaceted and fraudulent scheme to extort
money from Drummond. Albert van Bilderbeek has also conspired
with and assisted the RICO Defendants in obtaining media
exposure in Europe for the false allegations levied against
Drummond by witnesses who have been paid in exchange for
their testimony. During the times relevant to this Complaint,
Albert van Bilderbeek has conducted business in Birmingham,
Alabama through his agent, Collingsworth.
(Doc. # 1-1 at & 17).
Albert van Bilderbeek has (i) assisted the co-defendants in
funneling money to witnesses in Colombia which was sent by
Albert van Bilderbeek to Ivan Otero, or his employees or
agents, in Colombia; (ii) assisted the co-defendants in
obtaining false testimony against Drummond, and did so with
full knowledge that it would be submitted in court
proceedings in Alabama; (iii) entered into a contractual
agreement with co-defendant Collingsworth to pursue
fraudulent claims against Drummond, a known Alabama resident,
relating to oil and gas rights in Colombia; (iv) participated
in or directed numerous phone calls, emails and other forms
of communications with the other RICO defendants and
coconspirators in the United States for the purpose of
planning and carrying out their conspiracy and extortionate
scheme; (v) participated in and orchestrated media campaigns
in Europe designed to fraudulently influence government
officials and the media for the purpose of extorting money
from Drummond. Albert van Bilderbeek committed his illegal
and wrongful acts with the purposeful intent that the effects
of his acts be felt in the United States, and Alabama in
particular, by Drummond, a known Alabama resident. Albert van
Bilderbeek's co-conspirators and agents have also engaged
in wrongful and illegal acts in the United States and in
Alabama. Albert van Bilderbeek was aware of the effects in
Alabama of those acts, which were for the benefit of van
Bilderbeek, and his co-conspirators and agents were working
at the direction, under the control, at the request, and/or
on behalf of van Bilderbeek in committing those acts.
(Doc. # 1-1 at & 37).
The Enterprise also solicited financial assistance from
Albert van Bilderbeek, a principal of Llanos Oil. Llanos Oil
previously sued Drummond in 2005 claiming its oil rights in
Colombia were “stolen” by Drummond, and that
Drummond conspired with the Colombian government to have
Hendrik van Bilderbeek-- the brother of Albert and another
principal of Llanos Oil -- imprisoned in Colombia on
suspicion of money laundering and involvement with Colombian
drug-traffickers. Llanos Oil's lawsuit against Drummond
was dismissed approximately 6 months after it was filed.
(Doc. # 1-1 at & 62).
By at least early 2010, Collingsworth and Albert van
Bilderbeek began working together on a plan to, in
Collingsworth's words, “clos[e] down
Drummond.” On May 3, 2010, Collingsworth and Albert van
Bilderbeek entered into a contingency fee agreement which
provided that Collingsworth would receive 33% of any recovery
against Drummond in connection with oil and gas rights
allegedly taken from Llanos Oil. The agreement stated that
Collingsworth had been providing legal advice on this issue
for approximately four months prior to the date of the
(Doc. # 1-1 at & 63).
On June 29, 2010, Collingsworth and Albert van Bilderbeek
discussed media coverage of Collingsworth's allegations
against Drummond, and strategized on ways to garner
additional media coverage with the Dutch press. During the
course of these discussions, Collingsworth informed Albert
van Bilderbeek, “I look forward to meeting and together
closing down Drummond.” (Doc. # 1-1 at & 64). Over
the next several months, Collingsworth worked with Albert van
Bilderbeek in attempting to secure funding for the
Enterprise's fraudulent litigation against Drummond, as
well as spreading the false allegations of Drummond's
complicity with the AUC throughout Europe. As described in
more detail below, it is known that Albert van Bilderbeek
provided more than $95, 000 to be paid to a person
Collingsworth has described as the “key witness”
(Doc. # 1-1 at & 65).
[Jaime] Blanco was arrested in September 2010 in connection
with the murders [of the three union leaders], and he
provided testimony to the Colombian authorities. He
testified, under oath, that … he had no knowledge of
Drummond being involved with the deaths of the union leaders.
(Doc. # 1-1 at & 91).
Collingsworth began ingratiating himself with Blanco, asking
Blanco to provide testimony against Drummond … .
Collingsworth told Blanco that Drummond was trying to pin the
union murders on him, and called Drummond their “mutual
enemy.” According to testimony by Collingsworth, at
some point Blanco requested assistance with his criminal
(Doc. # 1-1 at & 94).
Collingsworth met with Blanco in July 2011 and told him that
Conrad & Scherer would be unable to make direct payments
to him, but he had a person named Albert van Bilderbeek that
would be willing to pay. Collingsworth admits that he
facilitated these payments. The arrangement was set up for
van Bilderbeek to wire funds to Otero, who would then deliver
them to Blanco.
(Doc. # 1-1 at & 96).
Collingsworth has admitted under oath that Blanco would not
sign a declaration for the Enterprise unless and until he was
(Doc. # 1-1 at & 97).
In September 2011, Albert van Bilderbeek sent $60, 000 to
Otero to be given to Blanco.
(Doc. # 1-1 at & 98).
Less than 30 days later, Blanco signed a declaration for the
Enterprise falsely accusing Drummond of being complicit in
the union leader killings, as well as providing regular
payments to the AUC through Blanco's food services
(Doc. # 1-1 at & 99).
In December 2011, Collingsworth facilitated another payment
from van Bilderbeek to Blanco, via Otero.
(Doc. # 1-1 at & 100).
In July 2012, the Enterprise made another $35, 000 payment to
Blanco. Collingsworth facilitated another bank wire from
Albert van Bilderbeek to Otero, which Otero then gave to
(Doc. # 1-1 at & 106).
[I]n 2010, Collingsworth began meeting with Albert van
Bilderbeek in the Netherlands, not only to discuss financing
the fraudulent litigation against Drummond, but also to
garner media attention in the Netherlands. In an email from
June 2010 discussing their efforts with the Dutch press,
Collingsworth revealed his shared goal with van Bilderbeek of
“closing down Drummond.” Collingsworth has at
times described the subject of his communications with van
Bilderbeek as “campaign case strategy.”
(Doc. # 1-1 at & 158).
In December 2010, …, Albert van Bilderbeek requested
that Collingsworth send him a letter addressed to members of
the Dutch Parliament repeating the Enterprise's false
claims. … Collingsworth finalized the letter on
January 18, 2011, and emailed it to Albert van Bilderbeek to
be hand-delivered to government officials in Amsterdam. Van
Bilderbeek also immediately published the letter on the
Llanos Oil website. After characterizing as “objective
facts” the Enterprise's false allegations of
Drummond's complicity in human rights violations and mass
murder, Collingsworth concluded the letter by telling the
Dutch Prime Minister, “I hope that you will urge your
government to terminate any business relationship with
Drummond until it makes full amends for the atrocities it
committed in Colombia.”
(Doc. # 1-1 at & 159).
In February 2011, Collingsworth, with the editorial
assistance of Albert van Bilderbeek, prepared and sent
another letter to Dutch government officials, repeating the
false claims that Drummond was complicit in murder. This
letter, too, was immediately published on the Llanos Oil
(Doc. # 1-1 at & 160).
Defendant Albert van Bilderbeek made payments to Jaime Blanco
-- the “key witness” against Drummond according
to Mr. Collingsworth -- in exchange for his false testimony
against Drummond. Van Bilderbeek has also been intimately
involved in orchestrating media coverage in Europe for the
false testimony of these witnesses. Van Bilderbeek
orchestrated this media coverage in an effort to pressure
Drummond's European customers to cease doing business
with Drummond, to damage Drummond's business interests,
and to seek to have Drummond implicated in criminal activity
for his own financial benefit.
(Doc. # 1-1 at & 174(d)).
RICO claim against van Bilderbeek is premised on violations
of (1) the obstruction of justice statute, 18 U.S.C. §
1503 (Doc. # 1-1 at 164) and (2) the wire fraud statute, 18
U.S.C. § 1343. (Doc. # 1-1 at && 176-77).
Plaintiff's conspiracy to violate RICO claim,
misrepresentation and fraudulent suppression claims, and
civil conspiracy claim are all also stated against van
Bilderbeek. (Doc. # 1-1 at && 98-104).
support of his Motion to Dismiss, van Bilderbeek has
presented his own affidavit, as well as the affidavit of
Terrence Collingsworth. (Doc. 121-1 and 121-2). In his
affidavit, van Bilderbeek states that both he and
Collingsworth were involved in litigation against Drummond
and that they discussed their respective cases. (Doc. # 121-1
at && 25, 26). He further admits that Collingsworth
provided him “with statements concerning Drummond for
dissemination in the Netherlands” and that he
“was able to refer contact details of Dutch government
officials to assist Mr. Collingsworth in sending certain
statements about Drummond to them.” (Doc. # 121-1 at
& 26). Van Bilderbeek confirms that “[p]ublic media
statements issued by Mr. Collingsworth and others were placed
on Llanos Oil's website.” (Doc. # 121-1 at &
27). However, van Bilderbeek denies any nefarious intent in
these actions and asserts that these statements did not
influence any Alabama proceedings. (Doc. # 121-1 at &
28). Van Bilderbeek further admits to arranging payments to
Jaime Blanco, but denies that those payments were for the
purpose of securing testimony against Drummond. (Doc. # 121-1
at && 30-31).
response to van Bilderbeek's evidentiary submission,
Plaintiff has cited to evidence developed in the record in
Drummond v. Collingsworth, , Case No.
2:11-cv-03695-RDP-TMP (“the Defamation case”).
More specifically, Plaintiff points to factual evidence filed
in support of its Renewed Motion for Sanctions and to the
court's Memorandum Opinion and Order on that Motion.
(Case No. 2:11-cv-03695-RDP-TMP Docs. # 174, 417) Evidentiary
materials and testimony taken in that case show the
On September 8, 2010, Blanco was arrested and testified
before the Colombian Fiscalia that the allegation that
Drummond paid the AUC through Blanco's food services
company “is absolutely false and accounting-wise
(Case No. 2:11-cv-03695-RDP-TMP, Doc. # 417 at 23).
On February 21, 2011 Collingsworth made email contact with
On March 1, 2011, Collingsworth emailed Blanco and told him
that Drummond was trying to blame the union murders on
In April 2011, Blanco requested that Defendants pay him $150,
000 to ...