Alejandro-Martinez v. Ortiz Vazquez

Filing 99

STATEMENT OF REASONS IN SUPPORT OF 97 Court Order. Signed by Judge Carmen C. Cerezo on 10/11/2011. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ANGEL L. ALEJANDRO-MARTINEZ, et al.
Plaintiffs
vs

CIVIL 10-1541CCC

ENG. JOSE F. ORTIZ-VAZQUEZ, in his
personal capacity and as Director of Puerto
Rico Aqueduct and Sewer Authority, his
wife JANE DOE and their conjugal
partnership;; EUFEMIO TOUCET, in his
personal capacity and as SubDirector of
Puerto Rico Aqueduct and Sewer Authority,
his wife JANE DOE and their conjugal
partnership; ENG. PABLO
REYES-BONILLA, in his personal capacity
and as HOSO’s Director Engineer, his wife
JANE DOE and their conjugal partnership;
PUERTO RICO AQUEDUCT AND SEWER
AUTHORITY; ONDEO DE PUERTO RICO,
INC.; COMPAÑIA DE AGUAS DE PUERTO
RICO, INC.; CORPORACION DEL FONDO
DEL SEGURO DEL ESTADO (CFSE);
INSURANCE COMPANIES A, B, C;
DR. ANGEL ROMAN-FRANCO, in his
personal capacity and as an employee of
the CFSE, his wife JANE DOE and their
conjugal partnership; DR. IRIS OTERO, in
her personal capacity and as Medical
Director of the CFSE, her husband JOHN
DOE and their conjugal partnership;
DR. JOHN DOE, in his personal capacity
and as an employee of the CFSE, his wife
JANE DOE and their conjugal partnership;
DR. JANE DOE, in her personal capacity
and as an employee of the CFSE, her
husband JOHN DOE and their conjugal
partnership; INSURANCE
COMPANIES X, Y, Z
Defendants

STATEMENT OF REASONS IN SUPPORT OF ORDER
DATED SEPTEMBER 27, 2011 (DOCKET ENTRY 97)
WHICH GRANTED DEFENDANTS’ MOTIONS TO DISMISS
On September 27, 2011, after duly considering the various motions to dismiss filed
by defendants in this case (docket entries 43, 44, 46, 47, 48, 58, 59, 60, 68, 75 and 81)
and plaintiffs’ responses to said motions (docket entries 64, 71 and 84), the Court granted

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the dispositive motions and dismissed plaintiffs’ federal causes of action under 42 U.S.C.
§ 1983, the RICO Act (18 U.S.C. §§ 1961 et. seq.), and the Family and Medical Leave Act
(FMLA) (29 U.S.C. §§ 2601 et. seq.) for their failure to state a claim. It also dismissed, albeit
without prejudice, the supplemental claims brought under the laws of the Commonwealth.
We now state the reasons for said ruling.
A.

FACTUAL BACKGROUND

The relevant facts are narrated in the rambling allegations of the Complaint (docket
entry 1). Plaintiffs are sixty-seven current and former employees of the Puerto Rico
Aqueduct and Sewer Authority (PRASA) who claimed to have been exposed to a series of
toxic metals while working for said agency, mainly aluminum, which allegedly produced in
them a variety of medical conditions. Most of them aver having sought treatment from
defendant Corporación del Fondo del Seguro del Estado (CFSE) for the ailments allegedly
caused by said chemicals, but that it was prematurely terminated. Others affirm that they
were intentionally prevented from obtaining any treatment from the CFSE. They all allege
that the premature termination of their treatment, or the refusal to allow them to obtain said
treatment, was the result of a pattern of racketeering activity by the assorted defendants:
PRASA, its Executive Director José F. Ortiz-Vázquez, its Executive Sub-Director Eufemio
Toucet and its Director for the Hygiene and Occupational Safety Office (HOSO), Pablo
Reyes-Bonilla (Reyes); the CFSE and its Medical Director Dr. Iris Otero; ONDEO de Puerto
Rico; Compañía de Aguas de Puerto Rico, and Dr. Angel Román-Franco. Plaintiffs also
alleged being entitled, pursuant to their collective bargaining agreement and PRASA’s
internal regulations, to paid medical leave upon being diagnosed with a work-related
condition, which benefit they claim was similarly hindered by defendants through a pattern
of racketeering activity. In essence, plaintiffs state that PRASA, through Reyes, pressured
the CFSE to review the cases of PRASA employees on medical leave who alleged that they
had been poisoned with aluminum and/or other metals and either terminate their treatment

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or not accept for treatment additional PRASA employees claiming a similar condition, with
which the CFSE allegedly obliged. Plaintiffs claim that all these actions caused them
damages, and request compensation for their pain and suffering, lost wages, loss of earning
capacity, and past, current and future medical expenses.
B.

CLAIM UNDER THE RICO ACT (18 U.S.C. §§ 1961 et. seq.)

The allegations pertaining to the claimed RICO violation are set forth at pages 39
and 40 of the Complaint. They state:
160.

All the preceding paragraphs are incorporated by reference herein.

161. The purveyance of medical treatment to PRASA employees suffering
symptoms related or which could or should have been related to aluminum
poisoning has been conducted pursuant to a racketeering pattern by the
co-defendants and constitutes an enterprise within the meaning of 18 U.S.C.
§ 1961(4).
162. The CFSE has been conducted pursuant to a racketeering pattern by
the codefendants and constitutes an enterprise within the meaning of
18 U.S.C. § 1961(4).
163. The operations of the HOSO has been conducted pursuant to a
racketeering pattern by the codefendants and constitutes an enterprise within
the meaning of 18 U.S.C. § 1961(4).
164. The Office of Human Resources of the PRASA has been conducted
pursuant to a racketeering pattern by the codefendants and constitutes an
enterprise within the meaning of 18 U.S.C. § 1961(4).
165. The codefendants were fully aware that the CFSE determinations
regarding the adjudication of relationship, termination, and all other
determinations made by this entity would be sent or notified to the plaintiffs
and the PRASA through the mail or telephone. The codefendants were also
fully aware that these determinations contained false statements. Thus, the
co-defendants violated 18 U.S.C. § 1341 and § 1343, as extended by § 1346,
and thus constitutes a predicate racketeering act pursuant to 18 U.S.C.
§ 1961(1).
166. The codefendants were fully aware that the employees of the PRASA
were entitled to a period of sick (sic) and that all endeavors related to this are
conducted through the use of the mails, and through the use of the telephone.
The codefendants were also fully aware that these determinations contained
false statements. Thus, the codefendants violated 18 U.S.C. § 1341
and § 1343, as extended by § 1346, and this constitutes a predicate
racketeering act pursuant to 18 U.S.C. § 1961(1).

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167. Additionally, the codefendants were fully aware that the plaintiffs had
an entitlement to receive medical treatment services, and compensation from
the CFSE for their workplace related aluminum poisoning, and the ensuing
two-year period of paid sick leave from the PRASA and their actions
admonishing the injured employees with criminal, civil and administrative
sanctions for claiming their rights to treatment and paid leave inflicted wrongful
fear upon them with the purpose of extorting him in violation of the Hobbs Act
18 U.S.C. § 1951 and this constitutes a predicate racketeering act pursuant
to 18 U.S.C. § 1961(1).
All of these allegations refer only to §§ 1961(1) and (4), which define the terms
“racketeering activity” and “enterprise” for purposes of the statute. But section 1961 does
not establish, by itself, what constitutes a prohibited activity under the RICO Act, a topic
which is instead addressed by its § 1962. In no uncertain terms, § 1962 lists three distinct
substantive activities that are expressly prohibited by the law. Nowhere in plaintiffs’
complaint, however, do they categorize the actions purportedly carried out by defendants
within one of the three categories enumerated in § 1962(a)(b) and (c). This, by itself, fatally
flaws their RICO claim. Simply put, we do not have to craft for them the § 1962 claim which
would allegedly entitle them to relief.
Even if were we to find that plaintiff sufficiently stated a claim by pleading enough
facts to configure, as to specific defendants, any of the activities prohibited by § 1962, their
RICO claims would still be legally deficient for failure to meet the pleading requirements of
Fed. R. Civ. P. 9(b). This is so because included among the definition of racketeering
activity contained in § 1961 are violations to 18 U.S.C. § 1341, relating to mail fraud, and
18 U.S.C. § 1343, relating to wire fraud, which are the ones that plaintiffs identify as
predicate acts at paragraph 165 of their complaint. Courts have repeatedly held in RICO
cases alleging mail fraud and wire fraud as the “predicate acts” that the underlying
fraudulent activities must be pled with particularity, in light of the more stringent Rule 9(b)
pleading requirements. The prevailing standard was aptly explained by the Court of Appeals
for the Second Circuit in Moore v. Painewebber, Inc., 189 F.3d 165, 173 (2nd Cir. 1998):

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In the RICO context, Rule 9(b) calls for the complaint to “specify the
statements it claims were false or misleading, give particulars as to the respect
in which plaintiffs contend the statements were fraudulent, state when and
where the statements were made, and identify those responsible for the
statements.” McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992)
(quoting Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989)). The plaintiffs
must also “identify the purpose of the mailing within the defendant's fraudulent
scheme.” McLaughlin, 962 F.2d at 191. In addition, the plaintiffs must “allege
facts that give rise to a strong inference of fraudulent intent.” San Leandro
Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos.,
75 F.3d 801, 812 (2d Cir. 1996).
Hence, in accordance with Rule 9(b), plaintiffs alleging fraud must further “state the
time, place and content of the false misrepresentations, the fact misrepresented[,] and what
was retained or given up as a consequence of the fraud.” United States ex rel. Williams v.
Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (internal quotation marks
and citation omitted).

See also Intex Recreation Corp. v. Team Worldwide Corp.,

390 F. Supp. 2d 21, 24 (D.D.C. 2005) (stating that “[t]he particularity requirement of
Rule 9(b) demands that the pleader specify what [fraudulent] statements were made and in
what context, when they were made, who made them, and the manner in which the
statements were misleading”) (citation omitted); Haroco, Inc. v. Am. Nat'l Bank and Trust Co.
of Chi., 747 F.2d 384, 405 (7th Cir. 1984) (finding that complaint satisfied the Rule 9(b)
standard where it “adequately specified the transactions, the content of the allegedly false
representations, and the identities of those involved”). Moreover, “[c]ourts have been
particularly sensitive to [Rule 9(b)'s] pleading requirements in RICO cases in which the
‘predicate acts' are mail fraud and wire fraud, and have further required specific allegations
as to which defendant caused what to be mailed . . . and when and how each mailing . . .
furthered the fraudulent scheme.” Gotham Print, Inc. v. Am. Speedy Printing Ctrs., Inc.,
863 F. Supp. 447, 458 (E.D. Mich. 1994) (citing cases) (emphases omitted).
There are simply no allegations in plaintiffs’ complaint that would satisfy these
demanding standards. Thus, plaintiffs have failed not only in properly pleading concrete
facts that would give notice to defendants of the nature of their RICO claims, whether an

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18 U.S.C. § 1962(a), (b) or (c) violation, but also in pleading with any specificity the alleged
mail and wire fraud schemes. Their RICO claim is, hence, doubly inadequate. For that
reason, defendants’ motions seeking dismissal of the RICO claim were granted by the Court.
C.

CONSTITUTIONAL VIOLATIONS

Plaintiffs alleged that defendants deprived them of their due process of law, and
sought redress for said violation under 42 U.S.C. § 1983. They grounded said violation in
a series of actions allegedly committed by defendants which they listed at ¶ 168 through
¶ 178, and which can be summed up as a generalized failure to warn them about and
protect them from the dangers and consequences of being exposed to toxic elements.
The constitutional guarantee of substantive due process functions to protect
individuals from particularly offensive actions on the part of government officials.
González-Droz v. González-Colón, --F.3d--, 2011 WL 4346673 (1st Cir. 2011). The plaintiff
bears the burden of showing that the challenged actions were “so egregious as to shock the
conscience.” Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006). To sink to this level, the
challenged conduct must be “truly outrageous, uncivilized, and intolerable.” Hasenfus v.
LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999).
None of the allegations in plaintiffs’ complaint remotely approach the level of a
substantive due process violation. Instead, they partake of a run-of-the-mill tort case. Since
plaintiffs’ allegations did not meet the “shocks the conciousness” standard, they failed to
establish a plausible violation of their constitutional right to substantive due process. For
that reason, defendants’ motions seeking dismissal of the constitutional claim were granted
by the Court.
D.

CLAIM UNDER THE FEDERAL MEDICAL LEAVE ACT (29 U.S.C. §§ 2601
et. seq.)

Plaintiffs premised their claim under the FMLA on defendants’ alleged deprivation of
their regulatory and contractual right to enjoy paid sick leave while being treated at the
CFSE, when they purportedly impeded that medical treatment be provided for their

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metal-toxicity-induced ailments through that agency. The FMLA, however, does not entitle
plaintiffs to a specific type of leave. Rather, the FMLA simply entitles plaintiff to unpaid
leave. See 29 U.S.C. § 2612 (providing for up to 12 weeks of unpaid leave, but allowing
employers to require employees to use sick leave or personal leave). As plaintiffs were not
entitled to paid leave under the FMLA, their complaint failed to state any violation under said
statute. For that reason, defendants’ motions seeking dismissal of the claim under the
FMLA were granted by the Court.
E.

SUPPLEMENTAL CLAIMS UNDER THE LAWS OF THE COMMONWEALTH

“As a general principle, the unfavorable disposition of a plaintiff's federal claims at the
early stages of a suit, well before the commencement of trial, will trigger the dismissal
without prejudice of any supplemental state-law claims.” Rodríguez v. Doral Mortgage
Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). Thus, once all of plaintiffs’ federal causes of
actions were axed by the Court for failure to state a claim, all the claims under the laws of
the Commonwealth were also dismissed, but without prejudice.
SO ORDERED.
At San Juan, Puerto Rico, on October 11, 2011.

S/CARMEN CONSUELO CEREZO
United States District Judge