IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

NGEL L. ALEJANDRO MARTNEZ, et als. Plaintiffs v. ENG. JOS F. ORTIZ VZQUEZ, et als. Defendants

CIVIL NO. 10-1541

PLAINTIFFS DEMAND TRIAL BY JURY

OPPOSITION TO DEFENDANTS MOTION TO DISMISS DOCKETS 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]

4. On September 27, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto Rico Aqueduct and Sewer Authority, and Eufemio Toucet, filed Motion for extension of 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 del 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]

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 for extension 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]

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 motion to 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.
1

For ease of fluidity purposes and reference, each claim presented in defendants motions to dismiss has been discussed in separate sections; nonetheless, the text of the present motion and its discussions should be considered as a whole.

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 said strategies 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 the death knell for the imposition of a heightened pleading standard except in cases in which either a federal statute or specific Civil Rule requires that result. In all other cases, courts faced with the task of adjudicating motions to dismiss under Rule 12(b)(6) must apply the notice pleading requirements of Rule 8(a)(2). Under that rule, a complaint need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." This statement must "give the defendant fair notice of what the plaintiff'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). State of 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 be averred generally"). In civil rights actions, as in the mine-run of other cases for which no statute or Federal Rule of Civil Procedure provides for different treatment, a court confronted with a Rule 12(b)(6) motion "may dismiss a complaint only if it is clear 5

that no relief could be granted under any set of facts that could be proved 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 Swierkiewicz requires the Court to treat complaints more liberally. For example, the First Circuit previously required plaintiffs to "set forth in their complaint 'factual allegations, either direct or inferential, regarding each material element necessary to sustain 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 Swierkiewicz to mean that "[a] complaint that

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 factual 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 supported by showing any set of facts consistent with the allegations in the complaint." 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 survive a motion to dismiss, a complaint must state a claim to relief that is plausible on its face, not merely conceivable. Id. at 1974. The First Circuit has interpreted Twombly as sounding the death knell for the oft-quoted language of Conley v. Gibson, 355 U.S. 41, 45-46, 7

78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), 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." Rodriguez-Oritz v. Margo Caribe, Inc. 490 F. 3d 92, 94-95 (1st Cir. 2007), quoting Twombly, 127 S. Ct. at 1969. Still, a court must "treat all allegations in the Complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff." Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 997 (1st Cir. 1992). Muniz-Ruberte v. 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 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 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 all 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.

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 Rico Civil 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 (1st Cir. 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 of the Plaintiffs went to the Corporation of the State Insurance Fund (hereinafter CFSE) requesting treatment between the years 2000 and 2007 due to medical

conditions/symptoms which originated while employed by Puerto Rico Aqueduct and

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 October 21st 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 upon the 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,

10

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. commenced to report themselves to Since the PRASA employee Plaintiffs the CFSE for the various medical

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 medical 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

11

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 his conditions 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;

12

(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 result 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 their 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 13

District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute 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 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 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 denial 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

14

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 medical 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 medical

15

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 claim The 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.

16

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 legal 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 medical

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.

17

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

18

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 of work 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

19

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 the PRASA 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 eventual 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

20

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 Javier 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 for

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 and offspring 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.

21

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 associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the 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. 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 Efron v. Embassy

On January 20, 2011, docket number 57, Plaintiffs filed their RICO Statement. Plaintiffs hereby adopt and incorporate by reference the statements set forth in their RICO Statement, without having to restate the same in their totality.

22

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 the enterprise, 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

23

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 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 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

24

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 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. 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 Medical 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

25

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. Otero participated 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

26

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 legal 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, 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 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 sought 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. Mail

27

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 misleading statement 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 (5th 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, 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). 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

28

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 plaintiff

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.

29

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,

30

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 with aluminum poisoning. Cora agreed to look into the claims but refused to suggest to the physicians that employee treatment be terminated. Instead, Cora endeavored to gather 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 codefendant 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

PRASA has two offices to manage workplace related injuries, one is the Office of Employee Assistance hereinafter 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 case. The OEAs purpose is directed at helping the employee obtain treatment. The purpose of the HOSO is to discontinue and resolve manifestly or potentially hazardous practices within the workplace, look into the employees treatment to assess its duration, and rehabilitate him in order to make him productive again.

31

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 several 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 for

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 that

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. terminating the treatment. Reyes Bonilla insisted on

32

Afterwards, co-defendant Reyes Bonilla implemented a weekly follow-up plan that lasted until September 2008, through which he would ask Cora what regional 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. Reyes Bonilla 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.

33

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 Bonilla became 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, medical 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

34

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 personnel 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

35

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 travel from sender to recipient. The electronic message must travel from the senders mail 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 to recipient. 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 1470 requires proof of travel across state lines. Section 2422(b) requires the use of any facility or means of interstate or foreign commerce. Section 1470 requires the same with the added specific that the obscene material be transfer[red] using that facility or means. In 2009, it is beyond debate that the Internet and email are facilities or means of interstate commerce. And, it is undisputed that Barlow conducted his entire affair with Rebecca online-that is, using the Internet-and sent her obscene material by email. The interstate nexus requirements of the statutes 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 36

require proof of travel across state lines, but merely the use of any facility or means of interstate or foreign commerce. In 2009, it is beyond debate that the Internet and email are facilities or means of interstate commerce. Barlow, supra. Consequently, co-defendants violated 18 USC 1341 and 1343, as extended by 1346, which constitutes a predicate racketeering act pursuant to 18 USC 1961(1). All co-defendants being fully aware that Plaintiffs had an entitlement to receive medical treatment services, and compensation from the CFSE for their conditions, and the ensuing two-year period of paid sick leave from the PRASA admonishing them, with criminal, civil and administrative sanctions for claiming their rights to treatment and paid leave, inflicting wrongful fear upon them, with the solely purpose of extorting them, violating in turn the Hobbs Act. 18 USC 1951 which is also predicated as a

racketeering act pursuant to 18 USC 1961 (1) (a). In light of the above Plaintiffs contend that the averments in the complaint are sufficient to support the claims of conspiracy to commit RICO violations and that they have complied with the minimum pleading requirements needed to maintain a civil RICO claim, therefore, all RICO Act claims against co-defendants should not be dismissed. In the alternative, Plaintiffs claim that as per 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 allegation 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.

37

Consequently, RICO Act claims against defendants should not be dismissed. H. Hobbs Act4 The Hobbs Act, 18 USCA 1957, state that: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by ROBBERY or EXTORTION or attempts or CONSPIRES so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section (1) The term ''robbery'' means the unlawful taking or OBTAINING of personal property from the person or in the presence of another, AGAINST HIS WILL, by means of actual or threatened force, or violence, or FEAR OF INJURY, immediate or future, to his PERSON or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or OBTAINING. (2) The term ''extortion'' means the obtaining of PROPERTY from another, WITH HIS CONSENT, induced by wrongful use of actual or threatened force, violence, or FEAR, or under color of official right. (3) The term ''commerce'' means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. The Hobbs Act's interstate commerce requirement must be read broadly and merely requires extortionate scheme to have had at least de minimis effect on interstate commerce or reasonable probability that activity would affect interstate commerce.

Plaintiffs adopt and incorporate by reference to this section as if herein stated, the arguments set forth in the preceding section.

38

U.S. v. Debs, C.A.6 (Mich.) 1991, 949 F.2d 199, As stated in Barlow, infra, [i]n 2009, it is beyond debate that the Internet and email are facilities or means of interstate commerce. As stated in the preceding section, Plaintiffs claim that Defendants engaged in a scheme to, among other things, deprive them of medical treatment for conditions and/or injuries sustained and/or aggravated due to the employees negligence and latent disregard in providing unsafe work environment to its employees while performing work related duties which resulted in the employees exposure to toxic/hazardous materials. [Complaint, at 160-167] As mentioned in the complaint, Defendants inflicted wrongful fear upon [Plaintiffs] with the purpose of extorting them in violation of the Hobbs Act. [Complaint, at 167] In U. S. v. Salvitti, E.D.Pa.1979, 464 F.Supp. 611, the Court stated that this section forbids interference with interstate commerce by extortion; offense contains two elements which government must prove: interference with interstate commerce, and extortion, defined in this section as obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear, or under color of official right. In U. S. v. Tropiano, C.A.2 (Conn.) 1969, 418 F.2d 1069, the Court expressed that the concept of "property" under this section is not limited to physical or tangible property or things, but includes, in a broad sense, any valuable right considered as a source or element of wealth and does not depend upon a direct benefit being conferred on the person who obtains the property. [Emphasis added]

39

As previously mentioned, it is beyond debate that the Internet and email are facilities or means of interstate commerce. Barlow, infra. As per the complaint,

Plaintiffs employer as well as CFSE and its employees inflicted fear upon them with the purpose of extorting them from obtaining, seeking and/or continuing medical treatment provided by 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 and property. Individuals have the right to seek medical attention at the CFSE for job related conditions as well as those pre-existing conditions aggravated as a result of the workplace. In the instant case, Plaintiffs had the right to seek medical attention and benefits at the CFSE for their conditions. Nonetheless, Defendants 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, whereby effectively denying them, their spouses and offspring any CFSE benefits. By acting in said manner they effectively encroached Plaintiffs right to property and right to earn wages. Plaintiffs employer and the CFSE, through its employees, engaged in this conduct under color of state law. Consequently, Plaintiffs Hobbs Act claims against defendants should not be dismissed.

40

I.

Qualified Immunity Pursuant to Borges-Colon v. Roman Abreu, 438 F.3d 1 (1st Cir. 2006), qualified

immunity provides a safe harbor for public officials acting under the color of state law who would otherwise be liable under 42 USC 1983 for infringing the constitutional rights of private parties. To determine whether a defendant is entitled to qualified immunity the court is to apply a three part test, to wit, (1) if plaintiffs allegations, if true, establish a constitutional violation; (2) whether that right was clearly established at the time of the alleged violation; and (3) whether a similarly situated reasonable official would have understood that the challenged action violated the constitutional right at issue. Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004). In the instant case, co-defendant, Dr. Roman Franco claims that his actions do not amount to a constitutional violation. As per the instance case, Dr. Roman Franco was at all times an employee of the CFSE. As such he did evaluate and/or provide medical attention to some Plaintiffs. As a public official, providing medical attention to Plaintiffs through the CFSE, co-defendant participated in conduct aimed at terminating treatment and benefits for PRASA employees, their spouses and offspring by the CFSE. By acting in such a manner, co-defendant not only affected Plaintiffs right to receive medical treatment and benefits at the CFSE, but also attempted against Plaintiffs lives by knowingly and willfully jeopardizing the medical treatment they sought and required as a result of their hazardous/toxic material exposure while performing job related duties for PRASA.

41

Under these circumstances, the qualified immunity defense is not available to codefendant, Dr. Roman Franco. By the same token, and even though not claimed by the other co-defendants, the same reasoning applies to all CFSE and PRASA employees who participated in this scheme. Qualified immunity is only available when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 427 US 808, 818 (1982). Since defendants conduct rather than constituting negligent actions, is comprised of willful well informed actions, each linked and constituting a pattern directed at depriving Plaintiffs of medical treatment, benefits, and consequently their life. Such conduct alleged against

defendants constitutes willful acts in detriment of Plaintiffs rights for which qualified immunity is not available. In light of the above, the complaint against defendants should not be dismissed. J. Plaintiffs have not failed to state a cause of action under Law 115 As stated by co-defendant Dr. Roman Franco, Law 115 creates a cause of action against the employer who dismisses, threatens or discriminates against an employee because of any testimony, expression or information given to a legislative, administrative or judicial forum in the Commonwealth of Puerto Rico. 29 LPRA 194a. In view of the above, given that co-defendant Dr. Roman Franco, Dr. Iris Otero and CFSE were at no time the employer and/or supervisor of Plaintiffs, Plaintiffs voluntarily dismiss Law 115 claims against co-defendant Dr. Roman Franco, Dr. Iris Otero and the CFSE.

42

With regards to co-defendants PRASA and its officials, Law 115 is applicable. PRASA employee Plaintiffs were at all times employed by PRASA, they as well as their loved ones suffer and suffered from medical conditions which resulted as a direct consequence to PRASA employee Plaintiffs exposure and contamination with hazardous/toxic materials while performing job related duties. Once Plaintiffs

commenced to manifest symptoms they sought medical attention through CFSE. Defendants in a concerted effort to limit their exposure to such elevated costs thwarted Plaintiffs attempts to obtain and/or receive treatment and benefits through CFSE. At all times, PRASA employee Plaintiffs were requested and/or exhorted by PRASA not to seek CFSE treatment/benefits. During this time, Plaintiffs were scared to denounce PRASAs actions for fear that as a result of said denouncement their employment would be terminated. Plaintiffs fear was well placed, given that PRASA was already effectively attempting against their life and well-being by, in conjunction with the CFSE, terminating, cancelling or denying them CFSE treatment and benefits. In view of the above, Plaintiffs Law 115 claim against PRASA, its officials, ONDEO and Compaa de Aguas should not be dismissed. K. Plaintiffs have not failed to state a cause of action under the Family Medical

Leave Act The purpose of the Family and Medical Leave Act is to provide an eligible employee to take reasonable leave for medical leave. 29 USC 2601(b)(2). For

purposes of FMLA, a public agency is required to provide its employees with FMLA benefits regardless of the number of employees employed by said agency.

43

As per 29 USC 2615(a)(1), it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter. Pursuant to 29 USC 2613(a), an employer may require that a request for leave under subparagraph (C) or (D) of paragraph (1) or paragraph (3) of section 2612 (a) of this title be supported by a certification issued by the health care provider of the eligible employee As a result of this the employer can ask the employee to provide a

medical certification from a health care provider that substantiates the need to use FMLA. FMLA can be delayed until the certification has been received. As per the instant complaint, it is Plaintiffs contention that the Defendants conspired to and participated in conduct aimed at terminating treatment for PRASA employees by the CFSE, conduct which was initiated and carried out at the behest of PRASA. By acting in such a manner Defendants, including co-defendant Dr. Roman Franco, Dr. Iris Otero and consequently the CFSE, and Jose Ortiz Vazquez, Eufemio Toucet and PRASA, partook in a scheme to deny, hinder and/or impede Plaintiffs rights. Furthermore, by behaving in such a manner and denying, refusing and stopping to treat Plaintiffs, affected the rights of PRASA employees claiming work related health problem that had to do with aluminum poisoning and similar conditions. By acting in such a manner, Defendants not only affected Plaintiffs right to receive medical treatment and benefits at the CFSE, but also impeded their receiving FMLA benefits given that as a result of the scheme in which Defendants were partaking, Plaintiffs were not given and/or not able to obtain the medical certificate required by FMLA as a prerequisite to obtain the FMLA benefits from PRASA, their employer.

44

Even though co-defendant Dr. Roman Franco, Dr. Iris Otero and the CFSE are not Plaintiffs employer their actions did influence Plaintiffs inability to obtain medical certificates from the CFSE, certificates which are a prerequisite to obtain FMLA benefits. On the other hand, Jose Ortiz Vazquez and Eufemio Toucet, were at the time of alleged events the Director and Sub-Director of PRASA, respectively, and it was PRASAs actions, through its officials, that set in motion the scheme through which Plaintiffs, PRASA employees, were denied and/or terminated from receiving medical the much needed medical treatment from the CFSE that they required as a result of exposure to hazardous/toxic materials while performing their job related duties. In light of the above, Plaintiffs FMLA claims against co-defendants should not be dismissed. L. Plaintiffs supplemental jurisdiction claims should not be dismissed Defendants claim that this Honorable Court should conclude that the supplemental claims for relief brought against them should be dismissed. disagree. As noted, Plaintiffs have pled viable claims. Given that the state law claims emerge from the same nucleus of operative facts as the federal claims, this Court should determine that the federal and state law claims are part of the same case or controversy for purposes of 28 USC 1367. See, BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., 132 F.3d 824 (1st Cir. 1997). In addition to this, certain co-defendants claim that Plaintiffs are impeded from suing appearing defendants for damages allegedly suffered; they are covered by the Plaintiffs

45

absolute immunity provided in Article 20 of the P.R. Workmens Compensation Statute. [Dckt. 46, p. 17] The Workmens Compensation Statute, Law 45 of April 18, 1935, 11 LPRA 1-et seq., as amended, came into being with the purpose of attending the social and economic problem faced by the modern state of ensuring that workers, employees in case of death, their beneficiaries, received a rapid, just and equitable compensation for the damages or death that may result from the performance of their work. This statute guarantees the worker or employee medical treatment and rehabilitation and economic benefits for temporary, partial or permanent disability. It offers death benefits to the beneficiaries of deceased workers, who qualify as dependents, and provides other benefits when employees are injured, become ill or die during the performance of their work. The purpose of the statute is that the employee does not have to seek

compensation for damages from the employer through legal action in a court of justice whether or not employer negligence was involved. Furthermore, this statute not only extends worker insurance benefits to all employees who are injured, suffer an accident, become ill or die as a result of their work but also provides coverage to those employees who have pre-existing conditions or illnesses, that may not be job related, but that have been accelerated, precipitated or complicated by the work. 5 Employers may be found to be uninsured by the CFSE if they: (i) never obtained a Worker's Insurance Policy form the SIFC; (ii) did not file a Payroll Declaration on time; (iii) did not make premium payments according to the terms established by the Administrator; (iv) did not inform all the locations where their employees were assigned

Information obtained from http://www.cfse.gov.pr/App_Content/Area_1_4.aspx, last visited on February 1, 2011.

46

to work; (v) did not inform all the risks under which their employees were assigned to work. 6 In the instant case, it is clear that Plaintiffs did go to the CFSE to seek treatment and benefits for conditions related to their work environment, and conditions which were accelerated/aggravated as a result of their work environment. However, given the

Commonwealth of Puerto Ricos dire fiscal situation during the past decade, as well as that of its agencies, it is not clear at this time if in fact PRASA was an insured employer by the CFSE as per the statute. And consequently would be liable in court for the damages. Nonetheless, in the instant case Plaintiffs are not claiming whether or not its employer was and insured or uninsured employer as per the CFSE. Nor are Plaintiffs attempting to circumvent an insured employers immunity from suit under the statute. However, Plaintiffs employer is estopped from claiming a defense under this statute. PRASA, ONDEO and the Compaa de Aguas are estopped from raising said defense because in the same breadth they cannot claim to be protected by the CFSE statute and immune from a damages civil suit all the while circumventing the very nature of the Workmens Compensation Statute and tiptoeing around it in order to impede, hinder, and/or deny its employees from receiving the treatment and benefits afforded to them by that very statute. Furthermore, as stated in the Complaint at paragraphs 143-144, Defendants scheme was aimed at denying Plaintiffs treatment/benefits for their toxic materials contamination.
6

By Defendants scheming to purposefully and intentionally deny the

Information obtained from http://www.cfse.gov.pr/App_Content/Area_1_4.aspx, last visited on February 1, 2011.

47

relation between the manifested symptoms/condition to toxic materials contamination, Defendants intentionally acted to deny Plaintiffs of treatment and benefits otherwise available to them through the CFSE. Thereby, thwarting the very purpose and nature of the statute. At 11 P.R. Stat. 131, it is stated that: Where, after the effectiveness of this act, personal injury is caused to an employee who is himself in the exercise of due care and diligence at the time: (1) By reason of any defect in the condition of the ways, works, or machinery, connected with, or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works, or machinery, were in proper condition; or (2) by reason of the negligence of any person in the service of the employer entrusted with the exercising of superintendence whose sole or principal duty is that of superintendence; or (3) by reason of the negligence of any person in the service of the employer who has charge of, or physically controls, any signal switch, locomotive engine, car or train in motion, whether attached to an engine or not, upon a railroad, the employee, or, in case the injury results in death, his widow or children, or both of them, and if there be no such widow and children, then his parents (provided that said parents were dependent upon such employee for support) may maintain an action for damages against the employer, pursuant to the provisions of this chapter. [Emphasis added]

As stated in Tomei v. Arkadia Sugar Company, 24 P.R.R. 363 (1916), with regards to the above cited statute, before the negligence of the employer can be inferred it must be shown that by reason of the relation between the employer and the employee some duty arose with which the employer failed to complythat is, a duty

48

more or less common to the business or industry and which an ordinarily prudent employer, or his responsible agents, should perform. As set forth in the Complaint, at paragraphs 170-185, Plaintiffs state that their employer not only failed to comply with their duty to protect them against exposure to toxic materials but that they also knew of the extreme risk involved in Plaintiffs exposure to such toxic materials as well as the consequential exposure of their wives and children, nonetheless they showed wanton disregard for the same and knowingly failed to protect Plaintiffs against said conditions and exposure to toxic materials. Therefore, Plaintiffs are not impeded from bringing suit against their employer for the damages they suffered as a result of the employers negligence. In light of the above this Honorable Court should not dismiss the supplemental claims brought under state law against defendants nor grant Defendants immunity under the Workmens Compensation Statute. WHEREFORE, Plaintiffs respectfully request from this Honorable Court that it take notice of what is herein stated and deny the motions to dismiss at dockets number 43, 44, 46-48. In addition to this, with regards to docket number 44, Plaintiffs respectfully request that this Honorable Court not only deny co-defendants motion to dismiss but also deny their request for the imposition of taxable costs and legal fees.

49

CERTIFICATE OF SERVICE: I hereby certify that on this same date I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the attorneys of record. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 2nd day of February, 2011. NICOLS NOGUERAS LAW OFFICE P.O. Box 195386, San Juan, P.R. 00919-5386 Tel. (787) 296-1958 / Fax: (787) 772-4605

S/Nicols Nogueras Cartagena USDC PR No. 109,712 e-mail: nnogueras@nogueraslaw.com

50