Capezano v. Saic

743 F.Supp.2d 71

Nestor CAPEZANO, Plaintiff

v.ARCOR SAIC; Arcor USA, Inc. D/b/a Nutrex Corp., Defendant.

Civil No. 10–1281 (SEC).

United States District Court, D. Puerto Rico.

Oct. 20, 2010.

Anibal Escanellas–Rivera, Escanellas & Juan, San Juan, PR, for Plaintiff.Yassmin Gonzalez–Velez, Pirillo Hill Gonzalez & Sanchez, P.S.C., San Juan, PR, for Defendants.

OPINION and ORDER

SALVADOR E. CASELLAS, Senior District Judge.

Before the Court is Defendant ARCOR SAIC and ARCOR USA, Inc. d/b/a Nutrex Corp.'s (“Defendant”) Motion to Dismiss (Docket # 6), Plaintiff's opposition thereto (Docket # 12), and Defendant's reply (Docket # 15). Upon reviewing the filings, and the applicable law, Defendant's motion is GRANTED in part and DENIED in part.

Factual and Procedural Background

On April 5, 2010, Plaintiff filed suit against Defendant, alleging unjust dismissal, discrimination by reason of national origin, retaliation and violations to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Docket # 1. According to the complaint, Plaintiff was harassed, discriminated against and eventually terminated from his employment due to his national origin. Plaintiff further contends that he was terminated in retaliation for meeting with officials from the Food and Drug Administration (“FDA”) to discuss Defendant's non-compliance with FDA regulations, and informing Defendant about their products' lack of compliance with the same. Lastly, Plaintiff avers that Defendant failed to inform him about his various rights under COBRA.

Pursuant to the complaint, Plaintiff is an Argentinian male who worked for Defendant since 1998 until his termination on June 30, 2009. Docket # 1, p. 3. In 2005, Plaintiff was transferred to the Miami subsidiary office of Arcor Saic, named Arcor USA Inc. d/b/a Nutrex Corp. Among his duties, Plaintiff was in charge of selling Defendant's products in Puerto Rico, among other areas. After his transfer, he informed his Arcor/Nutrex supervisor, Isaac Espinoza (“Espinoza”), and his supervisors from Arcor Saic that their products did not comply with FDA regulations.

Plaintiff then met with FDA officials to discuss the situation, providing them with information about Defendant's products and discussing remedial actions to make said products FDA compliant. Thereafter, Plaintiff informed Defendant about the FDA's findings and his meeting with FDA officials. On several occasions, Plaintiff insisted that Defendant's products did not meet FDA standards and warned Defendant that its products could not be sold in Puerto Rico due to their non-compliance with regulations. Plaintiff alleges that, at that juncture, Defendant “constantly threatened” him, warning him that if he did not sell its products, and insisted with his complaints regarding FDA compliance, he would be terminated. Furthermore, Defendant continued distributing the products in question and again threatened to discharge Plaintiff if they received any notice from the FDA. Docket # 1 ¶ 10.

On June 11, 2010, Defendant moved for dismissal under FED. R. CIV. P. 12(b)(6)(Docket # 8), Plaintiff opposed (Docket # 12), and Defendant replied (Docket # 15).

Standard of ReviewFed.R.Civ.P. 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. First Med. Health Plan, Inc. v. CaremarkPCS Caribbean, Inc., 681 F.Supp.2d 111, 113–114 (D.P.R.2010) (citing Fed.R.Civ.P. 12(b)(6)). When deciding a motion to dismiss under Rule 12(b)(6), the court must decide whether the complaint alleges enough facts to “raise a right to relief above the speculative level.” First Med. Health, 681 F.Supp.2d at 114 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In so doing, the court construes the complaint in the light most favorable to the plaintiff, accept as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's favor. Id. (Citing Parker v. Hurley, 514 F.3d 87, 90 (1st Cir.2008)); see also Medina–Claudio v. Rodriguez–Mateo, 292 F.3d 31, 34 (1st Cir.2002); Correa–Martinez v. Arrillaga–Belendez, 903 F.2d 49, 51 (1st Cir.1990). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” First Med. Health, 681 F.Supp.2d at 114 (citing Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). Specifically, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 129 S.Ct. at 1949. As such, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” First Med. Health, 681 F.Supp.2d at 114 (citing Iqbal, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2))).

In sum, when passing on a motion to dismiss the court must follow two principles: (1) legal conclusions masquerading as factual allegations are not entitled to the presumption of truth; and (2) plausibility analysis is a context-specific task that requires courts to use their judicial experience and common sense. Id. (citing Iqbal, 129 S.Ct. at 1950). In applying these principles, courts may first separate out merely conclusory pleadings, and then focus upon the remaining well-pleaded factual allegations to determine if they plausibly give rise to an entitlement to relief. Id. (Citing Iqbal, 129 S.Ct. at 1950).

The First Circuit has held that “dismissal for failure to state a claim is appropriate if the complaint fails to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008). Courts “may augment the facts in the complaint by reference to documents annexed to the complaint or fairly incorporated into it, and matters susceptible to judicial notice.” Id. at 305–306. However, in judging the sufficiency of a complaint, courts must “differentiate between well-pleaded facts, on the one hand, and ‘bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like,’ on the other hand; the former must be credited, but the latter can safely be ignored.” LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 ( quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F.3d 29, 33 (1st Cir.2007); see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). Thus Plaintiffs must rely in more than unsupported conclusions or interpretations of law, as these will be rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)).

Therefore, “even under the liberal pleading standards of Federal Rule of Civil Procedure 8, the Supreme Court has recently held that to survive a motion to dismiss, a complaint must allege ‘a plausible entitlement to relief.’ ” Rodríguez–Ortiz v. Margo Caribe, Inc., 490 F.3d 92 (1st Cir.2007) (citing Twombly, 127 S.Ct. at 1965). Although complaints do not need detailed factual allegations, the “plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Twombly, 127 S.Ct. at 1965; see also Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). 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).

Applicable Law and Analysis

In the complaint, Plaintiff sets forth claims under Puerto Rico Laws 100, 80 and 115. It is well-settled that courts must address any jurisdictional issues as early as practicable. On this point, the Supreme Court has held that, in order for the Court to hear a case, subject matter jurisdiction must “be established as a threshold matter.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Subject matter jurisdiction is granted to federal courts by either “28 U.S.C. § 1331, which provides for ‘[f]ederal-question’ jurisdiction, [or] § 1332, which provides for ‘[d]iversity of citizenship’ jurisdiction.” Arbaugh v. Y & H Corp., 546 U.S. 500, 501, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

In light of the particular facts of this case, the applicability of the Commonwealth laws is in question. Albeit the specific set of facts presented in this case has not been expressly addressed by the relevant courts, the general policy arising from the applicable case law suggests that Puerto Rico's employment laws do not apply to employees that work outside of Puerto Rico for a non Puerto Rico based company.

In Green Giant Co. v. Tribunal Superior, 104 P.R. Decs. 489, 4 P.R. Offic. Trans. 682 (1975), the Puerto Rico Supreme Court held that Puerto Rico's constitutional guarantee to overtime compensation did not apply to Puerto Rican migrant workers who performed agricultural work in the United States for non Puerto Rico based employers. See Torres–Negron v. Merck & Co. Inc., 376 F.Supp.2d 121, 127 (D.P.R. 2005). The Court based its decision upon the fact that privileged treatment of Puerto Rican workers working outside of Puerto Rico would foreclose future opportunities for Puerto Rican migrant workers in the United States.

Thereafter, in Garcia v. American Airlines, Inc., 12 F.3d 308, 313 (1st Cir.1993), ...