Tropical Air Flying Serv. V. Feliciano De Melecio

• Decision Date: 31 July 2001
• Docket Number: No. 00-2337 (DRD).,00-2337 (DRD).
• Citation: 158 F.Supp.2d 177
• Parties: TROPICAL AIR FLYING SERVICES, INC. d/b/a/ Tropical Air Transport, Plaintiffs, v. CARMEN FELICIANO DE MELECIO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 177

158 F.Supp.2d 177

TROPICAL AIR FLYING SERVICES, INC. d/b/a/ Tropical Air Transport, Plaintiffs, v. CARMEN FELICIANO DE MELECIO, et al., Defendants.

No. 00-2337 (DRD).

United States District Court, D. Puerto Rico.

July 31, 2001.

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Charles A. Cuprill-Hernandez, Old San Juan, PR, Michael J. Rovell, Chicago, IL, for plaintiffs.

Leoncio P. Beraza, Administration de Servicios Medicos de PR, San Juan, PR, Arturo Diaz-Angueira, Roberto Feliberti, Cancio, Nadal, Rivera & Diaz, San Juan, PR, Francisco A. Ojeda-Diez, Department of Justice of PR, Federal Litigation Division, San Juan, PR, Jose R. Perez-Hernandez, Mayol-Bianchi, PSC, Guaynabo, PR, Jorge A. Pierluisi-Jr., Pierluisi Law Offices, PSC, Hato Rey, PR, for defendants.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Plaintiff Tropical Air Transport is a corporation organized and authorized to do business under the laws of Puerto Rico. Tropical Air Transport was created and is engaged in providing specialized aeromedic health care and services from the area of an accident to the nearest hospital or medical facility capable of attending the patient's condition without delay. Plaintiff has filed a Complaint (Docket No. 1) bringing forth an action against Defendants for the violation of rights, privileges and protections guaranteed by the United States Constitution and Federal Civil Rights Act, 42 U.S.C. § 1983. Plaintiff also asserts its rights to engage in interstate commerce free from discrimination and restraint arising from state laws and actions undertaken by public officials and others pursuant to Section 1 of the Sherman Act, 15 U.S.C. § 1, Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, Section 43 of the Lanham Act, 25 U.S.C. § 1125, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2201. The Complaint further presents supplemental antitrust, unfair competition, and claims under the laws of Puerto Rico. In sum, Plaintiff alleges that all Defendants, as government officials, have acted under color of state law, regulations, customs and policies or in concert with the other defendants at all times relevant to the averments in restraining him from engaging in interstate commerce.

Co-defendant Aeromed Services, Corp. ("Aeromed") is a corporation organized under the laws of Puerto Rico which also provides specialized aeromedic health care and services from the area of an accident to the nearest hospital or medical facility capable of dealing with the patient's condition without delay. Said corporation is presently contracted by the Department of Health of Puerto Rico to render such services.

As to Co-defendant to Aeromed, Plaintiff avers that, in providing aeromedic health care services, complainant has attempted to detain the monopolistic services offered in Puerto Rico by Defendant Aeromed which have been rendered with the active participation and assistance of Defendants Feliciano et al. Plaintiff holds that by being excluded by Defendants Feliciano et al.¹ from providing said health care services, his rights privileges and protections guaranteed by the United States Constitution and his Civil Rights are being violated. Plaintiff further avers that Defendants deprived him of his equal protection rights since Defendants have arbitrarily and capriciously discriminated against Plaintiff by refusing to enter into contract with him and by not imposing on Aeromed the same licensing requirements delineated by the Federal Aviation Agency ("FAA"). Plaintiff, therefore, prays for the permanent enjoinment of Defendants from continuing with the violations of said laws and from entering into any combination, conspiracy, agreement, understanding or concert of actions, omissions, endeavors, or undertakings against him. Plaintiff also requests the granting of compensatory damages, reasonable attorney's fees and costs and treble damages.

Pending before the Court is Defendant Aeromed's Motion to Dismiss Under Rule 12(b)(1) filed on December 13, 2000 along with its Memorandum of Law in Support of Motion. (Docket No. 20). On February 20, 2001 Plaintiff filed an Opposition to said motion. (Docket No. 32). On February 25, 2001, Defendants Carmen Feliciano, Juan Pares, Juan Velázquez, Juan Nazario, Edwin Miranda, Benjamín Rodríguez, Praxedes Pedraza, Oscar Martínez, Silvia Maysonet, Sonia Cedeño, Héctor Berberena, Ivonne Gierbolini, Angel Díaz, and Rosa Monroig ("Feliciano, et al.") also filed a Motion to Dismiss (Docket No. 34) under Rule 12(b)(1) and 12(b)(6). To date, Plaintiff has not opposed said motion.

On June 25, 2001 Plaintiff filed a Motion (Docket No. 40) accompanying an Amended Complaint and indicating to the Court that said "amended complaint renders moot... Aeromed Services Corp.'s pending motions to dismiss." The Court deems the one and only motion to dismiss filed by Aeromed not moot since both the Complaint and the Amended Complaint contain the same allegations against Aeromed. In addition, Aeromed's Motion to Dismiss addresses subject matter jurisdiction.

At this time, the Court will adjudicate both motions.

I. AEROMED'S MOTION TO DISMISS UNDER RULE 12(b)(1)

A. Motion to Dismiss Under Rule 12(b)(1) Standard

"As a general matter, trial courts should give Rule 12(b)(1) motions precedence." Dynamic Image Technologies, Inc. v. U.S., 221 F.3d 34, 37 (1st Cir.2000). Motions under Rule 12(b)(1) are brought forth to attack two different types of defects: the pleader's failure to comply with Federal Rule of Civil Procedure 8(a)(1)² and the Court's actual lack of subject matter jurisdiction—which may exist despite the formal sufficiency of the allegations in the complaint. 5A JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 1350 (2d ed.1990). When the basis for a Rule 12(b)(1) motion is lack of federal question, as is the allegation before the Court, the pleader must show that the counterpart's claim does not fall under the category of federal question and is frivolous. That is, "the party invoking the jurisdiction of the federal court carries the burden of proving its existence." Nater v. Riley, 114 F.Supp.2d 17, 19 (D.P.R.2000). See Miller v. Hygrade Food Products, Corp., 89 F.Supp.2d 643 (E.D.Pa.2000); Smith v. SSA, 54 F.Supp.2d 451 (E.D.Pa.1999); Kronmuller v. West End Fire Co. No.3, 123 F.R.D. 170 (1988). Further, even though the factual allegations of the complaint are presumed to be true and the complaint is reviewed to ensure that each element necessary for jurisdiction is present, when the factual allegations of jurisdiction are attacked by a Motion to Dismiss under Rule 12(b)(1), courts are not limited in their review to the mere allegations contained in the complaint. Thus, the Court may evaluate for sufficiency any and all of the evidence presented. Halstead v. Motorcycle Safety Foundation, Inc., 71 F.Supp.2d 464, 468 (E.D.Pa.1999) ("[A]ny evidence may be reviewed and any factual disputes resolved regarding the allegations giving rise to jurisdiction, since it is for the Court to resolve all factual disputes involving the existence of jurisdiction.") If, and only when, it appears that the non-moving party will not be able to assert a colorable claim of subject matter jurisdiction, may the Motion to Dismiss be granted and the complaint dismissed. See Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884 (3d Cir. 1977).

B. Discussion

In the Motion to Dismiss, Aeromed alleges that this Court does not have subject matter jurisdiction over this suit because its activities are not within the flow of interstate commerce and, by no means, have a direct and/or substantial effect on interstate commerce. (Docket No. 20). That is, Plaintiff failed to establish the jurisdictional element of a Sherman Act violation. Defendant avers that the United States Supreme Court held in McLain v. Real Estate, 444 U.S. 232, 242, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980), that to establish jurisdiction it would be sufficient for Plaintiff to demonstrate a substantial effect on interstate commerce generated by Defendant's activity. Aeromed also asserts that the First Circuit has traditionally followed McLain, 444 U.S. 232, 100 S.Ct. 502, and has established in Córdova & Simonpietri v. Chase Manhattan, 649 F.2d 36 (1st Cir.1981) that Defendant's business "still must be so connected with interstate commerce that it is logical, as a matter of practical economics, to believe that an unlawful activity will affect interstate commerce logically affected by defendants unlawful conduct." (Docket No. 20). Thus, in order to meet this jurisdictional requirement of subject matter jurisdiction, the activity that is challenged must occur within interstate commerce or, otherwise, while wholly local, have a substantial effect on interstate commerce.

In McLain, 444 U.S. at 241, 100 S.Ct. at 508, the Supreme Court of the United States reiterated the long established theory that the authority of Congress under the commerce clause has long been interpreted to extend beyond activities that constitute interstate commerce to other activities that substantially affect interstate commerce even though they are purely local activities in nature. See II PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITURST LAW ¶ 311 (revised ed.1995). However the Supreme Court, at that point in time, also chose to limit that "extension" determining that "to establish jurisdiction a plaintiff must allege the critical relationship [between the challenged activity and interstate commerce] in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings." McLain, 444 U.S. at 242, 100 S.Ct. at 509. Aeromed erroneously rests on McLain, 444 U.S. 232, 100 S.Ct. 502 (1980). Although Defendant is right in recurring to the argument that "defendant's business still must be so connected with interstate commerce that it is logical, as a matter of practical economics, to...