TUVACOL v. MARZAN MANZUR (2026)

ORDER

THIS CAUSE comes before the Court on the Defendants’ Consolidated Motion to Dismiss Complaint [ECF 29], filed on June 11, 2026. Before September 23, 2026 and reassignment, the Motion was referred for a report and recommendation [ECF 35]. The Court vacated that referral because of the ripe motions on the extension of lis pendens [ECF 52].

Since “[u]nder the Florida cases a lis pendens is proper only when the required relief might specifically affect the property in question․ [t]here is no other justification for burdening the alienability of the property pending the outcome of the lawsuit.” Beefy King Int'l v. Veigle, 464 F.2d 1102, 1104 (5th Cir. 1972).¹ Ultimately, resolving the Motion moots the issue: Tuvacol has not pled a “domestic injury to its business or property.” RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 346 (2012) (emphasis original). Accordingly, for the following reasons, the Court GRANTS the Motion.

Background

Defendant Marco Marzan, a Colombian citizen, lives in Cartagena and previously served as the “former statutory auditor” of Tuvacol, S.A., a Colombian company based out of Barranquilla [ECF 1 at page 2]. The Complaint does not discuss Tuvacol's line of business. See id generally. But suffice it to say that Marzan's work fell outside the scope of his employment there. Id. at 5.

According to Tuvacol, Marzan ran an “Embezzlement Scheme” with help from his sister, Elizabeth (another Colombian citizen living in Cartagena). Id. Purportedly, the scheme diverted funds to “three U.S. Financial institutions” as well as “a British Virgin Islands company owned by a Florida trust company,” which benefitted Elizabeth's children. Id. at 7 and 11. Five Florida-based LLCs owned by Marzan are also said to have purchased or rented property in Miami with at least some ill-gotten gains, which, in turn, led to this Complaint being filed on August 6, 2025 in the Southern District of Florida. Id. at 3-4.

But this is not the first such proceeding. “On or about August 22, 2022,” Tuvacol learned of certain discrepancies from Marzan's tenure. Id. at 11. So, concerned about Marzan's personal finances, the company sought relief from Chief Judge Altonaga after alerting Colombian authorities, whose Investigaciones Estratégicas had launched a probe into the former employee's auditing. Id. at 14. “On December 22, 2023,” Chief Judge Altonaga granted the company's application pursuant to 28 U.S.C. § 1782. Id. at 12. Last year, Tuvacol also averred that the criminal investigation was “ongoing.” Id. at 15. This year, it offered an affidavit, which reaffirmed as much [ECF 31-2 at page 13] (“I understand that the criminal investigation currently concerns Mr. Marzan․”).

Notably, between 2025 and 2026, Tuvacol repeatedly sought to perfect service of process under the Hague Convention, betraying the international character of this case. See [ECF 15]; see also [ECF 20]. Now, the company raises both federal and state law claims, but subject-matter jurisdiction rests solely on the Racketeer Influenced and Corrupt Organizations Act (“RICO”) [ECF 1 at page 3]. To that end, invoking this Court's federal question jurisdiction under 28 U.S.C. § 1331, Tuvocal claims at least $8,000,000 in actual damages and further seeks treble damages against the Marzan enterprise per the Civil RICO and Civil RICO Conspiracy provisions of 18 U.S.C. § 1964(c) and (d). Id. at 15 and 22.

I. DISCUSSION OF GRANTING MOTION TO DISMISS

a. Legal Standard for Reviewing a Motion to Dismiss

“A court's review on a motion to dismiss is ‘limited to the four corners of the complaint.’ ” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (internal quotation omitted). “A court may consider only the complaint itself, and any documents referred to in the complaint which are central to the claims.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Hence, “[a]s a general rule, conclusory allegations and unwarranted deductions of fact are not admitted as true in a motion to dismiss.” South Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 409 n.10 (11th Cir. 1996).

Put differently, courts may draw reasonable inferences from well-pled facts. Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). Rule 8(a)(2) of the Federal Rules of Civil Procedure merely requires a short and plain statement of the claim to show a plausible entitlement to relief, so “the defendant [has] fair notice of what the․ claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). Even so, such a rule regarding all well-pled allegations as true “is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 678 (2009).

b. Dismissal of Claims

Applying that standard here, Tuvacol's RICO injury is not cognizable. Without original jurisdiction, this Court also declines to reach the state law claims under Count III (Civil Theft), Count IV (Conversion), Count V (Civil Conspiracy), Count VI (Unjust Enrichment), and Count VII (Breach of Fiduciary Duty). See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 569 (2004) (“[Plaintiff] was a Mexican citizen․[a]nd because the defendant, Dataflux, was a Mexican corporation, aliens were on both sides of the case, and the requisite diversity was therefore absent.”); see also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A district court's decision whether to exercise that jurisdiction after dismissing every claim over which it had original jurisdiction is purely discretionary.”). Therefore, dismissal of both Count I (Civil RICO) and Count II (Civil RICO Conspiracy) is proper for each defect analyzed below.

i. Count I: Civil RICO - GRANTED

Civil RICO claims “are essentially a certain breed of fraud claims [that] must be pled with an increased level of specificity” under Rule 9(b) of the Federal Rules of Civil Procedure. See Ambrosia Coal & Constr. Co. v. Morales, 482 F.3d 1309, 1316 (11th Cir. 2007); see also Fed. R. Civ. P. 9(b) (“[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake”) (emphasis added). Accordingly, “[w]hen a RICO claim is based on predicate acts involving fraud, those predicate acts must be pleaded with particularity, in accordance with [Rule 9(b)].” Liquidation Comm'n of Banco Intercontinental, S.A. v. Alvarez Renta, 530 F.3d 1339, 1355 (11th Cir. 2008).

For foreign plaintiffs, in particular, the issue is not so much whether malefactors outside the United States may cause an injury inside the United States. See RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 353 (2016) (“[t]his does not mean that foreign plaintiffs may not sue under RICO․”); see also United States v. Beasley, 72 F.3d 1518 (11th Cir. 1996) (“only a slight effect on interstate commerce is required”). Rather, the question is whether “a plaintiff has alleged a domestic injury for purposes of § 1964(c) when the circumstances surrounding the injury indicate it arose in the United States.” Yegiazaryan v. Smagin, 599 U.S. 533, 549 (emphasis added). In this case, the totality of circumstances clearly points back to Colombia.

Overall, a properly pled RICO claim has six elements: “that the defendants (1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at least two predicate acts of racketeering, which (5) caused (6) injury to the business or property of the plaintiff.” Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020). See also Williams v. Mohawk Ind., Inc., 411 F.3d 1252, 1256 (11th Cir. 2005) (emphasis added). But failing to plead any may result in dismissal. Id. Again, the last element is glaringly absent.

(6) injury to the business or property of the plaintiff

In Yegiazaryan, the Supreme Court found that interference with a foreign plaintiff's ability to collect a state court judgment could constitute a domestic injury satisfying an “injury” for the purposes of Civil RICO. Yegiazaryan v. Smagin, 599 U.S. 533, 549 (2023) (“Those allegations state a domestic injury. The judgment of the Ninth Circuit is affirmed․”). So, the Yegiazaryan Court sought a “contextual approach” and “fact-intensive analysis.” Id. at 548. As Justice Barrett later said, that approach demands “a contextual, fact-intensive inquiry that accounts for ‘the nature of the alleged injury, the racketeering activity that directly caused it, and the injurious aims and effects of that activity.’ ” Medical Marijuana, Inc. v. Horn, 604 U.S. 593 (2025) (quoting Yegiazaryan, 143 S. Ct. at 1909). But, in this case, no such inquiry is availing for Tuvacol.

“Count I – Injury to Tuvacol” claims that “[a]s a direct, foreseeable, and proximate result of Defendants’ violations of 18 U.S.C. §§ 1962(c) and (d), [it] has suffered concrete injuries to its business and property” [ECF 1 at page 21]. “But since Bridge,² the Supreme Court has held that a foreseeable injury is not the same thing as direct injury, and only a direct injury will suffice for proximate cause.” Rennenger v. Aquawood, 183 F.4th 997, 1002 (8th Cir. 2025). See Medical Marijuana, 604 U.S. at 612 (“The key word is ‘direct’; foreseeability does not cut it.”). At any rate, the nature of the alleged injury was “the misappropriation and loss of more than US$8,000,000.00 in corporate funds” directly caused by the “embezzle[ment] by Marco Marzan,” whose machinations impacted his former employer—in South America. Id. at 21. Put simply:

“Marco Marzan caused Tuvacol personnel to issue multiple checks under the pretense of paying company taxes.” Id. at 5. In Colombia.

Marzan “deliberately overstat[ed] the amounts owed to the Colombian government.” Id. In Colombia.

“After the checks were issued and recorded in Tuvacol's accounting system, Marco Marzan took possession of them.” Id. In Colombia.

Rather, but-for access to Tuvacol's internal system (“known as the ‘DMS’ ”), Marzan could not have even reviewed “the Company's books and records.” Id. at 4-5. In Colombia.

Yet, by Tuvacol's lights, embezzlement in a foreign country would precipitate a Civil RICO claim whenever such an employee as Marzan stole from his employer and escaped with the funds to the United States. That is not the law under RICO. See RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 354 (2016) (“Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries.”).

Moreover, Marzan still lives in Cartagena (as does his sister, Elizabeth, whom Tuvacol calls a co-conspirator). Id. at 2. Therefore, the only way that this Civil RICO claim could plausibly plead a domestic injury would be if the very receipt and use of siphoned off funds through the Marzan's Florida-based LLCs (e.g., Nalau in Miami) and U.S. banks (e.g., Helm Bank USA's Natilaura Trust) gave rise to a domestic injury. Id. at 7-11. However, every Circuit to confront that pattern has said otherwise.

“Applying Yegiazaryan and its contextual approach, [the Fourth Circuit] d[id] not think the racketeering alleged to have occurred in the United States — primarily, the use of United States bank accounts and shell companies to facilitate the theft of foreign funds — is enough to turn what otherwise would be a foreign injury into a domestic one.” Percival Partners Ltd. v. Nduom Groupe Nduom USA, LLC, 99 F.4th 696, 703 (4th Cir. 2024). In Percival, several Ghanian plaintiffs alleged a “domestic element․ the transfer of․ foreign funds to IBS, the Nduom-owned company in Virginia, and sometimes from IBS to other United States shell companies used to launder the funds․ And because their property — the stolen money — was in the United States when the defendants committed at least some of these racketeering acts, the plaintiffs sa[id], those acts must have caused a domestic injury.” Id. at 702. But rejecting the foreign plaintiffs’ view, the Fourth Circuit essentially recognized that, if RICO injuries arose wherever felt, America would become the world's policeman. See generally Coffee, Securities Policeman to the World? The Cost of Global Class Actions, N. Y. L. J. 5 (2008).

By contrast, the Ninth Circuit has found a domestic injury for a Chinese manufacturer where a defendant had “delivered its nonconforming supplements to Los Angeles, evidenced by proffered purchase orders specifying ‘F.O.B., Los Angeles.’ ” Glob. Master Int'l Grp., Inc. v. Esmond Nat., Inc., 76 F.4th 1266, 1275 (9th Cir. 2023). In other words, the injury washed up on California's shores.

By extension, the First Circuit distinguishes RICO from other statutes, too, because “RICO's private cause of action to exclude injuries suffered abroad d[oes] not undermine any stated purposes of the statute.” Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511, 526 (1st Cir. 2024). Understandably, “providing a private civil remedy for foreign conduct creates a potential for international friction.” F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 167 (2004) (emphasis added).

Arguably, the Second Circuit provides the clearest gloss on the lesson learned from RJR Nabisco. Namely, “[f]oreign persons and entities that own private property located within the United States expect that our laws will protect them in the event of damage to that property.” Bascuñán v. Elsaca, 874 F.3d 806, 821 (2d Cir. 2017). To that end, the Russian plaintiff in Yegiazaryan was entitled to collect a California judgment (and injured by another Russian citizen's reluctance to pay), so the Second Circuit recently reminded another Eurasian plaintiff of as much in a different Civil RICO case—affirming dismissal—where key allegations of money laundering and American shell companies could not in and of themselves tie theft from corporate coffers in Kazakhstan back to an American court. See generally Yerkyn v. Yakovlevich, 164 F.4th 224 (2nd Cir. 2026). Because the plaintiff regrettably mischaracterizes Yerkyn as “distinguishable” in responding to the Motion [ECF 32 at page 11], the Court lingers on the relevant facts.

In Yerkyn, a Kazakhstani businessman who had a corporate position with insider access (not unlike a statutory auditor using DMS) allegedly led a RICO enterprise, when, unbeknownst to his company, “Individual Defendants misappropriated funds held in [a foreign bank's] account with the Federal Reserve Bank of New York, which they transferred to other accounts held at various intermediary banks in New York.” Yerkyn, 164 F.4th at 225. “Individual Defendants then further disguised these funds by using fictitious loans to shuttle them to companies they controlled, including a Dubai-based entity called Lodestar Holdings Limited (‘Lodestar’) and a U.S.-based company named Forte Marketing, LLC (‘Forte’).” Id. at 226.

And like how Marzan allegedly allocated as much as $50,000 to a family trust for his nieces and nephews, the Kazakhstani embezzler in Yerkyn also used corporate funds for personal purposes, e.g., “the funds were used to pay back a Russian billionaire who had helped bribe Kazakhstan's then-president.” Id. Yet, none of that—not the American financial facilities, nor American corporate structures, nor consumption of embezzled proceeds in the United States—could domesticate an injury that fundamentally arose overseas. In Tuvacol's case, too, “the complaint points primarily to activities that were neither ‘conceived’ nor ‘executed’․ in the United States, and therefore do not constitute a domestic injury under RICO, see RJR Nabisco, 579 U.S. at 354.” Yerkyn v. Yakovlevich, 164 F.4th 224, 230 (2d Cir. 2026).

“The Eleventh Circuit has not yet weighed in on how courts within this Circuit ought approach the Yegiazaryan analysis.” Telematica Lefic, S.A. De C.V. v. Socorro, 24-00290, 2026 U.S. Dist. LEXIS 143744, at *12 (M.D. Fla. June 29, 2026); see also Aquino v. Mobis Alabama, LLC, 739 F. Supp. 3d 1152, 1185 (N.D. Ga. 2024) (“Yegiazaryan and its progeny have not indicated whether the location of the alleged racketeering conduct or the location of the effects of that conduct weighs more heavily.”). No District Judge in the Southern District has weighed in either. Generally, though, this Court considers the Second Circuit's analysis persuasive given the sprawling nature of modern financial institutions and complex business entities.

To wit, Tuvacol's Complaint alleges an injury orchestrated in Colombia, perpetrated by Colombian citizens, and aimed at a Colombian company in violation of Colombian law, e.g., breach of the duties of “revisores fiscales” [ECF 29 at page 2]. See Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 269 (2010) (“And the regulation of other countries often differs from ours as to what constitutes fraud, what disclosures must be made, what damages are recoverable, what discovery is available in litigation, what individual actions may be joined in a single suit, what attorney's fees are recoverable, and many other matters.”); see also A. Scalia & B. Garner, Reading Law 268-72 (2012). Under Civil RICO, Tuvacol lacks standing.

As the Supreme Court has repeatedly said “that to be ‘adversely affected or aggrieved․ within the meaning’ of a statute [i.e., injured], the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883 (1990) (quoting Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397 (1987)) (emphasis original). Surely, when Congress passed RICO to stamp out organized crime, Washington did not intend to usurp Bogotá by providing a private right of action to recover from inherently foreign injuries.

Ultimately, it is doubtful whether Tuvacol's remaining Civil RICO elements are well-pled either. Under 18 U.S.C. § 1961(4), for example, an “enterprise” is “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” Marzan could have been in cahoots with his sister as an “association-in-fact enterprise is simply a continuing unit that functions with a common purpose.” Boyle v. United States, 556 U.S. 938, 948 (2009)); see also United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1111 (D.C. Cir. 2009) (“every circuit to consider the question has likewise held that corporations may be part of an association-in-fact enterprise”). However, it is difficult to see how Marzan could have been part of such an enterprise with the named corporate defendants where the law does not allow a RICO claim to survive if an enterprise consists “of a defendant corporation and its officers, agents, and employees acting within the scope of their employment.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1357 (11th Cir. 2016); see also Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226 (7th Cir. 1997) (“an employer and its employees cannot constitute a RICO enterprise”). Additionally, the record also alludes to certain acts of concealment, posing other issues. See Aldridge v. Lily-Tulip, Inc., 953 F.2d 587, 593-94 (11th Cir. 1992) (finding that a supposed scheme to deprive employees of vacation benefits for a year did not pose a threat of repetition for RICO purposes, so it was neither closed-ended, nor open-ended, even though the defendant company had apparently taken steps to hide its wrongdoing).

In the end, proceeding without standing would risk turning an adjudication of the Civil RICO claim into unconstitutional speculation. U.S. Const. art. III, § 2, cl. 1. Therefore, the Court avoids the dilemma, and without a cognizable injury, Count I is dismissed with prejudice.

ii. Count II: Civil RICO Conspiracy - GRANTED

Under 18 U.S.C. § 1962(d), it is also unlawful to conspire to violate any substantive provision of RICO, including § 1962(c). So “[a] plaintiff can establish a RICO conspiracy claim in one of two ways: (1) by showing that the defendant agreed to the overall objective of the conspiracy; or (2) by showing that the defendant agreed to commit two predicate acts.” ADA v. Cigna Corp., 605 F.3d 1283, 1293 (11th Cir. 2010).

In this case, the defendants can be held liable for RICO conspiracy without violating a substantive provision of the law. However, “what is required to support a claim of RICO conspiracy is that plaintiffs allege an illegal agreement to violate a substantive provision of the RICO statute.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1269 (11th Cir. 2004).

But as in Jackson, in this case, too: “[w]e have already found that the complaint failed to state a substantive RICO claim, and the RICO conspiracy adds nothing.” Id. Here, the RICO conspiracy claim spans little more than a page of the Complaint unlike the several pages dedicated to Civil RICO [ECF 1 at pages 22-24], and as a result, the threadbare nature of Count II falls under the weight of Count I, where the alleged RICO Conspiracy functions as nothing more than a mere synopsis of the allegations from the faulty Civil RICO claim. See Rogers v. Nacchio, 241 Fed. Appx. 602, 609 (11th Cir. 2007) (“where a plaintiff fails to state a RICO claim and the conspiracy count does not contain additional allegations, the conspiracy claim necessarily fails”). Therefore, Count II is dismissed with prejudice.

II. CONCLUSION

Based on the foregoing analysis, it is ORDERED AND ADJUDGED that:

1. Defendants’ Motion [ECF 29] is GRANTED.

2. The Clerk shall CLOSE this case in accordance with this Order.

3. Further, all pending motions are DENIED as moot.

DONE in Fort Lauderdale, Florida on this 16th day of October 2026.

FOOTNOTES

1.   See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (holding as binding precedent the former Fifth Circuit's opinions issued before October 1, 1981).

2.   See Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008).

JEFFREY T. KUNTZ UNITED STATES DISTRICT JUDGE