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Huerta-Orosco v. Cosgrove

United States District Court, N.D. Iowa, Western Division

October 30, 2013

MARIANO HUERTA-OROSCO, Plaintiff,
v.
JOE COSGROVE, Defendant

Page 975

Mariano Huerta-Orosco, Plaintiff, Pro se, SAFFORD, AZ.

For Joe Cosgrove, also known as Francis Joe Cosgrove, Defendant: Patrick Thomas Parry, LEAD ATTORNEY, Forker & Parry, Sioux City, IA; Thaddeus E. Cosgrove, Cosgrove Law Firm, Holstein, IA.

OPINION

Page 976

ORDER

LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE.

This case is before me on plaintiff's October 7, 2013, motion (Doc. No. 19) for leave to file a first amended complaint. Defendant has filed a resistance (Doc. No. 21). Neither party has requested oral argument and, in any event, I find that oral argument is not necessary. See N.D. Ia. L.R. 7(c). The motion is fully submitted.

PROCEDURAL BACKGROUND

Plaintiff Mariano Huerta-Orosco commenced this action on December 18, 2012, by filing a pro se motion for leave to proceed in forma pauperis, along with a proposed complaint. Doc. Nos. 1 and 1-1. On January 22, 2013, I granted his motion and directed the Clerk to file the complaint. Doc. Nos. 2 and 3. After being served, defendant Joe Cosgrove [1] filed an answer (Doc. No. 10) on June 26, 2013.

In his complaint, Huerta-Orosco contends that he delivered $1,019,000.19 to Cosgrove, a licensed Iowa attorney, in November 2000. He further contends that the purpose of the transaction was for Cosgrove to deposit and hold the funds in his client trust account for Huerta-Orosco's benefit. He contends that he has requested the return of the funds but Cosgrove has failed to comply. He asserts claims for breach of trust and breach of fiduciary duty and seeks damages, injunctive relief and an accounting. Cosgrove, in his answer, denies all claims and raises affirmative defenses that include both laches and the statute of limitations.

On August 15, 2013, I entered a scheduling order and discovery plan (Doc. No. 17) that established, among other things, a deadline of October 19, 2013, for motions to amend the pleadings and to add parties. Trial is scheduled to begin September 22, 2014.

THE PROPOSED AMENDED COMPLAINT

Huerta-Orosco filed his motion for leave to amend, along with the proposed first amended complaint (new complaint), on October 7, 2013. Doc. Nos. 19 and 19-3. The new complaint contains an expanded set of alleged facts, names five additional defendants and asserts eleven new legal theories. With regard to the facts, Huerta-Orosco claims that on October 31, 2000, he was " a non-English speaking undocumented illiterate Mexican National" and that he won the sum of $1,019,000.19 while gambling on a riverboat operated by proposed new defendant Riverboat Casino-Missouri, Inc. (Riverboat). He further contends he was concerned that he could not claim his winnings because of his immigration status and that he would be turned in for deportation if he attempted to do so.

Page 977

To resolve this dilemma, Huerta-Orosco allegedly sought the help of proposed new defendants Pamela Rosales and Randy Verbeski. While the new complaint does not describe Huerta-Orosco's relationship with them, he alleges that they agreed to help him claim the money and ultimately made the claim under Rosales' name. He alleges that Riverboat paid Rosales an advance of about $36,750, which she delivered to Huerta-Orosco.

Huerta-Orosco next alleges that at the direction of Rosales and Verbeski, he retained " Joe Cosgrove, aka Francis " Joe" Cosgrove, Frank Cosgrove and/or the Cosgrove Law Firm" to recover the remainder of the winnings through Rosales and Verbeski. He alleges that his immigration status and concerns about deportation were explained to " Cosgrove" and that " Cosgrove" agreed to assist. [2] He alleges that he paid Cosgrove an advance of $5000 and agreed to pay an additional $5000 when the funds were fully recovered.

Next, Huerta-Orosco alleges Cosgrove told him that upon recovery of the full amount, he would deposit the funds into his client trust account and would hold the funds in trust until Huerta-Orosco demanded them. He contends that Cosgrove drafted a document for that purpose but that Huerta-Orosco's name was excluded from the document due to his immigration status. He alleges being told that the agreement " was to recover the $1,000,000 for him three ways through Cosgrove, Rosales, and Verbeski which Cosgrove would deposit in [his] client-trust account in Defendant's name as Trustee for Plaintiff's benefit terminable at his will."

Huerta-Orosco next alleges that he was incarcerated on federal drug charges twenty days later but was not concerned about his winnings because he had entrusted them to Cosgrove, as his attorney. He claims that over the next five years, he made efforts to contact Cosgrove about the funds but that his calls were not accepted. He then alleges that he wrote to Cosgrove in 2006 about the funds and received letters from both Joe Cosgrove and Frank Cosgrove in which they denied any knowledge of the situation. After that, Huerta-Orosco alleges that he was transferred to another institution, causing him to lose contact information and documents concerning this matter. However, he alleges that he was able to write to Cosgrove again in 2010 to demand the return of his funds and that he filed this action after receiving no response.

The proposed new defendants include Frank Cosgrove, the Cosgrove Law Firm, Rosales, Verbeski and Riverboat. The new complaint ...


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