Schiff v. Internal Revenue Services et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PETER DAVID SCHIFF,
Plaintiffs,
v.
INTERNAL REVENUE SERVICE, et al.,
Defendants.
CIVIL NO.: 24-1511 (CVR)
REPORT AND RECOMMENDATION
I. 	PROCEDURAL B ACKGROUND
On June 5, 2025, plaintiff Peter David Schiff (“Plaintiff”) filed a Second Amended
Complaint 	(the 	“complaint”), 	alleging 	various 	claims 	against 	Will 	Day 	(“Mr. 	Day”), 	a
representative of the Australian Taxation Office (“ATO”), Eric Ferron (“Mr. Ferron”), a
representative of the Canada Revenue Agency (“CRA”), Niels Obbinik (“Mr. Obbinik”), a
representative of Fiscale Inlichtingen-en Opsporingsdienst (“FIOD”), and Simon York (“Mr.
York”), a representative of His Majesty’s Revenue and Customs (“HMRC”) (collectively, the
“Foreign Defendants”) 1, among others. ECF No. 121. Specifically, Plaintiff brings a claim against
the Foreign Defendants under 42 U.S.C. § 1985(3) (“Section 1985(3)”) and claims for tortious
interference with business relations and defamation under Article 1536 of the Puerto Rico Civil
Code of 2020, 31 L.P.R.A. § 10801.2 Id. at 4-6.
1 As discussed further below, Plaintiff does not specify in the complaint in what capacity any of the Foreign
Defendants are sued in.
2 Plaintiff also brings a claim alleging violation of his due process rights under 42 U.S.C. § 1983 (“Section 1983”) and
an independent claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971) (“Bivens”). However, neither of these claims are levied against the Foreign Defendants. Plaintiff also brings a
claim for violation of his due process rights and unlawful seizure of property under the Fifth Amendment in the
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On June 18, 2025, Mr. Ferron filed a motion to dismiss Plaintiff’s claims against him
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, Federal
Rule of Civil Procedure 12(b)(5) 3 for improper service, and Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted. ECF No. 129. Plaintiff
responded. ECF No. 138. Mr. Ferron replied. ECF No. 148. Then, on June 23, 2025, Mr. York
filed a motion to dismiss Plaintiff’s claims against him pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(5) for
improper service. ECF No. 139. Plaintiff responded. ECF No. 145. Mr. York replied. ECF No.
187.
One month later, on July 28, 2025, Mr. Day filed a motion to dismiss Plaintiff’s claims
against him pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, Federal Rule of Civil Procedure 12(b)(5) for improper service, and Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. ECF No.
159. Plaintiff responded. ECF No. 179. Mr. Day replied. ECF No. 203. On July 30, 2025, Mr.
Obbinik filed a motion to dismiss on the same grounds and Plaintiff responded.4 ECF Nos. 166,
180. Mr. Obbinik replied. ECF No. 204. For the reasons that follow, it is recommended that all the
Foreign Defendants’ motions to dismiss (ECF Nos. 129, 139, 159, 166) be GRANTED.
alternative to his Bivens claim. He alleges that this alternative claim is brought against “All Defendants”. ECF No.
121 at 4-6. However, since the Bivens claim is not brought against the Foreign Defendants the alternative Fifth
Amendment claim cannot be brought against the Foreign Defendants, despite Plaintiff’s assertion otherwise. Id.
Therefore, this Report and Recommendation does not consider the Fifth Amendment claim.
3 Given that it is recommended to dismiss all claims against the foreign defendants on both Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) grounds, the Foreign Defendant’s arguments that service was improper under
Federal Rule of Civil Procedure 12(b)(5) are not considered in this report and recommendation.
4 Both Mr. Day and Mr. Obbinik include Federal Rule of Civil Procedure 12(b)(2) as grounds for dismissal lack of
personal jurisdiction. However, their reasons for dismissal on these grounds is not differentiated from their argument
for dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For that reason
their arguments are considered in the context of Federal Rule of Cvil Procedure 12(b)(1).
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II. 	S UMMARY OF ALLEGATIONS OF THE COMPLAINT
Plaintiff owned a financial institution called Euro Pacific International Bank ("the Bank").
ECF No. 10 at 3, ¶ 1. The Bank was subject to scrutiny by the Internal Revenue Service (“IRS”)
and OCIF as part of a joint tax enforcement investigation called "Operation Atlantis" conducted
by the Joint Chiefs of Global Tax Enforcement (known as “J5”). Id. J5 combats transnational tax
crime through gathering information, sharing intelligence, conducting operations, and building the
capacity of tax crime enforcement. Id. at ¶ 2(b)(viii). The J5 consists of five members, all named
defendants in this case: the IRS, Mr. Day, Mr. Ferron, Mr. Obbink, and Mr. York (the “J5
Defendants”). Id. at 3.
“Operation Atlantis” was initiated when Plaintiff arranged for the sale of the Bank's stock
to a company called Qenta for $17.5 million. Id. at ¶ 3. OCIF initially supported the sale but
ultimately blocked it on May 16, 2022, at the request of the J5 Defendants. Id. Instead, OCIF
approved an asset sale to Qenta for $1.25 million after the Bank entered receivership. Id. Plaintiff’s
offer to inject $7 million in capital was rejected by the OCIF Commissioner, who assured Plaintiff
that the Bank’s capital level, though below the statutory required minimum, was sufficient for the
bank to operate prior to the completion of the sale to Qenta. Id. As of June 5, 2025, OCIF’s
appointed Trustee had not completed the Bank’s liquidation. Id. at 5.
On June 30, 2022, Mr. Jim Lee, at the time the IRS Chief of Criminal Investigations, made
statements during a press conference in Puerto Rico to announce the investigation into the Bank.
Id. ¶ 2; Id. at 5. All J5 Defendants and OCIF representatives were present. Id. In this press
conference it was implied that Plaintiff was involved in illegal tax evasion and money laundering.
Id. Plaintiff found out in April of 2024, after receiving information from the IRS, that the J5
Defendants agreed to leak confidential investigation information to the media, specifically to
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defendants Mr. Goldstein, Ms. Grieve, and Mr. McKenzie, who then disseminated the allegations
of tax evasion and money laundering regarding Plaintiff and the Bank, despite knowing these
claims were unsubstantiated. Id. at ¶¶ 5-6. As result of these statements and as result of the delay
in completing the Bank’s liquidation, Plaintiff's reputation was damaged, and Plaintiff suffered
significant financial harm. Id. at ¶ 3; Id. at 5-6.
III. 	MOTION TO DISMISS FOR L ACK OF S UBJECT MATTER JURISDICTION
A. Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”), a defendant may
move to dismiss an action for lack of subject matter jurisdiction. “As courts of limited jurisdiction,
federal courts have the duty to construe their jurisdictional grants narrowly.” Fina Air, Inc. v.
United States, 555 F. Supp. 2d 321, 323 (D.P.R. 2008) (citing Alicea Rivera v. SIMED, 12 F. Supp.
2d 243, 245 (D.P.R. 1998)). Since federal courts have limited jurisdiction, the party asserting
jurisdiction has the burden of demonstrating the existence of federal jurisdiction. See Murphy v.
United States, 45 F. 3d 520, 522 (1st Cir. 1995); Droz-Serrano v. Caribbean Records Inc., 270 F.
Supp. 2d 217 (D.P.R. 2003).
Challenges to subject matter jurisdiction through a Rule 12(b)(1) motion may constitute
either a facial or factual challenge. Valentín v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.
2001); Mercado Arocho v. United States, 455 F. Supp. 2d 15, 18 (D.P.R. 2006); Rivera de León
v. Maxon Engineering Servs., Inc., 283 F. Supp. 2d 550, 554 (D.P.R. 2003). To decide whether
a 12(b)(1) motion is a facial or factual challenge, a court must determine whether the motion
disputes the complaint's allegations regarding subject matter jurisdiction. Torres-Negrón v. J & N
Records, LLC, 504 F.3d 151, 162 fn.8 (1st Cir. 2007). If the 12(b)(1) motion does not dispute
subject matter allegations, then it challenges only the facial sufficiency of the complaint. Id. If
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the 12(b)(1) motion disputes the subject matter allegations, then it challenges the factual basis for
subject matter jurisdiction. Id.
Under a facial challenge, the moving party challenges jurisdiction based on the allegations
in the complaint. See Valentín, 254 F.3d at 363; Mercado Arocho, 455 F. Supp. 2d at 18; Rivera
de León, 283 F. Supp. 2d at 554. Thus, “the court must consider all the allegations in the complaint
as true, and will not look beyond the face of the complaint to determine jurisdiction.” Mercado
Arocho, 455 F. Supp. 2d at 18. A facial attack only requires a court to examine the complaint and
determine 	whether 	the 	plaintiff 	“has 	sufficiently 	alleged 	a 	basis 	of 	subject 	matter
jurisdiction.” Torres-Negrón, 504 F.3d at 162 (quoting Scarfo v. Ginsburg, 175 F.3d 957, 960
(11th Cir. 1999)); see, e.g., Fina Air Inc., 555 F. Supp. 2d at 325–28 (examining a facial attack
and applying the standard articulated in Torres-Negrón).
On the other hand, under a factual challenge, “the allegations have no presumptive
truthfulness, and the court ... has discretion to allow affidavits, documents, and even a limited
evidentiary hearing to resolve disputed jurisdictional facts.” Mercado Arocho, 455 F. Supp. 2d at
18 (citations omitted). The analysis changes depending on whether the challenged facts would also
decide issues relating to the merits of the case. Torres-Negrón, 504 F.3d at 163. If the challenged
facts do involve the merits of the case, the court must use a summary judgment standard and
dismiss “ ‘only if the material jurisdictional facts are not in dispute and the moving party is entitled
to prevail as a matter of law.’ ” Id. (quoting Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813
F.2d 1553, 1558 (9th Cir. 1987)). If the challenged facts do not involve the merits of the case, then
the court is free to consider evidence and decide the question of its subject matter jurisdiction over
the case. Id.
“When a court is confronted with motions to dismiss under both Rules 12(b)(1) and
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12(b)(6), it ordinarily ought to decide the former before broaching the latter.” Deniz v. Municipality
of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002); see also, Dynamic Image Technologies Inc. v.
U.S., 221 F.3d 34, 37 (1st Cir. 2000) (as general matter, courts should give Rule 12(b)(1) motions
precedence); Bell v. Hood, 327 U.S. 678, 682 (1946) (“Whether the complaint states a cause of
action on which relief could be granted is a question of law [which] must be decided after and not
before the court has assumed jurisdiction over the controversy.”).
B. Analysis
The Foreign Defendants move first to dismiss Plaintiff’s complaint for lack of subject
matter jurisdiction. ECF No. 129 at 3-12; ECF No. 139 at 10-25; ECF No. 159 at 6-12; ECF No.
166 at 7-10. Specifically, the Foreign Defendants argue that they are barred by both the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq., and the common law of
foreign sovereign immunity. See Id. For the following reasons, the Court does not have the
authority to hear Plaintiff’s claims against the Foreign Defendants.
The FSIA “‘provides the sole basis for obtaining jurisdiction over a foreign state in Federal
court.’” Universal Trading & Inv. Co. v. Bureau for Representing Ukrainian Ints. in Int’l &
Foreign Cts., 727 F.3d 10, 16 (1st Cir. 2013) (quoting Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 443 (1989)). Under the FSIA, a “foreign state shall be immune from
the jurisdiction” of both federal and state courts unless an exception applies under 28 U.S.C. §
1604. 	See §§ 1605–1607 (2006 ed. and Supp. II) (enumerating exceptions). However, an
individual foreign official sued for conduct undertaken in his official capacity ordinarily is not a
"foreign state" entitled to immunity from suit within the meaning of the FSIA. See Samantar v.
Yousuf, 560 U.S. 305 (2010); see also Hussein v. Maait, 129 F.4th 99 (2nd Cir. 2025) (holding
that an individual foreign official sued for conduct undertaken in his official capacity is neither a
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"foreign state" nor “agency or instrumentality of a foreign state” under the FSIA); Yousuf v.
Samantar, 699 F.3d 763 (4th Cir. 2012) (holding that common law, not the FSIA, governs claims
of immunity of individual foreign officials). Yet, the Samantar court also recognized that in “some
circumstances the immunity of the foreign state extends to an individual for acts taken in his
official capacity.” 560 U.S. at 323. For example, the court noted that “it may be the case that some
actions against an official in his official capacity should be treated as actions against the foreign
state itself, as the state is the real party in interest.” Id. at 325 (citing Cf. Kentucky v. Graham, 473
U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated
as a suit against the entity. It is not a suit against the official personally, for the real party in interest
is the entity.”) (citation omitted)). The Foreign Defendants first argue that the actions against the
foreign officials in their official capacities should be treated as actions against the foreign state
itself, as their respective countries, i.e., Canada, Australia, the United Kingdom, and the
Netherlands (the “Foreign Sovereigns”), are the real parties of interest in this case. ECF No. 129
at 3; ECF No. 139 at 4; ECF No. 159 at 5; ECF No. 166 at 7. With these principles in mind, the
Foreign Defendants’ controversy is analyzed to determine whether the Foreign Sovereigns are the
real party of interest.
A state is generally treated as the real party in interest if “the judgment sought would
expend itself on the public treasury or domain, or interfere with the public administration, or if the
effect of the judgment would be to restrain the Government from acting, or to compel it to
act.” Maait, 129 F.4th at 113 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
101 n.11 (1984) (internal quotation marks omitted)). In such suits, “the individual official will not
be responsible for paying any judgment: instead, a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the government entity itself.” 	Id. (citing
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Graham, 473 U.S. at 166) (internal quotations omitted). Three factors are considered in
determining whether the state is the real party in interest in a case: (1) whether the complaint states
that he is suing the foreign official in his personal capacity or in his official capacity; (2) whether
the substance of the claim is better understood as a personal liability claim based on personal acts
or as an official-capacity suit in which the state is the real actor; and (3) whether the relief sought
by plaintiff is from the individual’s own pockets or whether the damages that the plaintiff recovers
in the suit will be payable by the foreign government. Samantar, 560 U.S. at 324-25; see also
Maait, 129 F.4th at 114-115 (summarizing factors considered by courts). For example, in
Samantar, the court determined that the state of Somalia was not the real party of interest because
the plaintiffs “sued [Samantar] in his personal capacity and [sought] damages from his own
pockets.” 560 U.S. at 325 (emphases added). Moreover, a foreign sovereign is the real party in
interest when the complaint discusses the named foreign officials only in relation to their duties as
officers of the foreign sovereign. Nagy v. Naday, No. 17-10613-LTS, 2019 U.S. Dist. LEXIS
225127, at *5-6 (D. Mass. June 28, 2019); Edwards v. Fed. Gov’t of Nigeria, No. 18-11133-FDS,
2018 U.S. Dist. LEXIS 212827, *6-*7 (D. Mass. Dec. 18, 2018).; see also Li v. Li, No. 20-2008,
2023 U.S. Dist. LEXIS 60329, at *10-11 (D.D.C. Apr. 5, 2023), aff’d, 2024 U.S. App. LEXIS
27508 (Oct. 29, 2024).
Here, the first amended complaint brought claims against the Foreign Defendants in their
individual and official capacities. ECF No. 10. However, the complaint does not mention in what
capacity each of the Foreign Defendants are being sued. See generally ECF No. 121. Furthermore,
the allegations of the complaint do not mention any actions taken by the Foreign Defendants in
their personal capacities. In Nagy v. Naday, No. 17-10613-LTS, 2019 U.S. Dist. LEXIS 225127,
at *5 (D. Mass. June 28, 2019), the plaintiff sued international defendants who argued that because
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the alleged acts in the complaint would have been performed in their official capacity, they were
immune from suit under the FSIA. The court, in determining whether the defendants were immune
under the FSIA, found that the plaintiff’s complaint alleged no specific facts that would explain
how the defendants’ alleged acts occurred outside of their official duties. Id. at *6. Accordingly,
the court concluded that the alleged acts were therefore actions of the state for FSIA purposes,
rendering defendants immune. Id. In the case at bar, the complaint generally alleges that the
Foreign Defendants participated in the investigation of the Bank, but does not allege any actions
taken in their personal capacity. ECF No. 121 at 3, ¶ 1 (alleging that Plaintiff’s Euro Pacific Bank
was “subject to scrutiny by the IRS and OCIF in ‘Operation Atlantis,’ a joint J5 enforcement
initiative…”); id. at ¶ 2 (alleging that “[o]n June 30, 2022, a press conference in Puerto Rico with
IRS, J5, and OCIF representatives announced the investigation and closure of the bank…”); id. at
¶ 3 (alleging that OCIF blocked the sale of the bank’s stock to Qenta “allegedly at IRS/J5’s
request.”). Moreover, Plaintiff has referred to the alleged conspiracy as one between government
agencies, not individuals. ECF No. 145. Therefore, the substance of the claims is better understood
as an official-capacity suit in which the state is the real actor. See Edwards v. Fed. Gov't of Nigeria,
No. 18-11133-FDS, 2018 WL 6619741, at *2 (D. Mass. 2018) (holding FSIA applied to foreign
officials because law enforcement agencies “perform core government functions. Accordingly, the
Court has no difficulty concluding that each of them constitutes a ‘foreign state’ under the FSIA.”).
Lastly, nothing in Plaintiff’s complaint indicates that the relief sought is from the individual
Foreign Defendants’ own pocket. Samantar, 560 U.S. at 324-25. In fact, the amount of the
plaintiff’s requested damages, between $49.8 million and $56 million in total, suggests the
opposite conclusion. ECF No. 121 at 7. Any judgment against the foreign defendants would
necessarily be drawn from the treasuries of the foreign sovereigns. See Hussein, 129 F.4th 115
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(finding that the “type and magnitude of relief sought” is evidentiary when considering whether
relief seeks damages from the defendant’s “own pockets” or from the foreign state). Therefore, the
claims against the Foreign Defendants should be construed as claims against the Foreign
Defendants in their official capacity, and additionally, against their respective states.
Plaintiff argues that the foreign sovereigns are not the real party in interest because their
officials acted ultra vires. ECF Nos. 138 at 4, 145 at 13, 179 at 2, 180 at 3. However, as previously
discussed, the complaint does not allege any facts plausibly suggesting that the Foreign Defendants
engaged in any conduct outside of their official responsibilities. Moreover, there is no exception
to foreign sovereign immunity in a suit for money damages even where a foreign official has acted
ultra vires. See Hussein, 129 F.4th at 118-19.
Finally, Plaintiff argues that if the FSIA does apply, his claims are nevertheless not barred
because they fall under both the commercial activity and the non-commercial tort exceptions to
the FSIA. The commercial activity exception to the FSIA allows suits against a foreign sovereign
when:
the action is based upon a commercial activity carried on in the United States by the foreign
state; or upon an act performed in the United States in connection with a commercial
activity of the foreign state elsewhere; or upon an act outside the territory of the United
States in connection with a commercial activity of the foreign state elsewhere and that act
causes a direct effect in the United States;
28 USCS § 1605(a)(2). Determining whether an action is commercial activity requires that the
Court look to the character of the action by the foreign sovereign as opposed to the effects of the
activity. See Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993). The query is whether “the
particular actions that the foreign state performs (whatever the motive behind them) are the type of
actions by which a party engages in trade and traffic or commerce”. Republic of Argentina v.
Weltover, 504 U.S. 607, 614 (1992) (emphasis in original).
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Here, the Plaintiff is asserting that the foreign defendants fall into this exception because
their activity was directed at Puerto Rico and the liquidation of the bank is commercial activity.
However, that analysis ignores that the adverse action Plaintiff suffered was a result of a regulatory
action against his bank. Plaintiff’s allegations in the complaint are that the Foreign Defendants,
through the J5, requested that OCIF block the sale of the bank and then defamed the plaintiff at
the official press conference regarding the Bank’s closure. See ECF 121 at 3-4. These are
regulatory actions, not actions that a private participant in the market could take. Even if the
Foreign Defendants had a profit-seeking motive in their actions, which the complaint does not
plead, the actions were those that only a state could undertake. Therefore, the commercial activity
exception to the FSIA does not apply.
Finally, Plaintiff asserts that the non-commercial tort exception to the FSIA applies to the
Foreign Defendant’s actions. The noncommercial tort exception holds, inter alia, that when money
damages or the loss of personal property in the United States is “caused by the tortious act or
omission of that foreign state or of any official or employee of that foreign state while acting within
the scope of his office or employment…” immunity under the FSIA does not apply. 28 USCS §
1605(a)(5). This exception “should be narrowly construed so as not to encompass the farthest
reaches of common law.” MacArthur Area Citizens Ass’n v. Republic of Peru, 809 F.2d 918, 921
(D.C. Cir. 1987). Furthermore, there are two enumerated areas in which a tort claim against a
sovereign will not fall under the non-commercial tort exception and will remain barred by the
FSIA. The first is for “any claim arising out of malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights…”. 28 USCS § 1605(a)(5).
Plaintiff’s causes of action for defamation and tortious interference with a contractual agreement
fit squarely within this exception to the noncommercial tort exception and therefore remain barred
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by the FSIA. See, Bryks v. Canadian Broadcasting Corp., 906 F. Supp. 204, 24 (S.D.N.Y. 1995).
The noncommercial tort exception also does not apply to “any claim based upon the
exercise or performance or the failure to exercise or perform a discretionary function regardless of
whether the discretion be abused…”. 28 USCS § 1605(a)(5)(A). This is known as the discretionary
exception. There is a two-part test for determining if a foreign official’s tortious action is
discretionary. First, the conduct in question must be “a matter of choice for the acting employee.”
Rodríguez v. Republic of Costa Rica, 297 F.3d 1, 9 (quoting Berkovitz v. United States, 486 U.S.
531, 536 (1988)). If that is true, then the question becomes whether the choice is "of the kind that
the discretionary function exception was designed to shield." Rodríguez, 297 F.3d at 9 (quoting
Berkovitz, 486 U.S. at 536). The goal of this exception is to "prevent judicial 'second guessing' of
legislative and administrative decisions grounded in social, economic and political policy through
the medium of an action in tort." Rodríguez, 297 F.3d at 9 (quoting United States v. S.A. Empresa
de Viacao Aerea Río Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)).5
“Deeming administrative action to be non-discretionary requires a specific and directly
applicable prescription.” Muñiz-Rivera v. United States, 326 F.3d 8, 16 (1st Cir, 2003). Here,
Plaintiff has failed to show a “applicable statute, regulation, or policy bearing the requisite degree
of specificity” to demonstrate that the action the foreign defendants took was not discretionary. Id.
Additionally, there is no suggestion that the choices to investigate the bank or communicate about
it with others were anything but choices on the part of foreign defendants. Therefore, the action of
the foreign officials did involve an element of choice or judgment. The inquiry then turns to the
second prong, whether this conduct was the type that the statute is designed to shield. The First
5 The discretionary exception is generally modeled on the similar exception that exists in the Federal Tort Claims
Act. Rodríguez, 297 F.3d at 8. Therefore, caselaw dealing the FTCA is useful in analyzing this exception to the
FSIA. Id.
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Circuit has held that when “some plausible policy justification could have undergirded the
challenged conduct…" it is of the type that the statute sought to shield. Shansky v. United States,
164 F.3d 688, 692 (1st Cir. 1999) (considering a FTCA claim. See supra fn. 7). “The critical
question is whether the acts or omissions that form the basis of the suit are susceptible to a policy-
driven analysis, not whether they were the end product of a policy-driven analysis.” Id. (citing
Rosebush v. United States, 119 F.3d 438, 444 (6th Cir. 1997)). Here, the Foreign Defendants, in
coordinating the result of the OCIF investigation, could have been seeking to prevent financial
crimes from occurring, or to protect consumers. In short, there are policy decisions that explain
the Foreign Defendants’ actions. Judicial review of Foreign Defendant’s role in the investigation
could amount to the Court “second guessing” the policy determinations of the foreign sovereigns.
Since there is a plausible policy justification for the Foreign Defendants’ actions, the second prong
of the discretionary analysis is fulfilled. Therefore, the noncommercial exception to the FSIA does
not apply to the Foreign Defendants’ alleged tortious conduct and the FSIA bars all three causes
of action against them.
Plaintiff argues that the non-commercial tort exception should apply because “[t]he
discretionary-function proviso does not shield ultra vires abuses unrelated to legitimate policy
choices.” ECF No. 180 at 3. However, this is precisely the sort of activity the exception does shield.
As the First Circuit has noted, the question is not whether discretion was abused; it is simply
whether discretion exists. See Rodriguez, 297 F.3d at 10. The exception itself provides that it
applies “regardless of whether the discretion be abused”. 28 U.S.C. § 1605(a)(5)(A). If the
discretionary exception only shielded people who are not accused of wrongdoing, it would be
essentially without force since the discretionary exception to the FSIA only applies when a tort
has been alleged.
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Even if the suit against the Foreign Defendants in their official capacities was not governed
by the FSIA, it could “still be barred by foreign sovereign immunity under common law.”
Samantar, 560 U.S. at 324-25. 	Common law foreign sovereign immunity comes in two forms:
head-of-state immunity, under which foreign heads-of-state are immune from the jurisdiction of
foreign courts, and “official acts” immunity, which immunizes foreign officials for acts undertaken
in their official capacity. Bashe Abdi Yousuf v. Mohamed Ali Samantar, 699 F.3d 763, 769 (4th
Cir. 2012) (Citing Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009)). As no party claims that any of
the Foreign Fefendants is a head of state, only an analysis of official acts immunity is warranted.
“[A] foreign official may assert immunity for official acts performed within the scope of
his duty, but not for private acts where ‘the officer purports to act as an individual and not as an
official, [such that] a suit directed against that action is not a suit against the sovereign.’" Id.
(citing Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1106 (9th Cir. 1990)). This immunity
exists because a suit against an official for actions taken in their official capacity is the “practical
equivalent” of suing the foreign state itself. Hilao v. Estate of Marcos (In re Estate of Ferdinand
Marcos), 25 F.3d 1467, 1472 (9th Cir. 1994).
As discussed above, the Plaintiff has not pled any actions on the part of the Foreign
Defendants that were taken in their individual capacity. Their actions, while tortious as pled, are
still official acts taken within the scope of that duty.
The case Mireskandari v. Mayne is instructive here. In that case, a defendant was the head
of Investigation and Enforcement for the Office for Supervision of Solicitors ("OSS") of the United
Kingdoms’ Law Society of England and Wales. Mireskandari v. Mayne, CV 12-3861 JGB, 2016
U.S. Dist. LEXIS 38944 at *52 (C.D. Cali, 2016), aff’d, 800 Fed. Appx. 519 (9th Cir., 2020). The
defendant allegedly directed his employees to conduct improper investigations of the plaintiff. Id.
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Furthermore, the defendant was alleged to have directed an accounting firm to produce a report
for the purpose of defaming a plaintiff. Id. Finally, he was alleged to have “controlled the outcome
of an adjudication panel in the discipline of” the plaintiff. Id. While the allegations were clear that
the defendant acted in an improper manner, that did not preclude a finding of common law foreign
sovereign immunity. Id. As the Court in Mireskandari noted “[c]ommon law immunity would be
an entirely superfluous legal doctrine if it only protected officials who were not accused of any
wrongdoing.” Id.
This reasoning is likewise applicable to the present case. Assuming Plaintiff has
successfully pled claims of defamation, tortious interference with a contractual relationship and
conspiracy to violate civil rights, the fact that those actions were wrongful does not make them
ultra virus actions nor actions taken in the defendant’s individual capacity. Common law foreign
sovereign immunity applies to the actions of the Foreign Defendants in addition to immunity under
the FSIA. Hence, the Motions to Dismiss should therefore be granted.
IV. 	MOTION TO DISMISS FOR FAILURE TO S TATE A CLAIM
A. Applicable Legal Standard
Finally, Mr. Ferron, Mr. Day, and Mr. Obbinik (the “12(b)(6) Movants”) move to dismiss
under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). A defendant may move to
dismiss an action pursuant to Rule 12(b)(6) for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). In order to survive a motion to dismiss under Rule 12(b)(6), a
complaint must allege “a plausible entitlement to relief.” Rodríguez-Ortiz v. Margo Caribe, Inc.,
490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007)).
“Plausible, of course, means something more than merely possible, and gauging a pleaded
situation’s plausibility is a ‘context-specific’ job that compels us ‘to draw on’ our ‘judicial
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experience and common sense.’” Schatz v. Republican State Leadership Committee, 669 F.3d 50,
55 (1st Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
Such a task requires a two-pronged analysis. “First, the court must sift through the
averments in the complaint, separating conclusory legal allegations (which may be disregarded)
from allegations of fact (which must be credited).” Rodríguez-Reyes v. Molina-Rodríguez, 711
F.3d 49, 53 (1st Cir. 2013). “Similarly, a court does not accept as true allegations that while not
stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to
cross the line between the conclusory and the factual.” Air Sunshine, Inc. v. Carl, 663 F.3d 27, 33
(1st Cir. 2011) (internal quotations omitted). In short, “to avoid dismissal, the plaintiff must
provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a
right to relief above the speculative level.’” Torres v. Bella Vista Hosp., Inc., 523 F. Supp. 2d 123,
133 (D.P.R. 2007) (quoting Twombly, 550 U.S. at 555, 570).
“Second, the court must consider whether the winnowed residue of factual allegations gives
rise to a plausible claim of relief.” Air Sunshine, Inc., 663 F.3d at 33. In making this determination
under Rule 12(b)(6), the court must limit its focus to the allegations of the complaint and “accept
as true ‘all well-pleaded factual averments and indulg[e] all reasonable inferences in the plaintiff’s
favor.’” Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir. 1996) (quoting Aulson v. Blanchard,
83 F.3d 1, 3 (1st Cir. 1996)). In addition to the complaint, the court can consider “(a) ‘implications
from documents’ attached to or fairly ‘incorporated into the complaint,’ (b) ‘facts’ susceptible to
‘judicial notice,’ and (c) ‘concessions’ in plaintiff’s ‘response to the motion to dismiss.’” Schatz,
669 F.3d at 55 (quoting Arturet-Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 n.2 (1st Cir.
2005)). “We appropriately draw on our ‘judicial experience and common sense’ in evaluating a
complaint, but we may not disregard factual allegations ‘even if it strikes a savvy judge that actual
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proof of those facts is improbable.’” Manning v. Boston Medical Center Corp., 725 F.3d 34, 43
(1st Cir. 2013). Although all inferences must be made in plaintiff’s favor, the court need not accept
“bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like.” Aulson,
83 F.3d at 3. Dismissal under Rule 12(b)(6) is appropriate only if the facts alleged, taken as true,
do not warrant recovery. Id.
B. ANALYSIS
Plaintiff’s complaint includes claims against the 12(b)(6) Movants for conspiracy to violate
civil rights under Section 1985(3), for tortious interference with business relations, and for
defamation. ECF No. 121 at 4-6. Mr. Ferron, Mr. Day, and Mr. Obbinik argue that all three claims
should be dismissed for failure to state a claim upon which relief may be granted under Rule
12(b)(6). ECF Nos. 129, 159, 166. Each claim is discussed in turn.
1. 	Section 1985(3)
Section 1985(3) allows suits against those who conspire to deprive others of the equal
protection of the laws, or of the equal privileges and immunities under the law. 42 U.S.C. §
1985(3). To bring a Section 1985(3) claim, a plaintiff must plead “(1) a conspiracy; (2) a
conspiratorial purpose to deprive the plaintiff of the equal protection of the laws; (3) an overt act
in furtherance of the conspiracy, and, lastly, (4) either an injury to person or property or a
deprivation of a constitutionally protected right.” Soto Padró v. Public Building Authority, 675
F.3d 1, 4 (1st Cir. 2012) (citations omitted). Furthermore, the first element of a Section 1985 claim
requires showing racial, or otherwise class-based, “invidiously discriminatory animus behind the
conspirators' action.” Id.
The factual allegations in the complaint are insufficient to plead a claim under Section
1985(3). First, Plaintiff’s complaint fails to “plead in some detail, through reference to material
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facts, the relationship or nature of the cooperation between the state actors and the private
individuals, including how the conspiracy was made or ‘hatched…’”. Rosado v. Sabat, 204 F.
Supp. 252, 267 (D.P.R. 2002) (citing Slotnick v. Staviskey, 560 F.3d 31, at 33 (1st Cir. 1977)). “For
conspiracy purposes, simply alleging that defendants acted jointly and in concert and under color
of law is insufficient.” Id. at 267 (citing McGillicuddy v. Clements, 746 F.2d 76 (1st Cir. 1984)).
Plaintiff’s complaint does exactly that. The only information its reader can ascertain is that the
12(b)(6) Movants, through their roles in J5, conspired with OCIF and the IRS to block the sale of
the Bank and then conspired with the media to cover the Bank’s closure. ECF No. 121 at 3-4, ¶¶
3-4. The complaint is devoid of any additional factual allegations. “A complaint containing only
conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights
cannot withstand a motion to dismiss.” Martinez-Machicote v. Ramos-Rodriguez, 553 F. Supp. 2d
45, 49-50 (2007).
Even more fatal, Plaintiff does not allege that the conspiracy was motivated by “some
racial, 	or 	perhaps 	otherwise 	class-based, 	invidiously 	discriminatory 	animus.” 	Griffin 	v.
Breckenridge, 403 U.S. 88, 102 (1971). Plaintiff’s only reference to this element is a conclusory
statement that Plaintiff “is a member of a protected class,” without specifying what class. See
Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008); ECF No. 121 at 1.
Furthermore, Plaintiff’s complaint does not explain how the conspiracy was motivated by his
membership in that protected class. Instead, Plaintiff’s complaint alludes to an economic or
commercial conspiracy, and courts cannot “construe 1985(3) to reach conspiracies motivated by
economic or commercial animus.” United Bhd. of Carpenters v. Scott, 463 U.S. 825, 838(1983);
see also Sanchez v Autoridad de Energia Electrica, 360 F Supp 2d 302, 313 (D.P.R. 2004); Arana-
Santiago v. Tapia-Maldonado, No. 19-2128 (SCC), 2021 WL 2274280, at *5 (D.P.R. 2021)
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(dismissal of Section 1985(3) is proper when “claim is based solely on an alleged personal vendetta
against Plaintiff rather than Plaintiff’s membership within any protected class”). Therefore, it is
recommended that the Section 1985(3) claim against Mr. Ferron, Mr. Day, and Mr. Obbinik be
dismissed.6
2. 	Tortious Interference
A cause of action for tortious interference with a contractual relationship arises under
Article 1536 of the Puerto Rico Civil Code.7 Gen. Office Prod. Corp. v. A.M. Capen’s Sons, Inc.,
115 P.R. Dec. 553, 558 (1984). In order to prevail on a tortious interference claim, a plaintiff must
establish “(1) that a contract exists, (2) that the defendant interfered with that contract, (3) fault on
the part of the defendant, (4) damage to the plaintiff, and (5) a nexus between the defendant's fault
and the plaintiff's damage.” Alpha Biomedical & Diagnostic Corp. v. Philips Med. Sys. Netherland
BV, 828 F. Supp. 2d 425, 433 (D.P.R. 2011); New Comm Wireless Servs. v. SprintCom, Inc., 287
F.3d 1, 9 (1st Cir. 2002); Gen. Office Prods. Corp., 115 PR Dec. at 558. Plaintiff runs into several
problems with this claim.
6 The 12(b)(6) Movants argue that even if Plaintiff’s Section 1985(3) claim survives, it is time barred. See Rodríguez-
García v. Municipality of Caguas, 354 F.3d 91, 96 (1st Cir. 2004) (“Sections 1981, 1983, and 1985 borrow the forum
state’s statute of limitations for personal injury claims.”). The one-year statute of limitations for Plaintiff’s claim under
Section 1985 begins when the plaintiff knows or has reason to know of the existence and cause of the injury which is
the basis of his action. See Moran Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir. 2008) (“Section 1983 [and by
extension, Section 1985] claims generally accrue when the plaintiff knows or has reason to know of the injury on
which the action is based.” (internal citations omitted)); Álamo-Hornedo v. Puig, 745 F.3d 578, 581 (1st Cir. 2014);
Rodríguez-García, 354 F.3d at 96-97 (“Federal law determines the date on which the claim accrued. Under federal
law, the limitations period begins to run when the plaintiff knows or has reason to know of the injury which is the
basis for his claim.”) (internal citations omitted). According to Plaintiff’s complaint, the claims against 12(b)(6)
Movants resulted from actions in 2022; however, Plaintiff alleges that he did not find out about the alleged conspiracy
until April of 2024, “after a contested FOIA process.” ECF No. 121 at 4. As Plaintiff allegedly found out about the
conspiracy 6 months before the filing of the original complaint in November of 2024, such claim would not be time-
barred if it survived the 12(b)(6) Movants motion to dismiss.
7 Article 1802 of the Puerto Rico Civil Code of 1930, Puerto Rico’s previous tort statute, was replaced by Article 1536
when the new Puerto Rico Civil Code was enacted in November 2020. PR Laws Ann. tit. 31 § 10801. However,
Articles 1802 and 1536 have provisions that “are extremely similar and thus can be used interchangeably.” Orellano-
Laureano v. Instituto Médico del Norte, Inc., 2023 WL 4532418, at *6 n.5 (D.P.R. July 13, 2023). Courts in this
district accordingly apply caselaw analyzing Article 1802 to claims arising under Article 1536. See e.g., Dumanian v.
FirstBank P.R., 2024 WL 197429, at *3 n.4 (D.P.R. 2024).
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First, Plaintiff’s complaint does not contain any allegations regarding the existence of a
contract. The complaint does discuss a “$17.5 million sale to Qenta” that was allegedly blocked at
the request of the 12(b)(6) Movants, among others; however, the complaint does not identify any
contractual terms or obligations binding the parties.8 See Gen. Office Prods. Corp. v. A.M. Capen’s
Sons, Inc., 780 F.2d 1077, 1081 (1st Cir. 1986) (“If what is affected is… 	a profitable financial
relationship where there is no contract, the action does not lie…”); Dolphin Int’l, Inc. v. Ryder
Truck Lines, Inc., 27 P.R. Offic. Trans. 869, 882-83 (1991) (there be a tortious interference claim
if what is affected is a “mere expectancy or a profitable financial relationship.”) (internal citation
omitted); Future Development of Puerto Rico v. E.L.A., 276 F.Supp.2d 228, 242 (D.P.R. 2003)
(dismissing a tortious interference action that alleged “a general loss of business opportunity”). As
the existence of a contract is “indispensable” in a tortious interference claim, Plaintiff’s claim
should be dismissed. Dolphin Int’l, Inc., 27 P.R. Offic. Trans. at 869.
Second, even assuming that a valid contract was alleged, Plaintiff has not alleged any facts
showing that the 12(b)(6) Movants acted intentionally to interfere with the contractual relationship.
Under Puerto Rico law, “the ‘fault’ element of tortious interference requires a stronger showing”
than the other elements. New Comm Wireless Servs., 287 F.3d at 10. Specifically, “[t]he fault
element requires that the defendant’s interference be intentional and with knowledge of the
contract's existence.” Alpha Biomedical, 828 F. Supp. 2d at 433 (citing New Comm Wireless Servs.,
287 F.3d at 10; Figueroa v. Walgreens of San Patricio, Inc., 155 DPR 560 (2001)). However, the
prejudiced party need only show or present facts allowing the court to infer that the third person
8 Moreover, the Act that governs the operations of international financial institutions, such as the Bank, in Puerto Rico,
Act No. 273-2012, as amended, otherwise known as the “International Financial Center Regulatory Act,” provides
that any sale or transfer of stock, interest or participation in the capital of an international financial institution “shall
be null ab initio if the written authorization of the Commissioner has not been obtained.” P.R. Laws Ann. tit. 7, §
3089.
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has acted tortiously. Gen. Office Prods. Corp., 115 PR Dec. at 558-59. Plaintiff’s complaint does
not contain any facts alleging the 12(b)(6) Movants’ knowledge or intent, nor does Plaintiff allege
enough facts to allow the inference that they acted tortiously. Accordingly, Plaintiff’s tortious
interference claim should be dismissed.
3. 	Defamation
Plaintiff’s last cause of action against the 12(b)(6) Movants is for defamation. “In Puerto
Rico the tort of defamation can be either intentional or negligent, depending on whether the
defamed is a private or public figure, and can come in the form of slander or libel.” Segarra
Jiménez v. Banco Popular, Inc., 421 F.Supp.2d 452, 458 (D.P.R. 2006). “Libel is defamation that
comes in the written form.” Id. (citing Sociedad de Gananciales v. El Vocero de P.R., 135 D.P.R.
122, 126 (1994)). “Slander, on the other hand, takes place when the defamation is oral and, as with
libel, all other elements of the defamation claim must be present.” Segarra Jiménez v. Banco
Popular, Inc., 421 F.Supp.2d at 458 (citing Ojeda v. El Vocero de P.R., 137 D.P.R. 315, 326
(1994)). “In order for a private figure, such as plaintiff … to prove defamation under Puerto Rico
law, whether it be libel (written) or slander (oral), she must prove the following: (1) that the alleged
defamatory statements are false; (2) that the defamatory statements (written or spoken) were
negligently made to another; and (3) that the plaintiff suffered damages.” Luis Santiago v.
Santiago, 731 F.Supp.2d 202, 209 (D.P.R. 2010) (quoting Díaz Rodríguez v. Torres Mártir, 394
F.Supp.2d 389, 392 (D.P.R. 2005)). See also Politank, Corp. v. Aristeia Capital LLC, 2021 WL
6931192, at *4 (D.P.R. 2021).
Plaintiff’s complaint does not successfully allege false statements, libel or slander, made
by the 12(b)(6) Movants. Instead, all allegedly defamatory statements are attributed to other
defendants. The complaint alleges that “[o]n June 30, 2022, a press conference in Puerto Rico with
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IRS, J5, and OCFI representatives announced the investigation and closure of the bank, falsely
implying illegal activity.” ECF No. 121 at 3, ¶ 2. This alone may suggest that there were false
statements made by 12(b)(6) Movants. However, as part of Plaintiff’s defamation cause of action,
Plaintiff elaborates that the “[s]tatements [were] made by Mr. Jim Lee as instigated and provided
by the IRS and its agents Justin T. Cole, the IRSCI Director of Communication Matt Line, the
Deputy Chief, IRS-CI and Mike Batdorf, the Executive Director of the IRS-CI, among other IRS
agents yet to be identified but all of them, representing the IRS and OCIF (by its omission) in the
June 2022 press conference falsely impl[ying] criminal wrongdoing by the Plaintiff.” Id. at 5. As
none of the statements allegedly made were attributed to the 12(b)(6) Movants, a defamation claim
against them is misplaced.
Plaintiff’s other possible allegation of defamation against the 12(b)(6) Movants occurs
when he alleges that “IRS/J5 agents leaked confidential information to media defendants…”. Id.
at 4, ¶ 4. Plaintiff further alleges that the “media defendants” (i.e. defendants The Age and The
New York Times as well as associated co-defendant journalists) published damaging and
unsubstantiated allegations of tax evasion and money laundering, regarding plaintiff and the bank”.
Id. These allegations, however, do not allege that the leaked information was itself false, only that
the material published by the “media defendants” was false. Thus, even making all reasonable
inferences in Plaintiff’s favor, his complaint does not sufficiently allege the elements of a
defamation claim for either libel or slander.
V. 	CONCLUSION
For the aforementioned reasons, it is recommended that the Media Defendants’ motions to
dismiss (ECF Nos. 129, 139, 159, 166) be GRANTED and that Plaintiff’s claim against the Foreign
Defendants be DISMISSED WITH PREJUDICE.
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The 	parties 	have 	fourteen 	(14) 	days 	to 	file 	any 	objections 	to 	this 	report 	and
recommendation unless otherwise ordered by the court. Failure to file the same within the specified
time waives the right to object to this report and recommendation. Fed. R. Civ. P. 72(b)(2); Fed.
R. Civ. P. 6(c)(1)(B); D.P.R. Civ. R. 72(d); see also 28 U.S.C. § 636(b)(1); Henley Drilling Co. v.
McGee, 36 F.3d 143, 150–51 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).
IT IS SO RECOMMENDED.
In San Juan, Puerto Rico, this 10th day of February, 2026.
s/Marcos E. López
U.S. Magistrate Judge
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