PUEBLO INTERN., INC. v. DE CARDONA

• Decision Date: 28 April 1983
• Docket Number: Civ. No. 82-3064(PG).
• Citation: 562 F. Supp. 843
• Parties: PUEBLO INTERNATIONAL, INC., et al., Plaintiffs, v. Hector Reichard DE CARDONA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

562 F. Supp. 843

PUEBLO INTERNATIONAL, INC., et al., Plaintiffs, v. Hector Reichard DE CARDONA, et al., Defendants.

Civ. No. 82-3064(PG).

United States District Court, D. Puerto Rico.

April 28, 1983.

Andres Salas Soler, Rio Piedras, P.R., Luis Dávila Colón, Hato Rey, P.R., Robert H. Morse, and Morris R. Garfinkle, Galland, Kharasch, Calkins & Morse, P.C., Washington, D.C., for plaintiffs.

Eduardo L. Buso, Dept. of Justice, and Gloriana Ruiz, San Juan, P.R., for defendants.

Marisa Brugueras, and Luis F. Castillo, Hato Rey, P.R., for League of Women Voters, Awilda Morales and E. Gonzalez.

Eduardo E. Ortíz, Humacao, P.R., for intervenor Supermercados Cooperativos del Este.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

Pueblo International, Inc., a Delaware corporation, doing business in Puerto Rico under the name of Supermercados Pueblo, and Jorge Luis Rodríguez Huertas, a resident of San Juan, Puerto Rico, filed this action in the Superior Court of Puerto Rico, Humacao Part, on November 17, 1982. The defendants are officers of the Commonwealth of Puerto Rico who allegedly have the responsibility of putting into effect and enforcing the Puerto Rico Closing Law, 33 L.P.R.A. 2201 et seq. The complaint alleges that the Closing Law "under pretense of legislative authority imposes penal sanctions of fine or jail for any violation of it, thus preventing Pueblo International, Inc., to operate its business during the hours and days ponted (sic) out, deprives Jorge Luis Rodríguez from exhorting those hours and deprives the consumers who wolk (sic) every day fulltime, form (sic) doing their shopping on the only time they have available." Plaintiffs pray for a declaratory judgment rendering unconstitutional the Puerto Rico Closing Law and for a provisional and permanent injunction prohibiting defendants from putting into effect said law and from processing the plaintiffs for alleged violation of the same.

On December 17, 1982, defendants filed a Verified Petition for Removal, a memorandum in support thereof, and the bond for removal. Plaintiffs, on February 4, 1983, filed a motion to remand the case to the state court and/or to abstain. Subsequently, on March 18, 1983, plaintiffs filed two other motions: one, for Dismissal of Removal Petition for Lack of Subject Matter Jurisdiction and/or Abstention, and the other, a Supplementary Memorandum of Law Based on the Younger Doctrine. Defendants filed an opposition to plaintiffs' motion to dismiss on April 7, 1983. These motions present two issues for resolution. First, is the case properly removable under Section 1441 of Title 28 of the United States Code; second, does the exclusive jurisdiction of the antitrust claim alleged in the complaint prevent removal.

In support of their removal, defendants, in their motion, rely on Section 1441(a) and (b). However, in their opposition to plaintiffs' motion to dismiss, defendants claim that this Court has jurisdiction over the entire case pursuant to Section 1441(c) of Title 28, United States Code.¹ Said section provides:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

Plaintiffs, in support of remand, assert that removal is barred by the Sherman Act, 15 U.S.C. § 1 et seq. Plaintiffs further contend that since removal jurisdiction is derivative and the state court has no jurisdiction of the federal claim under the Sherman Act because federal district courts have exclusive jurisdiction over such cases, the federal court under the rule established in Lambert Run Coal Co. v. Baltimore & Ohio Railroad Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922), could not acquire jurisdiction upon removal of the Sherman Act claim.

Plaintiffs allege as alternative that the Court should abstain under the principles of the Younger Doctrine. The Court will not consider at this moment this second alternative since we are going to certify this order as appealable under 28 U.S.C. § 1292(b). If the First Circuit Court of Appeals rules that removal was proper, then we will entertain the issue of abstention.

A review of the complaint shows that plaintiffs raise a number of claims which implicate questions of federal law. Plaintiff Pueblo's complaint at the time the petition for removal was filed² sets forth four alternative theories to render unconstitutional the provisions of the Closing Law of Puerto Rico:

(a) that the closing law unduly interferes with interstate commerce;

(b) that the closing law unreasonably limits free enterprise in violation of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2) and Sections 258 and 260 of the Puerto Rico Antimonopolistic Legislation (10 L.P.R.A. 258, 260);

(c) that the closing law deprives Pueblo of its rights to liberty, property, due process of law and equal protection embodied in the Constitution of the United States and the Constitution of the Commonwealth of Puerto Rico;

(d) that all of the above rights are protected in Puerto Rico by the Civil Rights Act of the United States (42 U.S.C. § 1983) and by the Civil Rights Act of Puerto Rico (32 L.P.R.A. 3524).

Plaintiff Jorge Luis Rodríguez Huertas' pleadings set forth other theories to render unconstitutional the provisions of the Closing Law of Puerto Rico:

(a) that the closing law limits plaintiff's constitutional right to live and earn a daily living, in violation of Article 2, Section 7 of the Constitution of Puerto Rico, and the First, Fifth and Fourteenth Amendments to the Constitution of the United States;

(b) that the closing law deprives plaintiff of his right to "freely choose his occupation, to receive equal pay for equal work, and to earn a living by rendering serviced paid in are (sic) extraordinary capacity", in violation of Article 2, Section 16 of the Constitution of Puerto Rico, and the First, Fifth and Fourteenth Amendments to the Constitution of the United States.

We have to ascertain whether the claims asserted by plaintiff Pueblo against defendants are separate and independent of the claims asserted by plaintiff Jorge Luis Rodríguez against the same defendants. If some of the independent claims found in the case are removable, the whole case can be removed pursuant to Section 1441(c).

1A Moore's Federal Practice, Par. 0.163(4-5), at 268, states:

"(W)here twice or more plaintiffs join in one action to sue one or more defendants, separate and independent claims may or may not be present. If the plaintiffs for example are suing to enforce a right held jointly by them, they are not asserting separate claims. If, on the other hand, the plaintiffs, having joined in the action because of a common question of law or fact, are proceeding to enforce rights that are individual to them, then the action involves separate and independent claims for removal purposes."

The Supreme Court, in American Fire Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), defined the term cause of action as used in Section 1441(c):

"A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. Thus, we conclude that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under 1441(c)." Id., at 14, 71 S.Ct. at 540.

According to the First Circuit Court of Appeals, what finally governed the Court's decision in Finn, was "the singularity of the harm the plaintiff sought to remedy, not the several reasons she gave to show her legal entitlement to that remedy". New England Concrete Pipe Corp. v. D/C Systems of N.E., Inc., 658 F.2d 867, 872 (1 Cir.,1981).

In the New England Concrete Pipe case a subcontractor brought an action to recover for materials and labor supplied to a housing project. Unlike the case at bar, no basis existed therein for original federal subject matter jurisdiction. The dispute did not implicate any question of federal law, and the diversity of citizenship between the plaintiff and the defendants was far from complete. The Court of Appeals held that regardless of the number of theories of recovery of "claims" asserted in the complaint, when what the complaint demanded was compensation for a single wrong, i.e., failure to pay for the work performed pursuant to a subcontract, there was no separate and independent claim or cause of action which would be removable if sued upon alone within the meaning of Section 1441(c), and thus the district court lacked jurisdiction.

However, in this case, although there are a number of theories of recovery or "claims" asserted in the complaint by plaintiffs, the closing law constitutes a wrong personal to each plaintiff. As to Pueblo, the single wrong is that the law prevents Pueblo from operating its business during week days after 6:00 P.M., legal holidays and Sundays, during hours expressly prohibited by the statute. The single wrong to the individual Rodríguez Huertas is that said law deprives him of his right to work. Thus, the wrong personal to each plaintiff gives rise to separate and independent claims or causes of action in favor of each plaintiff, which are removable if sued upon alone because of federal question jurisdiction. Plaintiffs' claims against the defendants did not arise from a single wrong, but arose from two separate and independent wrongs.

The only remaining question is whether exclusive jurisdiction over the federal antitrust claim bars removal, assuming the requirements of Section 1441(c) are otherwise satisfied. This question appears to be one of first impression in this district and in the First Circuit Court of Appeals although a few cases have...