American Waste Management and Recycling, LLC. v. CEMEX Puerto Rico, Inc. et al

Filing 61

American Waste Management and Recycling, LLC. v. CEMEX Puerto Rico, Inc. et al

Doc. 61

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO AMERICAN WASTE MANAGEMENT AND RECYCLING, LLC Plaintiff, v. CEMEX PUERTO RICO; ECOTERRA CORP, Defendants. Civil No. 07-01658-JAF Breach of contract; collection of moneys; damages. CANOPY Jury trial demanded.

ANSWER TO VERIFIED COMPLAINT BY DEFENDANT CEMEX DE PUERTO RICO, INC. TO THE HONORABLE COURT: COMES NOW Cemex Puerto Rico, Inc. ("CEMEX"), through its undersigned counsels, respectfully alleges in answer to plaintiff's allegations: JURISDICTION AND VENUE 1. 2. 3. Paragraph 1 is denied for lack of information. Paragraph 2 is denied for lack of information. Paragraph 3 is admitted to the extent that CEMEX de

Puerto Rico, Inc. is a corporation organized under the laws of the Commonwealth of Puerto Rico. 4. 5. 6. Paragraph 4 is admitted. Paragraph 5 is admitted. Paragraph 6 is admitted.

Dockets.Justia.com

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 2 of 35

THE PARTIES 7. Paragraph belief. 8. Paragraph 8 is admitted, with the exception that under no factual or legal basis is Mr. Barsotelli or Canopy 7 is denied due to lack of information and

Ecoterra an agent of CEMEX or should be called as such. 9. Paragraph 9 is admitted, with the exception that under no factual or legal basis is Mr. Barsotelli or Canopy

Ecoterra an agent of CEMEX or should be called as such. 10. Paragraph 10 is admitted to the extent that CEMEX de

Puerto Rico, Inc. is a corporation organized under the laws of the Commonwealth of Puerto Rico. 11. Paragraph 11 is denied. GENERAL ALLEGATIONS 12. Paragraph denied. 13. Paragraph 13 is denied. CEMEX is not privy to the 12 is not an allegation, therefore it is

relationship between AWMR and Canopy Ecoterra. 14. Paragraph 14 is denied. was a party to, the AWMR did not participate in, nor contractual relationship between

CEMEX and Canopy Ecoterra. 14 lack any basis in fact.

The allegations in paragraph

2

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 3 of 35

15.

Paragraph

15

is

denied

for

the

lack

of

direct

information. 16. Paragraph 16 is denied for the lack of direct

information. 17. Paragraph 17 is denied for the lack of direct

information. 18. Paragraph 18 is denied for the lack of direct

information. 19. Paragraph 19 is denied for the lack of direct

information. 20. Paragraph 20 is denied for the lack of direct

information. 21. Paragraph 21 is denied for the lack of direct

information. 22. Paragraph 22 is denied for the lack of direct

information. 23. Paragraph 23 is denied for the lack of direct

information. 24. Paragraph 24 is admitted to the extent that AWMR had the obligation to comply with CEMEX's security policies and to coordinate its dismantling work with CEMEX in order to not interrupt operations at the CEMEX Ponce cement plant.

3

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 4 of 35

25.

Paragraph 25 is denied.

CEMEX learned of the terms of

the agreement between AWMR and Canopy Ecoterra only after the controversy between them arose. 26. Paragraph 26 is admitted solely to the extent it outlines basic procedures to follow in the dismantling and removal of scrap material. Cemex denies any reference to agency

and the remaining allegations contained in the paragraph. 27. Paragraph 27 is denied as redacted. security briefing and I.D.'s to CEMEX provided a personnel, and The are

AWMR

authorized their entrance to the Ponce cement plant. remaining denied. 28. allegations contained in the paragraph

Paragraph 28 is denied for lack of personal knowledge. CEMEX did receive in its cement premises equipment,

trailers and other machinery for AWMR's dismantling and removal services. 29. Paragraph 29 is denied. It is affirmatively alleged that

AWMR engineers and personnel strayed from the work plan authorized by CEMEX, as they would perform dismantling works in unauthorized areas. 30. Paragraph 30 is denied. CEMEX was aware that Canopy

Ecoterra had subcontracted the dismantling and removal of scrap material. CEMEX coordinated the works with Canopy

4

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 5 of 35

Ecoterra's subcontractor, AWMR.

The work to be performed

was in the general areas of kilns 1-4 and mills 2-5, 7 and 10, pursuant to CEMEX's work plan. 31. Paragraph 31 is denied. of CEMEX. Canopy Ecoterra is not an agent

CEMEX did not know terms of the agreement

between AWMR and Canopy Ecoterra because it is not privy to their agreement. and had AWMR AWMR was Canopy Ecoterra's

subcontractor CEMEX, nor

no contractual have to

relationship with any information

did

disclose

regarding its subcontract with Canopy Ecoterra. 32. 33. Paragraph 32 is denied as redacted. Paragraph 33 is denied. It is affirmatively alleged that

CEMEX had a contractual relationship solely with Canopy Ecoterra. 34. Paragraph 34 is denied as drafted. not CEMEX's agent. Canopy Ecoterra is

CEMEX was aware that Canopy Ecoterra

had subcontracted the dismantling and removal of scrap material. coordinating subcontractor, cement plant. 35. Paragraph 35 is denied as drafted. As subcontractor for CEMEX the AWMR, was the sole with to its party interested in

works due

Canopy presence

Ecoterra's within its

the work-execution, AWMR agreed to follow a work plan

5

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 6 of 35

developed by CEMEX in order to prevent any disruption to CEMEX cement plant operations. AWMR strayed from the

execution of the work plan by dismantling and removing materials and equipment not authorized for the particular stage of the work plan. AWMR's actions caused damages to

CEMEX property and, on occasions, interrupted the cement plant operations. 36. Paragraph 36 is denied as drafted. expected AWMR to follow the CEMEX only admits it work­plan. CEMEX

affirmatively alleges that the work areas chosen by AWMR were not "optimal" because their location within active plant operations interrupted CEMEX operations, resulting in the interruption of operations and damages to CEMEX property. 37. 38. Paragraph 37 is denied. Paragraph 38 is denied. CEMEX agreed to consider an

amendment to its contract with Canopy Ecoterra only if Canopy Ecoterra could actually show that it suffered

economic losses due to the conditions at the Ponce cement plant. CEMEX did not negotiate with AWMR. Furthermore,

CEMEX learned of the terms of the agreement between AWMR and Canopy Ecoterra only after the controversy between AWMR and Canopy Ecoterra arose.

6

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 7 of 35

39.

Paragraph 39 is denied. of the current Answer

Allegations under paragraph 38 are herby incorporated by

reference. 40. Paragraph 40 is denied. CEMEX only admits that

dismantling and removal works at the CEMEX Ponce cement plant continued until June 22, 2007. 41. Paragraph 41 is denied. CEMEX affirmatively alleges that

the dismantling of facilities built decades ago included dealing with the conditions described by AWMR. conditions, CEMEX. 42. Paragraph 42 is denied as drafted. CEMEX solely admits however, received prompt attention These from

that the asbestos found was promptly removed by Canopy Ecoterra by the end of June, 2007. alleges that asbestos was only CEMEX affirmatively as an isolation

found

material for the power lines that ran close to kilns 1-5. 43. Paragraph 43 is denied. CEMEX affirmatively alleges AWMR

made a proposal for asbestos removal to Canopy Ecoterra. 44. Paragraph 44 is denied. CEMEX affirmatively alleges that

the asbestos was confined to a small area of the plant. During the performance of asbestos removal works, which lasted around six to 8 weeks, AWMR continued (or could

7

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 8 of 35

continue)

works

in

other

parts

of

the

cement

plant

included in the scope of work. 45. 46. Paragraph 45 is denied. Paragraph 46 is denied. "other" AWMR CEMEX CEMEX never offered dismantling CEMEX affirmatively of the and work alleges plan by not

facilities. from the

strayed

execution

dismantling

and

removing

materials

equipment

authorized for the particular stage of the work plan. AWMR's actions caused damages to CEMEX property and

interrupted the cement plant operations. 47. Paragraph 47 is denied as drafted. Before the

controversy between AWMR and Canopy Ecoterra arose, there was no controversy as to `finishing' the project. AWMR

strayed from the appropriate and orderly execution of the work plan, causing damages to CEMEX. CEMEX was not in

agreement with the selective dismantling and removal of metals because the purpose of the contract with Canopy Ecoterra was the complete dismantling and removal of

certain facilities. 48. Paragraph 48 is admitted only to the extent that Ramiro Lozano received the April 26, 2007 letter. The

characterization of facts stated therein is denied.

8

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 9 of 35

49.

Paragraph 49 is denied.

CEMEX affirmatively alleges that

it contracted with Canopy Ecoterra the dismantling and removal of materials in no particular order and that

there were entire areas of the cement plant ready for dismantling, which AWMR refused to work in. 50. Paragraph 50 is admitted only to the extent that AWMR sent the report to CEMEX. stated therein is denied. 51. Paragraph 51 is denied as drafted. alleges Lozano, Abul Mr. Shah attended a CEMEX affirmatively with Mr. Mr. Juan Ramiro Tomás The characterization of facts

meeting and

Ignacio

Barsotelli,

Emmanuelli to discuss the performance of the contract, and AWMR's allegations contained in its April 26, 2007 letter. 52. Paragraph 52 is admitted to the extent that AWMR stated its complaints. under CEMEX paragraph affirmatively 49 of the restates current its

allegations

Answer.

Furthermore, all "live" wires and tubes in use were duly identified by CEMEX personnel before AWMR began work in the designated area, so AWMR could work around them. 53. Paragraph Barsotelli 53 as is denied insofar The they refer to Mr. are

"agent".

remaining

allegations

9

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 10 of 35

denied because they refer to statements in which CEMEX did not participate. 54. Paragraph Barsotelli 54 as is denied insofar The they refer to Mr. are

"agent".

remaining

allegations

denied because they refer to statements in which CEMEX did not participate. Furthermore has reason to believe

AWMR did make a proposal for asbestos removal to Canopy Ecoterra. 55. Paragraph 55 is denied as drafted. part of his for duties, asbestos Mr. CEMEX admits that as Lozano requested various

Ramiro

quotations providers. 56.

removal

services

from

Paragraph 56 is admitted in so far as asbestos removal service providers came to the plant to inspect and make proposals.

57.

Paragraph 57 is denied for lack of direct information; it refers to events in which CEMEX did not participate Mr. Barsotelli is not an "agent" of CEMEX.

58.

Paragraph 58 is denied for lack of direct information; it refers to events in which CEMEX did not participate. Barsotelli is not an "agent" of CEMEX. Mr.

59.

Paragraph 59 is denied for lack of direct information; it refers to events in which CEMEX did not participate.

10

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 11 of 35

60.

Paragraph 60 is denied for lack of direct information; it refers to events in which CEMEX did not participate.

Mr. Barsotelli is not an "agent" of CEMEX. 61. 62. Paragraph 61 is denied. Paragraph 62 is denied for lack of direct information; it refers to events in which CEMEX did not participate. 63. Paragraph 63 is denied as drafted. it approved the removal of CEMEX solely admits the remaining

asbestos,

allegations are denied. not "agents" of CEMEX. 64.

Canopy and Mr. Barsotelli are

Paragraph 64 is denied because it refers to events in which CEMEX did not participate. an "agent" of CEMEX. Mr. Barsotelli is not

65.

Paragraph 65 is denied because it refers to events in which CEMEX did not participate.

66.

Paragraph 66 is denied because it refers to events in which CEMEX did not participate.

67.

Paragraph 67 is denied because it refers to events in which CEMEX did not participate.

68.

Paragraph

68

is and

denied

because between

it

refers

to

communications

obligations

Canopy

Ecoterra

and its subcontractor, AWMR.

11

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 12 of 35

69.

Paragraph

69

is and

denied

because between

it

refers

to

communications

obligations

Canopy

Ecoterra

and its subcontractor, AWMR. 70. 71. Paragraph 70 is denied. Paragraph 71 is denied because it refers to events in which CEMEX did not participate, or to issues in which CEMEX has no basis to allege. 72. Paragraph 72 is denied because it refers to events in which CEMEX did not participate, or to issues in which CEMEX has no basis to allege. 73. Paragraph 73 is denied because it refers to events in which CEMEX did not participate, or to issues in which CEMEX has no basis to allege. 74. Paragraph 74 is denied because it refers to events in which CEMEX did not participate, or to issues in which CEMEX has no basis to allege. 75. Paragraph 75 is denied because it refers to events in which CEMEX did not participate, or to issues in which CEMEX has no basis to allege. 76. Paragraph 76 is denied because it refers to events in which CEMEX did not participate, or to issues in which CEMEX has no basis to allege.

12

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 13 of 35

77.

Paragraph 77 is denied; CEMEX personnel have no knowledge of `locks being cut'. CEMEX affirmatively alleges that

AWMR acquiesced to the removal of a container by Ignacio Barsotelli because an AWMR engineer aided Mr. Barsotelli in the removal of the container. 78. 79. Paragraph 78 is denied. Paragraph 79 is denied. CEMEX's "General Services

Coordinator" was designated to authorize the removal of containers from CEMEX's Ponce cement plant premises. He

did not authorize the way-bill because it did not have a destination. 80. 81. Paragraph 80 is denied. Paragraph 81 does not require an allegation from CEMEX, for which reason it is denied. 82. Paragraph 82 does not require an allegation from CEMEX, for which reason it is denied. 83. Paragraph 83 is denied as drafted. Mr. Ramiro Lozano and

Mr. Juan Emmanuelli intervened in an attempt to aid the parties in amicably resolving the controversy. 84. Paragraph 84 is denied as drafted. CEMEX only intervened

in an attempt to aid the parties in amicably resolving the controversy. AWMR; it only CEMEX did not reach any agreement with attempted to mediate the controversy

13

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 14 of 35

between

AWMR

and

Canopy

Ecoterra

in

order

to

secure

timely completion of the project. 85. 86. Paragraph 85 is denied. Paragraph 86 is denied because it refers to events

between Canopy Ecoterra and AWMR. an "agent" of CEMEX. 87. CEMEX admits a paragraphs matter to 87 the to

Mr. Barsotelli is not

the

extent

that

AWMR the

referred

police

authorities;

remaining allegations are denied for lack of information. 88. CEMEX admits a paragraphs matter to 88 the to the extent that AWMR the

referred

police

authorities;

remaining allegations are denied for lack of information. 89. Paragraph 89 is denied insofar it assumes that CEMEX was in a position to adjudicate the controversy between

Canopy Ecoterra and its subcontractor, AWMR. 90. 91. Paragraph 90 is denied. Paragraph 91 is denied. of CEMEX. 92. Paragraph 92 does not require a responsive pleading from Cemex and therefore is denied. 93. Paragraph 93 does not require a responsive pleading from Cemex and therefore is denied. Mr. Barsotelli is not an "agent"

14

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 15 of 35

94.

Paragraph 94 does not require a responsive pleading from Cemex and therefore is denied.

95.

Paragraph 95 does not require a responsive pleading from CEMEX and therefore is denied.

96.

Paragraph 96 does not require a responsive pleading from CEMEX and therefore is denied. Neither Mr. Barsotelli

nor Canopy Ecoterra is an "agent" of CEMEX. 97. Paragraph 97 does not require a responsive pleading from CEMEX and therefore is denied. 98. Paragraph 98 does not require a responsive pleading from CEMEX and therefore is denied. 99. Paragraph 99 is denied. smooth transition in CEMEX solely admits it sought a work being performed in its

the

cement facilities. 100. Paragraph alleges 100 is admitted sought a only to the extent in that it the work

CEMEX

smooth

transition

being performed in its cement facility; the remainder of the allegations is denied. 101. Paragraph 101 is admitted solely to the extent that a loading dock was built during the month of 2007, the

remaining allegations are denied.

15

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 16 of 35

102. Paragraph 102 is admitted only to the effect that AWMR continued some removal of metals, the remaining

allegations are denied. 103. Paragraph 103 is denied as drafted; CEMEX solely admits that certain containers were registered pursuant to CEMEX standard procedures. 104. Paragraph 104 is denied as drafted; it does not provide a time frame accurate Mr. enough to is allow not is a an responsive "agent" of

allegation. CEMEX.

Barsotelli

105. Paragraph 105 is denied as drafted; it does not provide a time frame accurate enough to allow a responsive

allegation. 106. Paragraph 106 is denied as drafted; it does not provide a time frame accurate enough to allow a responsive

allegation. 107. Paragraph 107 is denied. 108. Paragraph 108 is admitted only to the extent that on June 22, 2007 a CEMEX issued the letter. The remaining

allegations are denied. 109. Paragraph 109 is denied. 110. Paragraph 110 is denied. 111. Paragraph 111 is denied.

16

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 17 of 35

112. Paragraph 112 is denied. 113. Paragraph 113 is denied. 114. Paragraph that it 114 is denied. to protect CEMEX its affirmatively interests alleges the

tried

given

increasingly tense situation between Canopy Ecoterra and AWMR. 115. Paragraph that it 115 is denied. to protect CEMEX its affirmatively interests alleges the

tried

given

increasingly tense situation between Canopy Ecoterra and AWMR. 116. Paragraph that it 116 is denied. to protect CEMEX its affirmatively interests alleges the

tried

given

increasingly tense situation between Canopy Ecoterra and AWMR. 117. Paragraph that it 117 is denied. to protect CEMEX its affirmatively interests alleges the

tried

given

increasingly tense situation between Canopy Ecoterra and AWMR. 118. Paragraph that it 114 is denied. to protect CEMEX its affirmatively interests alleges the

tried

given

increasingly tense situation between Canopy Ecoterra and AWMR.

17

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 18 of 35

119. Paragraph 119 is admitted.

The characterization of the

instruction as "sudden" is denied. 120. Paragraph 120 is admitted. that it allowed AWMR CEMEX affirmatively alleges time to secure all

personnel

equipment, trailers, and containers in the site. 121. Paragraph 121 is denied. 122. Paragraph 122 is denied. 123. Paragraph 123 is denied. 124. Paragraph 124 is denied. CEMEX affirmatively alleges that it allowed AWMR personnel time to secure all equipment, trailers, and containers in the site. 125. Paragraph 125 is denied. 126. Paragraph 126 is denied. 127. Paragraph 127 is denied. 128. Paragraph 128 is denied. 129. Paragraphs 129-130 do not require responsive pleading

from CEMEX and are therefore denied. 130. Paragraph 131 is denied. 131. Paragraph 132 is denied. 132. Paragraph 133 is denied. 133. Paragraph 134 is denied. 134. Paragraph 135 is denied. 135. Paragraph 136 is denied.

18

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 19 of 35

136. Paragraph 137 is denied. 137. Paragraph 138 is denied. 138. Paragraph 139 is denied. 139. Paragraph 140 is denied. 140. Paragraph 141 is denied. FIRST CAUSE OF ACTION 141. Paragraphs 142-152 are denied. AWMR had a contractual Neither of

relationship with Canopy Ecoterra exclusively. Mr. Barsotelli nor Canopy Ecoterra is an

"agent"

CEMEX.

Any claim of contractual rights and obligations It is frivolous to as an agent of

between CEMEX and AWMR is frivolous. allege CEMEX. SECOND CAUSE OF ACTION 142. Paragraphs 153-163 are denied. THIRD CAUSE OF ACTION 143. Paragraph denied. 144. Paragraphs 165-169 are denied. 164 is not an allegation, and designate Canopy

Ecoterra

therefore

it

is

Furthermore, they do not

require a responsive pleading from CEMEX. FOURTH CAUSE OF ACTION 145. Paragraph denied. 170 is not an allegation, therefore it is

19

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 20 of 35

146. Paragraph

171

is

denied.

Furthermore,

it

does

not

require a responsive pleading from CEMEX. FIFTH CAUSE OF ACTION 147. Paragraph denied. 148. Paragraphs 173-174 are denied. Furthermore, they do not 172 is not an allegation, therefore it is

require a responsive pleading from CEMEX. SIXTH CAUSE OF ACTION 149. Paragraph denied. 150. Paragraphs 176-182 are denied. RELIEF SOUGHT 151. Paragraph denied. 152. Paragraphs 184-190 are denied. 183 is not an allegation, therefore it is 175 is not an allegation, therefore it is

AFFIRMATIVE DEFENSES FOR DEFENDANT CEMEX DE PUERTO RICO, INC.'S 1. 2. 3. Unclean hands. Estoppel. Plaintiff's claims against CEMEX are frivolous; they

assume a contractual relationship with CEMEX knowing it has never existed.

20

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 21 of 35

4.

AWMR was subcontracted by Canopy Ecoterra to remove all metals and materials from the site. In selecting the

most valuable materials to remove, AWMR was setting the stage to default in its obligations. 5. AWMR, allegedly an expert in dismantling metals and

removal of scrap metal materials, knew or should have known of the possibility of the presence of materials such as asbestos, of the presence of live electric wires, and of water lines, especially since the work to be

executed would take place inside an active cement plant. 6. AWMR strayed from and the execution of the and work plan by not

dismantling

removing

materials

equipment

authorized for the particular stage of the work plan. AWMR's actions caused damages to CEMEX property and, on occasions, interrupted the cement plant operations. 7. AWMR acted in bad faith by creating Ponce a hostile plant, work by

environment

within

CEMEX's

cement

involving CEMEX in controversies between Canopy Ecoterra and AWMR, by spreading false rumors involving CEMEX and CEMEX employees, and by including CEMEX in this frivolous complaint. CEMEX DE PUERTO RICO'S COUNTER AND CROSS CLAIMS I. GENERAL FACTUAL ALLEGATIONS APPLICABLE TO ALL OF CEMEX'S CAUSES OF ACTION:

21

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 22 of 35

1. negotiated

During

the

summer

of

2006, and

CEMEX

de

Puerto to

Rico

certain

agreements

acquiesced

various

obligations regarding its operations in the Municipality of Ponce, Puerto Rico. 2. The Municipality of Ponce, various neighborhood

associations, and CEMEX reached certain compromises regarding the investment to of capital and the incorporation Cement of new and

technologies

modernize

CEMEX's

Ponce

Plant

promote increased environmental standards. 3. However, CEMEX to implement to the modern processes and

operations,

needed

dismantle

obsolete

parts,

equipment or machinery of its plant, including mills, kilns, and secondary are equipment, within like the precipitators plant's active form and and chimneys. operating of the

These

located and

structures

equipments

because

they

part

originally built cement plant. 4. With a particular time frame agreed upon with the

Municipality of Ponce, CEMEX requisitioned the dismantling and removal project. disassembly and CEMEX's only interest in the project was the removal of the plant's machinery and

structures not in use. 5. companies. CEMEX was able to obtain quotations from different However, most project proposals received by CEMEX

22

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 23 of 35

required

some

sort of disbursement

or deposit by CEMEX

in

order to execute the project. 6. more Because the scrap material to be removed is worth the actual performance of the project, CEMEX

than

representatives required a contract at no cost or at a benefit for CEMEX, without any initial disbursement or deposit. 7. Canopy Eventually Mr. Ignacio Barsotelli and his company, Ecoterra, accepted a contract without an initial

deposit or disbursement by CEMEX.

CEMEX and Canopy Ecoterra

agreed that Canopy Ecoterra would pay CEMEX $23.00 per ton of scrap material dismantled and removed from the Ponce cement plant. 8. Around and August Sale of 2006, Scrap the "Contract for the de

Dismantling

Material"

("Contrato

Desmontaje y Venta de Chatarra") (hereinafter, "Contract") was formally executed between CEMEX and Canopy Ecoterra. 9. executed project Although the Contract has no date, the Contract was before manager, the scope of work was drafted by CEMEX's by the

José

Manuel

Fraticelli,

approved

General Cement Plant Manager on September 15, 2006. 10. On or around that date, Canopy Ecoterra and CEMEX

incorporated the scope of work to the Contract.

23

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 24 of 35

11.

Through

information

and

belief,

Canopy

Ecoterra

subcontracted its rights under the Contract to at least two different subcontractors that performed works before Canopy

Ecoterra subcontracted its rights under the Contract to AWMR. 12. CEMEX also in worked with Canopy of Ecoterra's works to other prevent

subcontractors

the

coordination

interruptions in plant operations. 13. CEMEX did not participate in any contracts executed CEMEX was not

between Canopy Ecoterra and its subcontractors. privy to the subcontract. 14. Canopy Ecoterra subcontracted

American

Waste

Management & Recycling ("AWMR") to perform the Contract in March 29, 2007. 15. CEMEX did not participate in the contract executed CEMEX was not

between American Waste and Canopy Ecoterra. privy to the subcontract. 16.

Canopy Ecoterra and AWMR visited and inspected the Through information

plant before subscribing the contract.

and belief, CEMEX affirmatively alleges that AWMR accepted the subcontract in an "as is" condition. 17. CEMEX of and works AWMR to only prevent worked jointly in in the plant

coordination operations.

interruptions

24

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 25 of 35

18.

CEMEX's only interest was the timely performance by

Canopy Ecoterra of the project of dismantling and removing the items listed in the September 15, 2006 Scope of Work. 19. CEMEX representatives did not receive or review the

agreement between Canopy Ecoterra and AWMR. 20. CEMEX had no interest in whether Canopy Ecoterra

subcontracted or not the services required in the project. 21. CEMEX's only interest was that at the cost of Canopy

Ecoterra and in the period of one year, the works at the Ponce plant would be finished; the intact and adequately functioning facilities would have had no obsolete and unwanted material, equipment or structures. 22. Not until after the subcontract had been executed

and the controversies regarding its specific performance arose between our contractor, Canopy Ecoterra, and its

subcontractor, did CEMEX even review the subcontract. 23. In order to organize the execution the dismantling

works in a way to least interrupt CEMEX's operations, Jose Manuel Fraticelli developed a work plan with Canopy Ecoterra's subcontractors, AWMR. 24. As subcontractor for the work-execution, AWMR agreed

to follow a work plan orally agreed upon in order to prevent any disruption to CEMEX cement plant operations.

25

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 26 of 35

25.

AWMR,

however,

strayed

from

the

execution

of

the

work plan by dismantling and removing materials and equipment not authorized for the particular stage of the work plan. 26. plant AWMR worked in unauthorized areas within the active in order to harvest specific material,

operations

considered to be more valuable.

These acts interrupted CEMEX

operations and caused damages to CEMEX property. 27. From early on in the performance of its subcontract,

AWMR unreasonably claimed it was unable to properly perform the contract. 28. On April 26, 2007, AWMR sent a letter to Mr. Ramiro

Lozano listing certain conditions in the Ponce facilities that allegedly impeded or delayed the removal of metals. 29. issues As a result, CEMEX held a meeting to discuss the between CEMEX and Canopy's subcontractor's poor

performance of the contract. 30. structure, Canopy and location its and subcontractor operations alleged that CEMEX's were such, that the

dismantling cost was too high.

As a result, CEMEX, in good

faith agreed to consider an amendment to its contract with Canopy Ecoterra, only if Canopy Ecoterra could affirmatively show that it suffered economic losses due to the conditions at the Ponce cement plant.

26

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 27 of 35

31.

CEMEX

never

reached

an

agreement

to

amend

the

Contract with Canopy Ecoterra. 32. Furthermore, CEMEX never directly negotiated with

AWMR any amendment to CEMEX's Contract. intend to. 33.

Nor did CEMEX ever

On the contrary, AWMR continuously approached CEMEX

representatives with unwanted offers regarding their capacity of performing the project, if directly engaged by CEMEX. 34. As time passed there were rumors that Canopy

Ecoterra and AWMR were having problems regarding the terms and conditions of their agreement. picking," valuable i.e. selectively Through Apparently AWMR was "cherryand and removing belief, only Canopy

dismantling information

material.

Ecoterra thought it unwarranted. 35. informed Through AWMR it information would not and belief, Canopy Ecoterra or the

tolerate

cherry-picking

selective removal of valuable material, and as such requested AWMR to abstain from removing only valuable materials. 36. Shah and On Memorial Day, May 28, 2007, at 1:04pm, Mr. Abul his driver personally removed a copper-filled

container, after Canopy Ecoterra expressly requested that AWMR abstain from exclusively removing valuable materials.

27

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 28 of 35

37.

Afterwards,

in

the

presence

of

one

of

AWMR's

engineers assigned to the project, Canopy Ecoterra, through Ignacio material. 38. Julio Mateo, the CEMEX employee in charge of Barsotelli, removed two or three containers of

authorizing way bills, never authorized removal of the three containers destination. 39. A controversy arose between Canopy Ecoterra and AWMR AWMR alleged it in those because Canopy Ecoterra had not identified a

regarding the containers removed by Ecoterra. dismantled, gathered and loaded the

material

containers, and as such it was their property. 40. Given the ensuing controversy and AMWR's frivolous

threats of filing criminal charges, CEMEX intervened in an attempt to resolve amicably and efficiently the controversy. 41. Such an action became necessary for CEMEX because

both AWMR and Canopy Ecoterra principals were unwilling even to meet face to face and negotiate; and any delay in the performance of the project would compromise CEMEX's capacity to comply with the agreements it had reached with the

Municipality of Ponce and other organizations. 42. In order to mitigate potential damages from the

conflict between contractor and subcontractor, CEMEX urged the

28

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 29 of 35

parties to continue performing their contracts and to try and reach some sort of solution. 43. However, grew the to controversy such an between that contractor it and

subcontractor

extent

eventually

affected the timely performance of the work-execution project that CEMEX needed completed in the period of one year. 44. CEMEX only tried to protect its interests given the

increasingly tense situation between Canopy Ecoterra and AWMR. 45. AWMR contributed to the polarization of the

situation through Mr. Abul Shah's threats of civil litigation and criminal prosecution against Canopy Ecoterra. AWMR's sole interest was directly engaging CEMEX His and in the

dismantling and removal project. 46. worsened, Through AWMR information expressed and belief, in as the situation Canopy

interest

purchasing

Ecoterra's rights under the Contract with CEMEX, but Canopy refused to sell. 47. The situation reached a point where it became

apparent that Mr. Abul Shah's threats of civil litigation and criminal prosecution against both Canopy Ecoterra and CEMEX only responded to his interest in CEMEX's termination of its contract with Canopy Ecoterra, and the direct engagement of AWMR's services.

29

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 30 of 35

48.

Mr. Shah even represented that he would forget about

his claims regarding the alleged stolen property, in exchange for CEMEX's direct engagement of AWMR. 49. Finally, Mr. Abul Shah's threats of criminal

investigation became a reality:

AWMR filed a formal complaint

for criminal investigation against Canopy Ecoterra with the Puerto Rico police. 50. Given the polarity of the situation and AWMR's

insistence in frivolously threatening to sue CEMEX unless they were directly engaged to perform the project, on June 22, 2007 CEMEX ordered Canopy Ecoterra to cease all works and services within the premises of the company. 51. That same day, CEMEX personnel requested AWMR AWMR

personnel to cease operations and vacate the premises.

personnel were allowed to clear up and secure its property before leaving the premises. Once AWMR personnel left the

premises, CEMEX assigned 24 hour security to the facilities in order to specifically guard the property. 52. At that date, only fifteen to twenty percent (15-

20%) of the dismantling works had been performed. II. CEMEX DE PUERTO RICO'S FIRST CAUSE OF ACTION: BREACH OF CONTRACT.

30

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 31 of 35

53. the

Canopy Ecoterra's subcontractor, AWMR, strayed from and orderly execution of the work plan,

appropriate

causing damages to CEMEX. 54. property Canopy Ecoterra's subcontractor, AWMR, broke CEMEX in use, such as floors, safety rails, and water

lines, disconnected water recirculation pumps and wells. 55. property Subcontractor AWMR's actions caused damages to CEMEX and interrupted the cement plant operations on

multiple occasions. 56. The interruptions in operations resulted in a loss

of nearly 400 tons of packed cement and in bulk. 57. Furthermore, under the Contract, Canopy Ecoterra

agreed to finalize the project in the period of one year. 58. Due to the internal controversies regarding its

subcontractor, and Canopy Ecoterra's poor work-execution, the Contract was not timely performed. 59. resulted The in delay severe in the termination damages that of the contract to be

economic

have

yet

quantified by CEMEX. 60. The delay in the termination of the Contract has

exposed CEMEX to liability before Commonwealth of Puerto Rico and U.S. federal government administrative agencies, such as the U.S. Environmental Protection Agency and the P.R.

31

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 32 of 35

Environmental Quality Board that has yet to be quantified by CEMEX. 61. The delay in the termination of the Contract has

resulted in exposure to liability for non compliance with its informal agreements with the Municipality of Ponce and

neighborhood associations. III. CEMEX DE PUERTO RICO'S SECOND CAUSE OF ACTION: INTENTIONAL INTERFERENCE WITH CONTRACT. 62. AWMR intentionally created a hostile work

environment within CEMEX's Ponce cement plant. 63. AWMR intentionally an in bad faith involved CEMEX in

controversies between Canopy Ecoterra and AWMR, by spreading false rumors involving CEMEX and CEMEX employees, and by

including CEMEX in this frivolous complaint. 64. AWMR purposefully with its contract access to extended party, CEMEX and Canopy polarized Ecoterra, in

disagreements order to

gain direct

management

and force

CEMEX to completion of the Contract with Canopy Ecoterra. 65. AWMR exacerbated any and all controversies with

Canopy Ecoterra, frivolously involving CEMEX, with the sole purpose of having CEMEX directly engage AWMR for the execution of the dismantling and removal project. 66. AWMR's actions forced CEMEX to stay the work

execution, and the corresponding delay in the termination of

32

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 33 of 35

the

Contract. for

As all

such, damages

it

is

jointly from

and the

severally contractual

responsible breach. IV.

resulting

CEMEX DE PUERTO RICO'S THIRD CAUSE OF ACTION: DAMAGES FOR LOSS OF REPUTATION. 67. AWMR intentionally created a hostile work

environment within CEMEX's Ponce cement plant. 68. AWMR intentionally an in bad faith involved CEMEX in

controversies between Canopy Ecoterra and AWMR, by spreading false rumors involving CEMEX and CEMEX employees, and by

including CEMEX in this frivolous complaint. 69. AWMR's actions have caused damages to CEMEX's name

and reputation, because it is now unable to timely finalize the project, exposing CEMEX to liability before Commonwealth of Puerto Rico and U.S. government administrative agencies, and forcing CEMEX to renege on its informal agreements with the Municipality of Ponce and neighborhood associations. V. REQUEST FOR SANCTIONS: The Court should find that AWMR has acted without any regard to applicable law by (i) artificially designating

Canopy Ecoterra and agent of CEMEX, being fully aware of the contractual relationship between parties; (ii) requesting

equitable relief without basis for such remedy because there

33

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 34 of 35

is

no

irreparable damage in this available, and there is

case, no

there clear

are

adequate of

remedies

likelihood

prevailing on the merits; (iii) making a series of completely unfounded allegations. So clear is the lack of any evidence whatsoever of any contractual relation between AWMR and CEMEX, that AWMR's

decision to file the above captioned Complaint and request preliminary injunctive relief, should be held to have been frivolous. this Court As a result, upon conclusion of this litigation, should order AWMR to show cause why sanctions

should not be imposed upon it. See, e.g., 28 U.S.C. § 1927; see also Chambers v. NASCO, Inc., 501 U.S. 32 (1991). WHEREFORE, respectfully frivolous defendant this CEMEX de Puerto Court grant to the Rico, Inc., the

requests

Honorable by AWMR,

dismiss

complaint

filed

counterclaim

against AWMR and the cross-claim against Canopy Ecoterra filed by CEMEX on this day including compensation of all damages suffered finished. in an amount to be determined once discovery is

CEMEX further requests this Honorable Court grant

attorneys fees, sanctions and any other remedy available at law in favor of CEMEX. RESPECTFULLY SUBMITTED.

34

Case 3:07-cv-01658-JAF

Document 61

Filed 10/05/2007

Page 35 of 35

I HEREBY CERTIFY that today I electronically filed the foregoing with the Clerk of the Court using CM/ECF system

which will send notification of such filing to all counsel of record. In San Juan, Puerto Rico, this 5th day of October, 2007. /s/Jaime E. Toro-Monserrate_ Jaime E. Toro-Monserrate USDC-PR No. 204,601 [e-mail] /s/Joanne A. Tomasini-Muñiz_ Joanne A. Tomasini-Muñiz USDC-PR No. 218,809 [e-mail] TORO, COLÓN, MULLET, RIVERA & SIFRE, P.S.C. Attorneys for defendant, CEMEX de Puerto Rico, Inc. PO Box 195383 San Juan, PR 00919-5383 Tel: [phone] Fax: [phone]

35