United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
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.
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.
Factual Allegations in the Complaint
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.
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
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.
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.
Subject Matter Jurisdiction
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),  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).
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.
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).
Possible Sources of Federal Question Jurisdiction in 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.
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
Id. at ¶ 31 (quoted verbatim but divided into
paragraphs for clarity).
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.
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. 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.
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
¶ 38. He ...