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Case 4:18-cv-00483 Document 80 Filed on 07/09/19 in TXSD Page 1 of 30

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

HARVEST NATURAL RESOURCES, INC., §


and HNR ENERGIA B.V., §
§
Plaintiffs, §
§
v. § CIVIL ACTION: 4:18-cv-00483
§
JUAN JOSE MENDOZA GARCIA, et al., §
§
Defendants. §

PLAINTIFFS’ EMERGENCY MOTION TO PERMIT LIMITED DISCOVERY ON


SERVICE OF PROCESS AND JURISDICTION AND TO STAY RESPONSE DEADLINE
TO AND CONSIDERATION OF DEFENDANT’S MOTION TO SET ASIDE DEFAULT
JUDGMENT AND MOTIONS TO DISMISS UNDER 12(B)(2) AND 12(B)(5)

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iii


I. Introduction ..........................................................................................................................1
II. Factual and Procedural Background ....................................................................................3
III. Applicable Law ....................................................................................................................6
IV. Argument .............................................................................................................................8
A. Because Ramirez’s Service of Process Arguments are Supported
Only by a Self-Serving Declaration, the Court Should Permit
Discovery to Test His Claims. .................................................................................9
B. Because Ramirez’s Ties to Texas and to the United States Are
Sufficient to Make a Preliminary Showing of Personal Jurisdiction,
the Court Should Permit Jurisdictional Discovery to Test
Ramirez’s Claims. ..................................................................................................12
C. Falsehoods in Ramirez’s Declaration Show that the Court Should
Not Rely on it When Determining the Service of Process or
Jurisdictional Issues. ..............................................................................................15
D. The Court Should Grant Discovery to Test Ramirez’s Claims of
“Good Cause,” Including Excusable Neglect, Lack of Willfulness,
and that He Has Meritorious Defenses. .................................................................17
1. Ramirez is on the run from U.S. law enforcement—not the
Maduro regime. ..........................................................................................17
2. Ramirez exhibits no “caution about his communications”
and has no difficulty coordinating or communicating from
abroad. ........................................................................................................18
3. Ramirez is a sophisticated, fluent English speaker. ...................................20
4. Ramirez deliberately did not act “as expeditiously as he
could under the circumstances.” ................................................................21
5. Ramirez does not have meritorious defenses. ............................................21
E. The Court Should Defer Ruling on Personal Jurisdiction Pending
Discovery Because the Jurisdictional Challenge is Intertwined with
the Merits of the Case. ...........................................................................................23
V. Request for Emergency Consideration ..............................................................................23
VI. Conclusion .........................................................................................................................24
CERTIFICATE OF CONFERENCE.............................................................................................25
CERTIFICATE OF SERVICE ......................................................................................................25

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TABLE OF AUTHORITIES

Page(s)

Cases

Bally Exp. Corp. v. Balicar, Ltd.,


804 F.2d 398 (7th Cir. 1986) .....................................................................................................8

Blair v. City of Worcester,


522 F.3d 105 (1st Cir. 2008) ......................................................................................................6

Brandt v. Am. Bankers Ins. Co.,


No. C08-5760BHS, 2009 WL 1683480 (W.D. Wash. June 16, 2009) ......................................6

Braverman Kaskey, P.C. v. Toidze,


599 F. App’x 448 (3d Cir. 2015) .............................................................................................10

Burda Media, Inc. v. Viertel,


417 F.3d 292 (2d Cir. 2005).......................................................................................................7

Busch v. Buchman, Buchman & O’Brien, Law Firm,


11 F.3d 1255 (5th Cir. 1994) ...................................................................................................14

Compass Bank v. Kleve,


No. No. L-12-46, 2012 WL 12895414 (S.D. Tex. Dec. 10, 2012) ....................................11, 12

Conwill v. Greenberg Traurig, LLP,


No. 09-4365, 2010 WL 2773239 (E.D. La. July 13, 2010) .....................................................11

Dimas v. Vanderbilt Mortg. & Finance, Inc.,


No. C-10-68, 2010 WL 1875803 (S.D. Tex. May 6, 2010) .....................................................14

Fielding v. Hubert Burda Media, Inc.,


415 F.3d 419 (5th Cir. 2005) ...........................................................................................6, 8, 13

Frank Keevan & Son, Inc. v. Callier Steel Pipe & Tube, Inc.,
107 F.R.D. 665 (S.D. Fla. 1985) ....................................................................................6, 11, 21

Fulford v. Climbtek, Inc.,


No. 16-00016, 2017 WL 4183099 (M.D. La. Sept. 21, 2017)...................................................6

Guidry v. U.S. Tobacco Co.,


188 F.3d 619 (5th Cir. 1999) ...................................................................................................12

Hoover v. Fla. Hydro, Inc.,


No. 07-1100, 2009 WL 10678888 (E.D. La. July 31, 2009) ...................................................23

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Karlsson v. Rabinowitz,
318 F.2d 666 (4th Cir. 1963) ...................................................................................................10

Kelly, Sutter, Mount & Kendrick, P.C. v. Albert,


234 Fed. App’x 246 (5th Cir. 2007) ..........................................................................................6

Kelly, Sutter, Mount & Kendrick, P.C. v. Albert,


No. H-05-2213, 2006 WL 3316821 (S.D. Tex. Oct. 25, 2006) .................................................6

Luallen v. Higgs,
277 F. App’x 402 (5th Cir. 2008) ............................................................................................14

Nagravision SA v. Gotech Int’l Tech. Ltd.,


882 F.3d 494 (5th Cir.), cert. denied, 139 S. Ct. 480 (2018) .....................................................7

Nat’l Dev. Co. v. Triad Holding Corp.,


930 F.2d 253 (2d Cir. 1991).....................................................................................................10

Next Techs., Inc. v. ThermoGenisis, LLC,


121 F. Supp. 3d 671 (W.D. Tex. 2015)......................................................................................6

Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank,


515 F. 2d 1200 (5th Cir. 1975) ................................................................................................22

Nowell v. Nowell,
384 F.2d 951 (5th Cir. 1967) ...................................................................................................11

Royal Ten Cate USA, Inc. v. TTAH Trust Co. Ltd.,


No. A-11-CA-1057, 2012 WL 2376282 (W.D. Tex. 2012) ......................................................6

SEC v. Internet Solutions for Business Inc.,


509 F.3d 1161 (9th Cir. 2007) .........................................................................................7, 8, 10

United States ex rel. Tuohy v. Regan,


340 U.S. 462 (1951) .................................................................................................................24

United States v. Bruce,


75 Fed App. 849 (2d Cir. 2003) ...............................................................................................16

Williamson v. Tucker,
645 F.2d 404 (5th Cir. 1981) .....................................................................................................6

In re Worldwide Web Sys., Inc.,


328 F.3d 1291 (11th Cir. 2003) .................................................................................................7

Wyatt v. Kaplan,
686 F.2d 276 (5th Cir. 1982) ...................................................................................................23

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Rules and Statutes

Fed.R. Civ. P. 4 ..................................................................................................................4, 7, 9, 11

Fed. R. Civ. P. 5 .....................................................................................................................3, 4, 12

Fed. R. Civ. P. 60(b)(4)................................................................................................................7, 8

Other Authorities

Convention on the Service Abroad of Judicial and Extrajudicial Documents in


Civil or Commercial Matters (Hague Convention), Nov. 15, 1965, 20 U.S.T.
361, at Art. 1 ............................................................................................................................11

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I. Introduction

Defendant Rafael Dario Ramirez Carreno (“Ramirez”) is a known corrupt actor. 1 He is

alleged to have stolen more than $11 billion during his tenure as President of PDVSA and

Venezuela’s Minister of Energy and Oil. Sometime after resigning his position as Venezuela’s

ambassador to the United Nations, Ramirez fled the United States and has been on the run ever

since. Sixteen months after Harvest 2 sued, properly served, and gave actual notice of its lawsuit

to Ramirez, and more than six months after this Court properly entered a default judgment

against him (that he had actual notice of), he now seeks to set aside that default judgment and

dismiss Harvest’s claims due to alleged insufficient service of process and lack of jurisdiction.

Ramirez has only appeared in this case now, after the leading international investigative firm that

Harvest retained as part of its enforcement efforts was closing in on his ill-gotten assets.

Ramirez has no respect for the rule of law and has abused the litigation process. He cannot carry

his burden to show why the Court’s correctly entered default judgment—which included a

finding of proper service of process and an implied finding of jurisdiction—should be set aside.

Harvest will respond to Ramirez’s motion, but in order to do so fully, Harvest asks that

the Court allow it to take limited discovery on service of process and jurisdiction, and test

1
See, e.g., Kejal Vyas, Jose de Cordoba & Anatoly Kurmanaev, Wall Street Journal, “Venezuela’s U.N. Envoy
Rafael Ramirez Resigns” (Dec. 5, 2017), available at https://www.wsj.com/articles/venezuelas-u-n-envoy-rafael-
ramirez-resigns-1512499605 (including comment from former senior U.S. official that “the U.S. has had an interest
in possible criminal activity by Mr. Ramirez since 2011”); Jorge Rueda & Joshua Goodman, Associated Press,
“Venezuela arrests top oil officials in corruption probe” (Nov. 30, 2017), available at
https://www.apnews.com/b717261ae8724d17a758e7a1c0f9ac78 (noting Ramirez is “ultimate target” of “ongoing
probe in the U.S.” and of Venezuelan investigation); Marco Rubio Senate Website, Press Releases, “Rubio Calls For
Sanctions Against Corrupt Former Head of Venezuela’s State-Owned Oil Company” (Oct. 21, 2016),
https://www.rubio.senate.gov/public/index.cfm/press-releases?ID=A4E50648-F90A-4D77-B317-46C6821385FF
(stating Ramirez engaged in “criminal” behavior, “oversaw corruption at PDVSA to the tune of $11 billion,” and
“belongs in jail along with everyone else who stole this $11 billion”). Ramirez is an unindicted co-conspirator in a
U.S. indictment, discussed infra. He is believed to be implicated in a money laundering prosecution in Andorra that
has charged his cousin and multiple close associates. See BBC News Staff, BBC, “Venezuela: Andorra procesa a
exfuncionarios del gobierno del país sudamericano por ‘expoliar’ US$2.000 millones de PDVSA” (Sept. 14, 2018),
available at https://www.bbc.com/mundo/noticias-america-latina-45517316 (Spanish language).
2
Plaintiffs Harvest Natural Resources, Inc. and HNR Energia B.V. are referred to jointly herein as “Harvest.”

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Ramirez’s self-serving declaration on these points. Harvest also requests that the Court permit it

to take Ramirez’s deposition and to serve on him limited requests for production of documents.

A deposition is particularly important here because Ramirez claims that “he has no access to his

records in Venezuela.” Harvest has conferred with Ramirez’s counsel, and at this time, Ramirez

opposes a deposition, especially in the United States. Ramirez does not oppose Harvest’s

requests for production categorically; the parties have agreed in principle on numerous

categories, and will continue to confer on the remaining categories.

When Harvest sued Ramirez in February 2018, it took exhaustive measures to serve him

and ensure he had notice, including serving the complaint and summons at his usual place of

abode, sending him the complaint by mail, and attempting to contact him by phone and

WhatsApp at a number Harvest’s search confirmed was current for him. Harvest was successful:

Ramirez received actual notice of the lawsuit on the day it was filed and commented to the press

that day on the substance of the complaint. 3 (Similarly, one day after the Court entered a

corrected default judgment awarding Harvest more than $1.4 billion, Ramirez commented to the

press about the judgment. 4)

Ramirez’s jurisdictional challenge is similarly flawed. Harvest’s allegations that Ramirez

directed a tort at Texas are sufficient to make a preliminary showing of personal jurisdiction.

Harvest’s allegations also suggest Ramirez’s minimum contacts with the United States, which is

sufficient to establish jurisdiction under RICO. Additionally, in challenging jurisdiction,

Ramirez’s motion relies solely on a declaration that “contains misrepresentations that understate

3
See Joshua Goodman, “Houston firm sues ex Venezuelan oil czar Ramirez over bribes,” Associated Press (Feb. 16,
2018), available at https://www.apnews.com/f173499a09364fc492713fe056801024 (“Ramirez, contacted Friday
[February 16, 2018] by AP, declined to comment on the suit but reiterated that he never asked for bribes or played a
role in the selection of PDVSA’s business partners.”). The lawsuit was filed on February 16, 2018.
4
Reuters Staff, Reuters, “U.S. judge rules former Venezuelan oil minister owes $1.4 billion” (Feb. 14, 2019),
available at https://www.reuters.com/article/us-venezuela-ramirez/u-s-judge-rules-former-venezuelan-oil-minister-
owes-1-4-billion-idUSKCN1Q401J.

2
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and distort his jurisdictional contacts.” See Court’s Memorandum and Order, Dkt. 48 at 4

(referring to Defendant Garcia’s declaration).

II. Factual and Procedural Background

Harvest sued Ramirez in February 2018 because, after Harvest and its agreed buyers

refused to pay multiple bribes that were demanded on Ramirez’s behalf, Ramirez’s ministry

refused to approve Harvest’s deals to sell its assets. As a result, Harvest lost more than

$472 million. Harvest filed its Original Complaint on February 16, 2018. Dkt. 1. Harvest’s

independent investigation located a single address for Ramirez at 16 E. 81st Street, New York,

New York, 10028 (“New York Address”). See Dkt. 65 at 4–8. Harvest served the Original

Complaint and Summons on a domestic employee residing at the New York Address on

February 16, 2018, and filed its return of service on February 21, 2018. Dkt. 10. On February

16, the day Harvest filed its Original Complaint, Ramirez commented to the international press

on the lawsuit and on the substance of its allegations, stating that “he never asked for bribes or

played a role in the selection of PDVSA’s business partners.” 5

Harvest’s counsel also sent the complaint and summons to Ramirez at the New York

Address by overnight FedEx on February 16, 2018; it was signed for and received on February

19, 2018. Harvest’s process server sent the complaint and summons by mail to the New York

Address on February 17, 2018. Dkt. 10. Harvest’s counsel also was in contact with the press

about the lawsuit and circulated the complaint to the press.

5
See Joshua Goodman, “Houston firm sues ex Venezuelan oil czar Ramirez over bribes,” Associated Press (Feb. 16,
2018), available at https://www.apnews.com/f173499a09364fc492713fe056801024.

3
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Harvest filed its First Amended Complaint on February 23, 2018, Dkt. 14, and then sent

this amended complaint to Ramirez at the New York Address by certified mail, return receipt

requested, on February 28, 2018, in accordance with Federal Rule of Civil Procedure 5. 6

Ramirez failed to appear or defend himself in the lawsuit. Even though Harvest knew

that Ramirez had actual notice of the lawsuit, Harvest’s counsel took further efforts to contact

Ramirez and inform him of the complaint. Harvest’s counsel contacted Ramirez via phone, at a

number its search confirmed was current for Ramirez, but the call went unanswered. Harvest’s

counsel also sent Ramirez text messages via WhatsApp on March 27, 2018, at the same number,

informing him of the charges, asking if he would be appearing, and asking if he was represented

by counsel with whom Harvest should communicate. Ramirez failed to respond in any way.

On July 26, 2018, Harvest applied for entry of default against Ramirez. Dkt. 59 & 59-1.

Harvest included an affidavit of counsel setting out the above facts. Id. On November 30, 2018,

Harvest moved for entry of a default judgment against Ramirez. Dkt. 65. 7

On December 19, 2018, the Court entered a default judgment against Ramirez in the

amount of $472,039,552.66. Dkt. 66. The Court found “that Defendant Ramirez was properly

served in accordance with Federal Rule of Civil Procedure 4(e), and that he failed to answer,

respond, or otherwise defend the claims brought against him within the time period prescribed by

Federal Rule of Civil Procedure 12(a)(l)(A)(i).” Id. at 1. The Court entered a corrected default

judgment on February 13, 2019, trebling the judgment under RICO to $1,416,118,657.98.

6
The First Amended Complaint was signed for on March 15, 2018. Harvest also sent subsequent pleadings to
Ramirez at the New York Address via U.S. first-class certified mail, return receipt requested. Pleadings sent March
9, 2018 and April 6, 2018 were also delivered and signed for. Pleadings sent on May 23, 2018 were returned as
undeliverable.
7
Harvest’s investigation determined that Ramirez likely had assets sufficient to satisfy a judgment for its full
damages. In order to obtain a final default judgment against Ramirez, Harvest voluntarily dismissed its claims
against the other defendants without prejudice on October 29, 2018. Dkt. 63; see also Fed R. Civ. P. 55, Committee
Note on Rules, 2015 Amendment (“A default judgment that does not dispose of all of the claims among all parties is
not a final judgment unless the court directs entry of final judgment under Rule 54(b).”).

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Dkt. 68. That same day, Harvest mailed a copy of the Court’s order to the New York Address by

certified mail, return receipt requested.

On February 14, 2019, Ramirez commented to the press about the default judgment. 8 He

also posted to his Twitter account on February 15, 2019, in English and in Spanish about the

default judgment, and linked to a post he put on Medium.com about the default judgment. 9

Nonetheless, Harvest’s counsel took additional measures to ensure Ramirez was aware of the

default judgment. Harvest’s counsel texted Ramirez via WhatsApp on February 21, 2019, to ask

if Harvest could speak with Ramirez. WhatsApp confirms that the number belongs to Ramirez

and that Ramirez received and read the communication. Exhibit A. Ramirez did not respond.

The Court entered final judgment on March 1, 2019. Dkt. 71. Harvest’s counsel again

texted Ramirez via WhatsApp on March 3, 2019, to ask if Harvest could speak with Ramirez

now that final judgment had been entered. Ramirez responded, asking “Who is this?” Harvest’s

counsel identified himself yet again. Ramirez did not further reply. Exhibit B.

On June 24, 2019, nearly four months after judgment was entered, Ramirez filed a

Motion to Set Aside Final Default Judgment and Motion to Dismiss in Accordance with Rules

12(b)(2) and 12(b)(5). Dkt. 72 (“Mot.”). Ramirez alleges that the default judgment is void

because he was never properly served, there is no personal jurisdiction, and good cause exists to

set aside the default. In support of his motion Ramirez relies solely upon a declaration he

submitted. Dkt. 72, Ex. 1 (“Ramirez Decl.”). Harvest contests the allegations in Ramirez’s

declaration.

8
Reuters Staff, Reuters, “U.S. judge rules former Venezuelan oil minister owes $1.4 billion” (Feb. 14, 2019),
available at https://www.reuters.com/article/us-venezuela-ramirez/u-s-judge-rules-former-venezuelan-oil-minister-
owes-1-4-billion-idUSKCN1Q401J (quoting Ramirez as stating that “he was not surprised by the order, but declined
further comment”).
9
Post by @RRamirezVE (Feb. 15, 2019), available at https://twitter.com/rramirezve/status/1096525153914273792
(linking to Medium post dated Feb. 15, 2019 and available at http://bit.ly/2Ecs4vn).

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The current deadline for Harvest to respond to Ramirez’s motion is July 15, 2019.

III. Applicable Law

“A court may grant jurisdictional discovery when the plaintiff makes a ‘preliminary

showing of jurisdiction’ over a defendant.” Court’s Memorandum and Order, Dkt. 48 at 2

(“Dkt. 48”) (quoting Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005)).

Such a preliminary showing does not require proof that personal jurisdiction exists, but only

“factual allegations that suggest with reasonable particularity the possible existence of the

requisite contacts.” Id. at 3 (quoting Eurofins Pharma US Holdings v. BioAlliance Pharma SA,

623 F.3d 147, 157 (3d Cir. 2010)) (emphases added). “A preliminary showing is less than a

prima facie showing.” Id. at 2–3. When the plaintiff presents such allegations, “the plaintiff’s

right to conduct jurisdictional discovery should be sustained.’” 10 Id. (allowing deposition of, and

submission of requests for production to, Defendant Garcia in this matter); accord Fielding, 415

F.3d at 429; see also Next Techs., Inc. v. ThermoGenisis, LLC, 121 F. Supp. 3d 671, 676 (W.D.

Tex. 2015) (granting jurisdictional discovery and allowing interrogatories and requests for

production); Royal Ten Cate USA, Inc. v. TTAH Trust Co. Ltd., No. A-11-CA-1057, 2012 WL

2376282, at *2 (W.D. Tex. 2012) (granting jurisdictional discovery and allowing depositions,

requests for production, and interrogatories).

Similarly, the Court has discretion to order discovery on service of process. See Kelly,

Sutter, Mount & Kendrick, P.C. v. Albert, 234 Fed. App’x 246, at *1 (5th Cir. 2007) (summary

calendar) (affirming district court’s denial of motion to set aside default judgment; district court

held evidentiary hearing on service of process); Kelly, Sutter, Mount & Kendrick, P.C. v. Albert,

10
See also Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981) (suggesting that “the district court must give the
plaintiff an opportunity for [jurisdictional] discovery and for a hearing that is appropriate to the nature of the motion
to dismiss”).

6
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No. H-05-2213, 2006 WL 3316821, at *3 (S.D. Tex. Oct. 25, 2006) (denying motion to aside

default judgment; explaining evidence of service of process adduced at evidentiary hearing). 11

“[T]he burden of proof to establish personal jurisdiction over the defendants rests upon

the plaintiff,” but “[i]n a case involving a default judgment allegedly rendered in the absence of

personal jurisdiction, we stated that, ‘[o]f course, the burden of undermining a default judgment

rests heavily upon the assailant.’” Nagravision SA v. Gotech Int’l Tech. Ltd., 882 F.3d 494, 498

(5th Cir.), cert. denied, 139 S. Ct. 480 (2018) (quoting and citing Hazen Research, Inc. v. Omega

Minerals, Inc., 497 F.2d 151, 154 (5th Cir. 1974)) (internal quotation marks omitted) (emphasis

added).

The Fifth Circuit has not determined which party bears the burden of proof under

Rule 60(b)(4), but in Nagravision SA, the court found that where the challenge concerned

jurisdiction under Rule 4(k)(2)(A), the burden shifted to the defendant once the plaintiff met its

initial burden. See id. (affirming district court’s denial of Rule 60(b) motion). Most circuits

have concluded that in the Rule 60(b)(4) context, after the plaintiff makes a prima facie case, the

burden shifts to the defendant—particularly where, as here, the defendant has notice of the

lawsuit. See SEC v. Internet Solutions for Business Inc., 509 F.3d 1161, 1165 (9th Cir. 2007)

(explaining that although “plaintiff generally has the burden to establish jurisdiction,” the “better

rule” is “that a defendant moving to vacate a default judgment based on improper service of

process, where the defendant had actual notice of the original proceeding but delayed in bringing

11
See also Frank Keevan & Son, Inc. v. Callier Steel Pipe & Tube, Inc., 107 F.R.D. 665, 667 (S.D. Fla. 1985)
(denying motion to set aside default judgment after holding evidentiary hearing and reviewing documents in
camera); Fulford v. Climbtek, Inc., No. 16-00016, 2017 WL 4183099 (M.D. La. Sept. 21, 2017) (denying motion to
dismiss after allowing discovery on service of process); Brandt v. Am. Bankers Ins. Co., No. C08-5760BHS, 2009
WL 1683480 (W.D. Wash. June 16, 2009) (allowing discovery on service of process and stating that if court
ultimately set aside default judgment, court would order defendant to reimburse plaintiffs for various costs); Blair v.
City of Worcester, 522 F.3d 105, 114 (1st Cir. 2008) (holding that district court abused its discretion by dismissing
action without permitting limited discovery and holding evidentiary hearing on service of process).

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the motion until after entry of default judgment, bears the burden of proving that service did not

occur”) (affirming denial of motion to set aside fault judgment); In re Worldwide Web Sys., Inc.,

328 F.3d 1291, 1298–99 (11th Cir. 2003) (“The burden of proof in a Rule 60(b)(4) motion rests

with the defendant.”) (citing Hazen Research, Inc., 497 F.2d at 154) (affirming denial of motion

to set aside default judgment). 12

Placing the burden on the defendant “comports with general principles of fairness,” since

“[a] defendant who has notice of an action against him may force the plaintiff to prove that

service has been made and that jurisdiction is proper by filing a Rule 12(b) motion to dismiss.”

Internet Solutions for Business Inc., 509 F.3d at 1165. “The defendant who chooses not to put

the plaintiff to its proof, but instead allows default judgment to be entered and waits, for

whatever reason, until a later time to challenge the plaintiff’s action, should have to bear the

consequences of such delay.” Id.

IV. Argument

Before ruling on Ramirez’s motion to set aside the default judgment and dismiss, the

Court should allow Harvest to conduct limited discovery on service of process and jurisdiction.

This Court already found that “Defendant Ramirez was properly served” and failed to answer.

Dkt. 66 at 1. Ramirez cannot carry his burden to show that service did not occur, particularly

because he had actual notice of the lawsuit. He offers only his self-serving, uncorroborated

declaration in support of his claims. The Court should allow Harvest to test Ramirez’s

representations and his credibility before ruling on his motion.

12
Burda Media, Inc. v. Viertel, 417 F.3d 292, 299 (2d Cir. 2005) (“We now hold that on a motion to vacate a default
judgment based on improper service of process where the defaulting defendant had actual notice of the original
proceeding but delayed in bringing the motion, the defendant bears the burden of proof to establish that the
purported service did not occur.”) (affirming denial of motion to set aside default judgment); Bally Exp. Corp. v.
Balicar, Ltd., 804 F.2d 398, 401 (7th Cir. 1986) (“If the defendant, after receiving notice, chooses to let the case go
to a default judgment, the defendant must then shoulder the burden of proof when the defendant decides to contest
jurisdiction in a postjudgment rule 60(b)(4) motion.”) (affirming denial of motion to set aside default judgment).

8
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Harvest has made more than a preliminary showing of jurisdiction over Ramirez; indeed,

the Court correctly found a prima facie showing of jurisdiction—which is higher than a

preliminary showing—when it entered the default judgment. The factual allegations in Harvest’s

First Amended Complaint, Dkt. 14, suggest, with reasonable particularity, the possible existence

of Ramirez’s requisite jurisdictional contacts. Fielding, 415 F.3d at 429. Ramirez attempts to

challenge some of these factual allegations, but his declaration, like Defendant Garcia’s,

“contains misrepresentations that understate and distort his jurisdictional contacts.” Dkt. 48 at 4.

Before ruling on Ramirez’s motion, the Court should allow Harvest to take discovery to confirm

his jurisdictional contacts and test his self-serving assertion that they do not exist. “Harvest

seeks discovery into facts and issues that are reasonably particularized and that, if proved, would

show the contacts between [Ramirez] and the United States necessary for personal jurisdiction as

to Harvest’s Racketeer Influenced and Corrupt Organizations Act claim.” Id.

A. Because Ramirez’s Service of Process Arguments are Supported Only by a


Self-Serving Declaration, the Court Should Permit Discovery to Test His
Claims.

This Court has already found that Ramirez “was properly served in accordance with

Federal Rule of Civil Procedure 4(e), and that he failed to answer, respond, or otherwise defend

the claims brought against him within the time period prescribed by Federal Rule of Civil

Procedure 12(a)(l )(A)(i).” Dkt. 66. This finding was correct and Ramirez does not demonstrate

why it should be disturbed.

Ramirez offers no evidence of (1) when or how he left the United States, 13 or that at the

time of service, (2) he did not intend to return to the New York Address, 14 or (3) that mail sent to

13
The Wall Street Journal article that Ramirez cites only says that Ramirez “ended up leaving [the U.S.] for an
undisclosed country after writing his resignation letter,” according to “[a] person who met Mr. Ramirez in recent
days.” Kejal Vyas, Jose de Cordoba & Anatoly Kurmanaev, Wall Street Journal, “Venezuela’s U.N. Envoy Rafael
Ramirez Resigns,” supra.

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the New York Address was not being forwarded to him in some manner. His self-serving

declaration is not strong, convincing, or credible evidence of the type necessary to overcome

Harvest’s prima facie showing of valid service coupled with Ramirez’s actual notice. See

Internet Solutions for Business Inc., 509 F.3d at 1163 (a “signed return of service constitutes

prima facie evidence of valid service which can be overcome only by strong and convincing

evidence” (emphasis added)); Braverman Kaskey, P.C. v. Toidze, 599 F. App’x 448, 453 (3d Cir.

2015) (affirming denial of motion to set aside default judgment; defendant offered “no credible

evidence, save for her bare assertions,” to support claim it was known she had moved to Russia).

Moreover, Ramirez offers no evidence that, at the time service was made at the New

York Address, he had established another residence elsewhere, and that this residence contained

sufficient indicia of permanence to constitute his dwelling or usual place of abode where he

could be served. Ramirez’s claim that Harvest “is free to bring [its] claims in a proper forum,”

Mot. at 19, is an empty suggestion, since it appears that Ramirez is attempting to render himself

un-servable anywhere in the world.

Even assuming for the sake of argument that Ramirez had established a residence

elsewhere, there is ample case law stating that a defendant can have multiple “usual places of

abode” for purposes of the rules regarding service of process, see Nat’l Dev. Co. v. Triad

Holding Corp., 930 F.2d 253, 257 (2d Cir. 1991) (collecting cases), and that service at a former

residence can be sufficient, particularly when, as here, the defendant had actual notice of the

lawsuit, see Karlsson v. Rabinowitz, 318 F.2d 666, 668–69 (4th Cir. 1963). This case law further

14
Ramirez says he has no intention of returning to the New York Address, Ramirez Decl. ¶ 6, and seems to link this
to his fear of political persecution by President Maduro (infra). However, the U.S. government has shifted control
of many Venezuelan assets, from companies (Citgo) to gold reserves to financial accounts, to Venezuela’s
opposition president Juan Guaido. Ramirez offers no evidence that the New York Address is still controlled by
Maduro and no reason to think it would be unsafe for him to return to New York. E.g., Andrew Scurria, Kejal Vyas
& Rebecca Elliott, Wall Street Journal, “Venezuela Opposition’s Citgo Takeover Disappoints U.S.” (Feb. 20, 2019),
available at https://www.wsj.com/articles/venezuela-oppositions-citgo-takeover-disappoints-u-s-11550658602.

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buttresses Harvest’s claim that its service of process was proper, especially given that Ramirez

has offered no credible evidence that he has established another residence.

All the statements about service of process in Ramirez’s declaration omit the fact that he

had actual notice of the complaint and commented to the international press about it. Ramirez

does not deny this, because he cannot. Ramirez’s actual notice of the lawsuit is a crucial fact.

The rules of services are intended to give a defendant actual notice of the lawsuit, and when a

defendant has actual notice, Rule 4 is construed liberally. See Nowell v. Nowell, 384 F.2d 951,

953 (5th Cir. 1967) (“[T]he provision concerning usual place of abode should be liberally

construed to effectuate service if actual notice has been received by the defendant . . . .” (internal

quotation marks and citation omitted)); Frank Keevan & Son, Inc., 107 F.R.D. at 671 (collecting

cases); Conwill v. Greenberg Traurig, LLP, No. 09-4365, 2010 WL 2773239, at *3 (E.D. La.

July 13, 2010) (“[W]here the defendant has received actual notice of the action, ‘the provisions

of Rule 4(e) should be liberally construed to effectuate service and uphold the jurisdiction of the

court.’” (citations omitted)).

Additionally, courts have held that “[w]here the defendant receives actual notice and the

plaintiff makes a good faith effort to serve the defendant pursuant to the federal rule, service of

process has been effective.” Conwill, 2010 WL 2773239, at *3; see also Frank Keevan & Son,

Inc., 107 F.R.D. at 671. Here, there was actual notice and good faith attempted service. Ramirez

cannot argue that Harvest failed to act in good faith or failed to take reasonable steps to comply

with the Federal Rules of Civil Procedure.

Ramirez’s suggestion that Harvest should have served him under “The Hague

Convention on the Service Abroad of Judicial and Extrajudicial Documents, pursuant to Fed. R.

Civ. P. 4(f)” is similarly empty. Mot. at 7; see also id. at 21. Under the terms of the Hague

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Convention, “[t]his Convention shall not apply where the address of the person to be served with

the document is not known.” Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, at Art. 1 (emphasis

added); see, e.g., Compass Bank v. Kleve, No. No. L-12-46, 2012 WL 12895414, at *4 (S.D.

Tex. Dec. 10, 2012) (quoting this text and holding that Hague Convention did not apply;

allowing service by email). Ramirez’s address is unknown: he is in hiding and even now will not

disclose what country he resides in. Accordingly, the Hague Convention does not apply.

For all these reasons, the Court should order discovery on service of process. 15

B. Because Ramirez’s Ties to Texas and to the United States Are Sufficient to
Make a Preliminary Showing of Personal Jurisdiction, the Court Should
Permit Jurisdictional Discovery to Test Ramirez’s Claims.

Harvest’s allegations are sufficient to make a preliminary showing of jurisdiction over

Ramirez for at least three reasons.

First, jurisdictional discovery may show that Ramirez “‘purposefully directed [his]

activities at [Texas] and [that] the litigation results from alleged injuries that arise out of or relate

to those activities.’” Dkt. 48 at 6 (quoting Walk Haydel & Assocs., Inc. v. Coastal Power Prod.

Co., 517 F.3d 235, 243 (5th Cir. 2008)) (alterations original). As this Court explained with

respect to Defendant Garcia, who made the same argument, “if discovery establishes that

Garcia’s bribe solicitation was an intentional tort directed at Texas, that may suffice.” Id. at 7

(citing Lewis Fresne, 252 F.3d 352, 358–59 (5th Cir. 2001) and Wien Air Alaska, Inc. v. Brandt,

195 F.3d 208, 213 (5th Cir. 1999)). The same is true with respect to Ramirez. “‘When the actual

15
Ramirez also argues that Harvest “never attempted to serve” him with the First Amended Complaint. Mot. 4.
However, once a defendant has been served under Rule 4, Rule 5 is the operative rule for serving pleadings. Harvest
complied with Rule 5 by mailing the First Amended Complaint (and subsequent pleadings) to Ramirez’s “last
known address.” See Fed. R. Civ. P. 5(b)(2)(C). The First Amended Complaint made no changes to the claims
against Ramirez.

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content of communications with a forum gives rise to intentional tort causes of action, this alone

constitutes purposeful availment.’” Dkt. 48 at 7 (quoting Wien, 195 F.3d at 213). 16

Second, Ramirez has ties to Texas—despite his representations to the contrary in his

declaration—that “suggest” the “possible existence” of minimum contacts with Texas. Fielding,

415 F.3d at 429. Specifically:

• Ramirez claims that he has “only been in Texas once, and only stayed for a few hours to
visit the PDVSA stand at an oil industry fair in Houston.” Ramirez Decl. ¶ 10; see also
Mot. at 2, 16. However, publicly available sources contradict these representations:

o In 2005, the Houston Chronicle reported on Ramirez’s attendance at the Offshore


Technology Conference in Houston over a multi-day period during which he met
with oil company executives over dinner at the St. Regis Hotel one day and met
with reporters another day. 17

o Ramirez flew through Houston on his way to and return from Eagle, Colorado in
2009, on a private plane supplied by Citgo, PDVSA’s wholly-owned subsidiary. 18
Harvest believes jurisdictional discovery would reveal additional examples of
Ramirez using Citgo’s planes to travel to, from, and through Houston.

• Ramirez claims that he has “never conducted business in Texas or with Texas
companies.” Ramirez Decl. ¶ 10. However, publicly available sources contradict these
representations:

o The government alleges in the indictment in United States v. De Leon et al., No.
4:17-cr-00514 (S.D. Tex. Aug. 23, 2017), Doc. 1 (“De Leon Indictment”) that
Ramirez (referred to as “Official B” 19) received bribe payment proceeds from

16
Additionally, any “act done outside the state that has consequences or effects within the state” “will suffice as a
basis for jurisdiction in a suit arising from those consequences if the effects are seriously harmful and were intended
or highly likely to follow from the nonresident defendant’s conduct.” See Guidry v. U.S. Tobacco Co., 188 F.3d
619, 628 (5th Cir. 1999) (citing Calder v. Jones, 465 U.S. 783, 789–90 (1984)).
17
David Ivanovich, “Venezuelan says oil will flow,” Houston Chronicle (May 4, 2005), available at:
https://www.chron.com/business/energy/article/Venezuelan-says-oil-will-flow-1498400.php.
18
See Staff, DolarToday.com, “Esposa e hijos de Rafael Ramírez utilizan flota de aviones de PDVSA para ir a
esquiar a EEUU” (Dec. 7, 2014), available at https://dolartoday.com/esposa-e-hijos-de-rafael-ramirez-utilizan-
placer-la-flota-de-aviones-de-pdvsa (Spanish language, reporting on El Nacional story, no longer available on its
website, based on Citgo flight manifests); Staff, Maduradas.com, “SE DESTAPÓ LA OLLA! Conozca los destinos
y costos de los viajes de enchufados en aviones PDVSA” (Dec. 7, 2014), available at https://maduradas.com/se-
destapo-la-olla-conozca-los-destinos-y-costos-de-los-viajes-de-enchufados-en-aviones-pdvsa (same).
19
Joshua Goodman, Associated Press, “Official: US believes ex-Venezuela oil czar took bribes” (Feb. 12, 2018),
available at https://www.apnews.com/6cbba8789ed849d2ac210f8571addc59.

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Texas-based individuals and companies, including payment for his children’s


English classes. De Leon Indictment ¶¶ 51, 126–27.

o Ramirez admits he was Minister of Energy and Oil and President of PDVSA from
the early 2000s through August 2014. Ramirez Decl. ¶ 3. During this period,
PDVSA had numerous subsidiaries incorporated in the U.S. and headquartered in
Houston or otherwise doing business in Texas, including Citgo Petroleum
Corporation, Citgo Holding, Inc., and PDV Holding, Inc. 20 PDVSA also owned
many joint ventures with U.S. entities based in or that conducted business in
Texas, and Ramirez personally commented on joint venture developments related
to Texas. 21 It defies belief that, given his roles, Ramirez “never conducted
business in Texas or with Texas companies.”

• Public database records indicate that Ramirez’s son registered a 2017 Ford Explorer at a
Katy, Texas address in July 2018. Harvest is investigating, as part of its asset search,
whether Ramirez’s son acted as a strawman for Ramirez’s corrupt proceeds.

• Harvest’s investigative firm has determined that at least some of Ramirez’s strawmen
appear to have used a Texas-based professional services firm to structure their financial
assets.

Finally, Ramirez has ties to other states that “suggest” the “possible existence” of

minimum contacts with the United States. Because RICO allows for nationwide service of

process, “[t]he question is whether the discovery Harvest seeks would suggest with reasonable

particularity that [Ramirez] has minimum contacts with the United States.” Dkt. 48 at 5. 22 The

discovery Harvest seeks would show such minimum contacts. Ramirez’s bank accounts in the

20
See, e.g., PDVSA SEC Filing, “Offer to Exchange” (Sept. 16, 2016), available at
https://www.sec.gov/Archives/edgar/data/906424/000119312516712239/d171369dex99t3e.htm (“Through PDV
Holding, [Inc.,] a wholly-owned subsidiary, we indirectly own 100% of CITGO Holding[, Inc.] and CITGO
Petroleum Corporation[.]”); Bloomberg, “Company Overview of PDV Holding, Inc.,” available at
https://webcache.googleusercontent.com/search?q=cache:VO4c7MzgICsJ:https://www.bloomberg.com/research/sto
cks/private/snapshot.asp%3FprivcapId%3D27976105+&cd=1&hl=en&ct=clnk&gl=us (explaining that PDV
Holding, Inc. “is based in Houston, Texas,” and “operates as a subsidiary of” PDVSA); Propernyn B.V. SEC Filing
(submitted c/o PDVSA), “Form 20-F” (Dec. 31, 2001), available at https://www.sec.gov
/Archives/edgar/data/906423/000091205702024404/a2082334z20-f.htm (explaining relationships between PDV
Holding, PDV America, CITGO Petroleum Corporation, PDV Midwest Refining, L.L.C., PDV Chalmette Inc., PDV
Sweeny Inc., and PDV Texas Inc.).
21
See Dan Molinski & Isabel Ordonez, Wall Street Journal, “Venezuela Sues Conoco Over Joint Venture” (Mar. 1,
2010), available at https://www.wsj.com/articles/SB10001424052748703795004575087711132897860 (quoting
Ramirez regarding lawsuit about assets at a refinery in southeast Texas).
22
See also Luallen v. Higgs, 277 F. App’x 402, 405 (5th Cir. 2008); Busch v. Buchman, Buchman & O’Brien, Law
Firm, 11 F.3d 1255, 1258 (5th Cir. 1994); Dimas v. Vanderbilt Mortg. & Finance, Inc., No. C-10-68, 2010 WL
1875803, at *3 (S.D. Tex. May 6, 2010).

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United States are one example of his ties to the United States. Multiple news sources report that

Ramirez may have multi-million dollar accounts at a Florida bank. 23 Additionally, Harvest has

retained one of the world’s leading investigative search firms, which has found evidence that

Ramirez uses multiple strawmen, called testaferros, to hold assets for him so that he does not

hold the assets in his own name. 24 Ramirez’s testaferros include members of his own family and

his co-conspirators in the De Leon Indictment. These testaferros are holding property in the

United States for Ramirez, including entities, accounts, and/or real estate, in their names and

those of their family members, in multiple U.S. states. Jurisdictional discovery may uncover

whether Ramirez is or was the true owner of the assets Harvest’s investigative firm has

identified, which in turn may establish Ramirez’s minimum contacts with the United States.

C. Falsehoods in Ramirez’s Declaration Show that the Court Should Not Rely
on it When Determining the Service of Process or Jurisdictional Issues.

Other material falsehoods in Ramirez’s declaration demonstrate that this Court should not

rely upon it in any service of process or jurisdictional analysis without subjecting Ramirez and

his assertions to examination.

Ramirez states: “Because I was not directly involved in negotiations with private

companies, I had no prior knowledge of or participation in the negotiations related to Harvest’s

sale of its stake in PETRODELTA, S.A.” Ramirez Decl. ¶ 15. However, the very Bloomberg

article Ramirez cites reveals that he had prior knowledge of Harvest’s sale and was directly

23
See TO2 Network, “SE DESCUBRE CUENTA MILLONARIA DE RAFAEL RAMIREZ EN USA” (n.d.),
available at http://www.to2network.com/video_y.php?id=MzE2 (Spanish language); Gerardo Reyes & Casto
Ocando, Univision, “Transacciones sospechosas en Miami vinculan a presidente de petrolera venezolana” (Aug. 30,
2011), available at https://www.univision.com/noticias/noticias-de-latinoamerica/transacciones-sospechosas-en-
miami-vinculan-a-presidente-de-petrolera-venezolana (Spanish language).
24
See, e.g., Zach Despart, Houston Press, “Corrupt Businessmen Looted Venezuela, and Now Many Live Quietly in
Houston and Miami” (Apr. 18, 2017), available at https://www.houstonpress.com/news/many-corrupt-venezuelans-
hide-in-houston-and-miami-9335232 (mentioning how Robert Rincon, Abraham Shiera, and others launder
corruption proceeds in the U.S., such as by listing property in family members’ names; one of Rincon’s companies
paid for Ramirez’s children’s English classes, see De Leon Indictment ¶¶ 51–53, 126–27).

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involved in the negotiations: “Both the buyer and seller know what they need to do in order to

obtain government approval, [Ramirez] said. ‘I spoke with both of them,’ Ramirez said.” 25

Additionally, Ramirez sates: “I do not know Mr. Juan Jose Garcia Mendoza (‘Mr.

Garcia’) and have no recollection of ever having any kind of communication with him.”

Ramirez Decl. ¶ 17. However:

• Garcia’s emails produced in this litigation indicate that in 2010, he attended a 7-hour long
meeting that included Ramirez. Ex. 24 to Juan Jose Garcia Mendoza Dep. Exhibit C.

• Information obtained by Harvest’s investigative firm suggests that Ramirez hired Garcia
as a personal advisor when Ramirez was the founding president of Venezuela’s national
gas entity, Enagas, and that Ramirez and Garcia have been business associates for more
than 30 years.

• A Harvest witness would testify that Garcia was hired by companies, including U.S.
companies, to “do corrupt deals” with Ramirez. 26

These facts show that Ramirez’s declaration should not be relied upon in determining

jurisdiction or service of process. Additionally, Ramirez’s false statements demonstrate

consciousness of guilt. See, e.g., United States v. Bruce, 75 Fed. App. 849, 852 (2d Cir. 2003)

(explaining that false exculpatory statements “are circumstantial evidence of a consciousness of

guilt”; defendant denied knowing individuals that evidence indicated she knew).

25
Nathan Crooks & Corina Pons, Bloomberg, “Harvest Rises Most in Month on Venezuela Comments: Caracas
Mover” (Feb. 13, 2013), available at
https://webcache.googleusercontent.com/search?q=cache:wakHgFhS6CcJ:https://www.bloomberg.com/news/article
s/2013-02-13/harvest-rises-most-in-month-on-venezuela-comments-caracas-mover+&cd=1&hl=en&ct=clnk&gl=us
(emphasis added) (Google cache version; Bloomberg article is behind a paywall).
26
Other facts strongly suggest that Garcia and Ramirez know each other. For example, Garcia worked for one of
the largest oil companies in the world as the company’s main liaison with PDVSA and the Ministry, both of which
Ramirez headed. See Ex. 17 to Garcia Dep., attached as Exhibit D (Garcia resume describing role from 2002–2017
as “main contact person within Chevron’s [Latin America Business Unit] to the Ministry of Energy and Petroleum
and PDVSA”). Additionally, Ramirez and Garcia both worked at PDVSA and PDVSA affiliates for many years.
See, e.g., id. (reflecting 20 years of experience at PDVSA and PDVSA affiliates). Garcia’s failure to list his work at
Enagas on his resume, thereby hiding evidence of his relationship with Ramirez, is evidence of his consciousness of
guilt, infra. Additionally, Garcia’s declaration is not credible, as this Court found, see Dkt. 48 at 4, and Ramirez’s
reliance on it is misplaced. Mot. at 13 (stating “Garcia has denied that any bribe request was made at the meeting”).

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D. The Court Should Grant Discovery to Test Ramirez’s Claims of “Good


Cause,” Including Excusable Neglect, Lack of Willfulness, and that He Has
Meritorious Defenses.

Ramirez argues that the default judgment should be set aside for “mistake, inadvertence,

surprise, or excusable neglect.” Mot. at 11. He claims that his default was not willful and that

good cause exists to set aside the judgment, explaining:

given that Ramirez is being targeted by the Maduro regime, caution about any
communications, that English is not his native language, that he has no access to
his records in Venezuela, and the difficulty of coordinating with U.S. counsel
from abroad while avoiding the public spotlight, Ramirez has acted as
expeditiously as he could under the circumstances . . . .

Id.; see id. at 1, 6, 11 (claiming that default was not willful). These claims are controverted by a

wealth of evidence. The only support for them is Ramirez’s declaration, the veracity of which

Harvest has put at issue. The Court should grant discovery to test these claims.

1. Ramirez is on the run from U.S. law enforcement—not the Maduro


regime.

Ramirez’s claim that he is living in Europe “to escape political persecution” at the hands

of Venezuelan President Nicolas Maduro and his regime is false. Mot. at 3; see also id. at 19,

20; Ramirez Decl. ¶ 6. As an initial matter, the United States—from where Ramirez fled—is one

of the safest places in the world for outspoken critics of Maduro to reside and continue their

criticism of Maduro’s regime. The United States has recognized Venezuelan opposition leader

Juan Guaido as the country’s lawful president. 27 Multiple high-profile Maduro critics either

reside in the United States or are seeking to come to the United States. For example, President

Guaido’s attorney general resides in Boston, where he is a visiting fellow at Harvard. 28

27
See Jessica Donati, Vivian Salama, and Ian Talley, Wall Street Journal, “U.S. Push to Oust Venezuela’s Maduro
Marks First Shot in Plan to Reshape Latin America” (Jan. 30, 2019), available at https://www.wsj.com/articles/u-s-
push-to-oust-venezuelas-maduro-marks-first-shot-in-plan-to-reshape-latin-america-11548888252.
28
See Patricia Laya & Fabiola Zerpa, Bloomberg, “Guaido’s Legal Adviser in Talks With Citi to Extend Gold
Swap” (Feb. 28, 2019), available at https://www.bloomberg.com/news/articles/2019-02-28/guaido-s-legal-adviser-

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President Maduro’s intelligence chief fled Venezuela in May 2019 to Bogota, Colombia, where

he met with U.S. officials, and he hopes to arrange to enter the United States. 29 If Ramirez were

truly fleeing from Maduro, he would have remained in the United States.

Rather, Ramirez fled the United States because he is a target of United States law

enforcement. Ramirez is an unindicted co-conspirator in the De Leon Indictment, which charged

two of his closest associates, Nervis Villalobos and Rafael Reiter. See 1st Am. Comp. ¶¶ 66–68.

Many others have decried Ramirez’s corruption and criminal conduct. For example, Senator

Marco Rubio—whom Ramirez cites favorably for his proposal designating the Maduro regime as

a criminal organization, Mot. at 18 n.18—has stated that Ramirez engaged in “criminal”

behavior, “oversaw corruption at PDVSA to the tune of $11 billion,” and “belongs in jail along

with everyone else who stole this $11 billion.”30

2. Ramirez exhibits no “caution about his communications” and has no


difficulty coordinating or communicating from abroad.

Ramirez cites his “caution about any communications” and “the difficulty of coordinating

with U.S. counsel from abroad” as reasons supporting good cause to set aside the default,

particularly because he is “avoiding the public spotlight.” Mot. at 11; see also id. at 1 (Ramirez

stays “out of the public eye”). These claims are baseless. Ramirez is a prolific tweeter who

in-talks-with-citi-to-extend-gold-swap (reporting on Venezuelan attorney general Jose Ignacio Hernandez, who


interviewed with reporters from Boston); CESAR ALVAREZ ALONSO & JOSE IGNACIO HERNANDEZ, EDS., LATIN
AMERICAN GEOPOLITICS: MIGRATION, CITIES AND GLOBALIZATION (2019), Contributor Notes, available at
https://link.springer.com/content/pdf/bfm%3A978-3-319-99552-6%2F1.pdf (listing Hernandez as visiting researcher
at Harvard Kennedy School from 2017–19).
29
See Anthony Faiola, Washington Post, “Maduro’s ex-spy chief lands in U.S. armed with allegations against
Venezuelan government” (June 24, 2019), available at https://www.washingtonpost.com/world
/the_americas/maduros-ex-spy-chief-lands-in-us-armed-with-allegations-against-venezuelan-government/2019
/06/24/b20ad508-9477-11e9-956a-88c291ab5c38_story.html?utm_term=.e4ce570c5571.
30
Senator Rubio’s full press release is available here: Marco Rubio Senate Website, Press Releases, “Rubio Calls
For Sanctions Against Corrupt Former Head of Venezuela’s State-Owned Oil Company” (Oct. 21, 2016),
https://www.rubio.senate.gov/public/index.cfm/press-releases?ID=A4E50648-F90A-4D77-B317-46C6821385FF.

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cherishes the spotlight, comments to the international press daily, takes interviews in multiple

languages, and maintains a highly polished and updated website. 31 To elaborate:

• Ramirez maintains an active Twitter account, using the handle @RRamirezVE. 32 He has
tweeted more than 5,800 times and has more than 281,000 followers.

• Ramirez maintains a weekly newsletter to which users can subscribe to receive his
articles and other content of interest. 33

• Ramirez maintains a highly polished, media-heavy, up-to-date personal website,


https://www.rafaelramirez.net. At the website, users can sign up for his newsletter and
visit a press room where they can submit an interview request, read Ramirez’s press
releases, view videos of his television interviews (including interviews in every month
from January through June 2019), and read his weekly newsletters. Ramirez registered
the website on March 24, 2019 34—more than 15 months after fleeing the United States.

• Ramirez writes a weekly column for the Venezuelan periodical Panorama. 35

• Ramirez maintains an Instagram account (rafaelramirezve) with more than 400 followers;
because it is a “new” social media account, he publicizes it to his Twitter followers. 36

Ramirez’s statements in his declaration are once again belied by his own conduct and should not

be relied upon without first subjecting Ramirez and his assertions to examination.

31
In addition to the many below examples of Ramirez interviewing with reporters on different continents, see also
YouTube, “HASTA LA (CHA)VISTA? Ft. Rafael Ramirez, Former Permanent Representative of Venezuela to the
UN” (posted Feb. 10, 2019), available at https://www.youtube.com/watch?v=hYogxnFCu2U. In this video from
February 2019, Ramirez participates in an English-language interview via high-quality video conferencing (the
video is live and in high definition, with no granularity or buffering during the entire 20+ minutes of the interview),
showing his ready access to the internet and sophisticated audio/visual equipment.
32
Twitter profile for Rafael Ramirez, @RRamirezVE, available at https://twitter.com/rramirezve.
33
See @RRamirezVE, Twitter post (June 26, 2019), available at https://twitter.com/RRamirezVE
/status/1144025128642256897 (advertising newsletter and providing sign-up link).
34
See GoDaddy WHOIS domain search result for www.rafaelramirez.net, available at
https://www.godaddy.com/whois. The Wayback Machine also suggests that Ramirez only registered his website
recently; the first saved version of the website on the Wayback Machine that shows the website as it currently
appears dates from April 21, 2019: https://web.archive.org/web/20190421095344/https://www.rafaelramirez.net.
The March 21, 2018 and September 22, 2017 saved versions only show an error message. Before that, the website
was a Bible study page in English and Spanish. See generally Wayback Machine search result for
www.rafaelramirez.net, available at https://web.archive.org/web/*/www.rafaelramirez.net.
35
See Panorama, Opinion page, available at https://www.panorama.com.ve/seccion/opinion.html (Spanish
language).
36
See @RRamirezVE, Twitter post (June 27, 2019), available at https://twitter.com/RRamirezVE/status
/1144259340859269121.

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3. Ramirez is a sophisticated, fluent English speaker.

Ramirez cites the fact that “English is not his native language” as a reason for why there

is good cause to set aside the default. Mot. at 11. However, Ramirez submitted his declaration

in English, not in Spanish with an accompanying translation. See Ramirez Decl. Thus, Ramirez

must have understood his 6-page declaration well enough to determine that it was accurate and to

declare, “under penalty of perjury . . . that the above statements are true and correct.” Id. at 6.

Additionally, Ramirez’s many interviews with English media—all extemporaneous and

without translators, interpreters, or notes—belie this claim. In these interviews, Ramirez exhibits

a sophisticated command of the English language and has no problems speaking on, and

answering impromptu questions about, a wide range of political, legal, and technical matters. 37

Many of these questions are compound, delivered quickly, and/or asked by individuals with

accents, but Ramirez responds intelligently and fluently.

37
For example, in the following video posted by the United Nations’ YouTube channel, Ramirez responds in
English to multiple questions posed in English: YouTube, “Rafael Darío Ramírez Carreño (Venezuela) on Venezuela
- SC Stakeout (17 May 2017),” available at https://www.youtube.com/watch?v=8Ic0KE-I49c (answering questions
in English that are posed in English at the following times: 16:38, 18:04, 19:17, 20:33, 21:27, 22:21, and 24:04).
In these videos posted on the United Nations’ website, Ramirez presents in English with notes, and then responds in
English to questions posed in English: UN Web TV, “SC President, Rafael Ramírez (Venezuela) on Central Asia,
Sudan and Syria - Security Council Media Stakeout (4 February 2016),” available at http://webtv.un.org/watch/sc-
president-rafael-ram%C3%ADrez-venezuela-on-central-asia-sudan-and-syria-security-council-media-stakeout-4-
february-2016/4739313145001 (answering questions in English that are posed in English at the following times:
4:30, 5:47, 6:31, and 7:19); UN Web TV, “SC President, Rafael Dario Ramirez Carreño (Venezuela) on Sudan and
Burundi - Security Council Media Stakeout (10 February 2016),” available at http://webtv.un.org/watch/sc-
president-rafael-dario-ramirez-carre%C3%B1o-venezuela-on-sudan-and-burundi-security-council-media-stakeout-
10-february-2016/4750156652001/?term= (answering questions in English that are posed in English at the following
times: 4:10, 4:56, 6:29, and 7:06). The UN’s Web TV website includes more than a dozen other videos of Ramirez.
Harvest’s counsel has not reviewed every such video but believes that most, if not all, will show Ramirez
responding extemporaneously, in English, to questions posed to him in English.
There are many other videos showing Ramirez interviewing with reporters in English. E.g., YouTube, “HASTA LA
(CHA)VISTA? Ft. Rafael Ramirez, Former Permanent Representative of Venezuela to the UN” (posted Feb. 10,
2019), available at https://www.youtube.com/watch?v=hYogxnFCu2U (live English-language interview with
Russian journalist, lasting more than 20 minutes, via high-quality video conferencing in February 2019); YouTube,
“Entrevista a Rafael Ramírez en la OPEP (Inglés)” (posted June 26, 2012 by PDVSA Videos), available at
https://www.youtube.com/watch?v=KS_yoOXhq5Q (live English-language interview).

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The fact that Ramirez speaks with an accent and that English is not his native language

does not impact his ability to understand and converse on a complicated array of topics. His

claim that his default is excusable because he is not a native English speaker is baseless.

4. Ramirez deliberately did not act “as expeditiously as he could under the
circumstances.”

Ramirez claims that “he has acted as expeditiously as he could to address the default in

light of the issues caused by his being abroad.” Mot. at 1; id. at 11. This is false. As outlined

above, Ramirez (1) had actual notice of Harvest’s lawsuit on the same day the lawsuit was filed,

(2) had actual notice of Harvest’s February 2019 default the day after it was entered, (3) has

ready access to the internet and high-quality videoconferencing, and (4) has spent the past

sixteen months (since suit was filed) and the past six months (since the Court entered the

December 2018 default) tweeting, talking to reporters around the world, writing a weekly

column, growing his social media following, and launching an elaborate website.

Ramirez deliberately chose not to answer Harvest’s claims last year. He chose to do

nothing with respect to the default judgment until after Harvest’s retained investigative firm was

successfully identifying his strawmen and locating his overseas assets. Ramirez’s conduct shows

a flagrant disregard for this Court and for the rule of law. See Frank Keevan & Son, Inc., 107

F.R.D. at 671 (noting defendant’s “cavalier disregard for the judicial process”). He did not

respond “expeditiously.” Ramirez’s default was both willful and calculated.

5. Ramirez does not have meritorious defenses.

Ramirez claims in a cursory paragraph that he has meritorious defenses. Mot. at 12–13.

However, even these supposed defenses suffer from the misstatements of fact that plague his

declaration. For example, he claims that the Court “does not have personal jurisdiction over him,

as Ramirez was not even involved in the transaction at issue.” Id. at 12. But Ramirez’s

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comments to Bloomberg demonstrate that he was personally involved in Harvest’s sale and

spoke with both Harvest and the agreed buyer about the sale. Additionally, Ramirez fails to

explain why the Court erred when it granted the default judgment, since the Court found that

Harvest’s well-pleaded facts stated a cause of action that supported a judgment of liability. See,

e.g., Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F. 2d 1200, 1206 (5th Cir. 1975).

Ramirez’s arguments about prejudice are also unsupported. He states that setting aside

the default would not prejudice Harvest or result in any loss of evidence. Mot. at 1, 13.

However, since the time Harvest moved to dismiss the other defendants in October 2018 (see

Dkt. 63) in reliance on Ramirez’s non-appearance, and since Harvest filed for the default in

November 2018 (see Dkt. 65), Venezuela has deteriorated into a state of chaos. 38 Harvest’s

ability to access documents, talk to witnesses, investigate, and otherwise prepare its case is

materially hampered now, in a way that it was not before Harvest obtained the default judgment.

Setting aside the default would also invite opportunities for fraud and collusion: Ramirez,

a corrupt actor, could use the intervening time to hide assets or even destroy evidence or interfere

with possible witnesses. Additionally, Harvest’s investigation determined that Ramirez had

assets sufficient to remedy Harvest’s harm, so Harvest dismissed the other defendants in order to

obtain a final judgment against Ramirez.

Similarly, Ramirez claims that “[t]he burden on him to defend this case in Texas is

extraordinary,” Mot. at 19, but offers no reason why this is the case. He has already shown that

he has ready access to the internet and he routinely interviews with reporters from around the

38
See BBC Staff, BBC News, “Venezuela crisis: How the political situation escalated” (Apr. 30, 2019), available at
https://www.bbc.com/news/world-latin-america-36319877 (detailing mounting tensions since January 2019, when
President Maduro was sworn in for another term and Guaido declared himself acting president; discussing mass
protests, hyperinflation, difficulty obtaining food, and mass migration out of Venezuela); Chris Sanders & Luc
Cohen, Reuters, “U.S. orders suspension of flights between the U.S. and Venezuela” (May 15, 2019), available at
https://www.reuters.com/article/us-venezuela-politics-usa-airlines/us-orders-suspension-of-flights-between-the-us-
and-venezuela-idUSKCN1SL2F2 (noting U.S. suspension of all commercial flights to Venezuela).

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globe. He is alleged to have stolen billions of dollars and Harvest’s investigation has found that

he has access to significant sums of money. Ramirez has hired a major law firm to represent him

with attorneys on the pleadings from offices in New York, Washington, and Houston. Ramirez

gives no reason why there would be an “extraordinary” burden for him litigate this case in Texas.

E. The Court Should Defer Ruling on Personal Jurisdiction Pending Discovery


Because the Jurisdictional Challenge is Intertwined with the Merits of the
Case.

When a defendant challenges jurisdiction in a manner that intertwines with the merits of

the case, courts frequently allow discovery and defer deciding personal jurisdiction until the

close of discovery, or even trial. See Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir. 1982)

(“When, as in this case, the jurisdictional question intertwines with the merits of the case, some

discovery on the merits may be necessary, and general discovery may be permitted.”).

Ramirez’s challenge to personal jurisdiction is intertwined with the merits of the case

because he denies instructing Garcia to make a bribe demand that Harvest alleges was purposely

directed at a corporation based in Texas. Further, regardless of Ramirez’s intent, the alleged

bribe demand had seriously harmful effects that were highly likely to (and did) follow in Texas.

In similar situations, courts in the Fifth Circuit have deferred deciding personal jurisdiction until

after discovery. E.g., Hoover v. Fla. Hydro, Inc., No. 07-1100, 2009 WL 10678888, at *2 (E.D.

La. July 31, 2009) (“This Court has ruled that when a determination of personal jurisdiction and

venue is intertwined with the merits of the case, that determination should be deferred until

trial.”).

V. Request for Emergency Consideration

Harvest’s response deadline for the Motion to Set Aside the Default and Motions to

Dismiss is currently set for July 15, 2019. Harvest requests that the Court stay Harvest’s

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response deadline while Harvest’s emergency motion is pending, and that the Court consider

Harvest’s emergency motion on an expedited basis.

Counsel for Ramirez is not opposed to a stay of Harvest’s response deadline, during

which the parties will seek to narrow the areas of disagreement and continue ongoing efforts to

reach agreement on the requests for production. The parties appear unable to agree on the

appropriateness and location of a deposition at this time.

VI. Conclusion

The factual allegations in Harvest’s First Amended Complaint suggest, with reasonable

particularity, the possible existence of Ramirez’s requisite jurisdictional contacts. Harvest has

established, and this Court has held, that Harvest properly served Ramirez. Before ruling on

Ramirez’s motion, the Court should allow Harvest to take limited discovery on service of

process and jurisdiction to confirm Ramirez’s contacts with Texas and the United States, and to

test his self-serving falsehoods and omissions.

Accordingly, Harvest respectfully requests that the Court permit Harvest to:

(1) take a deposition of Ramirez in the United States limited to the issues arising in and
from his motion and declaration;

(2) serve written discovery on Ramirez limited to the issues arising in and from his
motion and declaration; and

(3) request materials from: individuals and third party entities doing business,
headquartered, or incorporated in the United States that Ramirez communicates with
regarding business matters; and third parties, including U.S. federal government agencies,
that have conducted or are conducting investigations into PDVSA-related corruption. 39

39
As detailed above, Ramirez is the “ultimate target” of the government’s ongoing probe into PDVSA corruption.
Harvest recognizes that permission from this Court to request materials from government agencies is simply a first
step to seeking and obtaining such materials. If permission were granted, and if Harvest decided to seek such
materials, Harvest would comply with United States ex rel. Tuohy v. Regan, 340 U.S. 462 (1951), and each agency’s
associated “Touhy” regulations. Under this process, Harvest would submit formal requests to the agencies it
believed had relevant information, outlining the requested materials with the required specificity. The agencies
would then determine, in accordance with their rules and procedures, whether they could produce the requested
materials and whether the materials were protected from disclosure by privilege, grand jury secrecy, or other rules.

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Harvest submits that the discovery should take place on an expedited basis. Harvest

attaches to this motion as Exhibit E a set of narrow requests for production limited to service of

process and jurisdictional issues raised by Ramirez’s declaration.

Respectfully Submitted,

SMYSER KAPLAN & VESELKA, L.L.P.

/s/ Alex Wolf


Craig Smyser (Fed. Bar No. 848)
Dane Ball (Fed. Bar No. 784400)
Ty Doyle (Fed. Bar No. 1373873)
Alexander M. Wolf (Fed. Bar No. 2470631)
700 Louisiana, Suite 2300
Houston, Texas 77002
(713) 221-2300 (phone)
(713) 221-2320 (fax)
csmyser@skv.com
dball@skv.com
tydoyle@skv.com
awolf@skv.com

ATTORNEYS FOR PLAINTIFFS


HARVEST NATURAL RESOURCES,
INC. AND HNR ENERGIA B.V

CERTIFICATE OF CONFERENCE

Counsel for Plaintiffs have conferred with counsel for Defendant. At this time,
Defendant opposes a deposition, especially in the United States. Defendant does not oppose
Plaintiff’s requests for production categorically; the parties have agreed in principle on numerous
categories, and will continue to confer on the remaining categories during the requested stay.

/s/ Alex Wolf


Alexander M. Wolf

CERTIFICATE OF SERVICE

I hereby certify that all counsel of record who are deemed to have consented to electronic
service are being served with a copy of this document via the Court’s CM/ECF system per Local
Rule 5.1 on the 9th day of July, 2019.

/s/ Alex Wolf


Alexander M. Wolf

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