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DE LOS RIOS v. NATIONSBANK

December 14, 1995

JULIO de LOS RIOS, Plaintiff,
v.
NATIONSBANK, N.A., formerly AMERICAN SECURITY BANK, N.A., et al., Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the court on motions to dismiss filed by the NationsBank Defendants and by Co-Defendant, Pietro Barbi. *fn1" Plaintiff's complaint alleges that the Defendants' breach of contract and negligent handling of bank accounts, assets, and investments belonging to the Peruvian Naval Commission proximately caused injury to the Plaintiff.

 FACTS

 Shortly after Mr. Villagarcia assumed his post, he began embezzling funds from the PNC and the Republic of Peru. Plaintiff alleges that Mr. Villagarcia opened fraudulent accounts at ASB in the name of the PNC which required only one signature, that of Mr. Villagarcia, and transferred PNC funds, assets, and investments into those accounts.

 Count I of Plaintiff's complaint asserts that ASB was negligent in that it failed to follow its own internal procedures, the agreed-upon "special procedures," and "sound reasonable commercial standards and practices," causing the bank to breach its contract with the PNC. Counts II through V allege that the accounts were opened, maintained, and concealed by Mr. Villagarcia by means of the negligent acts and fraudulent misrepresentations of Co-Defendants Pietro Barbi, Vice President of ASB, and other John/Mary Doe directors, officers, and personnel.

 After the discovery of Mr. Villagarcia's fraud more than twelve years after it had begun, Plaintiff was convicted of negligence and disobedience in a Peruvian Military Court and imprisoned. He claims to have suffered financial and emotional damages and loss of reputation due to his trial, imprisonment, and resulting media coverage. He alleges that he has lost both his position as main academian in the Peruvian Military College and the opportunity to obtain future contracts for the publication of books on military strategy. Finally, Plaintiff claims that the military, the government, the media, and the citizens of Peru have launched a "retaliation and defamation campaign" against him.

 Plaintiff's complaint alleges that the Defendants' fraudulent misrepresentations, negligence, and resulting breach of contract to PNC were the proximate cause of his conviction, imprisonment, emotional distress, and loss of status.

 ANALYSIS AND DECISION

 I. STANDARD FOR A MOTION TO DISMISS.

 In ruling on a motion to dismiss for failure to state a claim upon which relief may be granted, the Court must accept as true each of the allegations in the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). The Court may dismiss a complaint only if 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, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 II. PLAINTIFF CANNOT ESTABLISH THAT DEFENDANTS' ALLEGED ACTS WERE THE PROXIMATE CAUSE OF HIS INJURIES2

 The proximate cause of an injury is one which, "in its natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred." Wagshal v. District of Columbia, 216 A.2d 172, 175 (D.C. 1966) (quoting Howard v. Swagart, 82 U.S. App. D.C. 147, 161 F.2d 651, 655 (1947)). Proximate cause requires a showing that the plaintiff's injuries were "either a direct result or a reasonably probable consequence" of the acts. District of Columbia v. Freeman, 477 A.2d 713, 716 (1984) (quoting Standardized Civil Jury Instructions for the District of Columbia, No. 5.11 (Rev. ed. 1981)).

 A defendant will be liable for injuries which were "foreseeably attributable to his or her conduct. . ." White v. United States, 250 U.S. App. D.C. 435, 780 F.2d 97, 106 (D.C. Cir. 1986) (quoting Morgan v. District of Columbia, 449 A.2d 1102, 1111 (D.C. 1982), vacated on other grounds, 468 A.2d 1306 (D.C. 1983). Under District of Columbia law, proximate causation is not limited to the issue of foreseeability. White, 780 F.2d at 106. A defendant may be held liable for unforeseeable harm attributable to his or her conduct unless it appears to the court "highly extraordinary" that defendant's actions could have caused the injury in question. Morgan v. District of Columbia, 449 A.2d at 1111, vacated on other grounds, 468 ...


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