Costas-Elena et al v. Municipality of San Juan, et al, No. 3:2008cv02403 - Document 52 (D.P.R. 2009)

Court Description: OPINION AND ORDER re 1 Complaint. We ORDER Plaintiffs to SHOW CAUSE, on or before November 9, 2009, as to why we should not order judgment on the pleadings in favor of Neighbors and dismiss Plaintiffs' claims under Puerto Rico law against Neig hbors. We RESERVE JUDGMENT on Municipality's motion to dismiss (Docket No. 42 ) pending the resolution of this order to show cause. We further RESERVE JUDGMENT on Neighbors' counterclaim against Plaintiffs (Docket No. 21 ); Municipality and Rivera's cross-claim against Neighbors (Docket No. 22 ); Neighbors' cross-claim against Municipality; Rivera, Cordero, and their respective conjugal partnerships; and unknown insurance companies (Docket No. 24 ); Neighbors' third -party complaint against PREPA and unknown insurance companies (Docket No. 26 ); PREPA's counterclaim against Neighbors (Docket No. 37 ); and PREPA's claim against Municipality (Docket No. 38 ). We RETAIN Plaintiffs' claims against Municipality, Rivera, and Cordero. Show Cause Response due by 11/9/2009. Signed by Chief Judge Jose A Fuste on 10/28/09.(mrj)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO LUIS COSTAS ELENA, et al., Plaintiffs, 6 Civil No. 08-2403 (JAF) v. 7 8 9 10 MUNICIPALITY OF SAN JUAN, et al., 11 12 13 14 PUERTO RICO ELECTRIC POWER AUTHORITY, Defendants. _________________________________ Cross-Claim Plaintiff, 15 16 v. MUNICIPALITY OF SAN JUAN, 17 Cross-Claim Defendant. OPINION AND ORDER 18 19 Plaintiffs, Luis Costas Elena, Hazel Russell McMillan, and 20 their conjugal partnership, bring this action under 42 U.S.C. 21 § 22 ( Municipality ); Andrés Rivera and Fernando Cordero, in both their 23 official 24 Despradel, and their conjugal partnership ( Neighbors ). 25 No. 1.) 26 trees 27 violation of the Fourth, Fifth, and Fourteenth Amendments and the 1983 against and Defendants, personal the capacities; Municipality and Henry of San Paredes, Juan Carmen (Docket Plaintiffs allege invasion and public takings of their and shrubs without proper notice or compensation, in Civil No. 08-2403 (JAF) -2- 1 Puerto Rican Federal Relations Act, 81 Pub. L. No. 600, 64 Stat. 2 319 (1950), and in breach of Puerto Rico law. 3 (Id.) Neighbors implead the Puerto Rico Electric Power Authority 4 ( PREPA ) for contribution. (Docket No. 26.) 5 Municipality for contribution. 6 moves to dismiss this last claim under Federal Rule of Civil 7 Procedure 12(b)(6) or, alternatively, for judgment on the pleadings 8 under Rule 12(c). 9 (Docket No. 46.) For the reasons below, we believe that sua-sponte (Docket No. 38.) (Docket No. 42.) PREPA sues Municipality PREPA opposes the motion. 10 judgment on the pleadings in favor of Neighbors is appropriate. 11 I. 12 Factual and Procedural History 13 Under Federal Rule of Civil Procedure 12(c), we consider the 14 averments in Plaintiffs complaint (Docket No. 1) and Neighbors 15 answer (Docket No. 21). We assume the parties factual allegations 16 to be true and draw all reasonable inferences in Plaintiffs favor. 17 See Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007). 18 Plaintiffs and Neighbors own properties in the Santa María 19 Urbanization in San Juan. Plaintiffs have resided on their parcel 20 for over thirty years, whereas Neighbors purchased their two 21 adjacent parcels over forty years ago and have since let them for 22 rent. Plaintiffs and Neighbors properties abut and are separated 23 by a narrow public servitude for electric power transmission. Civil No. 08-2403 (JAF) -3- 1 Plaintiffs and Neighbors maintain trees and shrubbery along 2 the perimeter of their respective properties and have antagonized 3 one another over the years as to the maintenance of the vegetation 4 and incursions across each others property lines. 5 through June 5, 2008, Municipality, Rivera, and Cordero ordered 6 their employees to clear branches and debris in the servitude. 7 These employees destroyed Plaintiffs cherished vegetation in the 8 course of their labors. 9 Plaintiffs accuse Neighbors of From May 27 acting jointly and 10 concertedly with other Defendants in this deprivation, and that 11 Neighbors 12 vegetation. 13 Rico Natural Resources Department ( DRNA ) had granted them a 14 permit to trim a tree on their property that had obstructed power 15 lines. (Docket No. 21.) Neighbors explain further that PREPA 16 oversaw the tree trimming and disconnected electrical power on 17 May 27, 2008, to permit Municipality to engage in the trimming 18 itself. had allowed unknown (Docket No. 1.) persons to damage Plaintiffs Neighbors explain that the Puerto 19 On December 23, 2008, Plaintiffs commenced this case in this 20 court. (Docket No. 1.) Neighbors brought a counterclaim against 21 Plaintiffs 22 February 5, 2009. for trespass to land (Docket No. 21.) under Puerto Rico law on Civil No. 08-2403 (JAF) 1 -4- On February 28, 2009, Municipality and Rivera raised a cross- 2 claim against Neighbors.1 3 Neighbors countered with a cross-claim for contribution against 4 Municipality; 5 partnerships; and unknown insurance companies. 6 On March Rivera, 11, (Docket No. 22.) Cordero, 2009, and Neighbors their On March 4, 2009, respective conjugal (Docket No. 24.) impleaded as third-party 7 defendants the Puerto Rico Electric Power Authority ( PREPA ) and 8 three unknown insurance companies. 9 2009, PREPA asserted a (Docket No. 26.) counterclaim (Docket No. 37.) against On June 14, Neighbors for 10 contribution. 11 cross-claim against Municipality. 12 2009, 13 alternatively, for judgment on the pleadings (Docket No. 42); PREPA 14 opposed on August 4, 2009 (Docket No. 46). Municipality moved to The same day, PREPA brought a (Docket No. 38.) dismiss this On July 20, cross-claim or, 15 II. 16 Standard for Judgment on the Pleadings under Rule 12(c) 17 Rule 12(c) allows any party to move for judgment on the 18 pleadings [a]fter the pleadings are closed but early enough not 19 to delay the trial. 20 evaluating a Rule 12(c) motion . . . is essentially the same as 21 that 22 Subscripción Conjunta del Seguro de Responsabilidad Obligatorio v. for 1 deciding Fed. R. Civ. P. 12(c). a Rule 12(b)(6) motion. The standard for Asociación de Municipality and Rivera aver no facts for their cross-claim, which appears to be a blunder. (See Docket No. 22.) Civil No. 08-2403 (JAF) -5- 1 Flores Galarza, 484 F.3d 1, 22 (1st Cir. 2007) (quoting Pasdon v. 2 City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005)). 3 Borrowing from the standard for dismissal under Rule 12(b)(6), 4 a [movant s] obligation to provide the grounds of his entitlement 5 to 6 formulaic recitation of the elements of a cause of action will not 7 do. 8 Cir. 2008) (internal quotation marks omitted) (quoting Bell Atl. 9 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). relief requires more than labels and conclusions, and a Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st 10 complaint 11 allegations sufficient to raise a right to relief above the 12 speculative level. 13 and the defendant s answer must The plaintiff s contain factual Id. (quoting Twombly, 550 U.S. at 555). A sua-sponte judgment on the pleadings may obtain where one 14 party is clearly entitled to judgment. 15 Loan Ass n, 685 F.2d 209, 211 (7th Cir. 1982); cf. Chute v. Walker, 16 281 17 dismissals for failure to state a claim are appropriate in limited 18 circumstances ). 19 affords the target an opportunity to address the challenge. 20 Chute, 281 F.3d at 319. F.3d 314, 319 (1st Before Cir. 2002) ordering Flora v. Home Fed. Sav. & (holding judgment, 21 the sua-sponte court usually See III. 22 that Analysis 23 24 Plaintiffs and Neighbors pleadings convince us that suasponte disposition under Rule 12(c) is proper. For an action to Civil No. 08-2403 (JAF) -6- 1 lie under 42 U.S.C. § 1983 against private persons, such persons 2 must have acted under color of law so that their conduct could be 3 deemed state action. 4 248-49 (1st Cir. 1997). 5 private actors is whether there exists (1) . . . an elaborate 6 financial 7 government of Puerto Rico which compelled [Defendants] to act as 8 they did, (2) an assumption by [Defendants] of a traditional public 9 function, or (3) a symbiotic relationship involving the sharing of or See Yeo v. Town of Lexington, 131 F.3d 241, The First Circuit test for state action by regulatory nexus between [Defendants] and the 10 profits. 11 487, 12 Rodríguez-García v. Dávila, 904 F.2d 90, 94 (1st Cir. 1990)). 13 traditional public function test prevents states from avoiding 14 liability 15 functions to private actors. 16 17 493 Barrios-Velázquez v. Asociación de Empleados, 84 F.3d (1st by Cir. 1996) delegating (alterations traditional, in original) exclusively (quoting The sovereign Id. at 493-94. In the case at bar, Plaintiffs aver scant details to support Neighbors 2 complicity with governmental actors.2 Meanwhile, We note that Plaintiffs averment, that [a]t all times pertinent defendants Paredes were present and acted jointly and concertedly with other defendants in the actions described herein, may be legally insufficient. (See Docket No. 1.) This passage contains no description of Neighbors alleged conduct to permit the inference that Neighbors engaged in concerted action with state actors. Such allegations are mere legal conclusions that may fail as a matter of law. See Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir. 2008). The complaint further states that Neighbors twice caused [unknown] persons . . . to clandestinely invade plaintiffs property, cut and decapitate some of plaintiffs palm trees and bushes. (Docket No. 1.) However, such activity merely constitutes a trespass and destruction of accessories to land, which are the province of ordinary tort law, not the Civil No. 08-2403 (JAF) -7- 1 Neighbors answer furnishes grounds for judgment in their favor. 2 In addressing Plaintiffs charge, Neighbors aver that they had 3 received a permit from DRNA to clip a tree on their own property in 4 order to ameliorate an obstruction of public power lines. 5 No. 21.) 6 the potential hazard to workers, Neighbors permitted servants of 7 Municipality to conduct the actual trimming. 8 9 To (Docket After PREPA disconnected electrical power to alleviate determine Neighbors § 1983 procurement of liability, the we permit (Id.) must and decide whether authorization of 10 Municipality to trim branches is attributable to the government of 11 Puerto Rico. See Bárrios-Velázquez, 84 F.3d at 493. The pleadings 12 permit no inference of either an elaborate regulatory scheme 13 commanding 14 relationship between these same two parties. See id. Furthermore, 15 the trimming of tree branches is not the sort of traditional 16 public function that has always been the exclusive responsibility 17 of 18 (distinguishing conduct of jury trials, a traditional governmental 19 function, from operation of newspapers, which is not). state Neighbors actors. See activities id. at or 493-94; a symbiotic Yeo, 131 financial F.3d at 252 20 Because Neighbors procurement of a DRNA permit to trim their 21 tree is not [delegation of] traditional governmental authority to 22 a private actor, Yeo, 131 F.3d at 252, Neighbors cannot be Federal Constitution. See P.R. Civ. Code art. 1802 (1930). Civil No. 08-2403 (JAF) under § -8- 1 accountable 1983. 2 supplemental 3 against Neighbors.3 4 979 F.2d 259, 264 (1st Cir. 1992). 5 IV. 6 Conclusion jurisdiction It follows over that Plaintiffs we should action in decline trespass See 28 U.S.C. § 1367(c)(3); Rivera v. Murphy, 7 Accordingly, we hereby ORDER Plaintiffs to SHOW CAUSE, on or 8 before November 9, 2009, as to why we should not order judgment on 9 the pleadings in favor of Neighbors and dismiss Plaintiffs claims 10 under Puerto Rico law against Neighbors (Docket No. 1). We RESERVE 11 JUDGMENT on Municipality s motion to dismiss (Docket No. 42) 12 pending the resolution of this order to show cause. 13 We further RESERVE JUDGMENT on Neighbors counterclaim against 14 Plaintiffs (Docket No. 21); Municipality and Rivera s cross-claim 15 against Neighbors (Docket No. 22); Neighbors cross-claim against 16 Municipality; 17 partnerships; and unknown insurance companies (Docket No. 24); 18 Neighbors 19 insurance companies (Docket No. 26); PREPA s counterclaim against 20 Neighbors (Docket No. 37); and PREPA s claim against Municipality 3 Rivera, third-party Cordero, and complaint their against respective PREPA and conjugal unknown We have chosen the unusual course of sua-sponte judgment on the pleadings because the federal court is not a forum for in terrorem lawsuits to force settlement in neighborhood disputes. According to an ancient adage, Good fences make good neighbors. See Robert Frost, Mending Wall, in North of Boston (1914). We encourage Plaintiffs and Neighbors to find an amicable solution. Civil No. 08-2403 (JAF) -9- 1 (Docket No. 38). We RETAIN Plaintiffs claims against Municipality, 2 Rivera, and Cordero (Docket No. 1). 3 IT IS SO ORDERED. 4 San Juan, Puerto Rico, this 28th day of October, 2009. 5 6 7 S/José Antonio Fusté JOSE ANTONIO FUSTE Chief, U.S. District Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.