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Zulveta v. Larmore Landscape Associates

United States District Court, M.D. North Carolina

February 7, 2019



          Catherine C. Eagles, District Judge.

         Armando Despaigne Zulveta, acting pro se, has sued his former employer, Larmore Landscape Associates, along with its president, and four company employees asserting claims related to the company's alleged hiring of undocumented aliens. Mr. Zulveta's federal civil RICO claim confers subject matter jurisdiction, but he has not alleged sufficient facts to plausibly state a RICO claim on which relief may be granted. Nor has he properly served process on Larmore Landscape, leaving the Court without personal jurisdiction over that defendant.

         The Court will grant the motions to dismiss but will withhold entry of judgment to allow Mr. Zulveta to seek an extension to obtain proper service and to cure other defects in his pleadings. If he does not take advantage of this opportunity, or if his efforts fail to show good cause or are futile, judgment will be entered for the defendants.

         I. Factual Allegations in the Complaint

         Mr. Zulveta was formerly employed by Larmore Landscape, apparently as a landscaper. See Doc. 1 at ¶¶ 1, 11. In 2017, two company employees, defendants Modesto Perez and Silvestre Orbe, told him that the company employed “unauthorized workers” and that they, too, were unauthorized. Id. at ¶ 13.

         “At one point” during his employment, Mr. Zulveta was with Mr. Perez, Mr. Orbe, and defendant Andy Jones, a “crew leader, ” when an interracial couple “passed by” the group; Mr. Perez expressed his disapproval of interracial relationships. Id. at ¶¶ 11, 15- 16. Mr. Perez and Mr. Orbe, speaking in Spanish, then began to “denigrate and smear Black people or African American[s] as a whole group.” Id. at ¶ 16. Mr. Zulveta reminded Mr. Perez and Mr. Orbe “that he is Black [and] understand[s]” Spanish, but they continued to use various racial slurs against African Americans and against him personally. Id. at ¶¶ 16-17. Mr. Zulveta “expressed his wish to make a complaint with the company” that Mr. Perez and Mr. Orbe were unauthorized and “not supposed to work alongside . . . Plaintiff, ” and to complain about “bullying and harassment” while crew leader Mr. Jones was present. Id. at ¶ 18. Mr. Jones reacted to his complaint with “disgust and disapproval;” after calling “the office, ” Mr. Jones took Mr. Zulveta to the office so, Mr. Zulveta thought, that he could lodge a complaint. Id. at ¶¶ 19-20.

         Instead, Mr. Zulveta was left outside the office and “ambushed . . . while Defendant[s] . . . conspired among themselves inside.” Id. at ¶ 20. Mr. Jones met inside with defendant Ben Butner, a manager of pruning services, “who after a while came out . . . and also wanted [Mr. Zulveta] to drop the complaint.” Id. at ¶ 21.

         Ultimately, Mr. Zulveta was “[i]nvoluntar[i]ly dismissed, ” and “Defendant Landscapers' discharging documents” state he was “dismissed . . . for being combative towards employees Orbe and Perez.” Id. at ¶ 22. In reality, he maintains, Mr. Jones and Mr. Butner conspired to terminate his employment to “silence [his] complaint” about Mr. Orbe and Mr. Perez being undocumented. Id. at ¶ 29.

         II. Subject Matter Jurisdiction

         A. Generally

         Subject matter jurisdiction is a “threshold matter” courts must address before making any decision on the merits, Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998), [1] including dismissing a complaint for failure to state a claim. Bell v. Hood, 327 U.S. 678, 682 (1946). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Pres. Ass'n v. Cty. Comm'rs of Carroll Cty., Md., 523 F.3d 453, 459 (4th Cir. 2008).

         “Absent diversity, a district court has subject matter jurisdiction . . . only if the action arose under the Constitution, laws, or treaties of the United States.” Interstate Petroleum Corp. v. Morgan, 249 F.3d 215, 219 (4th Cir. 2001) (citing 28 U.S.C. § 1331). Mr. Zulveta alleges that he and each of the defendants reside in North Carolina, Doc. 1 at ¶¶ 3-9, and he makes no allegation or claim that there is diversity of citizenship.

         The only potential basis for subject matter jurisdiction, then, is a claim “arising under” federal law. 28 U.S.C. § 1331. If federal law “creates the cause of action, ” a federal district court “unquestionably” has subject matter jurisdiction. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994); see also Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 8-10 (1983), superseded by statute on other grounds, 28 U.S.C. § 1441(e).

         B. Possible Sources of Federal Question Jurisdiction in the Complaint

         The complaint is not a model of clarity as to the claims Mr. Zulveta intends to assert. He appears to reference four possible sources of federal question jurisdiction: The Immigration Reform and Control Act; the Racketeer Influenced Corrupt Organizations Act; “U.S.C. § 1324;” and the Constitution. Doc. 1 at ¶¶ 31, 37-38, 40.

         In a section of the complaint with the heading “Non Legality of Defendants's [sic] Civil Action, ” Mr. Zulveta asserts that defendants Larmore Landscape and Mr. Larmore violated four laws. As the complaint words it:

a) The State of North Carolina's Anti Trust laws Chapter 75. Monopolies, Trusts and Consumer Protection use unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce,
b) in violation of federal statutes U.S.C. § 1324,
c) in violation of The Racketeer Influenced Corrupt Organizations (RICO) Act,
d) in violation of The Immigration Reform and Control Act (IRCA) is employing unauthorized workers. Employing ten (10) or more unauthorized workers in one (1) year and for more than ten (10) years who are named: Silvester Orbe, Modesto Perez Bonifacio Herrera, [and nine others specifically identified].

Id. at ¶ 31 (quoted verbatim but divided into paragraphs for clarity).

         In the next paragraph, Mr. Zulveta contends Mr. Perez and Mr. Orbe have displayed “bias and prejudice against a co-worker, at the working place.” Id. at ¶ 32. He does not, however, reference any specific statutes or theories of liability. See id.

         In the next section, titled in its entirety as “Defendants Separately or Collectively Engaged In, ” Mr. Zulveta provides two sub-headings: “Count I -- Civil Conspiracy” and “Count II -- Failure to Intervene.” Id. at 6. Under the “Count I” subheading, he asserts the defendants acted in concert to accomplish “an unlawful purpose and a lawful purpose by unlawful means.” Id. at ¶ 34. He references an “underlying tort” and “a tortious act, ” though he does not explicitly identify the tort or the tortious act. Id. at ¶¶ 34, 35.[2] He alleges the defendants as a group “conspired and dismissed Plaintiff from [his] job, ” and “committed a tortious act in concert with the other[s] pursuant to a common design.” Id. at ¶¶ 34-35. He contends the conspiracy violated his “Constitutional Rights, ” but does not specify which of his constitutional rights were violated. Id. at ¶ 37.

         Under the “Count II” subheading, Mr. Zulveta alleges that “during the constitutional violations described above, one o[r] more of the Defendants stood by without intervening to prevent the misconduct.” Id. at ΒΆ 38. He ...

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