Comtronics, Inc. v. Puerto Rico Tel. Co.

• Citation: 409 F. Supp. 800
• Decision Date: 17 June 1975
• Docket Number: Civ. No. 74-1243.
• Parties: COMTRONICS, INC., Plaintiff, v. PUERTO RICO TELEPHONE COMPANY and Salvador Rodriguez Aponte, personally and in his official capacity as President of Puerto Rico Telephone Company and Executive Director of the Telephone Authority of Puerto Rico, Defendants.
• Court: U.S. District Court — District of Puerto Rico

409 F. Supp. 800

COMTRONICS, INC., Plaintiff, v. PUERTO RICO TELEPHONE COMPANY and Salvador Rodriguez Aponte, personally and in his official capacity as President of Puerto Rico Telephone Company and Executive Director of the Telephone Authority of Puerto Rico, Defendants.

Civ. No. 74-1243.

United States District Court, D. Puerto Rico.

June 17, 1975.

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Sigfredo A. Irizarry, San Juan, P. R., for plaintiff.

Alberto Picó, Brown, Newsom & Córdova, San Juan, P. R., for defendants.

OPINION AND ORDER

TOLEDO, Chief Judge.

On November 11, 1974, plaintiff filed this action for damages, declaratory and injunctive relief to redress an alleged deprivation of rights secured to plaintiff by the Constitution and Laws of the United States and the Laws of the Commonwealth of Puerto Rico. The action was brought under Title 42, United States Code, Section 1983 with the claim that defendants, acting under color of law, have deprived plaintiff of its rights to due process and equal protection in violation of the Fifth and Fourteenth Amendments to the United States Constitution and of said Civil Rights Statute, and jurisdiction of the Court was invoked under Title 28, United States Code, Section 1343 and also under Title 28, United States Code, Section 1331.

In the complaint plaintiff specifically alleged that defendants, in violation of the applicable Federal Communications Commission's holdings, rulings and policies pertaining to interconnection of customer owned telephone terminal equipment, as well as the policies and rulings of the Public Service Commission of Puerto Rico and defendants' own Marketing Practice Number 0027 of December 21, 1973, have refused since August 21, 1974 to provide interconnection to their telephone lines of terminal equipment sold by plaintiff to defendants' subscribers. Plaintiff contends that this unilateral decision is discriminatory and denies plaintiff the equal protection of the laws, that it constitutes an abridgement of the obligations of contracts and that it constitutes a confiscating, taking and expropriating of plaintiff's property, business and operations without compensation and without due process of law.

Pursuant to the request for injunctive relief, on November 12, 1974 the Court ordered defendants to show cause why such relief should not be granted and set a consolidated hearing for both the injunctive relief and damages for January 9, 1975.

On November 27, 1974, defendants filed a motion to dismiss the complaint on the grounds that it fails to state a claim upon which relief can be granted since the matter involved is one within the primary jurisdiction of the Federal Communications Commission (FCC) and said Commission, before which the issue was already pending in a proceeding started before the action was filed, should resolve the issue in the first instance. On that same date, defendants moved the Court to stay its order to show cause until its motion to dismiss was decided.

On December 5, 1974, defendants filed a second motion to dismiss, this time on the grounds that the Court lacks jurisdiction to entertain the action for the controversy does not involve any right or immunity created by the Constitution and Laws of the United States, but rather, only involves a commercial grievance by a local business concern against a public corporation of the Commonwealth of Puerto Rico. In their motion, defendants argued that the alleged violation of rulings and policies of the FCC does not create a Federal cause of action capable of conferring jurisdiction on this Court and, further, that jurisdiction under Title 42, United States Code, Section 1983 and Title 28, United States Code, Section 1343 as to any case is doubtful in view of the decision of the United States Supreme Court in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

Plaintiff duly opposed both motions and, the Court having granted a stay of its order to show cause, the parties presented oral argument on the motions on January 9, 1975. Finding that the issues involved required further dilucidation, the Court on January 28, 1975 ordered the parties to file certain pertinent documents and additional briefs addressed to specific points detailed in the order. Through that same order, the Court directed defendants to answer the complaint, set March 4, 1975 as the new date for the previously stayed consolidated hearing and detailed a time table for compliance with the terms of the original order to show cause of November 12, 1974.

The parties complied with the requested filing of briefs and documents and, in addition, defendants once more moved the Court to continue further proceedings in the case until the motions to dismiss of November 27, 1974 and December 5, 1974 were decided. The Court granted the motion on February 26, 1975 and, having carefully considered the evidence before it and the arguments advanced by the parties, is now ready to issue its ruling on the motions to dismiss.

We must necessarily consider first the question of the Court's jurisdiction, raised by defendants on their second motion to dismiss, since whether or not the complaint states a cause of action upon which relief can be granted is a question of law calling for a judgment on the merits. Clearly, it can only be decided after the Court assumes jurisdiction. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1945). In this respect we must point out at the outset that, as defendants concede, this Court has repeatedly held that Title 42, United States Code, Section 1983 and Title 28, United States Code, Section 1343, are as applicable with respect to the Commonwealth of Puerto Rico as they are with respect to any State of the Union. See, for example, Wackenhut Corporation v. Union de Tronquistas de P.R., Local 901, 336 F.Supp. 1058 (D.C.P.R.1971); El Mundo, Inc. v. Puerto Rico Newspaper Guild, 346 F.Supp. 106 (D.C.P.R.1972); Marin v. University of Puerto Rico, 346 F.Supp. 470 (D.C.P.R.1972); Cordeco Development Corp. v. Vazquez, 354 F.Supp. 1355 (D.C.P.R.1972); King v. Conservatorio de Musica de P.R., 378 F.Supp. 746 (D.C.P.R.1974). Despite defendants' urging, we do not perceive that Calero-Toledo v. Pearson Yacht Leasing Co., supra, requires us to hold any differently now. In that case, the Supreme Court had no occasion to address the question of whether Puerto Rico is a "State" for purposes of Title 28, United States Code, Section 1343. In the absence of a holding to the effect that Puerto Rico is not a "State" for purposes of the Civil Rights statutes, this Court does not feel that its previous pronouncements have in any way been affected.

Turning now to the question whether Title 42, United States Code, Section 1983 and Title 28, United States Code, Section 1343 can be properly invoked by plaintiff, we begin by noting that property rights are basic civil rights which are constitutionally protected and which have been given the statutory protection of Title 42, United States Code, Section 1983 and its jurisdictional counterpart, Title 28, United States Code, Section 1343. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Gaffney v. Silk, 488 F.2d 1248 (1 Cir. 1973); Cordeco Development Corp. v. Vazquez, supra. It is equally settled that a corporation is a "person" within the meaning of both Title 42, United States Code, Section 1983 and Title 28, United States Code, Section 1343 and hence, that it is entitled to sue under the provisions of said statutes for the protection of its rights under the Constitution and Laws of the United States. McCoy v. Providence Journal Co., 190 F.2d 760 (1 Cir. 1951); Wackenhut Corporation v. Union de Tronquistas de Puerto Rico, Local 901, supra; Toa Baja Development Corporation v. Garcia-Santiago, 312 F.Supp. 899 (D.C.P.R. 1970); Inmobiliaria Borinquen, Inc. v. Garcia-Santiago, 295 F.Supp. 203 (D.C.P. R.1969).

There being no question that plaintiff can seek to vindicate its civil rights under the civil right statutes, the inquiry must then turn to a determination of whether the complaint properly brings an action under said statutes. In order to maintain a cause of action under Section 1983 a plaintiff must show that defendants, acting under color of law, have subjected plaintiff to a deprivation of rights, privileges or immunities secured to plaintiff by the Federal Constitution and Laws. Kletschka v. Driver, 411 F.2d 436 (2 Cir. 1969); Jones v. Hopper, 410 F.2d 1323 (10 Cir. 1969), cert. den. 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399 (1969). In the instant case plaintiff certainly alleges that its rights to equal protection and due process have been infringed by defendants acting under color of state law. However, since bare assertions do not confer jurisdiction we must determine if the factual allegations of the complaint support the conclusionary allegations of constitutional deprivation. Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2 Cir. 1972); Metcalf v. Ogilvie, 436 F.2d 361 (7 Cir. 1970); Finley v. Rittenhouse, 416 F.2d 1186 (9 Cir. 1969); Negrich v. Hohn, 379 F.2d 213 (3 Cir. 1967); Pugliano v. Staziak, 231 F.Supp. 347 (D.C.Pa.1964), affd. 345 F.2d 797 (3 Cir. 1965).

Considering first the equal protection claim the Court finds no factual allegations in the complaint which support it. Plaintiff merely claims in Paragraph 15 that: "The unilateral decision referred to in paragraph 17, above, is discriminating and denies plaintiff the equal protection of the laws because defendants, without giving any reasons for it, are obstructing Comtronics' operations while at the same time they are reserving the power of determining who will be allowed to interconnect and what similar companies will be permitted to operate in Puerto Rico. Moreover, they have not promulgated or published any standards, guidelines or criteria for the...