Torres v. Junto De Gobierno De Servicio De Emergencia

• Decision Date: 10 March 2015
• Docket Number: Civil No. 14–1622 GAG.
• Parties: Jose Blanco TORRES, Plaintiff v. JUNTO DE GOBIERNO DE SERVICIO DE EMERGENCIA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

91 F.Supp.3d 243

Jose Blanco TORRES, Plaintiff

v.JUNTO DE GOBIERNO DE SERVICIO DE EMERGENCIA, et al., Defendants.

Civil No. 14–1622 GAG.

United States District Court, D. Puerto Rico.

Signed March 10, 2015.

Bamily Lopez–Ortiz, Lopez Toro, Estudio De Derecho & Notaria, Rio Grande, PR, Marie E. Lopez–Adames, The Diplomat Condominium, Condado, PR, for Plaintiff.

Yadhira Ramirez–Toro, Department of Justice, San Juan, PR, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPÍ, District Judge.

José Blanco Torres, Plaintiff in this matter, brought this action against Junta de Gobierno del Servicio de Emergencia 9–1–1 (“the Board”) and Director Roberto Fuentes–Maldonado (“Fuentes”) in his official and individual capacity (collectively referred to as “Defendants”), alleging that he was discriminated against on the basis of his disability and age in violation of Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.; the Fourteenth Amendment to the United States constitution, pursuant to § 1983 of the Civil Rights Act of 1991; Puerto Rico Law No. 44 of July 2, 1985, P.R. LAWS ANN. tit. 1 §§ 501 et seq. (“Law 44”); and No. 100 of June 1959, P.R. LAWS ANN. tit. 29 §§ 146 et seq. (Docket No. 1 and 26.) Plaintiff essentially claims that Defendants unlawfully and unconstitutionally discriminated against him by terminating his employment due to his disability stemming from his Parkinson's disease

. (Docket No. 26.)

Presently before the court is Defendants' motion to dismiss Plaintiff's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6). (Docket No. 31.) In sum, Defendants argue that the amended complaint should be dismissed because the process served upon the Board and Fuentes was insufficient and the complaint fails to state a claim upon which relief can be granted. (Id. at 5–27.) Plaintiff opposed Defendants' motion. (Docket No. 41.)

After reviewing the pleadings and pertinent law, the court GRANTS in part and DENIES in part Defendants' motion to dismiss at Docket No. 31.

I. Relevant Factual and Procedural Background

In 2005, Plaintiff began to slowly develop Parkinson's disease

, which is a progressive, degenerative disease of the nervous system that affects both motor and non-motor functions. (Docket No. 26 ¶¶ 25–26.) Plaintiff worked as an attorney for the Board from January, 2009 until his termination in March, 2013. (Id. ¶¶ 12–13, 22–24.) He was hired as a contract attorney and later became in-house counsel. (Id. ¶¶ 12–13.) In March, 2012, Plaintiff underwent a surgical procedure known as “Deep Brain Stimulation ” to attenuate his Parkinson's disease symptoms. (Id. ¶ 15.) Almost everyone in his office was aware of his disease and this procedure. (Id. ¶ 16.) Upon returning to work, Plaintiff was given reasonable accommodation for his disability by then Executive Director of the Board, Manuel González. (Id. ¶ 17.)

Thereafter, as a result of Puerto Rico's November, 2012 general elections, a new administration came to power, which resulted in new members to the Board's staff, including Executive Director Fuentes. (Id. ¶ 18–21.) On or about February 25, 2013, Plaintiff met with A. Vera (“Vera”), a member of the Elections Transition Committee and newly appointed Human Resources Director whose full name is unknown to him. (Id. ¶ 21.) In this meeting, Plaintiff informed Vera that he was an impaired person aggrieved with Parkinson's disease

and that he had gone through a special surgical procedure to mitigate his impairment. (Id. ) Plaintiff also informed Vera that despite his disease, with some reasonable accommodations, he could perform all of the essential duties of his current position. (Id. ¶ 23.)

On that same date, Vera attended a meeting in which he expressed that he “was worried about [Plaintiff's] Parkinson's disease

health condition.” (Id. ) Thereafter, Plaintiff wrote a letter to Fuentes, requesting a meeting with him. (Id. ¶ 24.) Said letter was never answered and the Board never attempted to engage in the process of establishing reasonable accommodation to allow Plaintiff to perform his essential and official duties with the Board. (Id. ) On March 1, 2013, Plaintiff was terminated from his position with the Board. (Id. )

Plaintiff filed this suit, alleging that he was wrongfully terminated because of his disability on March 1, 2013. (Docket No. 26 ¶¶ 22–24.) That same day, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶¶ 9, 33.) Thereafter, on August 28, 2014, Plaintiff received the Notice of the Right to Sue by the EEOC and United States Department of Justice. (Id. ¶ 36.) On December 8, 2014, Plaintiff amended his complaint, which added his claim under Laws 44 and 100.

II. Motion to Dismiss under Rule 12(b)(5)

The court will address, as a threshold matter, whether the Board and Fuentes were properly served and, therefore, whether the court has personal jurisdiction over Defendants. According to the Proof of Service, Plaintiff attempted to effect service on Defendants by leaving a copy of the summons with Fuentes's secretary, Norma Rivera (“Rivera”). (Docket Nos. 18 at 2; 18–1 at 2; 182 at 2; 18–3 at 2.) Defendants now challenge this service by moving to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(5) of the Federal Rules of Civil Procedure and including sworn statements by Fuentes and Rivera, indicating that Fuentes never authorized or appointed Rivera to receive service on his behalf in his official or individual capacity. (Docket Nos. 31–1 and 31–2.) Defendants further note that Plaintiff failed to include a copy of the complaint with the summons. (Docket No. 31 at 6.) Plaintiff responds by first arguing that because Rivera was a secretary of the Board and Fuentes, it logically follows that she had the authority to receive summons on behalf of the Board and Fuentes. (Docket No. 41 at 3–5.) Nevertheless, as an alternative argument, Plaintiff avers that to the extent that service of process was defective, the appropriate remedy is to quash service and allow Plaintiff to cure its defects because it is clear that the purpose of giving Defendants notice was attained. (Id. at 5.)

Fed.R.Civ.P. 4(m) provides that service of process must be made “within 120 days after the complaint is filed.” Fed.R.Civ.P. 4(m). Service of process may be made upon the individual being sued, by leaving a copy of the summons and complaint at the individual's “usual place of abode with someone of suitable age and discretion who resides there,” by delivering a copy to the individual's agent, or in accordance with the laws of Puerto Rico. Fed.R.Civ.P. 4(e). It is well established that in Puerto Rico “individuals may not be served by merely leaving the complaint and summons at their place of business, unless an agent receives the documents.” Figueras v. Autoridad de Energia Electrica, 553 F.Supp.2d 43, 44 (D.P.R.2007). The courts have recognized that for a person to be an agent capable of receiving process for another, he or she must be authorized as such. See Miranda v. IPR Pharm., No. 10–2238, 2011 WL 5977813, at *6 (D.P.R. Nov. 29, 2011) ; Rivera v. Bank One, 145 F.R.D. 614, 626 (D.P.R.1993). Further, because service of process is a constitutional imperative of due process of law, the Puerto Rico Supreme Court has demanded strict compliance when its requirements are involved. See Quinones Roman v. Cia. ABC, 152 D.P.R. 367, P.R. Offic. Trans. (2000).

Pursuant to Fed.R.Civ.P. 12(b)(5), a defendant may move for dismissal of a cause of action for failure to comply with said rules by contesting the manner in which service of process was performed. Ramirez De Arellano v. Colloides Naturels Int'l, 236 F.R.D. 83, 85 (D.P.R.2006). However, Dismissal for failure to meet the service requirements of Fed.R.Civ.P. 4(e) is disfavored where “there is a reasonably conceivable means through which service may be obtained.” Id. at 85 n. 4 (“if the first service is ineffective, and the defects are curable, the [c]ourt should treat a motion to dismiss as a motion to quash service of process in the alternative and retain the case pending effective service”).

The resolution of this issue is simple. An examination of the specific facts articulated by Defendants, along with the pertinent law and Plaintiff's own concession, leads this court to find that Plaintiff's service of process was insufficient because Rivera was not authorized or appointed by Fuentes to receive service on his behalf in his official or individual capacity. When faced with this determination, the court has broad discretion to dismiss the action or retain the case and quash service of process. Ramirez De Arellano, 236 F.R.D. at 86 ; see also 5 C. Wright & A. Miller, Federal Practice and Procedure § 1354 (2004). Because the initial defects in Plaintiff's service of process are easily curable and this was Plaintiff's first attempt to serve Defendants, this court hereby quashes service of process and orders Plaintiff to properly serve Defendants by March 24, 2015. To decide otherwise would be a waste of the court's and the parties' times and resources.

Accordingly, the court DENIES Defendants' motion to dismiss this case due to Plaintiff's insufficient service of process and orders Plaintiff to re-serve Defendants promptly.

III. Motion to Dismiss under Rule 12(b)(6)

With respect to their 12(b)(6) motion, Defendants argue: (1) that the Eleventh Amendment to the United States Constitution bars Plaintiff's ADA claim against the Board and Fuentes in his official capacity; (2) there is no individual liability under Title I of the ADA and thus Plaintiff's claim against Fuentes in his individual capacity fails; (3) Plaintiff's complaint fails to sufficiently state an ADEA claim upon which relief can be granted against the Board and Fuentes in his official and individual capacity; (4) Plaintiff's civil rights claim under 42 U.S.C. § 1983 and...