The judicial harassment and political manipulation of justice in Venezuela are exemplified in a case being heard in the United States District Court for the Southern District of New York. A woman accuses her ex-partner—a chavista insider—of using his position and influence within the Venezuelan legal system to legally harass her.
Zelhideth Montaño Linares and José Luis Herrera Virgüez were in a romantic relationship and cohabited in Venezuela between 2009 and 2016, having two minor children together. Previously, they litigated in the same court to determine the ownership and distribution of assets held by Merrill Lynch.
On February 21, 2019, Linares and Herrera resolved their mutual claims by signing a Settlement Agreement that stipulated how the disputed funds would be distributed. They agreed that the court would retain jurisdiction to enforce the agreement and that any enforcement action would be brought in that court.
The agreement also included a mutual non-suing clause, but according to Montaño Linares, the defendant has filed 41 lawsuits against her in Venezuela since signing the agreement. It is reported how in Venezuela, “justice” is weaponized by the powerful to prevent actions from abroad that seek to correct the injustices occurring within the country’s shadows of power.
In this installment, we present three fundamental legal actions in the case, which have continued in court, revealing the power struggle in Venezuela whose tentacles extend beyond its borders.
The Lawsuit
On August 25, 2022, Zelhideth Montaño Linares sued her ex-partner, José Luis Herrera Virgüez, in the United States District Court for the Southern District of New York, seeking a declaratory judgment that nullifies and renders legally ineffective the numerous lawsuits that the defendant has filed against her in Venezuela.
The plaintiff bases her request on a prior Mediation Settlement Agreement approved by the U.S. court, which supposedly resolved all claims between the parties, except those concerning their minor children.
Montaño Linares asserts that Herrera Virgüez violates the agreement and uses the Venezuelan judicial system to harass her and reclaim assets that have already been divided. In this regard, she seeks the court’s intervention to declare the defendant’s actions improper and that any resulting judgment or award be invalid and unenforceable.
Ending an Illicit Process
Zelhideth Montaño Linares wishes to put an end to what she describes as an “illicit process” through which the defendant, José Luis Herrera Virgüez, has filed more than 41 “spurious” lawsuits against her in Venezuelan courts.
Montaño Linares argues that these legal actions by the defendant violate a prior “Mediated Settlement and Mutual Release Agreement” issued by the Southern District of New York on February 22, 2019. This agreement resolved “all claims” between the parties, except those concerning their minor children.
The plaintiff accuses of judicial harassment and political manipulation of justice in Venezuela. In the lawsuit, she claims that the defendant—whom she labels a prominent figure within the “illegitimate regime” of Nicolás Maduro—uses the legal system to harass her, torture her, and dismantle her properties and transactions in Venezuela, despite having accepted a mutual release of prior claims in the 2019 agreement.
The Agreement
The central premise of Zelhideth Montaño Linares’ lawsuit is that the defendant is violating the legally binding agreement approved and adjudicated by the United States District Court for the Southern District of New York in February 2019.
This agreement, known as a “Mediated Settlement and Mutual Release,” was intended to “resolve all disputes between them” and contained a broadly crafted “Mutual Release” clause.
Montaño Linares emphasizes that Herrera Virgüez supposedly initiated the “Mutual Releases” section of the agreement, which suggests his acknowledgment of its importance.
The Multiple Lawsuits in Venezuela
The document explains that Herrera Virgüez has sued her 41 times in Venezuela, an act she characterizes as “spurious” since it occurred after the signing of the settlement agreement.
The plaintiff describes this as an “illicit process to harass, punish, and ensure that the plaintiff is unable to live separately from the defendant’s terrorism.
She argues that such lawsuits in Venezuelan courts aim to undermine the property transactions she has attempted in Venezuela, despite the ownership issues supposedly being resolved in the 2019 agreement.
Utilization of the Venezuelan “Legal System”
The lawsuit describes that José Luis Herrera Virgüez is part of what “the U.S. State Department defines as the ‘illegitimate regime’ of Venezuelan President Nicolas Maduro.”
In this sense, it explains that the defendant “exercises undue power and influence over the outcome of any case in a Venezuelan court.” In other words, Herrera Virgüez uses his position and influence within the Venezuelan legal system to legally harass the plaintiff, despite prior legal resolutions in the United States.
The lawsuit contends that José Luis Herrera Virgüez has “sought to use the legal system of a corrupt and malevolent foreign power to abuse, torture, and torment Mrs. Montaño.”
What the Plaintiff Seeks
The aim of Zelhideth Montaño Linares’ lawsuit against José Luis Herrera Virgüez is for the court to declare that the defendant’s actions in Venezuela, which are not related to their minor children, are “improper” and that any resulting judgment or award be “invalid and unenforceable.”
In this regard, the plaintiff requests a declaratory judgment to:
- Prohibit the defendant from filing claims against the plaintiff’s property or any matter unrelated to their minor children.
- Declare that any pending claims not related to the minor children be dismissed with prejudice.
- Declare null and void any award resulting from the defendant’s lawsuits, except for those related to the minor children.
- Require the immediate return of any property taken from the plaintiff as a result of the defendant’s actions that violate the agreement.
Court Decision on Defendant’s Notification
On March 27, 2023, Vernon S. Broderick, Judge of the United States District Court for the Southern District of New York, granted a motion presented by Zelhideth Montaño Linares to request alternative service in a case against José Luis Herrera Virguez, who is currently in Venezuela.
The court granted the plaintiff’s motion because attempts to serve the defendant through normal channels and the Hague Convention were unsuccessful. The order specifies that serving the defendant by email is permitted, as it is considered sufficient notice.
The decision highlights the difficulty of notifying the defendant in Venezuela through standard procedures.
As a result, the plaintiff hired ABC Legal Services to carry out the notification according to the Hague Convention on Judicial and Extrajudicial Documents in Civil or Commercial Matters, but Venezuela’s central authority refused to accept the package containing the legal documents. This occurred on November 2, 2022.
Due to the inability to enforce the legal provisions since the defendant is in a foreign country, the court has discretion to allow alternative notice. There was evidence of a pattern by Venezuelan authorities to obstruct notifications.
It was determined that the plaintiff demonstrated due diligence, and therefore, notification by email satisfies due process, allowing the plaintiff to notify the defendant, José Luis Herrera Virgüez, by email at the address herrerajotaele@hotmail.com. This email was used by the defendant in legal actions against Montaño Linares in Venezuelan courts.
Dismissal of the Case
On April 18, 2023, José Luis Herrera Virgüez filed a motion to dismiss for lack of jurisdiction and for failure to state a claim. On August 25, 2023, Judge Vernon S. Broderick issued his decision.
The court agreed with Herrera Virgüez regarding the lack of diversity jurisdiction since both parties are Venezuelan, even though the plaintiff resides in Florida with a visa, “the presence of foreigners on both sides of a case destroys diversity jurisdiction.”
However, Judge Broderick determined that there is subject matter jurisdiction because the court specifically reserved it to enforce the Settlement Agreement in the previous Merrill Lynch case. Thus, he rejected the argument that the mutual non-suing pact did not apply to future claims.
The court held that the agreement relieved the plaintiff of all claims that the defendant “has had, now has, or may, must or might have in the future, on, about or because of any matter (…) existing before February 21, 2019.”
The judge granted Herrera Virgüez’s motion to dismiss since Montaño Linares did not present a claim upon which relief could be granted under the law.
Nevertheless, the dismissal was without prejudice, meaning the plaintiff can refile it, and permission was granted for the plaintiff to file an amended complaint.
If this amended complaint is not filed or a justified extension is not requested within the deadline, a judgment will be entered and the case will be closed.
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