TROPICAL AIR FLYING SERV. v. FELICIANO DE MELECIO

158 F. Supp.2d 177 (2001) | Cited 0 times | D. Puerto Rico | July 31, 2001

OPINION AND ORDER

Plaintiff Tropical Air Transport is a corporation organized andauthorized to do business under the laws of Puerto Rico. Tropical AirTransport was created and is engaged in providing specialized aeromedichealth care and services from the area of an accident to the nearesthospital or medical facility capable of attending the patient's conditionwithout delay. Plaintiff has filed a Complaint (Docket No. 1) bringingforth an action against Defendants for the violation of rights,privileges and protections guaranteed by the United States Constitutionand Federal Civil Rights Act, 42 U.S.C. § 1983. Plaintiff alsoasserts its rights to engage in interstate commerce free fromdiscrimination and restraint arising from state laws and actionsundertaken by public officials and others pursuant to Section 1 of theSherman 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 presentssupplemental antitrust, unfair competition, and claims under the laws ofPuerto Rico. In sum, Plaintiff alleges that all Defendants, as governmentofficials, have acted under color of state law, regulations, customs andpolicies or in concert with the other defendants at all times relevant tothe averments in restraining him from engaging in interstate commerce.

Co-defendant Aeromed Services, Corp. ("Aeromed") is a corporationorganized under the laws of Puerto Rico which also provides specializedaeromedic health care and services from the area of an accident to thenearest hospital or medical facility capable of dealing with thepatient's condition without delay. Said corporation is presentlycontracted by the Department of Health of Puerto Rico to render suchservices.

As to Co-defendant to Aeromed, Plaintiff avers that, in providingaeromedichealth care services, complainant has attempted to detain themonopolistic services offered in Puerto Rico by Defendant Aeromed whichhave been rendered with the active participation and assistance ofDefendants Feliciano et al. Plaintiff holds that by being excluded byDefendants Feliciano et al.1 from providing said health careservices, his rights privileges and protections guaranteed by the UnitedStates Constitution and his Civil Rights are being violated. Plaintifffurther avers that Defendants deprived him of his equal protection rightssince Defendants have arbitrarily and capriciously discriminated againstPlaintiff by refusing to enter into contract with him and by not imposingon Aeromed the same licensing requirements delineated by the FederalAviation Agency ("FAA"). Plaintiff, therefore, prays for the permanentenjoinment of Defendants from continuing with the violations of said lawsand from entering into any combination, conspiracy, agreement,understanding or concert of actions, omissions, endeavors, orundertakings against him. Plaintiff also requests the granting ofcompensatory damages, reasonable attorney's fees and costs and trebledamages.

Pending before the Court is Defendant Aeromed's Motion to Dismiss UnderRule 12(b)(1) filed on December 13, 2000 along with its Memorandum of Lawin Support of Motion. (Docket No. 20). On February 20, 2001 Plaintifffiled an Opposition to said motion. (Docket No. 32). On February 25,2001, Defendants Carmen Feliciano, Juan Pares, Juan Velázquez,Juan Nazario, Edwin Miranda, Benjamin Rodriguez, PraxedesPedraza, Oscar Martinez, Silvia Maysonet, Sonia Cedeño,Héctor Berberena, Ivonne Gierbolini, Angel Diaz, and RosaMonroig ("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 opposedsaid motion.

On June 25, 2001 Plaintiff filed a Motion (Docket No. 40) accompanyingan Amended Complaint and indicating to the Court that said "amendedcomplaint renders moot . . . Aeromed Services Corp.'s pending motions todismiss." The Court deems the one and only motion to dismiss filed byAeromed not moot since both the Complaint and the Amended Complaintcontain the same allegations against Aeromed. In addition, Aeromed'sMotion 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) motionsprecedence." 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 attacktwo different types of defects: the pleader's failure to comply withFederal Rule of Civil Procedure 8(a)(1)2 and the Court's actual lackof subject matter jurisdiction — which may exist despitethe formal sufficiency of the allegations in the complaint. 5A JAMES WM.MOORE ET AL., MOORE'S FEDERAL PRACTICE § 1350 (2d ed. 1990). When thebasis for a Rule 12(b)(1) motion is lack of federal question, as is theallegation before the Court, the pleader must show that the counterpart'sclaim does not fall under the category of federal question and isfrivolous. That is, "the party invoking the jurisdiction of the federalcourt carries the burden of proving its existence." Nater v. Riley,114 F. Supp.2d 17, 19 (D.P.R. 2000). See Miller v. Hygrade FoodProducts, 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 ofthe complaint are presumed to be true and the complaint is reviewed toensure that each element necessary for jurisdiction is present, when thefactual allegations of jurisdiction are attacked by a Motion to Dismissunder Rule 12(b)(1), courts are not limited in their review to the mereallegations contained in the complaint. Thus, the Court may evaluate forsufficiency any and all of the evidence presented. Halstead v. MotorcycleSafety Foundation, Inc., 71 F. Supp.2d 464, 468 (E.D.Pa. 1999) ("[A]nyevidence may be reviewed and any factual disputes resolved regarding theallegations giving rise to jurisdiction, since it is for the Court toresolve all factual disputes involving the existence of jurisdiction.")If, and only when, it appears that the non-moving party will not be ableto assert a colorable claim of subject matter jurisdiction, may theMotion to Dismiss be granted and the complaint dismissed. See Mortensenv. 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 havesubject matter jurisdiction over this suit because its activities are notwithin the flow of interstate commerce and, by no means, have a directand/or substantial effect on interstate commerce. (Docket No. 20). Thatis, Plaintiff failed to establish the jurisdictional element of a ShermanAct violation. Defendant avers that the United States Supreme Court heldin McLain v. Real Estate, 444 U.S. 232, 242, 100 S.Ct. 502, 509, 62L.Ed.2d 441 (1980), that to establish jurisdiction it would be sufficientfor Plaintiff to demonstrate a substantial effect on interstate commercegenerated by Defendant's activity. Aeromed also asserts that the FirstCircuit has traditionally followed McLain, 444 U.S. 232, 100 S.Ct. 502,and has established in Córdova & Simonpietri v. ChaseManhattan, 649 F.2d 36 (1st Cir. 1981) that Defendant's business "stillmust be so connected with interstate commerce that it is logical, as amatter of practical economics, to believe that an unlawful activity willaffect interstate commerce logically affected by defendants unlawfulconduct." (Docket No. 20). Thus, in order to meet this jurisdictionalrequirement of subject matter jurisdiction, the activity that ischallenged must occur within interstate commerce or, otherwise, whilewholly local, have a substantial effect on interstate commerce.

In McLain, 444 U.S. at 241, 100 S.Ct. at 508, the Supreme Court of theUnited States reiterated the long established theory that the authorityof Congress under the commerce clause has long been interpreted to extendbeyond activities that constitute interstate commerce to other activitiesthat substantially affect interstate commerce even though they are purelylocal activities in nature. See II PHILLIP E. AREEDA & HERBERTHOVENKAMP, ANTITRUST 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 mustallege the critical relationship [between the challenged activity andinterstate commerce] in the pleadings and if these allegations arecontroverted must proceed to demonstrate by submission of evidence beyondthe pleadings." McLain, 444 U.S. at 242, 100 S.Ct. at 509. Aeromederroneously rests on McLain, 444 U.S. 232, 100 S.Ct. 502 (1980). AlthoughDefendant is right in recurring to the argument that "defendant'sbusiness still must be so connected with interstate commerce that it islogical, as a matter of practical economics, to believe that the unlawfulactivity will affect inter state commerce," Córdova &Simonpietri, 649 F.2d at 45, in sustaining the motion to dismiss, Aeromedneglects to inquire into further case law regarding subject matterjurisdiction and the general connection with interstate commerce theorypredicated by the Supreme Court ten years later in Summit Health v.Pinhas, 500 U.S. 322, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991).

Plaintiff's Answer to Motion to Dismiss (Docket No. 32) refutesAeromed's averments by also citing McLain, 444 U.S. at 243, 100 S.Ct. at509, stating that "in a civil action under the Sherman Act, liability maybe established by proof of either an unlawful purpose or ananticompetitive effect." (Docket No. 32). That is, at a Motion to Dismissstage, Plaintiff does not need to show, but merely allege, thatDefendant's conduct has an effect on interstate commerce. As forAeromed's allegation that a nexus between the conduct complained of andcommerce between the states is necessary to establish jurisdiction,Plaintiff rests on Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 111S.Ct. 1842, 114 L.Ed.2d 366 (1991) which rejects the approach requiringsaid nexus. Rather, a general connection between Defendant's activity andinterstate commerce is sufficient to establish federal jurisdiction.(Docket No. 32). Plaintiff also avers that the 3rd and 7th Circuits, andthe district of Vermont have established when following the SummitHealth, 500 U.S. 322, 111 S.Ct. 1842 (1991), that subject matterjurisdiction is satisfied if the complaint alleges that the Plaintiff wasengaged in interstate commerce and was injured by a supposed antitrustviolation. (Docket No. 32). Finally, Plaintiff asserts that, as in SanJuan Cement, Inc. v. Puerto Rican Cement Co., Inc., 922 F. Supp. 716(D.P.R. 1996)3, in the case at bar, the jurisdictional requirement ismet by Plaintiff's allegation that Aeromed purchases materials andsupplies from interstate sources, thus participating in and affectinginterstate commerce. Plaintiff avers that Aeromed's conspiracy torestrain competition and to fix costs in the aeromedic health care andservices market in Puerto Rico limits the flow of health products andservices between Puerto Rico and other states therefore affectinginterstate commerce.

In Summit Health, 500 U.S. at 331, 111 S.Ct. at 1848, the Supreme Courtheld that "respondent need not allege, or prove, an actual effect oninterstate commerce tosupport federal jurisdiction." The Supreme Court understood this possiblein Summit Health, Id. at 329 n. 11, 111 S.Ct. 1842 (citing United Statesv. Staszcuk, 517 F.2d 53, 60 n. 17 (7th Cir. 1975)) since "the federalpower to protect the free market may be exercised to punish conduct whichthreatens to impair competition even when no actual harm results."(emphasis ours) Further, in Summit Health, Id., the Supreme Court foundjurisdiction on the basis that "the hospital's purchases of out-of-statemedicines and supplies as well as its revenues from out of stateinsurance companies would establish the necessary interstate nexus"regardless of the fact that the defendant's primary activity was theprovision of health care services in the local market. This district has"almost unanimously followed what the Supreme Court did in Summit Health(if not what is said), and have rejected the specific nexus requirement."San Juan Cement v. Puerto Rican Cement Co., 922 F. Supp. 716, 722(D.P.R. 1996).

C. Conclusion

In the Complaint, Amended Complaint, and Opposition to Motion toDismiss, Plaintiff does establish that Aeromed's activities are withinthe flow of interstate commerce since the production of medicines,medical supplies, and equipment for treating patients takes place invarious states outside of Puerto Rico. Further, a substantial portion ofthe services provided by Defendant Aeromed to patients are paid throughhealth insurance plans which invariably involve a continuous anduninterrupted flow of services, products, contracts and claims ininterstate commerce.

With this in mind, and following the jurisprudence set forth in SanJuan Cement, Inc. 922 F. Supp. 716 (D.P.R. 1996), along with thediscussion above, this Court fails to see how Plaintiff has beenunsuccessful in establishing subject matter jurisdiction under thegeneral connection with interstate commerce theory presently in practiceby the Supreme Court of the United States. Ergo, this Court is persuadedthat this action does in fact meet subject matter jurisdiction requisitessince "all Plaintiff needs do to survive defendant's motion to dismiss isallege a general connection with interstate commerce, and an effectthereon resulting form defendant's allegedly illegal conduct." San JuanCement, 922 F. Supp. at 723. Therefore, Defendant Aeromed's Motion toDismiss is DENIED.

Notwithstanding, the Court issues an order to Show Cause as to thedismissal of the cause of action against Aeromed because the otheralleged antitrust co-conspirator(s) is(are) exempt form antitrustapplication and is(are) authorized by jurisprudence to engage in potentialantitrust violation. See City of Columbia v. Omni Outdoor Advertising,Inc., 499 U.S. 365, 370, 111 S.Ct. 1344, 1349, 113 L.Ed.2d 382 (1991)("Relying on principles of federalism and state sovereignty, we [hold]that the Sherman Act [does] not apply to anticompetitive restraints.");Parker v. Brown, 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315(1943); Neo Gen Screening, Inc. v. New England Newborn ScreeningProgram, 187 F.3d 24, 28 (1st Cir. 1999) (The difficulty for [Plaintiff]is that it is clearly established that the Sherman Act does not itselfapply to state action.) (emphasis ours) (see discussion infra PartII(B)(2)). Plaintiff is ordered to show cause within twenty (20) days whythe antitrust cause of action against Aeromed should not be substantivelydismissed.

II. OTHER DEFENDANTS' ("Feliciano, et al.") MOTION TO DISMISS UNDER RULE 12(b)(1) and (6)

As discussed above, Plaintiff Tropical Air Transport has filed aComplaint (DocketNo. 1) bringing forth an action against Defendants for the violation ofrights, privileges and protections guaranteed by the United StatesConstitution and Federal Civil Rights Act, 42 U.S.C. § 1983.Plaintiff also asserts its rights to engage in interstate commerce freefrom discrimination and restraint arising from state laws and actionsundertaken by public officials and others pursuant to section 1 of theSherman 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,28 U.S.C. § 1125, and the Declaratory Judgment Act,28 U.S.C. § 2201 and 2201. The Complaint further presentssupplemental antitrust, unfair competition, and claims under the laws ofPuerto Rico. In sum, Plaintiff alleges that all Defendants have actedunder color of state law, regulations, customs and policies or in concertwith the other defendants at all times relevant to the averments inrestraining him from engaging in interstate commerce.

Defendants Feliciano et al. are state officials which are in one way oranother related to the contracting of or the emission of permits torender aeromedic services. Pertaining to Defendants Feliciano et al.,Plaintiff sustains that Defendants Felicano et al. have continued toengage in unlawful agreements, combinations and/or agreements which haverestrained the aeromedic health care and services market in Puerto Rico.Plaintiff holds that these unlawful acts have caused injury to hisbusiness and property as well as violated his Constitutional and CivilRights under 42 U.S.C. § 1983. Plaintiff, therefore, prays for thepermanent enjoinment of Defendants from continuing with the violations ofsaid laws and form entering into any combination, conspiracy, agreement,understanding or concert of actions, omissions, endeavors, orundertakings against him. Plaintiff also requests the granting ofcompensatory damages, reasonable attorney's fees and costs and trebledamages.

A. Motion to Dismiss Standard Under Rule 12(b)(1) and (6)

Rules 12(b)(6) and 12(b)(1) of the FEDERAL RULES OF CIVIL PROCEDUREprovide that a defendant may, in response to an initial pleading, file amotion to dismiss the complaint for lack of jurisdiction or for failureto state a claim upon which relief can be granted, respectively. It iswell-settled, however, that a complaint should not be dismissed unless itappears beyond any doubt that the plaintiff can prove no set of factswhich would support a claim entitling him or her to relief. Ronald C.Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir.1995); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d80 (1957); see also Miranda v. Ponce Federal Bank, 948 F.2d 41, 44 (1stCir. 1991). The Court must accept as true the well pleaded factualaverments contained in the complaint, while at the same time drawing allreasonable inferences from the allegations in favor of the plaintiff. SeeMcDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 276, 96 S.Ct.2574, 2577, 49 L.Ed.2d 493 (1976); Correa-Martinez v.Arrillaga-Beléndez, 903 F.2d 49, 51 (1st Cir. 1990); DartmouthReview v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989); Vartanianv. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994). However, "[b]ecauseonly well pleaded facts are taken as true, we will not accept acomplainant's unsupported conclusions or interpretations of law."Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962,971 (1st Cir. 1993).

In opposing a Rule 12(b)(6) motion to dismiss, "a plaintiff cannotexpect a trial court to do his homework for him." McCoy v. MassachusettsInstitute of Technology,950 F.2d 13, 22 (1st Cir. 1991). Rather, the plaintiff has an affirmativeresponsibility to put his best foot forward in an effort to present alegal theory that will support his claim. Id. at 23 (citingCorrea-Martinez, 903 F.2d at 52; Dartmouth Review, 889 F.2d 13, 16 (1stCir. 1989)); Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir. 1957). Plaintiffmust set forth in his complaint "factual allegations, either direct orinferential, regarding each material element necessary to sustainrecovery under some actionable theory." Gooley v. Mobil Oil Corp.,851 F.2d 513, 514 (1st Cir. 1988).

B. Discussion

In Feliciano et al's Motion to Dismiss, Defendants allege thatPlaintiff has failed to state a claim upon which relief may be granted,because the Complaint did not specify whether the Defendants were sued intheir personal or official capacity. (Docket No. 34). Resting onPieve-Marin v. Combas-Sancho, 967 F. Supp. 667 (D.P.R. 1997), theysustain that in § 1983 actions, the capacity in which the defendantis being sued must be stated and, since Plaintiffs did not do so, thepresent action must be dismissed (Docket No. 34). Further, Defendantsclaim that, if being sued in their official capacities, any claim againstthe appearing Defendants is barred under the Eleventh Amendment4.Finally, Feliciano et al. aver that, if being sued in their personalcapacity, Plaintiff's 42 U.S.C. § 1983 claim should be dismissed forfailing to state a claim under which relief may be granted. That is, theComplaint, according to Feliciano et al., does not plead sufficient factsto establish a personal involvement by Defendants making said Complaintdeficient to sustain a causal connection between Feliciano et al'salleged conduct and claim under 42 U.S.C. § 1983. (Docket No. 34). Todate, Plaintiff has yet to file an opposition to Feliciano et. al'sMotion to Dismiss. Therefore, this Court views said motion as unopposed.

1. Capacity

On June 25, 2001 Plaintiff filed an Amended Complaint (Docket No. 40)which specifies the capacity in which Feliciano et al. are being sued.According to the Amended Complaint, Defendants Feliciano et al. whereacting under color of Puerto Rico law, regulations, customs andpolicies. Be that as it may, Plaintiff makes express allegations whichclarify that Defendants Feliciano, et al. are being sued in theirindividual capacities.

Notwithstanding, the Supreme Court has established that regarding suitsbrought against state officials in their personal or official capacity,"[the] general rule is that relief sought nominally against an officer isin fact against the sovereign if the decree would operate against thelatter." Pennhurst State School and Hospital v. Halderman, 465 U.S. 89,101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citing Hawaii v. Gordon,373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963)). As explained inEdelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39L.Ed.2d 662 (1974):

It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945) the Court said: "(W)hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." Thus, the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.

That is, if the granting of injunctive or equitable relief sought expendsitself on public domain, interferes with public administration, orrestrains the government from action or compels it to act, Plaintiff'sclaim, howsoever styled, must be understood to be against the Stateitself. See American Policyholders Ins. Co. v. Nyacol Products, Inc.,989 F.2d 1256, 1265 (1st Cir. 1993); Healey v. Bendick, 628 F. Supp. 681,696 (D.R.I. 1986); Pennhurst, Id.; Dugan v. Rank, 372 U.S. 609, 620, 83S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Larson v. Domestic and ForeignCommerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468, 93 L.Ed. 1628(1949).

The addition of a desultory phrase in the caption of a case cannot stem the inexorable flow of the sovereign immunity tide; whether or not the plaintiff can reasonably be viewed as seeking relief form the state is a matter not of semantics, but of substance. A wolf with an appetite to shackle the operation of state government is none the less lupine when garbed in the sheep's clothing of an "individual capacity" action.

Healey, 628 F. Supp. at 696. This Court, then, understands that, giventhe direct impact the granting of injunctive or equitable relief wouldhave on the State's actions, there can be no legitimate doubt thatPlaintiff's claims are also claims against Defendants Feliciano et al. intheir official capacity and, consequently, against the State itself.

2. Federal Antitrust Claims

Plaintiff claims that Defendants Feliciano et al. have continuouslyengaged in an unlawful combination and conspiracy to restrain interstatetrade and commerce in the offering for sale and sale of aeromedic healthcare and services in Puerto Rico. Plaintiff argues that said combinationsand conspiracies have resulted in injury to his's business and property.Plaintiff bases his allegation on the federal antitrust laws,15 U.S.C. § 1, 15, 26, and 1125. (Docket No. 40). DefendantsFeliciano et al's motion to dismiss, on the other hand, is based on the"state action" exemption derived from the Eleventh Amendment of theUnited States Constitution. (Docket No. 34).

Section 1 of the Sherman Act, under which Plaintiffs seek relief here,makes unlawful "any contract, combination . . . or conspiracy, inrestraint of trade or commerce among the several states . . ."15 U.S.C. § 1. Simply explained, to be able to state a claim underthis section, Plaintiff is obliged to allege the existence of acontract, combination, or conspiracy that is in restraint of interstatetrade or commerce which has resulted in injury to Plaintiff. Tri-StateRubbish, Inc. v. Waste Management, Inc., 803 F. Supp. 451, 455 (D.Me.1992); Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 78 (2nd Cir. 1980)cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 618 (1981); WilderEnterprises, Inc. v. Allied Artists Pictures Corp., 632 F.2d 1135 (4thCir. 1980); International Travel Arrangers, Inc. v. Western Airlines,Inc., 623 F.2d 1255 (8th Cir.) cert. denied, 449 U.S. 1063, 101 S.Ct.787, 66 L.Ed.2d 605 (1980). In the case at bar, Plaintiff has alleged theaforementioned. It has been well settled, however, that federal antitrustlaws do not apply to restraints of trade imposed by the states "as an actof government." See City of Columbia v. Omni Outdoor Advertising,Inc., 499 U.S. at 370, 111 S.Ct. at 1349 ("Relying on principles offederalism and state sovereignty, we [hold] that the Sherman Act [does]not apply to anticompetitive restraints."); Parker v. Brown, 317 U.S. at352, 63 S.Ct. at 314 (1943); Neo Gen Screening, Inc. v. New EnglandNewborn Screening Program, 187 F.3d at 28 (The difficulty for [Plaintiff]is that it is clearly established that the Sherman Act does not itselfapply to state action.) (emphasis ours). As stated by the Supreme Court inParker, 317 U.S. at 351, 63 S.Ct. 307:

There is no suggestion of a purpose to restrain state action in the Act's legislative history. The sponsor of the bill which was ultimately enacted as the Sherman Act declared that it prevented only "business combinations." 21 Cong. Rec. 2562, 2457; see also at 2459, 2461. That its purpose was to suppress combinations to restrain competition and attempts to monopolize by individuals and corporation, abundantly appears from its legislative history. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-93 and n. 15, 60 S.Ct. 982, 84 L.Ed. 1311; United States v. Addyston Pipe & Steel Co., 85 F. 271, affirmed 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; Standard Oil Co. v. United States, 221 U.S. 1, 54-58, 31 S.Ct. 502, 55 L.Ed. 619 . . . [I]n view of the latter's words and history, [the Sherman Act] must be taken to be a prohibition of individual and not state action.

That is, the Supreme Court has determined that Congress did not mean torequire states to abide by the Sherman Act. Therefore, "a state is freeto regulate, or act on its own behalf in ways that are anti-competitiveand would not be permitted to a private individual. This doctrine is sowell settled that its rationale and underpinnings are scarcely worthdiscussing." Neo Gen Screening, Inc. v. New England Newborn ScreeningProgram, 187 F.3d 24, 28 (1st Cir. 1999) (emphasis ours).

Further, as to the personal liability of government employees, it hasbeen held that the possible consequence of imposing personal liability oncity or State officials for acts under the federal antitrust laws is"go[ing too] far to `compromise the States' ability to regulate theirdomestic commerce." Omni, 499 U.S. at 377, 111 S.Ct. at 1352 (citingSouthern Motor Carriers Rate Conference, Inc. v. United States,471 U.S. 48, 56, 105 S.Ct. 1721, 1725, 85 L.Ed.2d 36 (1985)). Finally,the First Circuit Court of Appeals determined in Fisichelli v. The CityKnown as the Town of Methuen, 956 F.2d 12, 15-16 (1st Cir. 1992), thateven though plaintiffs sued defendants in their private capacities,

[t]he basic conduct of which the plaintiffs complain, however, concerns a decision taken by the individual defendants in their roles as town (or municipal Authority) officials. We do not believe that a plaintiff can avoid the ruling of [City of] Columbia [v. Omni] simply by substituting, for the name of the town, the names of the town officials who approved the challenged municipal action.

We conclude that the actions of which plaintiffs complain are actions taken by a municipal authority, and, for antitrust purposes, they amount to "an authorized implementation of state policy." Consequently, they fall outside the reach of the federal antitrust laws. (citations omitted).

For the forgoing reasons, because federal antitrust laws do not applyto state action, neither the State nor its officials voluntarily waivetheir immunity, or unequivocally express their intention to waiveimmunity under the federal antitrust laws, no monetary damages and/orinjunctive relief are available to Plaintiffs againststate officers under the federal antitrust laws. Therefore, Plaintiff'sclaims against Defendants under the antitrust laws must be dismissed.

3. Section 1983 Claims

In Defendants Feliciano et al's Motion to Dismiss (Docket No. 34),Defendants allege that Plaintiff's claim should be dismissed, becausePlaintiff did not plead sufficient facts to establish a personalinvolvement on the part of Defendants to sustain a causal connectionbetween their conduct and the claim under 42 U.S.C. § 1983.Defendants also sustain that, because of the proliferation of § 1983claims, a stricter pleading requirement has been imposed.

In the case of a claim under section 1983, Plaintiff must allege thatthe conduct complained of was committed by a person acting under color ofstate law, and that such conduct caused Plaintiff to be deprived ofrights, privileges or immunities secured by the Constitution or laws ofthe United States. 42 U.S.C. § 1983. See also, Fernández v.Chardón, 681 F.2d 42 (1st Cir. 1982); Morton v. Becker, 793 F.2d 185(8th Cir. 1986). Further, Plaintiff's allegations must be sufficient toshow or infer defendant's personal involvement in the deprivation ofPlaintiff's federal rights. Febus-Rodriguez v.Betancourt-Lebrón, 14 F.3d 87 (1st Cir. 1994); Pinto v.Nettleship, 737 F.2d 130 (1st Cir. 1984). Moreover, Plaintiff'sallegations must amount to more than claims for mere negligent acts.Plaintiff must present a claim that Defendants acted or failed to act outof reckless or callous indifference to Plaintiff's constitutionalrights. (Such indifference is present "when it would be manifest to anyreasonable official that his conduct was very likely to violate anindividual's constitutional rights.") Febus-Rodríguez, 14 F.3d at92 (citing Germany v. Vance, 868 F.2d 9, 18 (1st Cir. 1989)).

i) Constitutional Claims

In the action before us, Plaintiff claims that he has been deprived ofproperty without the procedural due process of law guaranteed by theFourteenth Amendment of the United States Constitution. He alleges thathe has attempted to enter into a formal contract with the Department ofHealth and the Administration of Compensation for Automobile Accidents ofPuerto Rico ("ACCA"), and has also been refused by Defendants Felicianoet al. the execution of promised contracts with Plaintiff.

As stated above, to aver a due process claim on which relief may begranted under § 1983, Plaintiff must allege deprivation of aprotected property interest, because there can be no due processviolation without such an interest. See Board of Regents of StateColleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548(1972). Roth, 408 U.S. at 577, 92 S.Ct. at 2709, further explains that"to have a property interest in a benefit, a person must have more thanan abstract need or desire for it. He must have more than a unilateralexpectation of it. He must, indeed, have a legitimate claim ofentitlement to it." Consequently, Plaintiff must allege factsdemonstrating a legitimate claim of entitlement to enter into saidcontracts and or to the execution of contracts that have been proposedyet not accepted. Finally, it must be emphasized that "a cognizableproperty interest `is what is securely and durably yours under state [orfederal] law, as distinct from what you hold subject to so may conditionsas to make your interest meager, transitory, or uncertain.'" BarringtonCove Limited Partnership v. Rhode Island Housing and Mortgage FinanceCorporation, 246 F.3d 1, 5 (1st Cir. 2001) (citing Reed v. Village ofShorewood, 704 F.2d 943, 948 (7th Cir. 1983)). See also Figueroa-Serranov. Ramos-Alverio, 221 F.3d 1, 6 (1st Cir. 2000) (noting thatproperty interest is defined not by the Federal Constitution, but byindependent sources such as state law or regulations). Hence, since theultimate decision as to which contracts, in which manner, and with whichparties they are entered into rests on the absolute discretion of theDepartment of Health and the ACCA officials, Plaintiff cannot lay claimto any cognizable property interest either on his wish to enter intocontracts with said parties nor in the abstract "promise" to enter intocontracts with Defendants Feliciano et al. This Court finds thatPlaintiffs have failed to state a claim for deprivation of propertywithout procedural due process on which relief may be granted under§ 1983.

However, Plaintiff also avers in his Amended Complaint (Docket No. 40)that Defendants have been arbitrarily and capriciously discriminatingagainst Plaintiff by refusing to enter into air ambulance contracts,therefore violating Plaintiffs equal protection of the law. Plaintiffmaintains that Defendants Feliciano et al. have intentionally andmaliciously conspired to exclude Tropical Air form entering into acontract with the Department of Health by requiring Plaintiff to acquirea permit form PSC for air ambulance services which, in turn, they refuseto provide for no apparent reason.

Recently, the Supreme Court of the United States held that

[o]ur cases have recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently form others similarly situated and that there is no rational basis for the difference in treatment.

[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.

These [irrational and wholly arbitrary] allegation, quite apart form the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.

Village of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S.Ct. 1073,1074-75, 145 L.Ed.2d 1060 (2000) (citations omitted). See also ErwinChemerinsky, Suing the Government for Arbitrary Actions, 2000 SUP. CT.REV. 89, 36 MAY TRIAL 89. Logically, this reasoning is applicable to thecase at bar. Plaintiff's complaint can be adequately read as allegingthat Defendants Feliciano et al. intentionally refused to provideTropical Air with a PSC permit so as to be able to primarily contractwith Aeromed even though Aeromed did not, and does not, meet the FAArequirements. Thus, Plaintiff does in fact assert an equal protectionclaim and may seek redress for said violations.

ii) Heightened Pleading Requirement

As for the heightened pleading requirement alleged by Defendant undersection 1983 claims, the Supreme Court has stated that:

We think that it is impossible to square the "heightened pleading standard" applied by the Fifth Circuit [] with the liberal system of "notice pleading" set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief." (citations omitted) . . .

. . . Rule 9(b) does impose a particularity requirement in two specific instances. It provides that "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Thus, the Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983.

Leatherman v. Tarrant County Narcotics Intelligence and CoordinationUnit, 507 U.S. 163, 167-68, 113 S.Ct. 1160, 1162-63, 122 L.Ed.2d 517,(1993). Although the case at bar does not present the issue of municipalliability, but rather the issue of liability of state officials in theirindividual capacities. the First Circuit has resolved that when "callingfor the pleading of specific facts [] the [Supreme] Court limited itscarefully-phrased endorsement of that approach to constitutional claimsin which `improper motive' was an essential element for plaintiff toprove." Judge v. City of Lowell, 160 F.3d 67, 74 (1st Cir. 1998).(emphasis ours). See also Romero-Barceló v.Hernández-Agosto, 75 F.3d 23, 35 (1st Cir. 1996).

Understanding that the case before us precisely involves an actionunder section 1983 against state officials in their individualcapacities, and further, that this Court has made a finding of asufficient allegation of an arbitrary and capricious violation to theconstitutional right of equal protection of the law, and that Plaintiffhas in fact alleged a malicious intent by Defendants, the heightenedpleading standard does apply to Plaintiffs allegations. Judge, 160 F.3d at74.

Finally, since a mere allegation of arbitrariness and capriciousness issufficient to maintain an equal protection claim, and in view of theheightened pleading requisite imposed upon Plaintiff, the Court providesPlaintiff twenty (20) days to plead with a heightened particularity theevents which constitute the equal protection claim. See Judge, 160 F.3dat 75 n. 11 (Courts of appeals have commonly required of trial courts togrant plaintiffs an opportunity to cure a deficiency after notice thatthe trial court had invoked a specificity of pleading requirement.);Garita Hotel Limited Partnership v. Ponce Federal Bank, F.S.B.,958 F.2d 15, 17-18 & n. 2 (1st Cir. 1992); Fleming v. Lind-Waldock& Co., 922 F.2d 20, 23-24 (1st Cir. 1990); United States v.Healthsouth Corp., 140 F. Supp.2d 706 (W.D.La. 2001) (granting plaintiffa term for the filing of an amended pleading in order for plaintiff tocomply with the heightened pleading standard.). Therefore, under theobligation of accepting as true all well plead allegations within thecomplaint and indulging all reasonable inferences in favor of thePlaintiff, this Court finds that Plaintiff has complied with theabovementioned requirements. In the Complaint (Docket No. 1) and AmendedComplaint (Docket No. 40), Plaintiff does satisfactorily allege the actsof conspiracy by Defendants which violated his constitutional right toequal protection free from arbitrary and capricious conduct in granting apermit to do business with the Department of Health of Puerto Rico.Co-defendants Feliciano et al., acting under color of law but in theirindividual capacity, and Aeromed may have also conspired in saidactions. Also, Plaintiff's allegations are sufficient to show and inferDefendants Feliciano et al.'s personal involvement in the deprivation ofsaid constitutional rights. Finally, Plaintiffs have fulfilled the"reckless or callous indifference" requirement by pleading thatDefendants Feliciano et al. acted in "bad faith, maliciously, and inorder to [] deprive[] Plaintiff of its [] rights." (Docket No. 40). ThisCourt finds that Plaintiff has sufficiently alleged arbitrariness andcapriciousness to sustain a course of action under § 1983 forviolation to the equal protection clause against Defendants Felicianoet al., all subject to further heightened pleading compliance.

C. Conclusion

Plaintiff's federal antitrust claims against Defendants Feliciano etal. (government officials in their personal and official capacity) aredismissed because said antitrust laws do not apply to restraints of tradeimposed by the States as an act of government. Plaintiff's § 1983claims are also insufficient to establish a constitutional claim fordeprivation of property without procedural due process on which reliefmay be granted since no cognizable property interest is recognized insaid claims. Plaintiff satisfactorily aver an equal protection claimunder the theory of arbitrary actions subject to amendment to comply withheightened pleading requirements.

In sum, all claims against Defendants Felicaino et al. for violationsunder the federal antitrust laws are dismissed. Section 1983 claims fordeprivation of property without procedural due process on which reliefmay be granted are also dismissed. Claims against Defendants Feliciano etal. for violations to the equal protection clause stand. Accordingly,based on the aforementioned reasons, the Court grants in part and deniesin part Defendants Feliciano et al.'s Motion to Dismiss.

The claims against Aeromed are not dismissed. Notwithstanding, an orderto show cause has been issued as to why the substantive antitrust claimagainst Aeromed should not be dismissed.

No judgment is to be issued at this time because the First Circuitstrongly disfavors partial judgments as they foster piecemeal appeals.See Nichols v. Cadle Co., 101 F.3d 1448, 1449 (1st Cir. 1996) ("piecemealappellate review invites mischief. Because the practice poses a host ofpotential problems we have warned, time and again, that Rule 54(b) shouldbe used sparingly."); Zayas-Green v. Casaine, 906 F.2d 18, 21 (1st Cir.1990) ("This final judgment rule . . . furthers the `strong congressionalpolicy against piecemeal review.'" Id. (quoting In re ContinentalInvestment Corp., 637 F.2d 1, 3 (1st Cir. 1980)); Comite Pro Rescate DeLa Salud v. Puerto Rico Aqueduct and Sewer Authority, 888 F.2d 180, 183(1st Cir. 1989); Consolidated Rail Corp. v. Fore River Ry. Co.,861 F.2d 322, 325 (1st Cir. 1988); Spiegel v. Trustees of Tufts Coll.,843 F.2d 38, 43 (1st Cir. 1988); Santa Maria v. Owens-Ill., Inc.,808 F.2d 848, 854 (1st Cir. 1986)); see also United States v. Nixon,418 U.S. 683, 690, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974).

IT IS SO ORDERED.

1. "Feliciano et al." refers to co-defendant Carmen Feliciano deMelecio, the Secretary of Health of the Commonwealth of Puerto Rico, andother state officers sued for depriving the Plaintiff of its civil rightsunder 42 U.S.C. § 1983.

2. Failure to comply with Rule 8(a)(1) occurs when the allegations inthe complaint are insufficient to show that the Federal Court hasjurisdiction over the subject matter of the case. That is, the complaintis in fact defective and must be dismissed regardless of the actualexistence of subject matter jurisdiction unless said deficiency iscured. See Sierra Club v. Shell Oil Co., 817 F.2d 1169 (5th Cir.1987).

3. In San Juan Cement, 922 F. Supp. 716 (D.P.R. 1996), a generalconnection with interstate commerce was found even though the only aspectof the cement and concrete industry, to which Defendant Puerto RicoCement Co. belonged to, which was considered to affect interstatecommerce, was Defendant's purchases of equipment, spare parts, and othermaterials outside of Puerto Rico. Judge Pérez-Jiménezdetermined that with this allegation by Plaintiff, the minimalrequirement for subject matter jurisdiction was met since the purchase ofout of state materials and supplies is effectively participation ininterstate commerce.

4. Defendants can of course be sued in their official capacity forinjunctive and/or equitable relief. See Ex Parte Young, 209 U.S. 123, 28S.Ct. 441, 52 L.Ed. 714 (1908); Mills v. Maine, 118 F.3d 37 (1st Cir.1997).

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