Costas-Elena et al v. Municipality of San Juan, et al

Filing 52

OPINION AND ORDER re 1 Complaint. We ORDER Plaintiffs to SHOW CAUSE, on or before November 9, 2009, as to why we should not order judgment on the pleadings in favor of Neighbors and dismiss Plaintiffs' claims under Puerto Rico law against Neig hbors. We RESERVE JUDGMENT on Municipality's motion to dismiss (Docket No. 42 ) pending the resolution of this order to show cause. We further RESERVE JUDGMENT on Neighbors' counterclaim against Plaintiffs (Docket No. 21 ); Municipality and Rivera's cross-claim against Neighbors (Docket No. 22 ); Neighbors' cross-claim against Municipality; Rivera, Cordero, and their respective conjugal partnerships; and unknown insurance companies (Docket No. 24 ); Neighbors' third -party complaint against PREPA and unknown insurance companies (Docket No. 26 ); PREPA's counterclaim against Neighbors (Docket No. 37 ); and PREPA's claim against Municipality (Docket No. 38 ). We RETAIN Plaintiffs' claims against Municipality, Rivera, and Cordero. Show Cause Response due by 11/9/2009. Signed by Chief Judge Jose A Fuste on 10/28/09.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO LUIS COSTAS ELENA, et al., Plaintiffs, v. MUNICIPALITY OF SAN JUAN, et al., Defendants. _________________________________ PUERTO RICO ELECTRIC POWER AUTHORITY, Cross-Claim Plaintiff, v. MUNICIPALITY OF SAN JUAN, Cross-Claim Defendant. Civil No. 08-2403 (JAF)

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OPINION AND ORDER Plaintiffs, Luis Costas Elena, Hazel Russell McMillan, and their conjugal partnership, bring this action under 42 U.S.C. § 1983 against Defendants, the Municipality of San Juan

("Municipality"); Andrés Rivera and Fernando Cordero, in both their official and personal capacities; and Henry Paredes, Carmen (Docket

Despradel, and their conjugal partnership ("Neighbors"). No. 1.) trees

Plaintiffs allege invasion and public takings of their shrubs without proper notice or compensation, in

and

violation of the Fourth, Fifth, and Fourteenth Amendments and the

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Puerto Rican Federal Relations Act, 81 Pub. L. No. 600, 64 Stat. 319 (1950), and in breach of Puerto Rico law. (Id.)

Neighbors implead the Puerto Rico Electric Power Authority ("PREPA") for contribution. (Docket No. 26.) PREPA sues

Municipality for contribution.

(Docket No. 38.)

Municipality

moves to dismiss this last claim under Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for judgment on the pleadings under Rule 12(c). (Docket No. 42.) PREPA opposes the motion.

(Docket No. 46.) For the reasons below, we believe that sua-sponte judgment on the pleadings in favor of Neighbors is appropriate. I. Factual and Procedural History Under Federal Rule of Civil Procedure 12(c), we consider the averments in Plaintiffs' complaint (Docket No. 1) and Neighbors' answer (Docket No. 21). We assume the parties' factual allegations to be true and draw all reasonable inferences in Plaintiffs' favor. See Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007). Plaintiffs and Neighbors own properties in the Santa María Urbanization in San Juan. Plaintiffs have resided on their parcel

for over thirty years, whereas Neighbors purchased their two adjacent parcels over forty years ago and have since let them for rent. Plaintiffs' and Neighbors' properties abut and are separated by a narrow public servitude for electric power transmission.

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Plaintiffs and Neighbors maintain trees and shrubbery along the perimeter of their respective properties and have antagonized one another over the years as to the maintenance of the vegetation and incursions across each others' property lines. From May 27

through June 5, 2008, Municipality, Rivera, and Cordero ordered their employees to clear branches and debris in the servitude. These employees destroyed Plaintiffs' cherished vegetation in the course of their labors. Plaintiffs accuse Neighbors of "acting jointly and

concertedly" with other Defendants in this deprivation, and that Neighbors had allowed unknown persons to damage Plaintiffs'

vegetation.

(Docket No. 1.)

Neighbors explain that the Puerto

Rico Natural Resources Department ("DRNA") had granted them a permit to trim a tree on their property that had obstructed power lines. (Docket No. 21.) Neighbors explain further that PREPA oversaw the tree trimming and disconnected electrical power on May 27, 2008, to permit Municipality to engage in the trimming itself. On December 23, 2008, Plaintiffs commenced this case in this court. (Docket No. 1.) Neighbors brought a counterclaim against Plaintiffs for trespass to land under Puerto Rico law on

February 5, 2009.

(Docket No. 21.)

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On February 28, 2009, Municipality and Rivera raised a crossclaim against Neighbors.1 (Docket No. 22.) On March 4, 2009,

Neighbors countered with a cross-claim for contribution against Municipality; Rivera, Cordero, and their respective conjugal

partnerships; and unknown insurance companies. On March 11, 2009, Neighbors

(Docket No. 24.) as third-party

impleaded

defendants the Puerto Rico Electric Power Authority ("PREPA") and three unknown insurance companies. 2009, PREPA asserted a (Docket No. 26.) against On June 14, for

counterclaim

Neighbors

contribution.

(Docket No. 37.)

The same day, PREPA brought a (Docket No. 38.) this On July 20, or,

cross-claim against Municipality. 2009, Municipality moved to

dismiss

cross-claim

alternatively, for judgment on the pleadings (Docket No. 42); PREPA opposed on August 4, 2009 (Docket No. 46). II. Standard for Judgment on the Pleadings under Rule 12(c) Rule 12(c) allows any party to move for judgment on the pleadings "[a]fter the pleadings are closed ­ but early enough not to delay the trial." Fed. R. Civ. P. 12(c). "The standard for

evaluating a Rule 12(c) motion . . . is essentially the same as that for deciding a Rule 12(b)(6) motion." Asociación de

Subscripción Conjunta del Seguro de Responsabilidad Obligatorio v.

Municipality and Rivera aver no facts for their cross-claim, which appears to be a blunder. (See Docket No. 22.)

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Flores Galarza, 484 F.3d 1, 22 (1st Cir. 2007) (quoting Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005)). Borrowing from the standard for dismissal under Rule 12(b)(6), "a [movant's] obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do." Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st

Cir. 2008) (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). complaint and the defendant's answer "must The plaintiff's contain factual

allegations sufficient to `raise a right to relief above the speculative level.'" Id. (quoting Twombly, 550 U.S. at 555).

A sua-sponte judgment on the pleadings may obtain where "one party is clearly entitled to judgment." Flora v. Home Fed. Sav. &

Loan Ass'n, 685 F.2d 209, 211 (7th Cir. 1982); cf. Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002) (holding that sua-sponte

dismissals for failure to state a claim are appropriate "in limited circumstances"). Before ordering judgment, the court usually See

affords the target an opportunity to address the challenge. Chute, 281 F.3d at 319. III. Analysis

Plaintiffs' and Neighbors' pleadings convince us that suasponte disposition under Rule 12(c) is proper. For an action to

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lie under 42 U.S.C. § 1983 against private persons, such persons must have acted under color of law so that their conduct could be deemed state action. See Yeo v. Town of Lexington, 131 F.3d 241, The First Circuit test for state action by

248-49 (1st Cir. 1997).

private actors is whether there exists "(1) . . . an elaborate financial or regulatory nexus between [Defendants] and the

government of Puerto Rico which compelled [Defendants] to act as they did, (2) an assumption by [Defendants] of a traditional public function, or (3) a symbiotic relationship involving the sharing of profits." 487, 493 Barrios-Velázquez v. Asociación de Empleados, 84 F.3d (1st Cir. 1996) (alterations in original) (quoting The

Rodríguez-García v. Dávila, 904 F.2d 90, 94 (1st Cir. 1990)).

traditional public function test prevents states from avoiding liability by delegating "traditional, exclusively sovereign

functions" to private actors.

Id. at 493-94.

In the case at bar, Plaintiffs aver scant details to support Neighbors' complicity with governmental actors.2 Meanwhile,

We note that Plaintiffs' averment, that "[a]t all times pertinent defendants Paredes were present and acted jointly and concertedly with other defendants in the actions described herein," may be legally insufficient. (See Docket No. 1.) This passage contains no description of Neighbors' alleged conduct to permit the inference that Neighbors engaged in concerted action with state actors. Such allegations are mere legal conclusions that may fail as a matter of law. See Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir. 2008). The complaint further states that Neighbors "twice caused [unknown] persons . . . to clandestinely invade plaintiffs' property, cut and decapitate some of plaintiffs' palm trees and bushes." (Docket No. 1.) However, such activity merely constitutes a trespass and destruction of accessories to land, which are the province of ordinary tort law, not the

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Neighbors' answer furnishes grounds for judgment in their favor. In addressing Plaintiffs' charge, Neighbors aver that they had received a permit from DRNA to clip a tree on their own property in order to ameliorate an obstruction of public power lines. No. 21.) (Docket

After PREPA disconnected electrical power to alleviate

the potential hazard to workers, Neighbors permitted servants of Municipality to conduct the actual trimming. To determine § 1983 of liability, the we (Id.) must and decide whether of

Neighbors'

procurement

permit

authorization

Municipality to trim branches is attributable to the government of Puerto Rico. See Bárrios-Velázquez, 84 F.3d at 493. The pleadings permit no inference of either an elaborate regulatory scheme commanding Neighbors' activities or a symbiotic financial

relationship between these same two parties. See id. Furthermore, the trimming of tree branches is not the sort of "traditional public function" that has always been the exclusive responsibility of state actors. See id. at 493-94; Yeo, 131 F.3d at 252

(distinguishing conduct of jury trials, a traditional governmental function, from operation of newspapers, which is not). Because Neighbors' procurement of a DRNA permit to trim their tree is not "[delegation of] traditional governmental authority to a private actor," Yeo, 131 F.3d at 252, Neighbors cannot be

Federal Constitution.

See P.R. Civ. Code art. 1802 (1930).

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-8decline trespass

jurisdiction

Plaintiffs'

action

against Neighbors.3

See 28 U.S.C. § 1367(c)(3); Rivera v. Murphy,

979 F.2d 259, 264 (1st Cir. 1992). IV. Conclusion Accordingly, we hereby ORDER Plaintiffs to SHOW CAUSE, on or before November 9, 2009, as to why we should not order judgment on the pleadings in favor of Neighbors and dismiss Plaintiffs' claims under Puerto Rico law against Neighbors (Docket No. 1). We RESERVE JUDGMENT on Municipality's motion to dismiss (Docket No. 42) pending the resolution of this order to show cause. We further RESERVE JUDGMENT on Neighbors' counterclaim against Plaintiffs (Docket No. 21); Municipality and Rivera's cross-claim against Neighbors (Docket No. 22); Neighbors' cross-claim against Municipality; Rivera, Cordero, and their respective conjugal

partnerships; and unknown insurance companies (Docket No. 24); Neighbors' third-party complaint against PREPA and unknown

insurance companies (Docket No. 26); PREPA's counterclaim against Neighbors (Docket No. 37); and PREPA's claim against Municipality
We have chosen the unusual course of sua-sponte judgment on the pleadings because the federal court is not a forum for in terrorem lawsuits to force settlement in neighborhood disputes. According to an ancient adage, "Good fences make good neighbors." See Robert Frost, Mending Wall, in North of Boston (1914). We encourage Plaintiffs and Neighbors to find an amicable solution.
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(Docket No. 38). We RETAIN Plaintiffs' claims against Municipality, Rivera, and Cordero (Docket No. 1). IT IS SO ORDERED. San Juan, Puerto Rico, this 28th day of October, 2009. S/José Antonio Fusté JOSE ANTONIO FUSTE Chief, U.S. District Judge