Bernabe-Acuna v. HDR Architecture, Inc.
Filing
19
OPINION & ORDER granting 7 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jay A Garcia-Gregory on 06/28/2013. (IL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSÉ RAFAEL BERNABÉ ACUÑA,
Plaintiff
CIVIL NO. 12-1340 (JAG)
v.
HDR ARCHITECTURE,
al.,
INC.,
et
Defendants
OPINION & ORDER
Garcia-Gregory, D.J.
Before the Court stands HDR Architecture, Inc.’s (“HDR” or
“Defendant”)
motion
to
dismiss
José
Rafael
Bernabé
Acuña’s
(“Bernabé” or “Plaintiff”) complaint pursuant to Article 1787 of
the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5091.
(Docket
No.
1).
Bernabé
claims
unjust
enrichment
of
HDR,
directly caused by Defendant’s acts and omissions, including but
not limited to, failure to secure Plaintiff’s authorization to
make
use
of
his
name,
title,
address,
reputation,
and
professional stature as an engineering and design consultant in
the
preparation
of
engineering
plans
and
specifications,
resulting in the loss of income and in harm to Plaintiff. For
the reasons that follow, the Court GRANTS Defendant’s motion.
2
CIVIL NO. 12-1340 (JAG)
BACKGROUND
Bernabé, a licensed engineering consultant, maintained a
professional relationship with the architectural firm Gautier &
De Torres, through which he provided consulting services on a
case-by-case basis to HDR. During late 2010, after receiving a
telephone call from a local equipment supplier, Plaintiff became
aware that his name, title and address appeared on the plans and
specifications for the VA CARIBBEAN HEALTHCARE SYSTEM, SAN JUAN,
SEISMIC
CORRECTIONS
PROJECTS,
PHASE
TWO
OUTPATIENT
ADDITION,
PROJECT NUMER 672-085B (the “Project”) to be executed at the
Veterans
Administration
facilities
in
San
Juan,
Puerto
Rico.
Said plans were awarded by the Veterans Administration to HDR
through
a
competitive
awards
procedure.
On
March
of
2011,
Bernabé discovered that the plans for the Project did in fact
bear his information on every sheet, despite the fact that he
had
not
been
contracted
as
a
consultant
nor
had
he
been
compensated for the use of his information.
Plaintiff contacted the Veterans Administration to learn
the extent of the use of his information and to further learn
about the bidding process which resulted in awarding HDR the
Project. However, despite Plaintiff’s efforts, his requests were
not
answered.
Plaintiff
later
discovered
that
HDR
had
made
attempts to resubmit to the Veterans Administration a new set of
plans
and
specifications
which
did
not
contain
Bernabé’s
3
CIVIL NO. 12-1340 (JAG)
information. On September 11, 2011, Plaintiff filed a formal
Freedom of Information Act (FOIA) request, pursuant to 5 U.S.C.
§552, and requested that the Veterans Administration provide him
with, among other things, true copies of: (1) the plans and
specifications
for
the
Project,
(2)
the
complete
proposal
submitted by HDR, and (3) any document evidencing the award of
the design contract to HDR. The request was still pending when
Plaintiff filed his complaint on May 15, 2012.
According
to
the
complaint,
HDR’s
unauthorized
use
of
Bernabé’s information caused him to experience mental anguish,
for his reputation and stature in the professional community has
been diminished. (Docket No. 1, P. 8). Plaintiff asserts that he
suffered
severe
mental
anguish
at
the
possibility
of
being
professionally responsible for work he did not perform nor was
duly compensated for, thus affecting his personal affairs, selfesteem and family life. (Id.) Bernabé also claims that, pursuant
to Article 1483, Puerto Rico Civil Code, P.R. Laws Ann. tit. 31,
§4124, the unauthorized use of his information places him at
risk of being sued and/or held liable for any mishaps found in
the Project. (Id.)
STANDARD OF LAW
Under Rule 12(b)(6), a defendant may move to dismiss an
action for failure to state a claim upon which relief can be
granted. To overcome a Rule 12(b)(6) motion, the complaint must
4
CIVIL NO. 12-1340 (JAG)
plead
sufficient
facts
“to
state
a
claim
to
relief
that
is
plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S.
544,
570
(2007);
see
also
Ashcroft
v.
Iqbal,
556
U.S.
662
(2009).
In Ocasio-Hernández v. Fortuño Burset, 640 F.3d 1 (1st Cir.
2011), the First Circuit distilled from Twombly and Iqbal a twopronged test designed to measure the sufficiency of a complaint.
First,
the
reviewing
court
must
identify
and
disregard
“statements in the complaint that merely offer legal conclusions
couched as fact, or threadbare recitals of the elements of a
cause of action.” Ocasio-Hernández, 640 F.3d at 12 (internal
punctuation
omitted).
In
this
analysis,
the
remaining
non-
conclusory factual allegations must be taken as true, even if
they are “seemingly incredible,” or that “actual proof of those
facts is improbable.” Id. Finally, the court assesses whether
the facts taken as a whole “state a plausible, not merely a
conceivable, case for relief.” Id.
In
conducting
this
test,
a
court
must
not
attempt
to
forecast the likelihood of success even if recovery is remote
and unlikely. See Ocasio-Hernández, 640 F.3d at 12. Thus, “[t]he
relevant inquiry focuses on the reasonableness of the inference
of liability that the plaintiff is asking the Court to draw from
the facts alleged in the complaint.” Id. at 13.
5
CIVIL NO. 12-1340 (JAG)
ANALYSIS1
Defendant alleges that Plaintiff’s claim sounds in tort,
and,
as
such,
is
time
barred
by
the
one-year
statute
of
limitations.2 Plaintiff, in his opposition, fails to argue why
his claim is not a tort; rather, he argues that the one-year
statute
has
not
expired.
Nonetheless,
the
Court
agrees
with
Defendant that Plaintiff’s claim sounds in tort and will, thus,
scrutinize whether it is time barred.
See Lexington Ins. Co. v.
Abarca Warehouses Corp., 476 F.2d 44, 46 (1st Cir. 1973).
I. Statute of Limitations
A. Knowledge of Extent of Injury
The statute of limitations for tort actions begins to run
from
“the
time
the
aggrieved
person
has
knowledge
of
the
injury.” P.R. Laws Ann. tit. 31, § 5298. The knowledge of injury
is established by “some outward or physical signs through which
the aggrieved party may become aware and realize that he has
suffered an injurious aftereffect, which when known becomes a
damage even if at the time its full scope and extent cannot be
weighed.” Delgado Rodriguez v. Nazario de Ferrer, 21 P.R. Offic.
1
This is a diversity case, and as such, the substantive law of Puerto Rico
controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Borges ex rel.
S.M.B.W. V. Serrano-Isern, 605 F.3d 1, 6 (1st Cir. 2010).
2
Specifically, HDR argues that an unauthorized use of a person’s name,
identity or other personal circumstances for commercial purposes constitutes
a violation of that person’s right of privacy, and that those harmed by such
conduct may bring a claim under Puerto Rico’s general tort statute. See
Vigoreaux Lorenzana v. Quizno's, 173 D.P.R. 254, 273 (P.R., 2008).
6
CIVIL NO. 12-1340 (JAG)
Trans. 342, 356 (P.R., 1988) (our emphasis). From the factual
allegations summarized by both parties, it is undisputed that
Bernabé
first
heard
that
his
information
appeared
on
the
Project’s plans and specifications after receiving a phone call
from an equipment supplier during late 2010. Bernabé even admits
that he confirmed this fact by March 2011. (Docket No. 1, P. 7).
Plaintiff alleges that the date upon which the FOIA was
filed should be important for the determination of the statute
of limitations. Plaintiff states that his complaint was used “as
a last resort to see if any manner of response to his requests
was
obtained
Veterans
from
either
Administration
HDR,
as
Gautier
part
of
&
the
de
Torres
discovery
or
the
process.”
(Docket No. 10, P. 18). Nonetheless, Plaintiff does not cite any
case authority to support his argument. The Court thus finds
that the FOIA filing date is irrelevant in this determination.
Plaintiff also alleges that without being able to review a
true copy of, among other things, the plans and specifications,
and the proposal submitted by HDR, there was no real way for him
to
ascertain
the
existence
of
his
damages.
Furthermore,
Plaintiff alleges that HDR, Gautier & De Torres and the Veterans
Administration deprived Bernabé of the knowledge required for
the
statute
of
limitations
to
begin
to
run.
We
are
not
persuaded. The Supreme Court of Puerto Rico has held that “the
aggrieved party is not barred from bringing the action just
7
CIVIL NO. 12-1340 (JAG)
because at the time he cannot weigh the full scope, extent, and,
in
short,
the
weight
of
the
damage
in
question.”
Delgado
Rodriguez v. Nazario de Ferrer, 21 P.R. Offic. Trans. 342, 356
(P.R., 1988). Therefore, once a plaintiff has knowledge of a
damage, the plaintiff cannot “wait for his injury to reach its
final degree of development and postpone the running of the
period of limitation according to his subjective appraisal and
judgment.” Ortiz v. Municipio De Orocovis, 13 P.R. Offic. Trans.
619,
622
(P.R.,
1982).
Finally,
Plaintiff
“must
pursue
that
claim with reasonable diligence, or risk being held to have
relinquished her right to pursue it later, after the limitation
period has run.” Rodriguez-Suris v. Montesinos, 123 F.3d 10, 16
(1st
Cir.
1997).
Contrary
to
Plaintiff’s
allegation,
his
investigation on the extent of damages did not interrupt the
statute
of
limitations.
The
latest,
on
March
once
2011,
same
began
he
to
confirmed
run,
at
the
his
identity
very
and
information were in the plans. Thus, by filing his suit on May
15, 2012, his claim was time barred.
B. Author of Injury
Plaintiff alleges that without access to the information he
requested
from
HDR,
Gautier
&
De
Torres
and
the
Veterans
Administration, he was unable to gain true knowledge of the
identity of the person or persons responsible for the use of his
information on the Plans. Thus, because he had no “notice of the
8
CIVIL NO. 12-1340 (JAG)
person” that caused the injury, the statute of limitations has
not started running.
v.
Geigel,
15
(Docket No. 17-1, P. 6). See Colon Prieto
P.R.
Offic.
Trans.
313,
330-31
(P.R.,
1984).
However, this Court has previously held that the requirement of
“notice of the person” does not suggest that a plaintiff must
know
the
exact
intracorporate
appropriate
Inc.,
364
name
of
the
relationships
defendant.
F.Supp.2d
that
Salas
76,
78
tortfeasor
v.
or
the
precise
determine
the
name
of
North
(D.P.R.
the
Janiotorial
Services,
2005)(internal
quotation
marks omitted). Furthermore, the Court finds it hard to believe
that
Plaintiff,
a
professional
consulting
engineer,
was
not
equipped to address his cause of action once he was made aware
of the use of his identity and information. Upon knowledge of
injury,
Plaintiff
should
have
acted
more
diligently
in
safeguarding his cause of action by asserting it against any of
the possible tortfeasors which he himself recognizes may have
been involved. (See Docket No. 17-1, p. 5) By failing to do so,
Plaintiff’s claim expired.
C. Continuous Conduct
Plaintiff also alleges that the successive nature of the
daily use of the plans bearing his information gave rise to a
new cause of action and statute of limitations with each use.
The Court finds this allegation meritless. As the Puerto Rico
Supreme Court has expressed in the past, a continuous tort is an
9
CIVIL NO. 12-1340 (JAG)
ongoing
unlawful
conduct,
not
a
continuing
harmful
effect.
Arcelay v. Sanchez, 77 D.P.R. 824, 838 (1955). The allegation
that using Plaintiff’s information without authorization could
potentially provoke constant ramifications is insufficient to
establish a continuous tort. For there to be a continuous tort,
Defendants must be continuously acting. M.R. (Vega Alta), Inc.
v. Caribe General Elec. Products, Inc., 31 F.Supp.2d 226, 240
(D.Puerto Rico, 1998). The Court does not consider Defendant’s
ongoing
use
of
the
plans
bearing
Bernabé’s
information
as
continuous acting or a successive act.
In his final attempt to sway the Court, Plaintiff alleges
that, pursuant to Article 1483 of the Puerto Rico Civil Code,
the
fact
that
Bernabé’s
information
appeared
on
the
plans
resulted in a continuous tort being liable for damage claims for
up to fifteen (15) years. P.R. Laws Ann. tit. 31, §4124. The
Court disagrees. Article 1483 liability deals with the liability
of the contractor and the architect for the losses caused by
construction defects. Said section only applies to the persons
who carried out the work (i.e. the contractor, technicians, and
subcontractors)
for
those
defects
for
which
they
may
be
responsible. Santiago Nieves v. A.C.A.A., 19 P.R. Offic. Trans.
755,
763
perform
(1987).
any
work
As
Plaintiff
related
to
himself
the
contends,
Project.
We
he
find
did
not
that
the
fifteen-year statute of limitations is thus inapplicable.
10
CIVIL NO. 12-1340 (JAG)
CONCLUSION
In light of the above, the Court GRANTS Defendant’s motion
to dismiss, (Docket No. 7). Plaintiff’s claim is time barred.
Accordingly, judgment shall be entered dismissing this case.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 28th day of June, 2013.
S/ Jay A. Garcia-Gregory
United States District Judge
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