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Shepherd v. Fanning

United States District Court, E.D. Louisiana

June 21, 2017

DEBORAH A. SHEPHERD
v.
PATRICK FANNING, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is Patrick Fanning's motion to dismiss pursuant to Rule 12(b)(6). For the reasons that follow, the motion is GRANTED.

         Background

         The factual summary is set forth in the light most favorable to Ms. Shepherd. This civil rights lawsuit arises from an Illinois resident's allegedly wrongful arrest based on a warrant issued after a New Orleans resident complained to the New Orleans Police Department that the Illinois resident conspired with an American living in Mexico to extort and defraud funds from his New Orleans account relative to a condominium he owns in Cozumel, Mexico.

         Deborah Shepherd is a resident of Cook County, Illinois. She owns a condominium in Cozumel, Mexico. Patrick Fanning is a resident of New Orleans, Louisiana, who owns a condo in the same complex in Cozumel.

         On January 11, 2011, Mr. Fanning made a criminal complaint to Lieutenant Anthony J. Caprera of the New Orleans Police Department. Mr. Fanning reported that one Frank DelCorno, an American citizen residing in Mexico, and Ms. Shepherd had conspired to extort and steal money from Mr. Fanning. It is alleged that Mr. Fanning knew that his allegations against Ms. Shepherd were false. All of Ms. Shepherd's actions relative to Mr. Fanning, she alleges: occurred in Cozumel, Mexico; were consistent with Mexican law; and were taken as a result of Mr. Fanning's failure to comply with Mexican law with regard to the ownership of his condo.

         Based on Mr. Fanning's complaint, Lt. Caprera submitted a police incident report to Sergeant Crespo and also prepared an arrest warrant application for Ms. Shepherd. Ms. Shepherd alleges that this was part of a conspiracy. Sergeant Crespo reviewed and approved Caprera's report, even though he allegedly knew that Louisiana had no jurisdiction over conduct that took place in Mexico. Lt. Caprera's affidavit in support of his warrant application states:

On Monday, January 10, 2011, Detective Caprera met with Patrick Fanning, a resident of Orleans Parish . . . who provided the following information.
Fanning is the owner of a condominium located in Cozumel, Mexico. The registered address for the ownership of that property is Fanning's residence, located at 920 Emerald Street in New Orleans. The seller of the property is a company named Incontext, which is controlled by Frank DelCorno, an American citizen living in Cozumel. Although Fanning has paid in full for the condominium DelCorno has failed to provide title to the property as required in the sales agreement. Fanning now holds trust documents with a Mexican bank, as required by Mexican law, but is unable to register those documents in the public record because of the actions of DelComo and Deborah Shepherd.
Deborah Shepherd, an American citizen residing in Orland Hills, Illinois, is a close associate of DelCorno and was for many years the treasurer of the condominium owners' association. Shepherd was installed in that position by DelCorno shortly after the association was originally formed. In that capacity she reviewed Fanning's trust documents to confirm that he was the actual owner of the condominium. Those documents show the registered address of the condominium to be in New Orleans.
Shepherd knows well that Fanning owns the condo in question and that he paid all costs of ownership from his bank account in New Orleans since he has no Mexican bank account or any source of funds in Mexico. In fact, Shepherd sent numerous bills for owners fees and notices for owners meetings to Fanning's New Orleans address.
DelCorno and Shepherd entered into a scheme to extort and defraud Fanning. Shepherd filed a false claim against Incontext and DelCorno claiming that she worked as an employee of Incontext and DelCorno and that she was owed approximately $100, 000.00 U.S. dollars for unpaid wages earned in Mexico while working for DelCorno and Incontext. Shepherd never earned any such wages and was not entitled to any such compensation. In fact, she was not present in Mexico for most of the time period in question. DelCorno did not dispute this obviously fraudulent claim and in fact assisted Shepherd in preparing said claim. DelCorno and Incontext then allowed Shepherd to obtain a lien against several properties, including Fanning's condominium, which are still registered in the public record as properties owned by Incontext.
Shepherd demanded payment of the wages in the amount of $100, 000.00 which she never earned or, if that amount is not paid, she demanded that Fanning's condo be seized and sold at auction to satisfy the bogus indebtedness. At the time that she made that demand, and continuing today, she knew full well that Fanning resides in New Orleans and would be forced to send funds from his New Orleans bank account to prevent his condo, which is valued at approximately $400, 000, from being sold at auction. Any amount received at auction in excess of her claim would then be given to DelCorno as the registered owner of the property.
On December 3, 2010, Fanning received a telephone call at his home in New Orleans informing him that Shepherd had a lien on his property and that his condominium was subject to seizure ...

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