Lopez-Ramos v. Cemex de P.R., Inc.

• Decision Date: 01 September 2020
• Docket Number: CIVIL NO. 19-1443 (RAM)
• Parties: MIKE A. LOPEZ-RAMOS, PATSY PACHECO-DIAZ, per se and in representation of their minor children NL-P and BL-P, Plaintiffs, v. CEMEX DE PUERTO RICO, INC., D/B/A CEMEX PUERTO RICO, ENERSY ENGINEERING CORPORATION, JOHN DOE, RICHARD ROE, and their respective insurance companies, Defendants
• Court: U.S. District Court — District of Puerto Rico

MIKE A. LOPEZ-RAMOS, PATSY PACHECO-DIAZ, per seand in representation of their minor children NL-P and BL-P, Plaintiffs, v. CEMEX DE PUERTO RICO, INC., D/B/A CEMEX PUERTO RICO, ENERSY ENGINEERING CORPORATION,JOHN DOE, RICHARD ROE, and their respective insurance companies, Defendants

CIVIL NO. 19-1443 (RAM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

September 1, 2020

AMENDED OPINION AND ORDER (NUNC PRO TUNC)

RAÚL M. ARIAS-MARXUACH, United States District Judge

Pending before the Court is Co-defendant Enersys Engineering Corporation's ("Enersys") Motion to Dismiss All Federal Claims and Request that Supplemental or Pendent Jurisdiction Not be Exercised ("Motion to Dismiss"). (Docket No. 47). Having reviewed Plaintiffs' Response in Opposition to Dismiss All Federal Claims ("Response"), (Docket No. 50), the Court GRANTS Defendant's Motion to Dismiss, dismisses with prejudice the federal claims and declines to exercise supplemental jurisdiction over Plaintiffs' claims which rely upon Puerto Rico law. Judgment of dismissal with prejudice as to the federal claims and dismissal without prejudice as to the supplemental state law claims shall be entered accordingly.

I. BACKGROUND

This case arises from a June 30, 2017 workplace accident. (Docket No. 43 ¶ 11). According to the Amended Complaint, while employed by co-defendant Enersys, plaintiff Mike A. López-Ramos ("Plaintiff" or "López-Ramos") was injured during repairs to a cement grinding and process tank at Cemex de Puerto Rico's ("Cemex") Cement Plant in Ponce, Puerto Rico. Id. ¶¶ 11-12, 15. The Amended Complaint avers that two weeks after the accident, Mr. López-Ramos' supervisor Charlie Quiñones ("Quiñones") proposed to pay his salary while on medical leave. Id. ¶ 20. Quiñones also "asked" that Plaintiff testify favorably as to Enersys in a "MSHA" investigation. Id. ¶ 21.¹ Mr. López-Ramos allegedly withheld information from the investigator and he was dismissed when he went to collect his third paycheck. Id. ¶¶ 23, 26. He states that "after filing the administrative complaint and while under medicaltreatment and rehabilitation, he was fired/terminated without just cause". Id. ¶ 27.

The Amended Complaint purports to state the following claims under the laws of the United States: (a) violations to Mr. López-Ramos' rights under the Mine Improvement and New Emergency Response Act of 2006 ("Miner Act"), the Federal Mine Safety and Health Act of 1977 ("Mine Act"), the Occupational Safety and Health Act of 1970 ("OSHA") and regulations thereunder; (b) retaliation and reprisals under the Miner Act, the Mine Act, and OSHA and an unspecified "Whistle Blower Act;" and (c) violation of Mr. López-Ramos' rights under the Americans with Disabilities Act ("ADA") of 1990. Id. ¶¶ 31-33. The Amended Complaint also purports to state claims under the following laws of the Commonwealth of Puerto Rico: (a) Articles 1802 and 1803 of the Civil Code of Puerto Rico; (b) Puerto Rico's Labor Laws including Public Law No. 80 of May 30, 1976, and an unnamed state law against retaliation; and (c) a claim under Puerto Rico's Work Accident Compensation Act, Act No. 45 of April 18, 1935. Id. ¶¶ 34-36.

On February 3, 2020, defendant Enersys moved for dismissal of the Amended Complaint's federal claims for failure to state a claim upon which relief can be granted and, consequently, dismissal of the state law claims because the Court should decline to exercise its supplemental jurisdiction under 28 U.S.C. 1367. (Docket No. 47). Among other grounds for dismissal, Enersys posits that: (a) the Mine Act and OSHA do not provide Mr. López-Ramos with a private right of action; (b) Mr. López-Ramos does not fall within the Federal Whistleblower Act's aegis because he was not a federal employee; and (c) Mr. López-Ramos failed to state a claim under ADA or in the alternative, any ADA claim is time-barred. Id. 5-24.

For the below-stated reasons, the Court agrees with Enersys that the Amended Complaint does not state claims upon which relief can be granted under federal law and declines to exercise supplemental jurisdiction pursuant to 28 U.S.C.§ 1367(c).

II. LEGAL STANDARDS

A. Dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1):

Federal courts are courts "of limited jurisdiction, limited to deciding certain cases and controversies." Belsito Commc'ns, Inc. v. Decker, 845 F.3d 13, 21 (1st Cir. 2016). The "party asserting jurisdiction has the burden of demonstrating its existence." Fina Air Inc. v. United States, 555 F. Supp. 2d 321, 323 (D.P.R. 2008). Pursuant to Fed. R. Civ. P. 12(b)(1), a defendant may move to dismiss an action for lack of subject matter jurisdiction. There are two ways for a defendant to challenge the existence of subject matter jurisdiction: a "facial attack" or a "factual attack." Id.

"In a facial attack, a defendant argues that the plaintiff did not properly plead jurisdiction." Compagnie Mar. Marfret v. San Juan Bay Pilots Corp., 532 F. Supp. 2d 369, 373 (D.P.R. 2008) (quotation omitted). The court must take all the allegations in the complaint as true and determine if the plaintiff sufficiently evinced a basis of subject matter jurisdiction. See Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007). Whereas "a factual attack asserts that jurisdiction is lacking on the basis of facts outside of the pleadings." Compagnie Mar. Marfret, 532 F. Supp. 2d at 373 (quotations omitted). When facing a factual attack, the court is "not confined to the allegations in the complaint and 'can look beyond the pleadings to decide factual matters relating to jurisdiction.'" Rivera Torres v. Junta de Retiro Para Maestros, 502 F. Supp. 2d 242, 247 n. 3 (D.P.R. 2007) (quotation omitted).

B. Dismissal for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6):

Fed. R. Civ. P. 12(b)(6) requires dismissal of a complaint that "fails to state a claim upon which relief can be granted." Under Rule 12(b)(6), the plaintiff must plead enough facts to state a claim that is "plausible" on its face, and the "[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)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations marks, citations and footnote omitted). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. Further, a complaint will not stand if it offers only "naked assertion[s]" devoid of "further factual enhancements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

To determine whether a complaint has stated a plausible, non-speculative claim for relief, courts must treat non-conclusory factual allegations as true. See Nieto-Vicenty v. Valledor, 984 F. Supp. 2d 17, 20 (D.P.R. 2013). They may also consider: "(a) 'implications from documents' attached to or fairly 'incorporated into the complaint,'(b) 'facts' susceptible to 'judicial notice,' and (c) 'concessions' in plaintiff's 'response to the motion to dismiss.'" Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir. 2012) (quotation omitted).

III. OPERATIVE FACTS

Pursuant to the standards governing dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the following facts, derived from the non-conclusory allegations in the Amended Complaint and documents filed alongside the Response, are taken as true for purposes of this motion:

1. Plaintiffs Mr. López-Ramos and his wife Patsy Pacheco-Díaz are residents of Peñuelas, Puerto Rico. (Docket No. 43 ¶ 6).

2. Defendant Cemex de Puerto Rico, Inc. ("Cemex"), is a corporation organized and existing under the laws of Puerto Rico per the records of the Puerto Rico Department of State.²

3. Co-defendant Enersys is a corporation organized and existing under the laws of Puerto Rico according to the records of the Puerto Rico Department of State.³ Enersys was Mr. López-Ramos' employer. (Docket No. 43 ¶ 9).

4. On June 30, 2017, Mr. López-Ramos was employed by Enersys and working with four (4) other workers on repairing a steel cement process and grinding tank at Cemex's Cement Plan in Ponce, Puerto Rico. Id. ¶ 11. Also present were two supervisors, Charlie Quiñones ("Quiñones") and Hector Acensio ("Acensio"), of Enersys and Cemex, respectively. Id. ¶¶ 11, 13.

5. Mr. López-Ramos' work consisted of removing the tank's old steel plates and replacing them with new ones. Id. ¶ 12. An incident occurred where three (3) steel plates detached and fell but did not injure the workers. Id. Each plate weighed about 50-60 pounds. Id. ¶ 13.6. Mr. Quiñones reported the incident to Mr. Acensio. The latter did not react to the report. Id.

7. Plaintiff continued working as ordered by Mr. Quiñones. Once again, the steel plates detached and fell. This time, the plates struck and injured Plaintiff, causing him to fall. Id. ¶¶ 14-15.

8. Plaintiff was taken to Cemex's infirmary where he was interviewed by the nurse and by Cemex's Safety Officer and he filled and signed an accident report. Id. ¶¶ 16-17.

9. He was subsequently taken to the Puerto Rico Worker's Insurance Fund Emergency Room in Ponce where he has given medical care and discharged. Id. ¶¶ 18-19.

10.Around two weeks after the accident, Mr. Quiñones called Mr. López-Ramos and pleaded with him not to sue. He offered to pay Mr. López-Ramos' salary while the latter was under leave pursuant to the Puerto Rico's Workmen's Accident and Compensation Act. Id. ¶ 20.

11.After Enersys' Superintendent Edward Pérez's ("Pérez") agreed to pay Mr. López-Ramos' salary, Mr. Quiñones also asked Mr. López-Ramos to testify favorably as to Mr. Quiñones when interviewed by an MSHA inspector or investigator. Mr. López-Ramos was then interviewed by a MSHA representative and he omitted the

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