Diaz Aviation Corp.. D/B/A Borinquen Air v. Airport Aviation Serv. Inc.

762 F.Supp.2d 388

DIAZ AVIATION CORPORATION d/b/a Borinquen Air, Plaintiff,

v.AIRPORT AVIATION SERVICES, INC., et al., Defendants.

Civil No. 10–1915 (GAG).

United States District Court, D. Puerto Rico.

Jan. 18, 2011.

Sixto Manuel Diaz–Saldana, San Juan, PR, for Plaintiff.Guillermo De–Guzman–Vendrell, De Guzman Law Offices, Counsel for Co–Defendant Pipeliners, Jose W. Vazquez–Matos, Maria Dolores Trelles–Hernandez, Oreste Ricardo Ramos–Pruetzel, Pietrantoni Mendez & Alvarez, Mauricio O. Muniz–Luciano, O'Neill & Borges, San Juan, PR, Christina G. Sarchio, Washington, DC, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPÍ, District Judge.

Plaintiff Diaz Aviation Corporation ¹ (“Plaintiff”) filed a complaint against Defendants Airport Aviation Services, Inc. (“AAS”), Total Petroleum Puerto Rico Corp. (“Total”), and Esso Standard Oil Company Puerto Rico (“Esso”) (collectively referred to as “Defendants”). The complaint alleges that Defendants monopolized the sale of aviation fuel in Puerto Rico and engaged in unlawful price discrimination. Plaintiff's action is brought pursuant to 18 U.S.C. §§ 241 and 1951; 15 U.S.C. § 1 et seq.; and Article 1802 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31 § 5141.

Presently before the court are Defendants' motions to dismiss (Docket Nos. 11, 12 and 13). AAS moved under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the claims against it (Docket No. 11). Co-defendants Total and Esso moved severally under Federal Rule of Civil Procedure 12(b)(6) to dismiss the claims against them (Docket Nos. 12 and 13). Plaintiff filed a response in opposition to all three motions (Docket No. 14). Total filed a reply to Plaintiff's opposition motion (Docket No. 23).

After reviewing the pleadings and pertinent law, the court GRANTS Defendants' motions to dismiss (Docket Nos. 11, 12 and 13).

I. Legal Standard

“The general rules of pleading require a short and plain statement of the claim showing that the pleader is entitled to relief.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009) (internal citations and quotations omitted). “This short and plain statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Federal Rule of Civil Procedure 12(b)(1) is “[t]he proper vehicle for challenging a court's subject-matter jurisdiction.” Valentin v. Hospital Bella Vista, 254 F.3d 358, 362 (1st Cir.2001). Rule 12(b)(1) is a “large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction.” Id. at 362–363. A moving party may base a challenge to the sufficiency of the plaintiff's assertion of subject matter jurisdiction solely on the pleadings. Medical Card System v. Equipo Pro Convalecencia, 587 F.Supp.2d 384, 387 (D.P.R.2008) (citing Hospital Bella Vista, 254 F.3d at 363).

A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) is subject to a similar standard of review as a motion brought pursuant to Rule 12(b)(6). Boada v. Autoridad de Carreteras y Transportacion, 680 F.Supp.2d 382, 384 (D.P.R.2010) (citing Negron–Gaztambide v. Hernandez–Torres, 35 F.3d 25, 27 (1st Cir.1994)). “When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.” Merlonghi v. U.S., 620 F.3d 50, 54 (1st Cir.2010) (citing Hospital Bella Vista, 254 F.3d at 363).

Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The court must decide whether the complaint alleges enough facts to “raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. In so doing, the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir.2008). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Iqbal, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

II. Factual and Procedural Background

Plaintiff Diaz Aviation is an aviation business involved in a number of aviation-related activities, which, since 1995, include the sale of aviation fuel (“AVGAS”) at Luis Muñoz Marin Airport (“LMM”) in Carolina, Puerto Rico. When it began selling AVGAS, Plaintiff was able to purchase its AVGAS supply from Texaco, Shell, and Esso. Eventually, Esso prevailed in the market and became the sole supplier of AVGAS in Puerto Rico. Esso later sold its operation to Total and as a result became the sole supplier of AVGAS in Puerto Rico. Thus, Plaintiff must now purchase its AVGAS from Total.

Co-defendant AAS also fuels aircrafts at LMM. It is alleged that a contract was formed between AAS and Esso “that permitted the [former] to control the retail sale of ... [AVGAS] at the LMM airport and in Puerto Rico in general.” ( See Docket No. 1 at 3 ¶ D.) It is further alleged that Total continued with the contract under the same terms once Total purchased Esso's aviation fuel interests. ( See Docket No. 1 at 3 ¶ 2.)

Plaintiff alleges that said contract “has given [AAS] an undue advantage to the point that ... [AAS] can sell AVGAS to other fuelers sometimes cheaper than what Total charges.” ( See Docket No. 1 at 4 ¶ 3.) The complaint states that “[b]uying cheaper from Total has given an unfair advantage to AAS” and has allowed it “to undercut any competition from anyone including [Plaintiff].” Id. Plaintiff also alleges that Defendants engaged in conduct that created a monopoly regarding the sale of aviation fuel in Puerto Rico. ( See Docket No. 1 at 4 ¶ 5.)

The complaint claims that Defendants' actions have resulted in Plaintiff's inability to sell AVGAS at a fair price, and consequently losing sales to AAS. ( See Docket No. 1 at 4–5 ¶ 6.) Plaintiff alleges that “[t]he conspiracy between [AAS, Esso and Total] has caused damages ... in the amount of $1,000,000 in lost profits in the last years.” ( See Docket No. 1 at 5 ¶ 8.)

Each of the three Defendants have filed motions to dismiss (Docket Nos. 11, 12 & 13). Plaintiff responded to all three motions with a motion in opposition (Docket No. 14). Defendant Total filed a reply to Plaintiff's response motion (Docket No. 23).

III. Discussion

Plaintiff alleges several causes of action in its complaint against Defendants. Each of these issues are addressed separately.²

A. 18 U.S.C. Section 241

Plaintiff's complaint cites to 18 U.S.C. Section 241, which provides for the criminal prosecution of two or more persons conspiring to interfere with the constitutional or legal rights of another individual. See 18 U.S.C. § 241. This statute does not provide for a private cause of action. See Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.1989). “Generally, a private citizen has no authority to initiate a federal criminal prosecution.” Id. (citing Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir.1964)). “Only the United States as prosecutor can bring a complaint under 18 U.S.C. §§ 241–242 (the criminal analogue of 42 U.S.C. § 1983).” Id. Because Plaintiff is legally precluded from seeking relief under 18 U.S.C. Section 241, any claim under this criminal statute is subject to dismissal. See Lumpkin v. Lucey, 2010 WL 1794400 (D.Mass. May 4, 2010); see also Pelumi v. Landry, 2008 WL 972704 (D.R.I. Apr. 7, 2008). Accordingly, the court DISMISSES this cause of action against all Defendants.

B. 18 U.S.C. Section 1951

Plaintiff also cites to 18 U.S.C. Section 1951, which provides for the criminal prosecution of whoever interferes with commerce by threats or violence. Title 18 U.S.C. Section 1951, commonly known as the Hobbs Act, states as follows:

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.

18 U.S.C. § 1951(a).

Without controlling precedent from the First Circuit as to whether the Hobbs Act creates a private right of action, the court looks at caselaw from other circuits. The Eight Circuit has found “that neither the statutory language of 18 U.S.C. § 1951 nor its legislative history reflect an intent by Congress to create a private right of action.” Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir.1999). District courts that have addressed this issue have also found that the Hobbs Act does not give rise to a cause of action for civil liability because it is “purely criminal in nature.” American Computer Trust Leasing v. Jack Farrell Implement Co., 763 F.Supp. 1473, 1497 (D.Minn.1991); e.g., Boyd v. Wilmington Trust Co., 630 F.Supp.2d 379 (D.Del.2009); Trevino v. Pechero, 592 F.Supp.2d 939 (S.D.Tex.2008); John's Insulation, Inc. v. Siska const. Co. Inc., 774 F.Supp. 156 (S.D.N.Y.1991); Peterson v. Philadelphia Stock Exchange, 717 F.Supp. 332 (E.D.Pa.1989). The...