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Belevich v. Thomas

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

November 7, 2018

VALENTIN BELEVICH, Plaintiff,
v.
KLAVDIA THOMAS and TATIANA KUZNITSNYNA, Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Valentin Belevich brings this action against Klavdia Thomas and Tatiana Kuznitsnyna (“the Defendants”) under the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. (“INA”) for breach of contract and intentional infliction of emotional distress. Doc. 1. The Defendants have asserted counterclaims of extortion, misrepresentation, fraud, and conversion. Docs. 23, 25. Belevich has moved to dismiss these counterclaims for failure to state a claim on which relief can be granted, doc. 29, and the motion is ripe for review. For the reasons stated more fully below, the motion is due to be granted.

         I. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). By contrast with Rule 8(a)'s fairly liberal pleading standard, Federal Rule of Civil Procedure 9(b) requires a party to “state with particularity the circumstances constituting fraud or mistake.” This means the claimant must allege: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the [claimants]; and (4) what the [opposing party] gained by the alleged fraud.” American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)).

         Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a claim or counterclaim when a pleading fails to state a claim upon which relief can be granted. To survive a motion to dismiss counterclaims, the pleadings “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted); see, e.g., Geter v. Galardi South Enterprises, 43 F.Supp.3d 1322, 1325 (S.D. Fla. 2014) (“A motion to dismiss a counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) is evaluated in the same manner as a motion to dismiss a complaint.”); Johnson Outdoors Inc. v. Navico, Inc., 774 F.Supp.2d 1191, 1195 (M.D. Ala. 2011) (applying Iqbal standard to examine a motion to dismiss counterclaims). A claim is facially plausible when the claimant pleads “factual content that allows the court to draw the reasonable inference that the [opposing party] is liable for the misconduct alleged.” Id. (citation omitted). The allegations must establish “more than a sheer possibility” that the opposing party acted unlawfully. Iqbal, 556 U.S. at 678; see Bell Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         II. FACTUAL BACKGROUND

         Belevich, a Russian citizen and legal permanent resident of the United States, filed this action against his wife Kuznitsnyna and Kuznitsnyna's daughter, Thomas. Docs. 25 ¶¶ 1-8; 1 ¶¶ 1-8. Kuznitsnyna and Thomas, both of whom are United States citizens, jointly sponsored Belevich's immigration to the United States by co-signing and filing an I-864 Affidavit of Support on his behalf pursuant to § 213 of the INA, 8 U.S.C. § 1183a. Docs. 25 ¶¶ 18-20; 1 ¶¶ 18-20. An affidavit of support is “executed by a sponsor of the alien as a contract . . . in which the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty level during the period in which the affidavit is enforceable.” 8 U.S.C. § 1183a(a)(1)(A). Notably, the affidavit does not terminate on divorce, docs. 33 ¶ 12; 1 ¶ 12, and it lasts until the alien becomes a naturalized citizen or “has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act.” 8 U.S.C. § 1183a(a)(2)-(3).

         The Department of Homeland Security ultimately granted Belevich a visa that allowed him to immigrate to Alabama in 2012. Docs. 25 ¶¶ 6, 20; 1 ¶¶ 6, 20. Once in Alabama, Belevich worked various jobs, including a full-time position as an auto mechanic, and contributed to his and Kuznitsnyna's finances until late 2014. Docs. 25 ¶¶ 24-25; 1 ¶¶ 24-25. Subsequently, Kuznitsnyna filed for divorce and obtained a protection from abuse order against Belevich. Doc. 6 at 2.

         In the present action, Belevich claims that the Defendants have breached their contractual obligations under the I-864 Affidavit of Support and requests specific performance, compensatory damages, and damages for intentional infliction of emotional distress. Doc. 1 at 7-9. In support of his claims, Belevich makes several contested factual allegations: (1) that, in late 2014, he suffered a heart attack and subsequently lost his job as an auto mechanic. Id. ¶ 26; (2) that, shortly after losing his job, he temporarily traveled to Russia to care for his ailing mother. Id. ¶ 28; and (3) that Thomas sought to prevent Belevich's return to the United States by cancelling his credit card, cell phone, and return ticket, and that Thomas also emptied his retirement accounts and liquidated his remaining Russian assets without his knowledge. Id. ¶ 29. These events purportedly caused Belevich to suffer a second heart attack. Id. ¶ 30. Allegedly relying on borrowed money, Belevich purchased a ticket and returned to the United States in October 2015. Id. ¶ 32. However, since his return, Kuznitsnyna has refused to let Belevich return to their home or to retrieve his personal property, and the Defendants have not fulfilled their obligations under the I-864 Affidavit of Support, forcing Belevich to rely on government benefits and charity. Id. ¶¶ 33-38.

         In their answer and amended answer, the Defendants assert counterclaims for extortion, misrepresentation, fraud, and conversion. Docs. 23, 25. Basically, the Defendants allege that Belevich: (1) threatened Kuznitsnyna that, unless she paid him $10, 000, he would attempt to enforce or otherwise use the I-864 Affidavit of Support against her and Thomas. Doc. 25 ¶ 56; (2) falsely represented to the Defendants that he had suffered a heart attack, in order to obtain money from Thomas and as part of his plan to dissolve his marriage with Kuznitsnyna. Id. ¶ 57; and (3) knowingly and falsely represented to U.S. Customs and Border Patrol on his return from Russia in 2015 that he was domiciled in the United States, and purportedly did so to prevent the agency from concluding that he had abandoned his status as a legal permanent resident and to enable his return to the United States to enforce the I-864 Affidavit of Support. Id. ¶¶ 58-59. Presently before the court is Belevich's motion to dismiss the counterclaims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 29.

         III. ANALYSIS

         The court must determine initially whether to grant the Defendants leave to amend their answer a second time. Rule 15 only permits a party one opportunity to amend a pleading as a matter of course. See Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleading once as a matter of course . . .”); Logue v. Patient First Corp., 246 F.Supp.3d 1124, 1126-27 (D. Md. 2017) (“[O]nly one opportunity is afforded by Rule 15 to amend any pleading as a matter of course.” (emphasis in original)). Consequently, the Defendants are required to obtain either Belevich's written consent or leave to amend their answer a second time, see Fed. R. Civ. P. 15(a)(2), which the Defendants failed to do. Here, however, the second amended answer would only add the word “falsely” to the Defendants' first misrepresentation claim and correct minor grammatical errors and omissions in their initial counterclaims, doc. 33 at 5-6. Therefore, the court will allow the amendment.

         Turning now to the motion to dismiss, in their second amended answer, doc. 33, the Defendants allege five counterclaims against Belevich: extortion, two claims of misrepresentation, fraud, and conversion. Belevich contends that each claim fails to state a claim on which relief can be granted. The court agrees.

         A. ...


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