United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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,
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)).
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.
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. §
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.
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.
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.
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.
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