Rivera-Astacio et al v. Commonwealth of Puerto Rico et al

MOTION to Dismiss for Failure to State a Claim and Lack of Subject-Matter Jurisdiction

D.P.R.July 27, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO YASHYRA M. RIVERA-ASTACIO, et al, Plaintiffs, v. COMMONWEALTH OF PUERTO RICO, et al., Defendants. CIVIL NO. 15-3181 (CCC) EMPLOYMENT DISCRIMINATION MOTION TO DISMISS UNDER FRCP 12(b)(1) & 12(b)(6) TO THE HONORABLE COURT: COMES NOW, the Commonwealth of Puerto Rico (“Commonwealth”) and the Puerto Rico Police Department (herein, “PRPD”, and together the “Defendants”), without submitting to this Court’s jurisdiction or waiving any affirmative defense, through the undersigned attorney, and respectfully states, alleges and prays as follows: I. RELEVANT PROCEDURAL BACKGROUND On June 1st, 2016, Plaintiffs filed their First Amended Complaint. Dkt. No. 1. Dkt. No. 211. Plaintiffs claim jurisdiction of this Honorable Court under Title VII and 42 of the United States of Code, Section 1983, Civil Rights Act 1964, Gender Discrimination, and Retaliation. Id. at ¶ 1. Plaintiffs also invoke the article 1802 and 1803 of Puerto Rico Civil Code and the Puerto Rico law against discrimination and retaliation under the supplemental jurisdiction principles. Id at. ¶ 2. Plaintiffs invoke violation to Commonwealth of Puerto Rico Laws including Law No. 80 of May 30, 1976 as amended, whistleblower act, state law against retaliation, and equivalent Federal Labor Laws. Id. at d. at ¶ 3. 1 Leave to file the First Amended Complaint was not granted by this Court to the Plaintiff until July 1, 2016. Dkt. No. 23. Case 3:15-cv-03181-CCC Document 27 Filed 07/27/16 Page 1 of 7 2 II. PLEADING STANDARD “The general rules of pleading require a short and plain statement of the claim showing that the pleader is entitled to relief.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009) (citations omitted) (internal quotation marks omitted). “This short and plain statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Toledo-Colon v. Puerto Rico, 812 F. Supp. 2d 110, 114-15 (D.P.R. 2011). A. Dismissal of a complaint under 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) is “[t]he proper vehicle for challenging a court's subject- matter jurisdiction.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362 (1st Cir.2001). Rule 12(b)(1) is a “large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction.” Id. at 362- 363. A moving party may base a challenge to the sufficiency of the plaintiff's assertion of subject matter jurisdiction solely on the pleadings. Med. Card Sys. v. Equipo Pro Convalecencia, 587 F.Supp.2d 384, 387 (D.P.R.2008) (citing Hosp. Bella Vista, 254 F.3d at 363). Toledo at 115. A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) is subject to a similar standard of review as a motion brought pursuant to Rule 12(b)(6). Boada v. Autoridad de Carreteras y Transportacion, 680 F.Supp.2d 382, 384 (D.P.R.2010) (citing Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994)). “When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.” Merlonghi v. U.S., 620 F.3d 50, 54 (1st Cir.2010) (citing Hosp. Bella Vista, 254 F.3d at 363). Toledo at 115. Case 3:15-cv-03181-CCC Document 27 Filed 07/27/16 Page 2 of 7 3 B. Dismiss of a complaint under 12 (b)(6) Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Bell A. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The court must decide whether the complaint alleges enough facts to “raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. In so doing, the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir.2008). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint alleged-but it has not show[n]-that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)) (internal quotation marks omitted). Toledo at 115. III. CODEFENDANTS PRPD AND THE COMMONWEALTH OF PUERTO RICO ARE ENTITLED TO ELEVENTH AMENDMENT IMMUNITY A motion to dismiss pursuant to the Eleventh Amendment of the United States Constitution is properly construed as a motion pursuant to Rule 12(b)(1). See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996) (citing Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S. Ct. 900, [210] 79 L. Ed. 2d 67 (1984)); but cf. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997) ("The [Eleventh] Amendment, in other words, enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary's subject-matter jurisdiction. Case 3:15-cv-03181-CCC Document 27 Filed 07/27/16 Page 3 of 7 4 The immunity is one the States enjoy save where there has been 'a surrender of this immunity in the plan of the convention.'") (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 322-323, 54 S. Ct. 745, 78 L. Ed. 1282 (1934)).Garcia-Hicks v. Voc. Rehab. Admin., 25 F. Supp. 3d 204, 209-10 (D.P.R. 2014). The Eleventh Amendment to the Constitution of the United States proscribes that: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment bars suits from being brought in federal courts for monetary damages against states, unless the state being sued waives its immunity or consents to being sued. The Eleventh Amendment has also been interpreted to bar suits for monetary relief against the agencies or instrumentalities of a state and against its officers in their official capacities. Cruz v. Puerto Rico, 558 F. Supp. 2d 165, 173 (D.P.R. 2007). The Commonwealth of Puerto Rico is considered a state for purposes of the Eleventh Amendment. Id. Over the last two decades, the First Circuit consistently has held that Puerto Rico is considered a “State” for Eleventh Amendment purposes, and therefore Eleventh Amendment applies with full force to the Commonwealth of Puerto Rico. Id. at 174. It is well settled law that sovereign immunity under the Eleventh Amendment extends beyond the core of the state government to “arms of the state”. Metcalf & Eddy v. Puerto Rico Aqueduct and Sewer Authority, 991 F.2d 935, 939 (1st Cir.1993). Great River Industries, Inc. v. Pub. Serv. Commn. of Puerto Rico, 131 F. Supp. 2d 265, 270 (D.P.R. 2001). The First Circuit and this Court have repeatedly held that the PRPD is considered an arm of the state for sovereign immunity purposes. Reyes v. Supervisor of Drug Enforcement Administration, 834 F.2d 1093, 1098 (1st Cir. 1987). "We agree that the claims in federal court for damages against [defendants] in Case 3:15-cv-03181-CCC Document 27 Filed 07/27/16 Page 4 of 7 5 his official capacity and the Police Department are precluded by the eleventh amendment, since they must, if successful, be satisfied from the coffers of the Commonwealth of Puerto Rico. For these purposes, we have treated the Commonwealth and its agencies as a state" Reyes, 834 F.2d at 1098 (citing Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770, 776 (1st Cir. 1981))(emphasis in the original). Serrano v. Figueroa-Sancha, 878 F. Supp. 2d 301, 309 (D.P.R. 2012). A. ARTICLE 1802, 1803, LAW 80, AND LAW 1152 The Court has supplemental jurisdiction to hear state law claims when, and if, the federal court has original jurisdiction in the action and the claims come from a “common nucleus of operative facts.” 28 U.S.C. § 1367; see also Allstate Interiors & Exteriors, Inc. v. Stonestreet Const., LLC, 730 F.3d 67, 72 (1st Cir. 2013). Supplemental jurisdiction under § 1367, however, does not override Eleventh Amendment immunity against subjecting a State to suit in federal courts. Pagan v. Puerto Rico, 991 F. Supp. 2d 343, 346 (D.P.R. 2014). Only Congress or an unequivocal consent from a State can override that State's sovereign immunity. Id. It is clear that Congress has not abrogated a State's Eleventh Amendment immunity involving state law claims. Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 541 (2002). However, Puerto Rico has waived its sovereign immunity in its own courts. Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir. 2006). Nonetheless, that waiver authorizing suits against the government of Puerto Rico in Puerto Rico's courts does not extend to state law claims brought against the government of Puerto Rico, and its instrumentalities, in federal court. Diaz v. Dep't of Educ., 823 F. Supp. 2d 68, 76 (D.P.R. 2011) (citing Díaz-Fonseca, 451 F.3d at 34). The Commonwealth of Puerto Rico has consented to be sued for damages in actions brought under the general negligence statute of Puerto Rico. However, said consent does not extend to any courts 2 Appearing defendants raise their defenses against responsibility that might be imposed base on law 115 because of a mere mentioned of “whistle blower act” by the Plaintiffs. Dkt. No. 21, ¶ 3. Case 3:15-cv-03181-CCC Document 27 Filed 07/27/16 Page 5 of 7 6 but the Commonwealth's own. Diaz-Fonseca, 451 F.3d at 34. Neither Section 1802 or 1803 contains an explicit waiver of the Commonwealth's sovereign immunity." Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir. P.R. 2006). Reyes-Reyes v. Toledo-Davila, 754 F. Supp. 2d 367, 371 (D.P.R. 2010). Also, “[l]aw 80 does not contain a waiver of sovereign immunity, Silva v. Universidad de Puerto Rico, 817 F. Supp. 1000 (D.P.R. 1993).” Feliú-Padilla v. P.R. Indus. Dev. Co., No. 12-1437(DRD), 2013 U.S. Dist. LEXIS 114083, at *33 (D.P.R. Aug. 9, 2013). Similarly, the Court finds that Plaintiff's Law 115 claim may not proceed because the Commonwealth has not waived its sovereign immunity. See Nieves-Garay v. Puerto Rico Police Dept., Civil No. 09-1959, 2011 U.S. Dist. LEXIS 67671, 2011 WL 2518801 at *5 (D.P.R. June 23, 2011). Diaz v. Dep't of Educ., 823 F. Supp. 2d 68, 77 (D.P.R. 2011). Since the PRPD and the Commonwealth have not waived their sovereign immunity to be sued in this Honorable Court for recovery of monetary damages under the aforementioned laws, all of these claims should be DISMISSED WITH PREJUDICE. IV. PLAINTIFF PATRIA ASTACIO’S FAILURE TO PLEAD Plaintiff Patria Astacio is only mentioned twice in the Complaint. Dkt. No. 21, ¶¶ 5, 42. The first time we see her name is when she is mentioned as Yashyra M. Rivera’s mother. Id. at ¶ 5. The other is in which it is alleged that she has suffered and continues to suffer, severe emotional distress, affliction, anguish, depravation due to her daughter suffering,… Id. at ¶ 42. None of these paragraphs are well pleaded. These are not more than mere labels and conclusory statements. Plaintiff Patria Astacio is not a plausible plaintiff. Even more, since none of the state law remedies for recovery of monetary damages are available, as it has been already discussed, there is no action that Patria Astacio can plead against the appearing defendants. Therefore, Patria Astacio’s complaint should be DISMISSED WITH PREJUDICE. Case 3:15-cv-03181-CCC Document 27 Filed 07/27/16 Page 6 of 7 7 WHEREFORE, Defendants respectfully request that, based on the arguments above, the First Amended Complaint be dismissed in its entirety. I HEREBY CERTIFY that on this same date, I have electronically filed the foregoing with the Clerk of the Court using CM/ECF system, which will send notification of such filing to all attorneys of record. RESPECTFULLY SUBMITTED, In San Juan, Puerto Rico, this July 27th, 2016. CESAR R. MIRANDA-RODRIGUEZ Secretary of Justice MARTA ELISA GONZALEZ Y. Deputy Secretary General Litigation Office WANDYMAR BURGOS-VARGAS Director Federal Litigation and Bankruptcy Division s/ Kat iuska Bolaños-Lugo KATIUSKA BOLAÑOS-LUGO Attorney for the Commonwealth of Puerto Rico and the Puerto Rico Police Department USDC-PR No. 231812 Attorney for Defendant Department of Justice Federal Litigation Division P.O. Box 9020192 San Juan, Puerto Rico 00902-0192 Phone: 787-721-2900 Ext. 2650 Fax: 787-723-9188 Email: kbolanos@justicia.pr.gov Case 3:15-cv-03181-CCC Document 27 Filed 07/27/16 Page 7 of 7