Court filing
Declaration of Joshua S. Levy in Support of Motion to Serve by Publication — OTO Analytics v. Benworth (D.E. 74-1) (N.D. Cal. No. 3:24-cv-03975)
Filed July 13, 2023 in Oto Analytics v. Benworth; one of 111 filings from this case.
Record facts
| Court | U.S. District Court for the District of Puerto Rico |
|---|---|
| Filed | 2023-07-13 |
U.S. District Court for the District of Puerto Rico · No. 3:23-cv-01034-GMM · Doc. 74-1 · 2023-07-13 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO OTO ANALYTICS, LLC, Plaintiff, v. BENWORTH CAPITAL PARTNERS PR LLC, BENWORTH CAPITAL PARTNERS LLC, BERNARDO NAVARRO and CLAUDIA NAVARRO, Defendants. § § § § § § § § § § § Civil Action No. 23-01034 DECLARATION OF JOSHUA S. LEVY IN SUPPORT OF PLAINTIFF WOMPLY’S MOTION FOR LEAVE TO SERVE BY PUBLICATION DEFENDANTS BERNARDO NAVARRO AND CLAUDIA NAVARRO I, Joshua S. Levy, pursuant to 28 U.S.C. § 1746, hereby declare under penalty of perjury as follows: 1. I am a member of the bars of Washington, D.C. and New York, am admitted pro hac vice in the United States District Court for the District of Puerto Rico, and am an attorney at the law firm of Willkie Farr & Gallagher, LLP, counsel for Plaintiff Oto Analytics, LLC (f/k/a Oto Analytics, Inc. d/b/a Womply) (“Womply”). 2. I respectfully submit this declaration in support of Womply’s motion for leave to serve by publication Defendants Bernardo Navarro (“Mr. Navarro”) and Claudia Navarro (“Ms. Navarro”; together with Mr. Navarro, the “Navarros”) in the above-captioned action (the “Action”). This declaration is based on my personal knowledge or information provided to me. Arbitration Hearing 3. Womply and Benworth Capital Partners LLC (“Benworth FL”) are engaged in the JAMS arbitration Oto Analytics, Inc. d/b/a Womply v. Benworth Capital Partners LLC, Reference Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 1 of 8 -2- No. 1210038203 (the “Arbitration”). The final hearing in the Arbitration took place at the JAMS offices in San Francisco, California from March 20, 2023 to March 28, 2023. Mr. Navarro attended every day of the Arbitration hearing in person. 4. Attached hereto as Exhibit 1 is a true and correct copy of a joint pre-hearing submission filed in the Arbitration. The arbitrator held that all exhibits listed in Appendix B were admitted into evidence unless an objection was filed. Joint Exhibit 330 (“JX330”) is the Complaint in this Action (ECF No. 3). No party objected to exhibit JX330, so it was admitted into evidence in the Arbitration. 5. Attached hereto as Exhibit 2 is a true and correct copy of an excerpt from the transcript of the hearing in the Arbitration. 6. Attached hereto as Exhibit 3 is a true and correct copy of the transcript of the closing arguments in the Arbitration held on June 29, 2023 by Zoom. Womply’s Counsel’s Requests That The Navarros Accept Or Waive Service 7. Attached hereto as Exhibit 4 is a true and correct copy of an email from counsel for Womply to counsel for Defendants Benworth FL and Mr. Navarro, dated January 26, 2023, attaching the Summonses and Complaint in this Action. Counsel for Benworth FL and Mr. Navarro did not respond. 8. On April 3, 2023, Puerto Rico counsel for Womply emailed Puerto Rico counsel for Defendants Benworth FL, Benworth Capital Partners PR LLC (“Benworth PR”), and the Navarros (together, “Defendants”) requesting, among other things, that they accept service on behalf of the Navarros. Counsel for Defendants did not respond. 9. On April 5, 2023, Puerto Rico counsel for Womply called Puerto Rico counsel for Defendants requesting, among other things, that they accept service on behalf of the Navarros. Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 2 of 8 -3- Counsel for Defendants did not agree to do so and represented that they would reach out to the Navarros and call back. They did not do so. 10. Attached hereto as Exhibit 5 is a true and correct copy of an email thread between counsel for Womply and counsel for Benworth FL and Mr. Navarro, dated April 5 to April 13, 2023. 11. On April 17 and 19, 2023, I called counsel for Benworth FL and Mr. Navarro to discuss, among other things, service of process. I left a message with counsel’s assistant who represented that counsel would call me back. They did not do so. 12. Attached hereto as Exhibit 6 is a true and correct copy of an email thread from counsel for Womply to counsel for Mr. Navarro, dated June 13 to July 10, 2023. On June 13, 2023 counsel for Womply requested that Mr. Navarro waive service pursuant to Federal Rule of Civil Procedure 4(d), attaching (i) a request to waive service of a summons, (ii) two copies of a waiver of summons form, (iii) a copy of the complaint and other initial filings in the case, and (iv) a prepaid FedEx label. On July 10, 2023 counsel for Womply asked counsel for Mr. Navarro to confirm that Mr. Navarro is traveling in Europe for the month of July. Counsel for Mr. Navarro did not respond. 13. Attached hereto as Exhibit 7 is a true and correct copy of an email thread from counsel for Womply to counsel for Ms. Navarro, dated June 13 to July 10, 2023. On June 13, 2023 counsel for Womply requested that Ms. Navarro waive service pursuant to Federal Rule of Civil Procedure 4(d), attaching (i) a request to waive service of a summons, (ii) two copies of a waiver of summons form, (iii) a copy of the complaint and other initial filings in the case, and (iv) a prepaid FedEx label. On July 10, 2023 counsel for Womply asked counsel for Ms. Navarro to Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 3 of 8 -4- confirm that Ms. Navarro is traveling in Europe for the month of July. Counsel for Ms. Navarro did not respond. Womply’s Efforts To Serve The Navarros From January To April 2023 14. Attached hereto as Exhibit 8 is a true and correct copy of the sworn declaration of Frank Vega Pérez, dated April 26, 2023. 15. Attached hereto as Exhibit 9 is a true and correct copy of a sworn declaration of Yaitza Torres, dated February 24, 2023. 16. Attached hereto as Exhibit 10 is a true and correct copy of a sworn declaration of Yaitza Torres, dated February 24, 2023. 17. Attached hereto as Exhibit 11 is a true and correct copy of an email from Mr. Navarro to Eli Sepulveda, and others, dated July 18, 2021, beginning with Bates number BENWORTHPROD_0096384, and attaching the Navarros’ Puerto Rico driver’s licenses. 18. Under my supervision, a public records search was conducted for the address . According to Miami-Dade County public records, the Navarros purchased this property in their own names in 2005. On May 12, 2021, they transferred this property to the Ocean Terrace Family Trust. The mailing address of the Ocean Terrace Family Trust is 700 Biltmore Way, Suite C1, Miami, Florida 33134. 19. Attached hereto as Exhibit 12 is a true and correct copy of the publicly available website for Defendant Benworth FL, which was last accessed on July 12, 2023. 20. Attached hereto as Exhibit 13 is a true and correct copy of a sworn declaration of John Brady, dated April 27, 2023. 21. Attached hereto as Exhibit 14 is a true and correct copy of a sworn declaration of John Brady, dated April 27, 2023. Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 4 of 8 -5- 22. Attached hereto as Exhibit 15 is a true and correct copy of a motor vehicle registration search for Florida license plate . 23. Attached hereto as Exhibit 16 is a true and correct copy of excerpts from the transcript of the sworn deposition of Mr. Navarro, dated October 26, 2022, in the Arbitration. Womply’s Efforts To Find The Navarros’ Puerto Rico Home Address 24. Under my supervision, a credit header search was conducted for Mr. Navarro and Ms. Navarro. 25. Attached hereto as Exhibit 17 is a true and correct copy of the Experian credit header for Mr. Navarro, dated May 18, 2023. 26. Attached hereto as Exhibit 18 is a true and correct copy of the Experian credit header for Ms. Navarro, dated May 18, 2023. 27. Under my supervision, a public records search was conducted for the address . According to real estate databases, the property was purchased by North 112, LLC (f/k/a 11 Dorado Beach Estates LLC), a Delaware limited liability company, in May 2014. In January 2022, North 112, LLC merged with and into 11DBE Holdings, LLC, a Puerto Rico limited liability company. 11DBE Holdings, LLC therefore owns all of North 112, LLC’s assets, including the property at . 28. Attached hereto as Exhibit 19 is a true and correct copy of the corporation information for North 112, LLC, which was last accessed on the Delaware Department of State website on July 12, 2023. 29. Attached hereto as Exhibit 20 is a true and correct copy of the Agreement and Plan of Merger between North 112, LLC and 11DBE Holdings LLC, dated January 1, 2022. 30. Attached hereto as Exhibit 21 is a true and correct copy of Certificate of Merger between North 112, LLC and 11DBE Holdings LLC, dated January 1, 2022. Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 5 of 8 -6- 31. Attached hereto as Exhibit 22 is a true and correct copy of the Certificado de Organización Reafirmado de una Compañía de Responsabilidad Limitada for 11DBE Holdings LLC. 32. Attached hereto as Exhibit 23 is a true and correct copy of the corporation information for 11DBE Holdings LLC, which was last accessed on the Puerto Rico Department of State website on July 12, 2023. 33. Under my supervision, motor vehicle registration searches were conducted for vehicles registered to the Navarros. According to motor vehicle databases, four vehicles were registered in Mr. Navarro’s name to the address : a 1990 Mercedes-Benz, a 2003 Vespa scooter, a 2021 Cadillac Escalade, and 2021 Jeep Wrangler. The Mercedes-Benz was transported from Florida to Puerto in January 2022. Its title and/or registration was issued in Dorado, Puerto Rico in February and April 2022. The Vespa was transported from Florida to Puerto Rico in January 2022. It was registered in Dorado, Puerto Rico in March 2023. The Cadillac was transported from Florida to Puerto Rico in January 2022. Its title and/or registration was issued in Dorado, Puerto Rico in November 220 and March 2023. The Jeep was transported from Florida to Puerto Rico in October 2021. Its title and/or registration was first issued in June 2022 in Dorado, Puerto and was renewed in March 2023 in Dorado, Puerto Rico. Vehicle registrations for the Vespa, Cadillac, and Jeep were renewed to in March 2023. 34. Under my supervision, searches were conducted on social media platforms for the Navarros along with related public records searches. 35. Attached hereto as Exhibit 24 is a true and correct copy of a screenshot of the application Venmo from the publicly available page for the user “@Bernie-Navarro-1” from Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 6 of 8 -7- September 21, 2021 to April 7, 2021, which show transactions with Isaris Rosado Garcia, Milton Miranda, and Arturo Diaz, among others. Public records searches show that Ms. Rosado Garcia’s telephone number is associated with air conditioning installation and maintenance company Vazquez A/C, and that she lives in Vega Alta, Puerto Rico, which is approximately four miles from Dorado Beach Estates. Mr. Miranda’s Instagram profile shows that he is a physical trainer based in Dorado, Puerto Rico. Websites and profiles on Instagram, Twitter, and Facebook show that Mr. Diaz is a tennis coach based on Dorado, Puerto Rico. 36. Attached hereto as Exhibit 25 is a true and correct copy of a screenshot of the application Twitter from the publicly available page for the user “@BernieNavarro7” on February 12, 2023. Womply’s Efforts To Serve The Navarros From June To July 2023 37. Attached hereto as Exhibit 26 is a true and correct copy of the affidavit of Ingrid L. Figueroa, dated July 11, 2023. 38. Attached hereto as Exhibit 27 is a true and correct copy of the affidavit of John Brady, dated July 11, 2023. Additional Documents Supporting The Complaint 39. Attached hereto as Exhibit 28 is a true and correct copy of the affidavit of Toby Scammell, dated July 10, 2023. 40. Attached hereto as Exhibit 29 is a true and correct copy of the sworn declaration of Toby Scammell, dated November 30, 2022, in the Arbitration. 41. Attached hereto as Exhibit 30 is a true and correct copy of the transcript of the sworn deposition of Mr. Navarro, dated December 16, 2022, in the Arbitration. 42. Attached hereto as Exhibit 31 is a true and correct copy of a Loan Servicing Agreement between Benworth PR and Benworth FL, dated May 31, 2022. Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 7 of 8 -8- 43. Attached hereto as Exhibit 32 is a true and correct copy of an Amended Loan Servicing Agreement between Benworth PR and Benworth FL, dated September 23, 2021. 44. Attached hereto as Exhibit 33 is a true and correct copy of publicly available docket entry 19-1 in Martinez-Alicea v. LT’s Benjamin Records, Inc., Civ. No. 12-1568 (GAG/SCC), 2012 WL 13170563 (D.P.R. Dec. 19, 2012), which was obtained from PACER. Executed this 13th day of July 2023 in Charlottesville, Virginia. /s/ Joshua S. Levy Joshua S. Levy Case 3:23-cv-01034-GMM Document 74-1 Filed 07/13/23 Page 8 of 8
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