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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF PUERTO RICO
NGEL L. ALEJANDRO MARTNEZ, et als.
Plaintiffsv.
ENG. JOS F. ORTIZ VZQUEZ, et als.Defendants
CIVIL NO. 10-1541
PLAINTIFFS DEMAND TRIAL BYJURY
OPPOSITION TO DEFENDANTS MOTION TO DISMISSDOCKETS NUMBER 43, 44, 46-48
TO THE HONORABLE COURT:COMES NOW plaintiff in the case at bar, through the undersigned attorney and
very respectfully states and prays as follows:
I. Procedural History
1. On June 15, 2010, Plaintiffs filed the Complaint in the instant case. [Dckt
1]
2. On September 13, 2010, summons were returned executed as to the
following Defendants: Corporacin del Fondo del Seguro del Estado (served on
September 9, 2010, answer due by September 30, 2010), Jose F. Ortiz Vazquez
(served on September 7, 2010, answer due by September 28, 2010), Puerto Rico
Aqueduct and Sewer Authority (served on September 7, 2010, answer due by
September 28, 2010), and Eufemio Toucet (served on September 7, 2010, answer due
by September 28, 2010). [Dckt. 13]
3. On September 15, 2010, co-defendant Corporacin del Fondo del Seguro
del Estado filed a motion requesting an extension of time. [Dckt. 14]
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4. On September 27, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto
Rico Aqueduct and Sewer Authority, and Eufemio Toucet, filed Motion for extension o
time to file answer. [Dckt. 16]
5. On September 28, 2010, this Honorable Court granted co-defendant
Corporacin del Fondo del Seguro del Estado, motion for extension of time to answer
the complaint until October 22, 2010. [Dckt. 17]
6. On October 5, 2010, co-defendants Angel Roman Franco and Compaa
de Aguas de Puerto Rico filed Motion of extension of time to file answer. [Dckt. 20 and
21]7. On October 18, 2010, co-defendant Angel Roman Franco filed a second
motion for extension of time to answer or otherwise plead. [Dckt. 23]
8. On October 22, 2010, co-defendant Corporacin del Fondo del Seguro de
Estado and Iris Otero filed their motion requesting an extension of time to answer the
complaint or otherwise plead. [Dckt. 24]
9. On October 26, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto Rico
Aqueduct and Sewer Authority and Eufemio Toucet filed their second motion for
extension of time to plead. [Dckt. 25]
10. On November 4, 2010, co-defendants Compaa de Aguas de Puerto
Rico and Angel Roman Franco filed a second motion for extension of time to answer or
otherwise plead. [Dckt. 28 and 29]
11. On November 17, 2010, the Department of Justice filed a second motion
for extension of time to conclude an investigation. [Dckt. 32]
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12. On November 22, 2010, co-defendant, Corporacin del Fondo del Seguro
del Estado, filed a third motion for extension of time. [Dckt. 33]
13. On November 30, 2010, this Honorable Court granted co-defendants Jose
F. Ortiz Vazquez, Puerto Rico Aqueduct and Sewer Authority, and Eufemio Toucet,
request for extension of time. [Dckt. 34]
14. On December 7, 2010, co-defendant Angel Roman Franco filed a third
motion for extension of time. [Dckt. 35]
15. On December 13, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto
Rico Aqueduct and Sewer Authority, and Eufemio Toucet filed a third motion forextension of time. [Dckt. 36]
16. On December 20, 2010, co-defendant Angel Roman Franco filed yet
another motion requesting extension of time. [Dckt. 37]
17. On December 21, 2010, this Honorable Court issued an order whereby
noting and declaring as moot various motions for extensions of time, and granting two
pending motions for extensions of time (Dckt. 33, 36) and granting such extensions until
December 29, 2010. [Dkct. 38]
18. On December 21, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto
Rico Aqueduct and Sewer Authority and Eufemio Toucet filed a motion for
reconsideration of this Courts December 21st Order. [Dckt. 39]
19. On December 22, 2010, co-defendant Angel Roman Franco filed Motion
to dismiss pursuant to R. 12(b)(6). [Dckt. 43]
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20. On December 23, 2010, co-defendant Corporacin del Fondo del Seguro
del Estado and Iris Otero, filed their Motion to dismiss pursuant to R. 12(b)(6). [Dckt
44]
21. On December 29, 2010, co-defendant Jose F. Ortiz Vazquez, Puerto Rico
Aqueduct and Sewer Authority, and Eufemio Toucet, filed their Motion to dismiss
pursuant to R. 12(b)(6). [Dckt. 46]
22. On December 29, 2010, co-defendants Angel Roman Franco filed a
motion to join docket 43, motion to dismiss. [Dckt. 47]
23. On December 29, 2010, co-defendant Angel Roman Franco filed a motionto join the motions to dismiss filed under docket numbers 43, 44, 46, and 47. [Dckt. 48]
24. On January 5, 2011, Plaintiffs timely filed their motion for extension of time
to respond to the various motions to dismiss. [Dckt. 49]
II. Discussion1
A. Standard of Review
1. Pleading standard under Federal Rule of Civil Procedure 8(a)
Under FRCP 8(a) a pleading shall contain (i) a short and plain statement of the
grounds upon which the courts jurisdiction depends, (ii) a short and plain statement of
the claim showing that the pleader is entitled to relief, and (iii) a demand for relief.
The instant complaint does contain enough to give defendants fair notice of the
complaints claim and the grounds for them. As stated in McManus v. Fleetwood
Enters, Inc., 320 F.3d 545 (5th Cir. 2003), the plaintiff need not correctly specify the
legal theory, so long as the plaintiff alleges facts upon which can be granted.
1For ease of fluidity purposes and reference, each claim presented in defendants motions to dismiss hasbeen discussed in separate sections; nonetheless, the text of the present motion and its discussionsshould be considered as a whole.
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The instant complaint, as drafted, does meet the Rule 8(a) pleading standard,
and does set forth enough facts to raise a reasonable expectation that discovery will
reveal evidence of illegal agreement. See, Bell Atlantic Corp. v. Twombly, 550 US 544
(2007).
2. FRCP 12(b)(6)
In the present case, Defendants argue that the complaint should be dismissed
because Plaintiffs have not established sufficient facts and information as to justify the
claims, yet they fail to establish the reasons as to why said information does not suffice
Merely citing cases and attempting to dismiss the whole complaint through saidstrategies is very presumptuous to say the least. Plaintiffs documents in support of
their contention are not ambiguous and clearly comply with the well established rule.
The standard in the First Circuit when faced with a motion to dismiss under Rule
12 was established in Educadores Puertorriqueos en Accin v. Cesar Rey Hernandez
367 F.3d 61, 66 (2004), here the Court indicated that:
The handwriting is on the wall. Swierkiewicz has sounded thedeath knell for the imposition of a heightened pleading standardexcept in cases in which either a federal statute or specific CivilRule requires that result. In all other cases, courts faced with thetask of adjudicating motions to dismiss under Rule 12(b)(6) mustapply the notice pleading requirements of Rule 8(a)(2). Under thatrule, a complaint need only include "a short and plain statement ofthe claim showing that the pleader is entitled to relief." Thisstatement must "give the defendant fair notice of what theplaintiff's claim is and the grounds upon which it rests." Conley v.Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Stateof mind, including motive and intent, may be averred generally. Cf.Fed. R. Civ. P. 9(b) (reiterating the usual rule that "malice, intent,knowledge, and other condition of mind of a person may beaverred generally"). In civil rights actions, as in the mine-run ofother cases for which no statute or Federal Rule of CivilProcedure provides for different treatment, a court confronted witha Rule 12(b)(6) motion "may dismiss a complaint only if it is clear
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that no relief could be granted under any set of facts that could beproved consistent with the allegations." Hishon v. King &Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229(1984).
It is undisputed that plaintiffs must [s]tate a claim to relief that is plausible on its
face, not merely conceivable. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct
1955, 1969, 167 L. Ed. 2d 929 (2007). The approach that the Supreme Court set forth
in Swierkiewiczrequires the Court to treat complaints more liberally. For example, the
First Circuit previously required plaintiffs to "set forth in their complaint 'factua
allegations, either direct or inferential, regarding each material element necessary tosustain recovery .'" Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir
1989) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)).
Swierkiewicz makes clear that a complaint that does not address itself to every element
of every claim may nevertheless be adequate under Rule 8(a). In addition, where
Defendant's improper intent is an essential element of a plaintiff's claim, the First Circuit
has insisted upon "specific, nonconclusory factual allegations giving rise to a reasonable
inference of discriminatory intent." Judge v. City of Lowell, 160 F.3d 67, 75 (1st Cir
1998) (emphasis in original); See also, Aulson, 83 F.3d at 3 (faulting plaintiffs for relying
on bald assertions and unsubstantiated conclusions of law in setting forth their claims)
Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52-53 (1st Cir. 1990). Yet
Swierkiewicz clearly indicates that it is not fatal to Plaintiff's case that some of his
allegations at this stage may be legal conclusions rather than facts. Swierkiewicz, 122
S. Ct. at 999; see Higgs v. Carver, 2002 U.S. App. LEXIS 5617, No. 01-1559, 2002 WL
481227, (7th Cir. Apr. 1, 2002) (reading Swierkiewiczto mean that "[a] complaint that
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complies with the federal rules of civil procedure cannot be dismissed on the
ground that it is conclusory or fails to allege facts.") Greenier v. Pace, Local No
1188, 201 F. Supp. 2d 172, 177 (D. Me. 2002) (Emphasis added.)
By the same token, both the United States as well as the Puerto Rico Supreme
Court have established that: "[a] complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Hishon v. King & Spalding, 467 U.S.
69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984); Miranda v. Ponce Fed. Bank,948 F.2d 41, 44 (1st Cir. 1991). The court must accept as true the well-pleaded factua
averments contained in the complaint, while at the same time drawing all reasonable
inferences there from in favor of the plaintiff. McDonald v. Santa Fe Trail Transp. Co.
427 U.S. 273, 276, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976); Correa-Martinez v
Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir. 1990). Flamand v. American Int'l Group
876 F. Supp. 356, 360-361 (D.P.R. 1994).
In fact, the court must exercise its judgment cautiously in the pursuance of
serving the best interests of justice. Therefore, plaintiffs are relying on this Honorable
Courts best judgment in adjudicating the present issues.
The US Supreme Court has made it clear that:
[o]nce a claim has been stated adequately, it may be supportedby showing any set of facts consistent with the allegations in thecomplaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.1955, 1969, 167 L. Ed. 2d 929 (2007). As such, in order to survivea motion to dismiss, a complaint must state a claim to relief that isplausible on its face, not merely conceivable. Id. at 1974. The FirstCircuit has interpreted Twomblyas sounding the death knell forthe oft-quoted language ofConleyv. Gibson, 355 U.S. 41, 45-46,
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Opposition to Motion to Dismiss.2
8/50
8
78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), that "a complaint should notbe dismissed for failure to state a claim unless it appears beyonddoubt that the plaintiff can prove no set of facts in support of hisclaim which would entitle him to relief." Rodriguez-Oritz v. MargoCaribe, Inc. 490 F. 3d 92, 94-95 (1st Cir. 2007), quotingTwombly,
127 S. Ct. at 1969. Still, a court must "treat all allegations in theComplaint as true and draw all reasonable inferences therefrom infavor of the plaintiff." Rumford Pharmacy, Inc. v. City of EastProvidence, 970 F.2d 996, 997 (1st Cir. 1992). Muniz-Rubertev.Pereira-Castillo, 2010 U.S. Dist. LEXIS 5401, 2-3 (D.P.R. Jan. 22,2010).
In the District of Puerto Rico the First Circuit has followed the US Supreme Court
and has interpreted the applicable legislation as follows: A plaintiff's obligation to
"provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels andconclusions, and a formulaic recitation of the elements of a cause of action will not do."
Twombly, 127 S. Ct. at 1965. That is, "factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption that all allegations in the
complaint are true." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008); Velez v.
Almestica Lopez, 2009 U.S. Dist. LEXIS 107073 (D.P.R. Nov. 17, 2009).
While in Velez v. Almestica Lopez, supra,the Court reinforced that [a] plaintiff's
obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do." Twombly, 127 S. Ct. at 1965. That is, factual allegations must be enough
to raise a right to relief above the speculative level, on the assumption that al
allegations in the complaint are true." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008)
Hence, plaintiffs argue that their factual allegations are sufficient and undoubtedly raise
the above mentioned right to relief.
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By the same token, the court has the ineludible duty of evaluating the allegations
and taking them as true as long as plaintiffs comply with the well established rule from
Bell Atlantic Corp. v. Twombly, 127 S Ct. 1995 (2007) among other applicable
jurisprudence. Otherwise, the law would not serve its purpose.
For the reasons set forth herein, Plaintiffs oppose co-defendants motions to
dismiss as set forth at docket numbers 43, 44, 46-48.
B. Plaintiffs 42 USC 1983 claim and Articles 1802 and 1803 claims are not
time barred.
Plaintiffs claims under 42 USC 1983 and Articles 1802-1803 of the Puerto RicoCivil Code are not time barred.
Pursuant to the Puerto Rico Civil Code the statute of limitations for damages
claims under Article 1802 and 1803 is one year from the date of accrual. Carreras Rosa
v. Alves Cruz, 127 F.3d 172 (1stCir. 1997). The prescriptive period begins to run when
the injured party knew or should have known of the injury and of the likely identity of the
tortfeasor. Tokyo Marine & Fire Ins. Co., Ltd. v. Perez & Cia., de Puerto Rico, 142 F.3d
1, 3 (1st Cir. 1998).
Article 1873 of the Puerto Rico Civil Code states that an injured party may
interrupt the prescriptive period in one of three ways. As per Article 1873, one of these
three ways is through an extrajudicial claim.
The instant complaint was filed on June 15, 2010. As per the complaint, most o
the Plaintiffs went to the Corporation of the State Insurance Fund (hereinafter CFSE
requesting treatment between the years 2000 and 2007 due to medica
conditions/symptoms which originated while employed by Puerto Rico Aqueduct and
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Sewer Authority (hereinafter PRASA), while other Plaintiffs were intentionally and
knowingly chilled out by PRASA and/or CFSE from the exercise of their rights. [Dckt. 1
78, 156]
On July 31, 2008, Plaintiffs sent an extrajudicial claim letter, whereby effectively
tolling the prescriptive period for the damages and injuries suffered by Plaintiffs. [Ex. 1
On October 21, 2008, PRASA issued a written response. On October 30, 2008
Plaintiffs responded to PRASAs October21st letter. [Ex. 2] On July 30, 2009, Plaintiffs
sent a second extrajudicial claim letter. [Ex. 3]
Here, Plaintiffs extrajudicial claim letters, copies of which were also served uponthe Puerto Rico Department of Justice, dated July 31, 2008 and July 30, 2009 served to
effectively toll the prescriptive period. Therefore, the complaint, filed on June 15, 2010
was filed within the statutory time period as set forth under the Puerto Rico Civil Code.
Consequently, Plaintiffs claims under 42 USC 1983 and Articles 1802 and 1803
of the Puerto Rico Civil Code are not time barred.
Moreover, and in the alternative, Plaintiffs claims that the damages set forth in
the complaint are not time barred because of the doctrine of continuing damages.
Plaintiffs medical conditions are a consequence of their exposure to hazardous/toxic
materials while employed by and performing job related duties for PRASA. Even
though some of Plaintiffs no longer are employed by and/or have retired from PRASA
their medical conditions subsist and will continue to afflict them until the time of their
death (hereinafter PRASA employees Plaintiffs).
These conditions have the effect and have had the effect of complicating
Plaintiffs performance of everyday life activities and functions. As a consequence
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Plaintiffs spouses and offspring have also been affected, not only by watching their
loved ones health deteriorate right in front of their eyes, and in watching them suffer as
they attempt to perform and carry out everyday life activities, but also by the
consequential exposure and contamination of hazardous/toxic materials that emanated
from the PRASA employee Plaintiffs and which was suffered by their respective
spouses and offspring, among others; as well as the emotional damages suffered as a
consequence of knowing that because of them their family has also been afflicted.
Plaintiffs have and continue to suffer damages as a result of defendants
negligence, actions and/or omissions. Since the PRASA employee Plaintiffscommenced to report themselves to the CFSE for the various medica
symptoms/conditions they perceived, they were initially treated in some form or another
by the CFSE, however, they would later be discharged without treatment. Nonetheless
they continued and continue to suffer from the conditions for which they reported to the
CFSE, some of which, through the passage of time, have been aggravated and/or
caused other complications.
Consequently they have been placed the burden of financing their own medica
treatment for conditions which resulted as a result to exposure and contamination with
hazardous/toxic materials, and which have manifested themselves differently in each
Plaintiff, as well as those which where aggravated as a result of said exposure. In
addition to this, Plaintiffs have an additional financial burden to carry, not only must they
personally finance the costs of the above referenced medical conditions, but they must
also finance the medical costs associated with the conditions experienced by either their
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spouses and/or offspring as a result of their consequential contamination and exposure
to the toxic materials.
For instance:
(i) Carlos Cintrn Martinez, reported to the CFSE in 2004, in June 2009 he was
granted disability for his conditions; his medical conditions persist to this day;
(ii) Roberto Morales Cintron reported to the CFSE on August 2007 were her was
diagnosed with bursitis, among other conditions, he was discharged but his conditions
persist to this day;
(iii) Daniel Morales Cruz, reported to the CFSE on October 2006, where hisconditions were related to aluminum exposure, however he was discharged in February
2008 without any treatment, nonetheless his medical conditions persisted and persist to
this day;
(iv) Luis Morales Velazquez, reported to the CFSE on September 2007, his
conditions were related to aluminum exposure, his conditions persist to this day;
(v) Juan Ramon Rivera Rosado, reported to the CFSE on February 2004, his
symptoms were related to metal exposure, he was discharged by the CFSE on August
2006, however his medical conditions persist to this day;
(vi) Jose Rodriguez Padilla, reported to the CFSE on November 2006, he is
currently under treatment and his conditions persist to the present day;
(vii) Juan Rodriguez Perez reported to the CFSE in 2007, his symptoms were
related to aluminum exposure, he is currently receiving treatment and his conditions
persist to the present day;
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(viii) Bienvenido Rodriguez Sosa was given a full disability by CFSE on March
2008, however, his medical conditions persist to the present day.
(ix) Angel Bernardy Vidal, an electromechanic at the Cayey Plant was exposed
and contaminated with toxic/hazardous materials. As a result of this contamination, his
wife, Laura Rivera Madera, and their son Angel Javier Bernardy Rivera, have also been
exposed and contaminated with said toxic materials.
(x) Andres Torres Diaz, is a sewer system worker at the Cayey Plant. As a resul
of his exposure and contamination to hazardous/toxic materials, his wife and children
have also been contaminated.These are only some of the Plaintiffs set forth in the complaint, however, they
serve to illustrate that their medical conditions are on-going, they are related to thei
exposure to toxic/hazardous materials while employed by PRASA, that both PRASA
and the CFSE had and have knowledge of this, and that CFSE would discharge
Plaintiffs without treatment even when knowing that the medical conditions they
manifested were work related, and that the spouses and offspring of PRASA employee
Plaintiffs were also affected and contaminated.
Consequently, Plaintiffs claims under 42 USC 1983 and Articles 1802 and 1803
of the Puerto Rico Civil Code are not time barred and therefore should not be
dismissed.
C. Plaintiffs do not fail to state a claim pursuant to 42 USC 1983.
The present action is brought, in part, under section 1983. This section reads as
follows:
Every person who under color of any statute, ordinance,regulation, custom, or usage, of any State or Territory or the
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District of Columbia, subjects, or causes to be subjected, anycitizen of the United States or other person within the jurisdictionthereof to the deprivation of any rights, privileges, or immunitiessecured by the Constitution and laws, shall be liable to the partyinjured in an action at law, Suit in equity, or other proper
proceeding for redress, except that in any action brought against ajudicial officer for an act or omission taken in such officer's judicialcapacity, injunctive relief shall not be granted unless a declaratorydecree was violated or declaratory relief was unavailable. For thepurposes of this section, any Act of Congress applicableexclusively to the District of Columbia shall be considered to be astatute of the District of Columbia.
Section 1983 does not create independent substantive rights, but instead
provides a cause of action by which individuals may seek monetary damages forgovernmental violations of rights protected by federal law. See, Albright v. Oliver, 510
US 266, 271 (1994). Additionally, this section applies not only to the Commonwealth of
Puerto Rico but also to its instrumentalities with the same force as to any other state of
the Union. See, Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002).
To sustain an action under 1983, a plaintiff is to establish that (i) the conduct
complained of was committed under color of state law, (ii) the conduct worked a denia
of rights secured by the Constitution or laws of the United States, and (iii) that there is a
causal connection linking the defendants conduct to the alleged deprivation. See
Cepero-Rivera v. Fagundo, 414 F.3d 124 (1st Cir. 2005), Gutierrez-Rodriguez v
Cartagena, 882 F.2d 553 (1st Cir. 1989).
Co-defendant, Dr. Roman Franco, was employed by the CFSE. The CFSE is a
public corporation of the Commonwealth of Puerto Rico; co-defendant Jose Ortiz
Vazquez and Eufemio Toucet were the Director and Su-Director of PRASA
respectively. Hence, Dr. Roman Franco, Jose Ortiz Vazquez and Eufemio Toucet, are
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for purposes of section 1983, an employee of the state, and consequently a person who
acts under color of state law.
While performing his duties, Dr. Roman did in fact relate the conditions of some
Plaintiffs to their exposure to hazardous materials while employed at PRASA
Furthermore, as stated in the complaint at paragraphs 150 to 157, from 2006 to 2008
the CFSE commenced a pattern of revoking and/or not relating Plaintiffs medica
conditions to exposure of hazardous/toxic material at the behest of PRASA. Although
some of CFSE personnel declined to follow these instructions as set forth by PRASA
other medical CFSE personnel did go along with PRASAs instructions and terminated
Plaintiffs from CFSE, revoked and/or denied relating their condition to hazardous/toxic
material exposure. PRASA was so adamant that its instruction be followed by CFSE
that PRASA, through its officials, held regular meetings with CFSE personnel. The
consequential effect of these instructions imparted by PRASA and followed by CFSE
being that if Plaintiffs conditions were not related to their exposure and contamination
with hazardous/toxic materials they would not be entitled to medical treatment under the
Puerto Rico Work Accident Compensation Act and therefore not afforded treatment by
the CFSE. [Complaint at 143-144].
PRASA, through its officials, Jose Ortiz Vazquez and Eufemio Toucet, and
PRASAs administration at the time of the events, ONDEO and Compaas de Aguas
de Puerto Rico, engaged in conduct under color of state law. Through this conduct they
incurred in a willful and knowing behavior whose only objective and purpose was to
thwart Plaintiffs right to life and property. The conduct incurred in by these defendants
is not only reprehensible but intentionally seeks to deprive Plaintiffs of the medica
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attention they sought as a result of work related injuries and/or illness; illnesses which
not only deprive them obtaining and pursuing and maintaining work but also deprive
them of the capacity to earn an income and consequently encroaching their right to
property, but which are also, in their majority, degenerative conditions which gravely
affect their performance and limit daily activities. In doing so, defendants are attempting
at Plaintiffs right to life and property.
In light of the above, Plaintiffs section 1983 claims against co-defendants should
not be dismissed.
D. Fifth Amendment claimThe fifth amendment of the United States Constitution applies to actions of the
federal government. See, Gerena v. PR Legal Serv., Inc., 697 F.2d 447 (1st Cir. 1983)
The claims raised in the instant complaint are against the Commonwealth of Puerto
Rico, its instrumentalities, agencies and employees. The complaint does not set forth or
raise claims against the federal government, instrumentalities or employees.
Furthermore, the complaint, in its section titles causes of action does not set forth and
request relief for remedy under the Fifth Amendment.
In light of the above, Plaintiffs voluntarily dismiss claims under the Fifth
Amendment.
E. Fourteenth Amendment Claim
The Fourteenth Amendment states in part that nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
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The Due Process Clause of the Fourteenth Amendment provides that certain
substantive rights, such as, life, liberty, and property, cannot be deprived except
pursuant to constitutional procedures. Cleveland Bd. of Educ. v. Loudermill, 470 US
532 (1985).
Due process is the principle that the government must respect all of the lega
rights that are owed to a person according to the law. Due process holds the
government subservient to the law of the land protecting individual persons from the
state. When a government harms a person without following the exact course of the
law, then that is a due process violation which offends the rule of law.Plaintiffs in the instant case have had their substantive rights encroached on by
defendants and its employees. As stated in the complaint at paragraphs 146-159
Defendants participated in, where involved in and/or had knowledge of PRASAs intent
to ensure that the CFSE thwarted and/or denied Plaintiffs the medica
attention/treatment and/or benefits they so desperately needed. Medical attention
required as a direct consequence to their exposure to hazardous/toxic materials while
performing job related functions during their employment with PRASA. By the same
token PRASA knowingly dissuaded some Plaintiffs from going to the CFSE and
receiving the needed medical attention, and prompted CFSE to dissuade Plaintiffs from
obtaining medical attention and pursuing a claim for medical attention within the CFSE.
By conducting themselves in such a manner, Defendants engaged in conduct
conducive to depriving Plaintiffs of their rights as afforded by the 14 th Amendment
particularly their right to life, liberty and property.
http://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Law_of_the_landhttp://en.wikipedia.org/wiki/State_%28polity%29http://en.wikipedia.org/wiki/Rule_of_lawhttp://en.wikipedia.org/wiki/Rule_of_lawhttp://en.wikipedia.org/wiki/State_%28polity%29http://en.wikipedia.org/wiki/Law_of_the_landhttp://en.wikipedia.org/wiki/Law8/3/2019 Opposition to Motion to Dismiss.2
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Employees have the right to seek medical attention at the CFSE for job related
conditions. In the instant case, Plaintiffs had the right to seek medical attention at the
CFSE for their job related conditions and be given adequate treatment for these
Nonetheless, defendants, in some instances dissuaded Plaintiffs from going to the
CFSE and seek the medical attention needed, in others dissuaded Plaintiffs from
continuing to seek the medical attention being provided to them by the CFSE, denied
Plaintiffs medical treatment or revoked Plaintiffs the medical treatment being
sought/obtained at the CFSE.
Furthermore, through PRASAs negligence and wanton disregard for the safety
of its employees, the spouses and offspring of these employees have also been
personally and directly adversely affected. By acting in said manner Defendants
effectively encroached Plaintiffs right to life. Defendants have encroached Plaintiffs
right to the enjoyment of life and daily activities, and must now suffer for the rest of their
lives from medical conditions which they otherwise would not have been subjected to
had it not been for their exposure to hazardous/toxic materials; and in some instances
they must suffer the aggravation of pre-existing conditions which otherwise would not
have been aggravated/accelerated had it not been but for the exposure to such toxic
materials.
Defendants engaged in this conduct without granting and/or allowing PRASA
employee Plaintiffs the opportunity to object to their denial of medical attention by the
CFSE. Furthermore, Defendants engaged in this conduct by dissuading Plaintiffs from
seeking medical attention. In acting in such a manner Defendants effectively thwarted
Plaintiffs right to seek medical treatment/benefits for job related medical conditions at
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CFSE for conditions obtained as result of performing their job duties for PRASA.
[Complaint at 143-144]. It is unreasonable for state instrumentalities and its
employees to deny and interfere with a persons right to seek medical attention.
Consequently, Defendants encroached Plaintiffs right to life, by denying and/or
attempting to deny them medical treatment.
Through their conduct Defendants incurred in a willful and knowing behavior
whose only objective and purpose was to thwart Plaintiffs right to life and property. The
conduct incurred in by these defendants is not only reprehensible but intentionally seeks
to deprive PRASA employee Plaintiffs of the medical attention they seek as a result ofwork related injuries and/or illness; illnesses which not only deprive them obtaining and
pursuing and maintaining work thereby depriving them of the capacity to earn an
income and consequently encroaching their right to property; but which are also, in their
majority, degenerative conditions which gravely affect their performance and limit daily
activities; and which have the same effect in their spouses and offspring. In doing so
defendants are attempting at Plaintiffs right to life and property.
In light of the above, Plaintiffs constitutional claims against defendants should not
be dismissed.
F. Plaintiffs wives and children do not lack standing to sue under 42 USC
1983.
Section 1983 does not create independent substantive rights, but instead
provides a cause of action by which individuals may seek monetary damages for
governmental violations of rights protected by federal law. See, Albright v. Oliver, 510
US 266, 271 (1994). Additionally, this section applies not only to the Commonwealth of
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Puerto Rico but also to its instrumentalities with the same force as to any other state of
the Union. See, Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002).
Plaintiffs in the instant complaint are comprised of a group of PRASA employees
their spouses, offspring, and heirs (when applicable). Defendants claim that these
plaintiffs lack standing to sue under section 1983 and the RICO Act given that the
aggrieved conditions were not personally endured and/or suffered by them but by the
PRASA employee plaintiffs.
Plaintiffs contend that the spouses and offspring of the PRASA employee
plaintiffs did directly and personally suffer the aggrieved conditions suffered by thePRASA employee plaintiffs; conditions which were suffered by them as a result of
defendants negligence and wanton disregard for the safety and care of the PRASA
employee plaintiffs in the workplace.
As a result of their work duties, conditions and/or environment the PRASA
employee plaintiffs were exposed to and contaminated with hazardous/toxic materials
which exposure led to health issues. As a direct result of the PRASA employee
plaintiffs exposure to and contamination with hazardous/toxic materials, their spouses
and offspring were in turn subject to exposure to hazardous/toxic materials and eventua
contamination, as a result of which their constitutional rights, among others, were
violated as set forth and expressed in the previous section.
For instance:
(i) Plaintiff Angel Bernardy Vidal is an electro mechanic at the Cayey Plant. As a
result to his exposure and consequential contamination with toxic/hazardous materials
his wife and offspring were also contaminated. His wife, Laura Rivera Madera, had
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blood work analysis done in February-March 2008, she was 34 at the time. Her blood
work results indicated that she had high levels of aluminum in serum, her aluminum
level was 11, when the normal range is between 0-9. Also, their son, Angel Javier
Bernardy Rivera, was exposed and contaminated by said toxic materials. Angel Javie
Bernardy Rivera, born in November 1992, had blood analysis done in December of
2007. His blood work results indicated that his aluminum level was 9, which is high fo
a fifteen year old boy.
(ii) Plaintiff, Andres Torres Diaz, is a sewer system worker at the Cayey Plant
As a result of his exposure and contamination to hazardous/toxic materials, his wife andoffspring have also been contaminated. Specifically, his daughter, Adrianamary Torres
Vazquez, had a blood analysis done on December 12, 2007, she was eighteen years
old at the time, and her blood work revealed an aluminum blood serum level of 16
Also, his daughter Olmary Torres Vazquez, had blood analysis done on December 18,
2007, she was twenty one years old at the time of the exam, and her blood work
revealed an aluminum blood serum level of 11. Both of which are high.
The above serves to illustrate that Defendants wanton disregard for the safety
and well being of its employees had the direct effect of affecting the health not only of
the PRASA employee Plaintiffs but also that of their spouses and offspring
Defendants actions directly affected the relationship and well being of these PRASA
employee plaintiffs spouses and offspring. In doing so, not only has their health been
afflicted, but so have their rights been violated as a result of defendants actions
inaction and negligence.
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As can be seen, these relatives were not only incidentally affected by the events
upon which the suit is based, but they were also directly and personally affected by
them.
In light of the above, Plaintiffs constitutional claims against defendants should not
be dismissed.
G. The RICO Act 2
Section 1962 (c) and (d) of the RICO Act state that:
(c) It shall be unlawful for any person employed by or associatedwith any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directlyor indirectly, in the conduct of such enterprises affa irs through apattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any ofthe provisions of subsection (a), (b), or (c) of this section.
To state a claim under section 1962(c), the plaintiff is to allege (1) conduct, (2) of
an enterprise, (3) through a pattern, (4) of racketeering activity. Efron v. Embassy
Suites (Puerto Rico), Inc. 223 F.3d 12, 14 (2000).
As to individual defendants, the complaint is to allege that (1) there is an
enterprise affecting interstate or foreign commerce; (2) that the defendant is associated
with the enterprise; (3) that the defendant participated in the conduct of the enterprises
affairs; and (4) that the participation was through a pattern of racketeering activity. See
Puerto Rico American Insurance CO. v. Burgos, 556 F. Supp. 2d 86, 90 (DPR 2008).
With regards to these, to participate in the conduct of an enterprise, it is to be
demonstrated that the defendant had some part in the operation and management of
2 On January 20, 2011, docket number 57, Plaintiffs filed their RICO Statement. Plaintiffs hereby adoptand incorporate by reference the statements set forth in their RICO Statement, without having to restatethe same in their totality.
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the enterprise itself. See, Reves v. Enrst & Young, 507 US 170 (1992). As to the term
pattern, it is required that at least two predicate acts of racketeering activity committed
within a ten year span and proof of continuity sufficient to show that the predicate acts
constitute a pattern of said racketeering activity. See, Efron, supra.
Given that for purposes of a RICO claim both PRASA and CFSE are considered
enterprises, we now turn our attention to the individual named defendants. In the
instant case Dr. Iris Otero, at the time was the Medical Director of the CFSE. As such it
is clear that she was associated with CFSE and as Medical Director participated in the
conduct of CFSEs enterprise affairs. Dr. Iris Otero participated in the conduct of theenterprise, CFSE, and took actions against Plaintiffs for their exercising their right to
seek and obtain medical treatment for job related health issues and sought to deny
them said treatment.
The unlawful conduct displayed by defendants in the instant case was in violation
of 18 U.S.C. 1962 (c) and (d), inasmuch as defendants were fully aware that the CFSE
determinations regarding the adjudication of relationship, termination, and all other
determinations made by CFSE, would be sent or notified to Plaintiffs and PRASA,
through mail or telephone, and still conspire to do so. Defendants were also fully aware
that their determinations contained false statements and still acted upon them either by
aiding in their creation, promoting their distribution or confirming their false statements.
Thus, the co-defendants violated 18 USC 1341 and 1343, as extended by 1346,
which constitutes a predicate racketeering act pursuant to 18 USC 1961(1).
In their motion to dismiss, co-defendants, Dr. Roman Franco, CFSE and Iris
Otero, claim that Plaintiffs RICO claims fall short inasmuch as the claims fraud are not
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pled with the particularity required by FRCP 9(b). However, in Davila Uviles v. RYS
Intern. Corp., 443 F. Supp. 2d 133 (DPR 2006), the First Circuit has warned that
dismissal of a claim should be automatic if the particularity requirement of FRCP 9(b) is
not satisfied. When a plaintiffs allegations make likely a RICO claim, the court is to
determine whether the claim warrants discovery in order for plaintiffs to be able to
amend the defective pleading, if any.
At the time of the events set forth in the complaint, Defendants were fully aware
that Plaintiffs had an entitlement to receive medical treatment and compensation from
CFSE their exposure and contamination to hazardous/toxic material poisoning, and theensuing 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 USC 1951 and this
constitutes a predicate racketeering act pursuant to 18 USC 1961 (1) (a).
PRASA, CFSE, ONDEO, Compaa de Aguas acted in accordance in an effort to
terminate all treatment of PRASA employees by the CFSE, who were in paid sick leave
among other circumstances and to not accept any additional PRASA employees
claiming work related health problem that had to do with exposure to hazardous/toxic
materials, misused the U.S. Mail and telephone wire to forward documents and
communicate information containing false information in furtherance of a scheme or
artifice to defraud.
As set forth in Plaintiffs RICO Statement, co-defendant, Dr. Roman Franco, was
the toxicologist who examined some of the plaintiffs referred by the CFSE, and is an
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individual capable of holding a legal or beneficial interest in property, and as such, is
considered a PERSON within the meaning of 18 USC 1961(3).
As such, co-defendant, Dr. Roman Franco, was employed by or associated with
co-defendants PRASA and CFSE, which in term are considered as enterprises within
the meaning of 18 USC 1961(4). This co-defendant conducted or participated, directly
or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering
activity, when in an effort to terminate all treatment of PRASA employees by the CFSE,
who were in paid sick leave among other circumstances and to not accept any
additional PRASA employees claiming work related health problem that had to do withaluminum poisoning and similar conditions, misused the U.S. Mail and telephone wire to
forward documents and communicate information containing false information in
furtherance of a scheme or artifice to defraud.
As previously mentioned Dr. Iris Otero, at the time was the Medical Director of
the CFSE. As such it is clear that she was associated with CFSE and as Medica
Director participated in the conduct of CFSEs enterprise affairs, and as such is
considered a person within the meaning of 18 USC 1961(3). Dr. Iris Otero participated
in the conduct of the enterprise, CFSE, and took actions against Plaintiffs for their
exercising their right to seek and obtain medical treatment for job related health issues
Specifically, co-defendant Dr. Iris Otero, conducted or participated, directly or indirectly
in the conduct of such enterprises affairs through a pattern of racketeering activity
when in an effort to terminate all treatment of PRASA employees by the CFSE, who
were in paid sick leave among other circumstances and to not accept any additional
PRASA employees claiming work related health problem that had to do with aluminum
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poisoning and similar conditions, misused the U.S. Mail and telephone wire to forward
documents and communicate information containing false information in furtherance of
a scheme or artifice to defraud. [See, Complaint at 148-153, 165, 167]
Co-defendant, Dr. Iris Otero, has already admitted in the motion to dismiss that
that she was Medical Director of CFSE from July 2005 to December 31, 2006. [Dckt
44, p.5] From the Complaint, it is clear that various meetings took place between
PRASA and CFSE officials from June 2005 to October 2006, period in which Dr. Otero
was Medical Director of the CFSE. Meetings in which Dr. Otero participated and/or was
informed of which. As stated in the Complaint at paragraphs 151 and 153, Dr. Oteroparticipated in at least one of these meetings in which PRASA representative
demanded that the CFSE terminate the treatment of at least 300 PRASA employees on
paid leave, among others. Furthermore, and as stated in paragraph 153 of the
Complaint, after the October 18, 2006, in which Dr. Otero participated, the CFSE
implemented a pattern of (i) falsely and unlawfully revoking the adjudication relationship
that had been made between several employees symptoms of aluminum poisoning and
the workplace conditions at PRASA; and (ii) falsely an unlawfully denying the
adjudication of relationship between the symptoms of aluminum poisoning manifested
and presented by the PRASA employees and the workplace conditions at PRASA
Notifications of which were notified to Plaintiffs through the misuse of the U.S. Mail and
telephone wire to forward documents and communicate information containing false
information in furtherance of a scheme or artifice to defraud. This behavior sought to
hinder and/or deny Plaintiffs access to treatment under the CFSE, given that if the
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CFSE did not relate the condition to the workplace the Plaintiffs would not be afforded
treatment and benefits under the CFSE. [Complaint at 143-144]
Co-Defendants, Jose Ortiz Vazquez, Executive Director of PRASA, and Eufemio
Toucet, Executive Sub-Director of the PRASA are individuals capable of holding a lega
or beneficial interest in property, and as such, is considered a PERSON within the
meaning of 18 USC 1961(3).
Both of these co-defendants were employed by or associated with co-defendants
PRASA and CFSE, which in term have been consider as an enterprise within the
meaning of 18 USC 1961(4). These co-defendants conducted or participated, directlyor indirectly, in the conduct of such enterprises affairs through a pattern of racketeering
activity, when in an effort to terminate all treatment of PRASA employees by the CFSE,
who were in paid sick leave among other circumstances and to not accept any
additional PRASA employees claiming work related health problem that had to do with
aluminum poisoning and similar conditions, misused the U.S. Mail and telephone wire to
forward documents and communicate information containing false information in
furtherance of a scheme or artifice to defraud. Through their actions, these co-
defendants utilized an enterprise, such as PRASA, as a vehicle through which to
commit unlawful activities and engaged in racketeering activities. This behavior sough
to hinder and/or deny Plaintiffs access to treatment under the CFSE, given that if the
CFSE did not relate the condition to the workplace the Plaintiffs would not be afforded
treatment and benefits under the CFSE. [Complaint at 143-144]
The above mentioned co-defendants are liable for the damages and suffering
endured by Plaintiffs, inasmuch as they knowingly and with intent misused the U.S. Mai
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and wire communication to forward documents and communicate information containing
false information in furtherance of a scheme or artifice to defraud. Linguistically
speaking, an employee who conducts the affairs of a corporation through illegal acts
comes within the terms of a statue that forbids any person unlawfully to conduct an
enterprise particularly when the statue explicitly defines person to include any
individual capable of holding a legal or beneficial interest in property and defines
enterprise to include a corporation. 18 U.S.C. 1961 (3); Kushner Promotion, LTD
v King, et als, 533 U.S. 158 (2001).
In order to determine whether a corporation made a false or misleadingstatement with specific intent to defraud, we look to the state of mind of the individual
corporate officer and employees who made, ordered or approved the statement.
Southland Sec. Corp. v. Inspire Ins. Solutions Inc., 365 F. 3d 353, 366 (5 th Cir. 2004)
Additionally, all co-defendants above mentioned were fully aware that Plaintiffs had an
entitlement to receive medical treatment services and compensation from the CFSE for
their 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, civi
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 USC 1951 and this constitutes a predicate racketeering act pursuant to
18 USC 1961 (1) (a).
As previously mentioned, most, if not all of Plaintiffs went to the CFSE requesting
treatment and/or benefits between 2000 and 2007 due to conditions developed during
the time they were employed by PRASA. The determinations made by CFSE and
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PRASA were sent or notified to Plaintiffs and each other, through mail or telephone,
some particular instances of said notifications are:
(i) An administrative decision sent via mail by co-defendant CFSE to plaintif
Jos Rodrguez Pantoja, and co-defendant PRASA, on December, 14th, 2004, where it
states that his emotional condition was not work related.
(ii) An administrative decision sent via mail by co-defendant PRASA to
plaintiff Santos Burgos Cartagena, on May, 6th, 2008, where it states the negative of the
CFSE to consider him incapacitated and therefore the inability of the PRASA to give a
paid sick leave.(iii) An administrative decision sent via mail by co-defendant PRASA to
plaintiff Tito L. Gomez Soto, on November 15, 2007, where it states the negative of the
CFSE to consider him incapacitated and therefore the inability of the PRASA to give a
paid sick leave.
(iv) On December, 12th, 2006, plaintiff Hctor Luis Gmez Soto, was
discharge by the CFSE, who determine he was healthy and notified him of said decision
via mail. [Complaint at 100]
(v) On December, 11th, 2006, plaintiff Luis Angel Delgado Rojas, was
discharge by the CFSE, who determine he was healthy and notified him of said decision
via mail. [Complaint at 95]
Defendants are liable for the damages and suffering endured by Plaintiffs
inasmuch as their employees with knowledge and intent misused the U.S. Mail and wire
communications to forward documents and communicate information containing false
information in furtherance of a scheme or artifice to defraud.
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Corporations may be held liable for specific intents offenses based on the
knowledge and intent of their employees. N.Y Cent. & Hudson River R.R. Co. v
United States, 212 U.S. 481, 495 (1909); see, United States v. A & P Trucking Co., 358
U.S. 121, 125 (1958). Because a corporation only acts and wills by virtue of its
employees, the proscribed corporate intent depends on the wrongful intent of specific
employees. See, Saba v. Compagnie Nationale Air France, 78 F. 3d 664, 670 (D.C. Cir.
1996).
From the above, and as pled in the complaint, it is clear that the defendants
conspired to commit acts in direct detriment of Plaintiffs.With regards to conspiracy under RICO, a person can be guilty of a RICO
conspiracy even if she cannot be characterized as an operator or manager of a RICO
enterprise under Reves. This is because liability for conspiracy to violate RICO does
not turn on actual commission of any substantive RICO offenses under 1962(a),
1962(b) or 1962(c). Stated differently, the conspiracy provision of 1962(d) makes it
illegal merely to conspire to violate subsections (a), (b), (c) of 1962, and liability under
1962(d) is not coterminous with liability under the other substantive subsections of
1962. See, Paul Batista, Civil Rico Practice Manual, Third Edition, Aspen Publishers
2010 supplement, at p.3-84, citing MCM Partners, Inc. v. Andrews-Bartlett &
Associates, Inc., 62 F.3d 967 (7th Cir. 1995).
As stated in the complaint at paragraphs 76-78 and 147-157, Plaintiffs were
employees of PRASA under the administration of Ondeo and Compaa de Aguas.
During their employment, Plaintiffs were exposed to toxic/hazardous materials. In turn
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PRASA employee Plaintiffs exposed their spouses and offspring to these
toxic/hazardous materials, which exposure led to their eventual contamination.
As stated in the Complaint, Luis Cora, an investigator who worked for PRASA at
HOSO and OEA reported to HOSOs director Engineer co-defendant Pablo Reyes
Bonilla.3 On or about October 23, 2005, PRASA pressured Cora, to contact the
physicians in charge of adjudicating the relationship between workplace conditions
prevailing at PRASA and Plaintiffs aluminum poisoning ailments. In following these
instructions, Cora had to contact CFSE Regional Directors and ask them to discontinue
the treatment of PRASA employees who claimed to suffer symptoms associated withaluminum poisoning. Cora agreed to look into the claims but refused to suggest to the
physicians that employee treatment be terminated. Instead, Cora endeavored to gathe
as much information as possible, and make certain officers within the CFSE aware of
the PRASA intentions.
On June 9, 2005 a meeting was held between the PRASAs, Engineer co
defendant Reyes Bonilla and Attorney Obed Morales, Director of Human Resources
and several CFSE central directors and other regional medical directors, as well as the
CFSEs senior counsel. On said occasion, Reyes Bonilla requested that CFSE review
the cases of PRASA employees who alleged they had been poisoned with aluminum
Several specific cases were discussed, and Cora was asked to follow up on these
cases. Reyes and Morales requested that the CFSE terminate all treatment of PRASA
3 PRASA has two offices to manage workplace related injuries, one is the Office of Employee Assistancehereinafter referred to as the OEA, and the other is the Hygiene and Occupational Safety Office,hereinafter referred to as the HOSO; both of which deal with the injured employees in the instant caseThe OEAs purpose is directed at helping the employee obtain treatment. The purpose of the HOSO is todiscontinue and resolve manifestly or potentially hazardous practices within the workplace, look into theemployees treatment to assess its duration, and rehabilitate him in order to make him productive again.
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employees who were in paid sick leave and to not accept any additional PRASA
employees claiming a similar condition. As a result of this meeting, treatment for severa
employees reported to the CFSE was terminated by the CFSE, and specific instructions
were given to the CFSEs regional directors to review and discontinue the treatment of
PRASA employees who claimed to suffer symptoms associated with aluminum
poisoning.
During this endeavor, Cora visited the CFSEs offices and gathered information
regarding the length of the treatment and reported back to co-defendant Reyes Bonilla,
indicating that the condition was being related to the workplace conditions.On September 18, 2006, co-defendant Reyes Bonilla again became restless with
the high incidence of aluminum poisoning claims amongst PRASA employees. Reyes
Bonilla was concerned with the possibility that the instructions of the June 9 th meeting
had been ignored by the regional medical directors. Reyes Bonilla asked Cora to follow
up with the regional medical directors and to look into whether the instructions were
being followed. As a result, co-defendant Reyes Bonilla coordinated a meeting fo
October 18, 2006 with Cora, Dr. Iris Otero, Attorney Obed Morales, Head of Human
Resources at the CFSE, and Jorge Rios Piero, an accident investigator. In tha
meeting Reyes Bonilla demanded to Dr. Otero that the CFSE had to terminate the
treatment of around 300 employees which were on paid leave throughout the island.
Otero asked for a specified list, but warned that it would be suspicious to terminate
treatment to all employees that were on paid leave, and not terminate the treatment of
employees who were working while receiving treatment. Reyes Bonilla insisted on
terminating the treatment.
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Afterwards, co-defendant Reyes Bonilla implemented a weekly follow-up plan
that lasted until September 2008, through which he would ask Cora what regiona
medical directors he had contacted and what their response had been.
After the Otero meeting, the CFSE implemented a pattern of falsely and
unlawfully revoking the adjudications of relationship that had been made between
several employee symptoms of aluminum poisoning, and the workplace conditions that
prevailed at the PRASA. In other instances, the CFSE falsely and unlawfully denied an
adjudication of relationship between the symptoms of aluminum poisoning presented by
claiming employees, and that workplace conditions that prevailed at the PRASA. ReyesBonilla continued to exert pressure upon Cora to ask that treatment be discontinued,
and that no more aluminum poisoning cases be related to workplace conditions.
As a result of this, several medical directors and examiners throughout the CFSE
started to terminate the treatment to aluminum poisoning patients which came from the
PRASA and were on paid leave, as alleged above in the statements made in the claim
of each individual plaintiff in this case. In several occasions, as alleged above, the
medical directors, and examiners, would deny an adjudication of relationship falsely
determining that aluminum was not the cause of their symptoms. In other instances, as
alleged above, the medical examiners, and the medical directors, would try to dissuade
the plaintiffs from continuing their claims for treatment, services or compensation
falsely alleging that the plaintiff had not suffered any aluminum poisoning, that
aluminum was not poisonous, or that that the tests had been adulterated with dandruff
shampoo to simulate aluminum poisoning.
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Meanwhile, PRASA officers would also try to dissuade Plaintiffs, as alleged
above, from trying to consume their paid sick leave, or from filing their claims with the
CFSE altogether by admonishing them that their claims would be denied, and that their
attempt to claim the paid sick leave would cause the termination from their employment
with the agency.
On March 1, 2007 co-defendant Reyes Bonilla assigned the duties performed by
Cora, to another employee named Jos Roberto Lpez, a human resources specialist in
the Metropolitan Area. After Cora reported that none of the physicians at the CFSE
wanted to meet with him to discuss the treatment of PRASA employees Reyes Bonillabecame infuriated and demanded that he organize meetings with the regional directors
of the CFSE to try to have them push faster his request and the agreement that he had
reached with Otero. From March 2007 through to June 2007 the physicians, medica
examiners, and regional medical directors of the CFSE would refuse to give any
information to Cora because they did not trust that he was in on their efforts to
systematically deny or terminate the treatment of PRASA employees. As a result
Reyes Bonilla completely unauthorized Cora to seek the PRASA employee information
from CFSE sources and gave these duties solely to Lpez. That way the conspirators
would exclude Mr. Cora who had, both, affirmatively and passively behaved in such a
manner as to frustrate the means and manners of the conspiracy to reach its objective.
From the above, it is clear that co-defendants PRASA, and CFSE, as well as the
individual defendants have incurred in a pattern of racketeering in order to (i) unlawfully
deny the people of the Commonwealth of Puerto Rico, the plaintiffs, and other
employees not yet a party to this suit, who were entitled to an adjudication of
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relationship of their symptoms or injuries they suffered with their employment at the
PRASA, the honest services of the medical examiners at the CFSE; (ii) unlawfully deny
the plaintiffs, and other employees not yet a party to this suit, medical treatment,
services and compensation furnished by the CFSE, to which they were entitled to by
law; (iii) deny the people of the Commonwealth of Puerto Rico, the PRASA, the
plaintiffs, and other employees not yet a party to this suit, of the honest services of the
HOSO and OEA offices; and (iv) deny the plaintiffs of their entitlement to the two year
paid leave provision of the collective bargaining agreement and the personne
regulations of the PRASA.In order for their unlawful intention to give results and as part of their usual
administrative guidelines, co-defendants used the U.S. Postal service and the wire
communications to notify their resolutions and all other documentation related to the
cases, all of this, while being fully aware that those documents contained false
statements and with the sole intent to further their scheme or artifice to defraud the
Plaintiffs and limit their rights. Thus, acting in clear violation of 18 U.S.C. 1962 (c)
pursuant to 18 USC 1341 and 1343, as extended by 1346, which in terms constitutes
a predicate racketeering act pursuant to 18 USC 1961 (1). Co-defendants conspire
with each other to give rise to their fraudulent scheme, thus, acting also in clear violation
of 18 U.S.C. 1962 (d).
Co-defendants claim that Plaintiffs have not alleged wire fraud. We disagree. As
can be noted from the Complaint and as discussed herein, some of the notifications
provided to Plaintiffs regarding their CFSE status were sent through the postal system
and other was done via electronic mail. In todays technological era, wire
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36/50
36
communications are not limited to the geographical location of the parties involved.
Wire communications, more specifically electronic mail message, have a varied course
to travel. These communications do not merely travel from the senders outbox to the
recipients inbox, but must undergo a series of destination transfers in order to trave
from sender to recipient. The electronic message must travel from the senders mai
server to the recipients mail server, in achieving this the message must also travel from
hub to hub in order to go from the senders mail server to the recipients mail server
The location of these mail servers as well as their hosting servers location play an
integral role in the travel the mail communication must undergo to go from sender torecipient.
As stated in United States v. Barlow, 568 F.3d 215, 220-221 (5th Cir. 2009), in
discussing 18 U.S.C. 2422(b) and 18 U.S.C. 1470, the Court stated that:
Barlow misunderstands the statutes. Neither 2422(b) nor 1470requires proof of travel across state lines. Section 2422(b)requires the use of any facility or means of interstate orforeign commerce. Section 1470 requires the same with theadded specific that the obscene material be transfer[red] usingthat facility or means. In 2009, it is beyond debate that theInternet and email are facilities or means of interstate commerce.And, it is undisputed that Barlow conducted his entire affair withRebecca online-that is, using the Internet-and sent her obscenematerial by email. The interstate nexus requirements of thestatutes were satisfied irrespective of the agent's testimony.[Emphasis added].
In the case at hand, section 1343 states in part that Whoever, having devised or
intending to devise any scheme or artifice to defraud, transmits or causes to be
transmitted by means of wire, radio, or television communication in interstate or
foreign commerce, any writings, for the purpose of executing such scheme or
artifice, . [Emphasis added]. As in Barlow, supra, the statute at hand does not
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