Font-Llacer-De-Pueyo v. Fed. Deposit Ins. Corp.

932 F.Supp.2d 265

Elsie FONT–LLACER–DE–PUEYO, Plaintiff,

v.FEDERAL DEPOSIT INSURANCE CORPORATION as receiver for R–G Premier Bank, et als., Defendants.

CIV. No. 10–2086 (PG).

United States District Court, D. Puerto Rico.

March 25, 2013.

Anibal Lugo–Miranda, Anibal Lugo Miranda Law Offices, San Juan, PR, for Plaintiff.

Andres C. Gorbea–Del Valle, Ana B. Rosado–Frontanes, Schuster & Aguilo LLP, San Juan, PR, for Defendants.

OPINION AND ORDER

JUAN M. PEREZ–GIMENEZ, Senior District Judge.

Before the court are the motions requesting the dismissal of the plaintiff's claims filed by co-defendants Federal Deposit Insurance Corporation (“FDIC–R”), as Receiver for R–G Premier Bank of Puerto Rico (“R–G Premier Bank”) and Scotiabank of Puerto Rico Inc. (“Scotiabank”). See Dockets No. 8–9. For the reasons set forth below, the court GRANTS IN PART AND DENIES IN PART the FDIC–R's motion to dismiss (Docket No. 8) and DENIES WITHOUT PREJUDICE Scotiabank's motion to join (Docket No. 9).

I. BACKGROUND

On November 5, 2010, plaintiff Elsie Font Llacer de Pueyo (“Font” or “Plaintiff”), filed the above-captioned claim against R–G Premier Bank, R–G Mortgage, the Federal Deposit Insurance Corporation and Scotiabank (hereinafter collectively referred to as “Defendants”). Font alleges she was discriminated against on the basis of age and seeks redress under the Age Discrimination in Employment Act (“ADEA” or “the Act”), 29 U.S.C. § 623. Font also pleads supplemental state law claims of age discrimination under Puerto Rico's anti-discrimination statute, Law No. 100 of June 30, 1959 (“Law No. 100”), P.R. Laws Ann. tit. 29, § 146, et seq.; of wrongful discharge under Puerto Rico's wrongful termination statute, Law No. 80 of May 30, 1976 (“Law No. 80”), P.R. Laws Ann. tit. 29, § 185, et seq.; of retaliation pursuant to Puerto Rico's anti-retaliation statute (“Law No. 115”), P.R. Laws Ann tit. 29, § 194 et seq.; and, of damages under Puerto Rico's general tort statute, Article 1802 of the Puerto Rico Civil Code (“Article 1802”), P.R. Laws Ann. tit. 31, § 5141.

At the time the complaint was filed, Plaintiff alleged to be a 72–year–old who had been working for R–G Premier Bank for thirty-two (32) years. See Docket No. 1 at ¶ 5–6. Font stated in her complaint that prior to her forced resignation, she occupied the position of Senior Manager Vice–President earning more than $98,000.00. Id. at ¶ 9. On or about December of 2009, Font alleges that her supervisor, Steven Velez (“Velez”), informed her of several changes in the terms and conditions of her employment, including a reduction in responsibilities, status, participation in meetings and office space. According to Plaintiff, after her return from her Christmas vacations, Velez announced to her that she would report to a much younger and less experienced employee, namely, Peter Torres. Id. at ¶ 13. Font claims in her complaint that these actions were the result of age discrimination and forced her to involuntarily resign.¹Id. at ¶ 15. Ultimately, Plaintiff now alleges that she was discriminated against because of her age and discharged without just cause. Id. As a result of these events, Font filed charges of age discrimination before the EEOC on March 5, 2010 and received a right-to-sue letter in August of 2010. Id. at ¶ 4.

Finally, Plaintiff also states in her complaint that after “Scotiabank acquired RG's banking operations,” id. at ¶ 19, sometime in 2009, the FDIC became “successor in interest of RG,” id. at ¶ 18, and insofar as “Scotiabank acquired RG's banking operations,” id. at ¶ 19, it consequently also became a successor in interest of Plaintiff's employer “under the Doctrine of Successor Employer.” Id.

On January 10, 2011, the FDIC–R filed a motion to substitute party, wherein it informed the court that on April 30, 2010, the FDIC was appointed receiver of R–G Premier Bank by order of the Commissionerof Financial Institutions of Puerto Rico. See Docket No. 5. Accordingly, the FDIC–R requested that it be substituted as the defendant in the place of R–G Premier Bank. See id. On February 28, 2011, the court granted its request. See Docket No. 7.

On May 25, 2011, FDIC–R filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim. See Docket No. 8. Co-defendant Scotiabank filed a motion to join the FDIC–R's motion to dismiss. See Docket No. 9. This court granted Plaintiff until July 13, 2011 to respond to these motions, see Docket No. 11, however, on said date, the Plaintiff filed a second motion for extension of time until July 18, 2011 to oppose the pending motions, see Docket No. 12. On July 20, 2011, this court entered an order finding this second request as moot inasmuch as the requested extension had elapsed and Plaintiff had yet to file an opposition. See Docket No. 13. On July 28, 2011, FDIC–R filed a request to deem its motion to dismiss as unopposed (Docket No. 14), which the court granted (Docket No. 17).

Thereafter, the case was stayed pending the bankruptcy proceedings of R–G Mortgage. See Docket No. 18. On January 23, 2013, R–G Mortgage and the FDIC–R filed a motion to lift the stay and requesting that the court adjudge the pending motions to dismiss in their favor. See Docket No. 21.

II. STANDARD OF REVIEW

Motions to dismiss brought under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) are subject to the same standard of review. See Negron–Gaztambide v. Hernandez–Torres, 35 F.3d 25, 27 (1st Cir.1994). Firstly, when ruling on a motion to dismiss for failure to state a claim, a district court “must accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.2009) ( citing LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998)). Additionally, courts “may augment the facts in the complaint by reference to (i) documents annexed to the complaint or fairly incorporated into it, and (ii) matters susceptible to judicial notice.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.2008) (internal citations and quotation marks omitted).

In determining whether dismissal of a complaint is appropriate pursuant to Rule 12(b)(1) or 12(b)(6), the court must keep in mind that “[t]he general rules of pleading require a short and plain statement of the claim showing that the pleader is entitled to relief.... This short and plain statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009) (internal citations and quotation marks omitted). Nevertheless, “even under the liberal pleading standard of Federal Rule of Civil Procedure 8, the Supreme Court has ... held that to survive a motion to dismiss, a complaint must allege a plausible entitlement to relief.” Rodriguez–Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) ( citingBell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ( citingTwombly, 550 U.S. at 556, 127 S.Ct. 1955). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ..., on the assumption that all the allegations in the complaint are true (even if doubtful in fact)....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotation marks omitted). “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950.

“In resolving a motion to dismiss, a court should employ a two-pronged approach. It should begin by identifying and disregarding statements in the complaint that merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action.” Ocasio–Hernandez v. Fortuno–Burset, 640 F.3d 1, 12 (1st Cir. April 1, 2011) ( citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (internal quotation marks omitted). Although a complaint attacked by a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “does not need detailed factual allegations, ..., a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotation marks omitted). That is, the court “need not accept as true legal conclusions from the complaint or naked assertions devoid of further factual enhancement.” Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009) ( citing Iqbal, 129 S.Ct. at 1960). “Non-conclusory factual allegations in the complaint must then be treated as true, even if seemingly incredible.” Ocasio–Hernandez, 640 F.3d at 12 ( citing Iqbal, 129 S.Ct. at 1951).

When evaluating the plausibility of a legal claim, a court may not “attempt to forecast a plaintiff's likelihood of success on the merits; a well-pleaded complaint may proceed even if ... a recovery is very remote and unlikely.” Ocasio–Hernandez, 640 F.3d at 12–13 ( citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Thus, “[t]he relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio–Hernandez, 640 F.3d at 13.

III. DISCUSSION

A. Dismissal of Claims against FDIC–C

In...