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RAPOPORT v. REPUBLIC OF MEXICO

October 17, 1985

MAURICE A. RAPOPORT, et al., Plaintiff
v.
REPUBLIC OF MEXICO, et al., Defendants



The opinion of the court was delivered by: PENN

 This matter comes before the Court on the defendants' motion to dismiss. It is well-established law that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). All well-pled allegations in the plaintiff's complaint must be accepted as true at this stage. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S. Ct. 2490, 2492, 53 L. Ed. 2d 557 (1976); Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 969 (D.C. Cir. 1979). Applying these standards to the instant action, and for the reasons stated herein, the Court finds that the motions to dismiss must be granted.

 I

 On July 9, 1984, pro se plaintiff, Maurice Rapoport, filed a fifty-three page complaint naming thirty-five defendants, in which he alleged causes of action for various commercial and intentional torts (including kidnapping and torture). The defendants filed motions to dismiss in November 1984. Rapoport later sought leave to file an amended complaint, *fn1" adding additional claims under the federal securities laws, and dropping all but four defendants: Banco Mexicano Somex, S.A. ("Somex"); Nacional Financiera, S.A. ("Nafinsa"); the United Mexican States ("Mexico") and Sociedad Financiera de Industria y Descuento ("Sofides"). *fn2" On May 20, 1985, the Court granted leave to file the amended complaint.

 Concluding that all of the issues raised in the amended complaint are substantially the same as those raised in the original complaint, on April 1, two of the remaining defendants, Nafinsa and Somex, filed supplemental memoranda in support of their pending motions to dismiss the original complaint. On April 16, 1985 Mexico also filed a supplemental memorandum which adopted the arguments set forth in the Nafinsa and Somex memoranda. The plaintiff was ordered to respond to the motions to dismiss by April 29, 1985. Rapoport filed his responses on May 1, 1985.

 The defendants move to dismiss on the following grounds: sovereign immunity under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 - 11; non-justiciability under the Act of State doctrine; the doctrine of res judicata and the estoppel effect of the previous adjudications in New York and Mexican courts; the absence of indispensable parties, the doctrine of forum non conveniens, due process considerations, and the District of Columbia statute of limitations. A recitation of the facts as reflected in the record, and plaintiff's litigious history concerning the ownership of various promissory notes issued by Somex Bank, is helpful for an understanding of the Court's decision.

 The plaintiff, Maurice Rapoport, a naturalized American citizen, has spent a considerable amount of time living and working in Mexico. While there, he acquired an interest in a Mexican corporation ("Constructora") and married Teresa Solorzano Rocho, a Mexican citizen. The action evolves around certain funds deposited by Rapoport, and Ms. Solorzano, into two Mexican bank accounts.

 Commencing in 1969, Constructura invested funds in Mexican promissory notes. Those notes were issued by Sociedad Mexicana de Credito Industrial, S.A., a credit institution now known as Banco Mexicano Somex, S.N.C. (Somex). The investments were payable in Mexican currency at Somex's Mexico City office. During 1977 and 1978, Rapoport also made a series of peso deposits into another account entitled "Maurice Rapoport and/or Diane Rapoport, his daughter," which were payable to Rapoport or his daughter.

 Rapoport married Ms. Solorzano on December 15, 1976. However, he was expelled from the country in 1977. In the ensuing months, deposits and withdrawals were made by Ms. Solorzano, in connection with the Constructora account. Rapoport returned to Mexico in September 1978. Upon re-entry, Rapoport was arrested by Mexican authorities for violation of the immigration laws.

 During that period, Ms. Solorzano instituted divorce proceedings against him in the 4th Family Court of the Federal District of Mexico. On December 7, 1978, Somex Bank was served with an Order from the 4th Family Court, directing it to withhold 20,000 pesos per month, out of the interest on Rapoport's investments, to be paid to Ms. Solorzano as alimony.

 While incarcerated, Rapoport became anxious about his account funds. With the assistance of two prison comrades, Carlos Herrera Crespo and Louis Barragan Levya, and notwithstanding the alimony order, Rapoport devised a scheme to overcome his inability to withdraw all of the money from his account. He concocted a plan in which Herrera and Barragan would withdraw Rapoport's funds from Somex, return the funds to him, and receive a fee for their participation in the plan. Accordingly, the plaintiff executed promissory notes in favor of Barragan and Herrera, aggregating the full amount of his deposits in the Rapoport account. They in turn, executed notes in favor of Rapoport for identical amounts less ten percent (their fee for "services rendered".)

 The plan backfired, and in March 1979, Herrera and Barragan filed suit against Rapoport on the promissory notes in the 40th Civil Court of the Federal District of Mexico. By Court Order dated March 15, 1979, and with Rapoport's consent, Somex Bank was directed to pay 4,514,190 pesos to Herrera and Barragan in satisfaction of their claims. The Family Court nonetheless directed Somex to continue its monthly payments to Rapoport's ex-wife.

 Thus, as of March 1979, Somex Bank was in receipt of conflicting orders from the 4th Family Court and the 40th Civil Court, regarding the disbursement of the funds held in the Rapoport account. Accordingly, Somex commenced a "de consignacion" proceeding in the 28th Court of Civil Justice of the Federal District of Mexico, in an effort to resolve the conflict. In a consignation proceeding (in the nature of our interpleader action), a bank deposits funds in the Court, and as certain instruments due the account mature, the bank continues to make such deposits. Mr. Rapoport, Ms. Solorzano, Ms. Diana Rapoport, Mr. Herrera, and Mr. Barragan all appeared in this suit. During that proceeding, in August 1979, Somex deposited 2,940,572 pesos with defendant Nacional Financiera, S.A. (Nafinsa), the official Government depository bank for consignation proceeds. Somex, thereafter, deposited the proceeds of every certificate of deposit it held in Rapoport's name on a regular basis as the certificates matured. When the process was completed, in October 1981, the Civil Court decreed that Somex was freed from its obligation to Rapoport and other claimants to the fund. (Pena Gomez Affidavit, Exhibit 1 at 3.)

 Meanwhile, another dispute had arisen during the pendency of the divorce proceedings. Somex Bank began to receive conflicting instructions from the Rapoports as to the rightful payee of the Constructora account (and authority to withdraw funds). For purposes of clarification, on August 25, 1978, Somex Bank instituted another consignation proceeding in the 7th Civil Court of Justice of the Federal District of Mexico. In June 1980, that Court decreed that Somex's ...


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