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Drummond Co., Inc. v. Collingsworth

United States District Court, N.D. Alabama, Southern Division

August 1, 2017

DRUMMOND COMPANY, INC., et al. Plaintiffs,
v.
TERRENCE P. COLLINGSWORTH, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         The 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.

         I. Introduction

         On 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).

         II. Standard of Review

         A Rule 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).

         Federal 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 Procedure 8).

         In 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).

         III. Relevant Factual Allegations

         The court addresses separately the allegations made against the two moving Defendants.

         A. Allegations Regarding Albert van Bilderbeek

         Van 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.[1] 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 agreement.

(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” against Drummond.

(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 legal fees.

(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 paid.

(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 company.

(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 Blanco.

(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 website.

(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)).

         Plaintiff's 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).

         In 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).

         In 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 following:

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 impossible.”

(Case No. 2:11-cv-03695-RDP-TMP, Doc. # 417 at 23).

On February 21, 2011 Collingsworth made email contact with Blanco.

(Id.).

On March 1, 2011, Collingsworth emailed Blanco and told him that Drummond was trying to blame the union murders on Blanco.

(Id.).

In April 2011, Blanco requested that Defendants pay him $150, 000 to ...

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