Leopoldo Fontanillas v. Luis Ayala Colon Sucesores

• Decision Date: 24 September 2003
• Docket Number: No. CIV. 02-2835(SEC).,CIV. 02-2835(SEC).
• Citation: 283 F.Supp.2d 579
• Parties: LEOPOLDO FONTANILLAS, INC. Plaintiff v. LUIS AYALA COLON SUCESORES, INC.; et al. Defendants
• Court: U.S. District Court — District of Puerto Rico

283 F.Supp.2d 579

LEOPOLDO FONTANILLAS, INC. Plaintiff v. LUIS AYALA COLON SUCESORES, INC.; et al. Defendants

No. CIV. 02-2835(SEC).

United States District Court, D. Puerto Rico.

September 24, 2003.

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Nelson Rivera-Cabrera, San Juan, PR, Rosanna Bayonet-Tartak, Carolina, PR, for Plaintiffs.

José A. Bague-Soto and Erick A. Tulla, Rivera Tulla & Ferrer, Hato Rey, PR, José L. Gandara, Bauzá & Dávila, San Juan, PR, Daniel Molina-López and Hernando A. Rivera-Diaz, Totti & Rodríguez, Hato Rey, PR, Luis E. Padron-Rosado, Esq., Sanchez Betances & Sifre, P.S.C., San Juan, PR, Ramon A. Torres-Morales, Ponce, PR, for Defendants.

OPINION AND ORDER

CASELLAS, District Judge.

Plaintiff in the above-captioned case has brought suit against several Defendants under the federal antitrust statutes, the Commonwealth of Puerto Rico's antitrust laws, and for breach of contract and tortious interference with contractual relations under the Puerto Rico Civil Code (Docket # 1). Defendants have filed several motions to dismiss the complaint on different grounds (Docket## 18, 19, 21 and 23). Plaintiff has opposed said motions (Docket # 41 and 42), Defendants have filed several replies to said opposition (Docket # 46 and 48), and Plaintiff has finally countered with a sur-reply (Docket # 54). Having reviewed all the parties' arguments and the relevant case law, Defendants' motions will be GRANTED in part and DENIED in part.

Factual Background

Plaintiff is and has been engaged in the business of stevedoring, loading and unloading cargo from commercial ships in the Port of Ponce, as a Commercial Maritime Agent. Plaintiff alleges that, as part of said enterprise, it had handled all of the loading and unloading for Defendant Puerto Rico Cement Company, Inc. (PRCC) for several decades. Furthermore, Plaintiff states that it had established what it refers to as two "gentlemen's agreements"¹ with PRCC and Defendant Luis Ayala Colón Sucesores, Inc. (AYACOL), respectively. The oral agreement with PRCC consisted of a long-standing business relationship pursuant to which Plaintiff had been PRCC's exclusive Commercial Maritime Agent. On the other hand, Plaintiff alleges that it had reached another oral agreement with AYACOL, its principal competitor in the business of Commercial Maritime Agency in the Port of Ponce, pursuant to which they would not solicit each other's clients and would not otherwise try to interfere with each other's businesses.

Plaintiff alleges, however, that AYACOL, at some point in the recent past, reneged on the above-described agreement and began to attempt to monopolize the market for Commercial Maritime Agents in the Port of Ponce. As part of said attempt, Plaintiff argues, AYACOL breached its agreement with Plaintiff, and tortiously interfered with Plaintiff's contractual relationship with PRCC. As a result, and following the alleged purchase of a controlling interest of PRCC stock by Defendant Cemex, PRCC (and/or Cemex) finally decided to end its business relationship with Plaintiff and give all its business to AYACOL. In addition, Plaintiff alleges that AYACOL conspired with PRCC, Defendant Cemex and Defendant the Port of Ponce² and did, in fact, unreasonably restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15. Furthermore, Plaintiff has sued all four Defendants for tortious interference with its contracts, attempting to monopolize the Commercial Maritime Agency business, conspiring to and maintaining a monopoly in said industry, and conspiring to misappropriate trade secrets, all in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, the Puerto Rico antitrust statutes, 10 P.R. Laws Ann. §§ 258 et seq., and Article 1802 of the Puerto Rico Civil Code, 31 P.R. Laws Ann. § 5141.

Upon facing Plaintiff's myriad allegations, Defendants have raised a veritable plethora of arguments requesting that the complaint be dismissed in its entirety. We have digested all the issues and will discuss our approach to them while attempting to group them in the most reasonable and efficient manner.

Claims Against Defendant Cemex

First off, we will discuss Defendant Cemex, S.A. de C.V.'s motion to dismiss for lack of personal jurisdiction and for insufficiency of service of process, under Fed. R.Civ.P. 12(b)(2) and (5). We should note that Plaintiff did not bring suit against Cemex, S.A. de C.V., but rather against Cementos de Mexico, S.A. a/k/a Cemex. Defendant Cemex S.A. de C.V. has averred in its motion that there are no corporations under the names Cementos de Mexico, S.A. or Cemex. As such, any claims against these non-existent entities would have to be dismissed. On the other hand, the Court will construe Plaintiff's pleading liberally, and interpret that Plaintiff actually intended to sue Cemex S.A. de C.V.³

Now, let us take a look at Defendant Cemex S.A. de C.V.'s argument for dismissal for lack of personal jurisdiction. In order for a court to be able to make a binding decision which conforms with due process, the court must have personal jurisdiction over each party to the case. United States v. Swiss American Bank, Ltd., 191 F.3d 30, 35 (1st Cir.1999). The plaintiff always has the burden of establishing that the forum court has personal jurisdiction over the defendant. Mass. Sch. of Law at Andover v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir.1998); Rodríguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997). In ruling on this issue, the court has a number of different standards by which it may review the record to determine whether the plaintiff has met its burden. See Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 674-78 (1st Cir.1992). When a court holds an evidentiary hearing on the issue, one of two standards applies: either plaintiff must demonstrate a likelihood of the existence of all facts necessary to establish personal jurisdiction or plaintiff must show by a preponderance of the evidence the facts which support personal jurisdiction. Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145-47 (1st Cir.1995); Mohajer v. Monique Fashions, 945 F.Supp. 23, 26 (D.P.R.1996).

A third method often used at the early stages of litigation is the prima facie standard. Rodríguez, 115 F.3d at 83-84. Under this least taxing of the standards, a plaintiff must make a showing as to each fact required to satisfy both the local forum's long-arm statute and the Constitution's due process clause. Id. The district court does not sit as a factfinder; rather, "it ascertains only whether the facts duly proffered, fully credited, support the exercise of personal jurisdiction." Id. at 84. To make a prima facie showing, the plaintiff may not rest on unsupported allegations in the pleadings; instead, it must adduce evidence of specific facts which establish personal jurisdiction. Foster-Miller, 46 F.3d at 145; Boit, 967 F.2d at 675. In the present case, no party has requested an evidentiary hearing and the litigation is in its early stages. Moreover, the First Circuit has ruled that unless the district court otherwise informs the parties, it is to be understood that the prima facie standard will be used. See Rodríguez, 115 F.3d at 84. Accordingly, the Court will employ the prima facie standard in ruling on the motion to dismiss.

There are two types of personal jurisdiction: general and specific. Mass. Sch. of Law, 142 F.3d at 34; Pritzker v. Yari, 42 F.3d 53, 59 (1st Cir.1994). General jurisdiction exists when the lawsuit is not directly based on the defendant's contacts with the forum, but when the defendant has engaged in activity in the forum which is unrelated to the suit and which is systematic and continuous. Foster-Miller, 46 F.3d at 144 citing United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1088 (1st Cir.1992).

Specific jurisdiction requires a plaintiff to establish two conditions: first, that the forum has a long-arm statute which purports to grant jurisdiction over the defendant; and second, that the court's exercise of personal jurisdiction over the defendant pursuant to that statute would comport with the Constitution's strictures. Foster-Miller, 46 F.3d at 144; Pritzker, 42 F.3d at 60. With regard to this first condition, the Puerto Rico long-arm statute provides in pertinent part that a court in Puerto Rico has jurisdiction over a person not domiciled in Puerto Rico if the action arises because that person "[t]ransacted business in Puerto Rico personally or through an agent" or he "[p]articipated in tortious acts within Puerto Rico." 32 P.R. Laws Ann. app. III, R. 4.7(a)(1) and (2). This statute has been interpreted to include as a "business transaction" the sending of mail to Puerto Rico from another jurisdiction, see Dávila Fermín v. Southeast Bank, N.A., 738 F.Supp. 45, 48 (D.P.R.1990), and to include as tortious conduct an act committed outside Puerto Rico but which could reasonably be expected to cause injury within it, see Mangual v. Gen. Battery Corp., 710 F.2d 15, 19 (1st Cir.1983); Rivera v. Bank One, 145 F.R.D. 614, 620 (D.P.R.1993).

In its motion, Defendant Cemex, S.A. de C.V. has stated that it is a corporation incorporated under the laws of the United Mexican States with its principal place of business in Monterrey, Mexico. Furthermore, Defendant avers that it has not, by itself or through any agent: 1) made shipments, sales or deliveries of goods into Puerto Rico; 2) applied for or obtained a license to do business in Puerto Rico; 3) has not maintained any office, place of business, or bank accounts in Puerto Rico; and 4) has not acquired any real property located in Puerto Rico. These facts have not been controverted by Plaintiff, and are supported by unsworn statements under penalty of perjury provided by Defendant with its motion. Under these circumstances, we find that Plaintiff has failed to establish a prima fac...