Asphaltos Trade, S.A v. Bituven P.R., LLC

• Decision Date: 19 August 2021
• Docket Number: CIVIL 18-1876 (BJM)
• Parties: ASPHALTOS TRADE, S.A., Plaintiff/Counter-Defendant, v. BITUVEN PUERTO RICO, LLC, Defendant/Counter-Plaintiff. JORGE ARTURO DIAZ MAYORAL, Third-party Plaintiff, v. BITUVEN PUERTO RICO, LLC, Third-party Defendant.
• Court: U.S. District Court — District of Puerto Rico

ASPHALTOS TRADE, S.A., Plaintiff/Counter-Defendant, v. BITUVEN PUERTO RICO, LLC, Defendant/Counter-Plaintiff.

JORGE ARTURO DIAZ MAYORAL, Third-party Plaintiff, v. BITUVEN PUERTO RICO, LLC, Third-party Defendant.

CIVIL No. 18-1876 (BJM)

United States District Court, D. Puerto Rico

August 19, 2021

OPINION & ORDER

BRUCE J. MCGIVERIN UNITED STATES MAGISTRATE JUDGE

This matter arises out of a third-party counterclaim by Third-party Plaintiff Jorge Arturo Diaz Mayoral (“Diaz”) against Third-party Defendant Bituven Puerto Rico, LLC (“Bituven”). Asphaltos Trade S.A. (“Asphaltos”) filed suit against Bituven alleging, inter alia, that Bituven breached a contract between Bituven and Asphaltos when it sold liquid asphalt owned by Asphaltos without notifying or paying Asphaltos. Docket No. (“Dkt.”) 1. Bituven filed a third-party complaint against Puerto Rico Asphalt, LLC (“PRA”) and Jorge Arturo Diaz Mayoral (“Diaz”), alleging that PRA and Diaz had removed said asphalt without Bituven's permission. Dkt. 12. Diaz then filed the third-party counterclaim at issue.

In his third-party counterclaim Diaz alleges, inter alia, that Bituven caused him tortious harm and that Bituven was unjustly enriched under Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141, through the act of filing a third-party complaint against PRA and Diaz, the President of PRA. Dkt. 107 (hereinafter “Counterclaim Complaint” or “Countercl. Compl.”). Diaz's counterclaim also alleges unclean hands, perjury bad faith, abuse of legal process, fraud, and defamation on the part of Bituven under both federal and Puerto Rico law. Id. at 56-65. Diaz argues that Bituven knowingly filed a third-party complaint containing an inconsistent factual record and frivolous federal claims under 18 USC § 659. Id. at 44-67. Bituven moved to dismiss Diaz's counterclaims, Dkt. 156, and Diaz opposed, Dkt 183. This case is before me by consent of the parties. Dkt. 85-86. For the following reasons, Bituven's motion is GRANTED IN PART.

MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM

When faced with a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court “accept[s] as true all well-pleaded facts alleged in the complaint and draws all reasonable inferences therefrom in the pleader's favor” to determine if the complaint states a claim for which relief can be granted. Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011). The court “may augment these facts and inferences with data points gleaned from documents incorporated by reference into the countercomplaint, matters of public record, and facts susceptible to judicial notice.” Starr Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d 111, 114 (1st Cir. 2019) (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)) (internal quotations omitted). In undertaking this review, the court must

first, “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements[, ]” then “take the complaint's well-pled (i.e., non-conclusory non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief.”

Zell v. Ricci, 957 F.3d 1, 7 (1st Cir. 2020) (alteration in original) (quoting Zenón v. Guzmán, 924 F.3d 611, 615-16 (1st Cir. 2019)). “Plausible … means something more than merely possible, ” and gauging the plausibility of a claim for relief is “a ‘context-specific' job” that requires drawing on “‘judicial experience and common sense.'” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

BACKGROUND ^[1]

This dispute involves various entities that sell, purchase, or store liquid asphalt. Third-party Plaintiff, Diaz, is a resident of San Juan, Puerto Rico, and the president of PRA, a limited liability company that sells asphalt and is headquartered in Puerto Rico. Countercl. Compl. ¶ 2. Third-party Defendant Bituven is a company headquartered in Puerto Rico that stores liquid asphalt. Id. ¶ 3; Dkt. 91 at 1-2. Plaintiff Asphaltos is a corporation with its principal place of business in Panama City, Republic of Panama that trades in asphalt and bitumen-based products. Dkt. 1 at 1-2.

In late 2015, PRA entered into a Product Throughput Agreement with Betteroads Asphalt LLC (“Betteroads”) that dictated the terms of PRA's use of certain liquid asphalt storage tanks within a facility in Guayanilla, Puerto Rico owned by Betteroads. Countercl. Compl. ¶¶ 6, 21. Several months later, Bituven agreed to sell liquid asphalt to Betterecycling Corporation (“Betterecycling”), a subsidiary of Betteroads; Bituven and Betterecycling laid out all terms and conditions of the deal in a sales purchase agreement. Id. ¶¶ 7-8. The sales purchase agreement dictated price, manner of delivery, cancellation procedure, and the like for all transactions between Bituven and Betterecycling. Id.; see also Dkt. 34-1. The agreement also included an arbitration clause that would ostensibly govern any contractual disputes between the two parties. Id. ¶ 25. As part of the exchange, on January 1, 2016, Betteroads agreed to a Product Throughput Agreement with Bituven, providing Bituven with at least 80, 000 barrels worth of liquid asphalt storage in Guayanilla. Countercl. Compl. ¶¶ 7-8; Dkt. 80 at 18-19; see also Dkt. 12-2; Dkt. 107 at 3.

PRA and Bituven came into contact in 2016, and in mid-2017 PRA began to purchase asphalt directly from Bituven on a weekly basis. Id. ¶ 21. PRA and Bituven orally agreed to use the same terms and prices contained in Bituven's sales purchase agreement with Betterecycling for all of their direct transactions. Id. ¶ 55 n.2.^[2] Diaz later reaffirmed the agreed-upon price with Bituven representative Julio Iglesias. Id.; see also Dkt. 34-2. From 2016 until mid-2017, Bituven sold most of the liquid asphalt in their Guayanilla tanks to Betterecycling and only sold smaller amounts directly to PRA. Id. ¶ 21. Eventually, however, at the request of Betteroads, Bituven agreed to sell all Bituven's asphalt stored in Betteroads' Guayanilla tanks to PRA instead of to Betterecycling. Id.

To purchase liquid asphalt from Bituven, PRA would notify Bituven of the amount that PRA wished to buy. Countercl. Compl. ¶ 21. Bituven would then send PRA a standard invoice with a quote for the amount requested by PRA; in return, PRA would wire Bituven money to prepay for the asphalt. Id. Bituven would only permit Betteroads to release asphalt to PRA after they had received PRA's pre-payment. Id. Betteroads tracked releases of asphalt to PRA via sales tickets that they would then turn over to Bituven. Id. ¶ 31. Each week, Bituven would cross-reference PRA's pre-payment with the sales tickets and look for discrepancies. Id. ¶ 43. Bituven would then ask PRA to satisfy underpayments or would give PRA credit for prepaid asphalt that PRA had not fully withdrawn. Id.

After Bituven's agreements with Betteroads, Betterecycling, and PRA were already in place, Asphaltos contracted with Bituven to store asphalt in tanks owned by Bituven within Betteroads' Guayanilla facility. Id. ¶ 29. On May 14, 2017, a shipment of liquid asphalt owned by Asphaltos arrived in Guayanilla from Livorno, Italy, on the Da Ming Shan vessel. Id.; see also Dkt.1-2. The bill of lading for the shipment noted that the Da Ming Shan discharged all 11, 606.642 metric tons of asphalt, originally loaded onto the ship in Italy, in Guayanilla on May 14, 2017. Id. Months later, Bituven accused PRA and Diaz of making unauthorized removals from the tanks storing this asphalt. Id. ¶ 31.

In July 2017, Betteroads allegedly gave Bituven out-of-sequence sales tickets, leading Bituven to believe that Betteroads had breached the product throughput agreement with Bituven. Id. ¶ 31. After this incident occurred, Bituven instructed Betteroads and PRA that no entity was permitted to remove any asphalt from the Guayanilla tanks belonging to Bituven without Bituven's express permission. Id. Bituven alleges that after giving this instruction, PRA made unauthorized withdrawals from the tanks on three occasions: sometime in July 2017; on May 18, 2018; and on May 25, 2018. Id.; see also Dkt. 12 ¶ 25. Despite Bituven's allegations, the asphalt that PRA and Diaz had allegedly removed without prior authorization had already been at its final destination in Guayanilla for over two months. Countercl. Compl. ¶¶ 31, 32; see also Dkt. 1-2 at 2. Additionally, on April 27, 2018, after the first alleged unauthorized removal of asphalt had supposedly already taken place, Bituven sent PRA an invoice for $1, 457, 740.90, which PRA paid in July of the same year. Countercl. Compl. ¶ 21. According to Diaz, therefore, PRA has already paid in full for the first supposed illicit removal alleged by Bituven under this invoice. Id. ¶ 32. Moreover, Bituven had established that they would resolve any payment discrepancies through the weekly invoices they sent to PRA as per the agreement between the parties. Id. ¶ 45.

In November 2018, Asphaltos filed suit against Bituven, alleging that Bituven had sold Asphaltos's asphalt without notifying or compensating them. Dkt. 1 at 7-12. Bituven then filed three third-party complaints. Countercl. Compl. ¶ 10. Two of the complaints are against Betteroads and PRA and were filed within two separate involuntary bankruptcy cases. See In re Betteroads Asphalt LLC, 17-4156(ESL); In re Betterecycling Corporation, 17-04157(ESL); Countercl. Compl. ¶ 11. The third complaint is the present proceeding against PRA and Diaz. Countercl. Compl. ¶ 12. In response, Diaz filed a third-party counterclaim against Bituven. Id. ¶ 1.

Bituven's third-party complaint against PRA...