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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF PUERTO RICO

NGEL L. ALEJANDRO MARTNEZ, et als.

Plaintiffsv.

ENG. JOS F. ORTIZ VZQUEZ, et als.Defendants

CIVIL NO. 10-1541

PLAINTIFFS DEMAND TRIAL BYJURY

OPPOSITION TO DEFENDANTS MOTION TO DISMISSDOCKETS NUMBER 43, 44, 46-48

TO THE HONORABLE COURT:COMES NOW plaintiff in the case at bar, through the undersigned attorney and

very respectfully states and prays as follows:

I. Procedural History

1. On June 15, 2010, Plaintiffs filed the Complaint in the instant case. [Dckt

1]

2. On September 13, 2010, summons were returned executed as to the

following Defendants: Corporacin del Fondo del Seguro del Estado (served on

September 9, 2010, answer due by September 30, 2010), Jose F. Ortiz Vazquez

(served on September 7, 2010, answer due by September 28, 2010), Puerto Rico

Aqueduct and Sewer Authority (served on September 7, 2010, answer due by

September 28, 2010), and Eufemio Toucet (served on September 7, 2010, answer due

by September 28, 2010). [Dckt. 13]

3. On September 15, 2010, co-defendant Corporacin del Fondo del Seguro

del Estado filed a motion requesting an extension of time. [Dckt. 14]

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4. On September 27, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto

Rico Aqueduct and Sewer Authority, and Eufemio Toucet, filed Motion for extension o

time to file answer. [Dckt. 16]

5. On September 28, 2010, this Honorable Court granted co-defendant

Corporacin del Fondo del Seguro del Estado, motion for extension of time to answer

the complaint until October 22, 2010. [Dckt. 17]

6. On October 5, 2010, co-defendants Angel Roman Franco and Compaa

de Aguas de Puerto Rico filed Motion of extension of time to file answer. [Dckt. 20 and

21]7. On October 18, 2010, co-defendant Angel Roman Franco filed a second

motion for extension of time to answer or otherwise plead. [Dckt. 23]

8. On October 22, 2010, co-defendant Corporacin del Fondo del Seguro de

Estado and Iris Otero filed their motion requesting an extension of time to answer the

complaint or otherwise plead. [Dckt. 24]

9. On October 26, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto Rico

Aqueduct and Sewer Authority and Eufemio Toucet filed their second motion for

extension of time to plead. [Dckt. 25]

10. On November 4, 2010, co-defendants Compaa de Aguas de Puerto

Rico and Angel Roman Franco filed a second motion for extension of time to answer or

otherwise plead. [Dckt. 28 and 29]

11. On November 17, 2010, the Department of Justice filed a second motion

for extension of time to conclude an investigation. [Dckt. 32]

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12. On November 22, 2010, co-defendant, Corporacin del Fondo del Seguro

del Estado, filed a third motion for extension of time. [Dckt. 33]

13. On November 30, 2010, this Honorable Court granted co-defendants Jose

F. Ortiz Vazquez, Puerto Rico Aqueduct and Sewer Authority, and Eufemio Toucet,

request for extension of time. [Dckt. 34]

14. On December 7, 2010, co-defendant Angel Roman Franco filed a third

motion for extension of time. [Dckt. 35]

15. On December 13, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto

Rico Aqueduct and Sewer Authority, and Eufemio Toucet filed a third motion forextension of time. [Dckt. 36]

16. On December 20, 2010, co-defendant Angel Roman Franco filed yet

another motion requesting extension of time. [Dckt. 37]

17. On December 21, 2010, this Honorable Court issued an order whereby

noting and declaring as moot various motions for extensions of time, and granting two

pending motions for extensions of time (Dckt. 33, 36) and granting such extensions until

December 29, 2010. [Dkct. 38]

18. On December 21, 2010, co-defendants Jose F. Ortiz Vazquez, Puerto

Rico Aqueduct and Sewer Authority and Eufemio Toucet filed a motion for

reconsideration of this Courts December 21st Order. [Dckt. 39]

19. On December 22, 2010, co-defendant Angel Roman Franco filed Motion

to dismiss pursuant to R. 12(b)(6). [Dckt. 43]

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20. On December 23, 2010, co-defendant Corporacin del Fondo del Seguro

del Estado and Iris Otero, filed their Motion to dismiss pursuant to R. 12(b)(6). [Dckt

44]

21. On December 29, 2010, co-defendant Jose F. Ortiz Vazquez, Puerto Rico

Aqueduct and Sewer Authority, and Eufemio Toucet, filed their Motion to dismiss

pursuant to R. 12(b)(6). [Dckt. 46]

22. On December 29, 2010, co-defendants Angel Roman Franco filed a

motion to join docket 43, motion to dismiss. [Dckt. 47]

23. On December 29, 2010, co-defendant Angel Roman Franco filed a motionto join the motions to dismiss filed under docket numbers 43, 44, 46, and 47. [Dckt. 48]

24. On January 5, 2011, Plaintiffs timely filed their motion for extension of time

to respond to the various motions to dismiss. [Dckt. 49]

II. Discussion1

A. Standard of Review

1. Pleading standard under Federal Rule of Civil Procedure 8(a)

Under FRCP 8(a) a pleading shall contain (i) a short and plain statement of the

grounds upon which the courts jurisdiction depends, (ii) a short and plain statement of

the claim showing that the pleader is entitled to relief, and (iii) a demand for relief.

The instant complaint does contain enough to give defendants fair notice of the

complaints claim and the grounds for them. As stated in McManus v. Fleetwood

Enters, Inc., 320 F.3d 545 (5th Cir. 2003), the plaintiff need not correctly specify the

legal theory, so long as the plaintiff alleges facts upon which can be granted.

1For ease of fluidity purposes and reference, each claim presented in defendants motions to dismiss hasbeen discussed in separate sections; nonetheless, the text of the present motion and its discussionsshould be considered as a whole.

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The instant complaint, as drafted, does meet the Rule 8(a) pleading standard,

and does set forth enough facts to raise a reasonable expectation that discovery will

reveal evidence of illegal agreement. See, Bell Atlantic Corp. v. Twombly, 550 US 544

(2007).

2. FRCP 12(b)(6)

In the present case, Defendants argue that the complaint should be dismissed

because Plaintiffs have not established sufficient facts and information as to justify the

claims, yet they fail to establish the reasons as to why said information does not suffice

Merely citing cases and attempting to dismiss the whole complaint through saidstrategies is very presumptuous to say the least. Plaintiffs documents in support of

their contention are not ambiguous and clearly comply with the well established rule.

The standard in the First Circuit when faced with a motion to dismiss under Rule

12 was established in Educadores Puertorriqueos en Accin v. Cesar Rey Hernandez

367 F.3d 61, 66 (2004), here the Court indicated that:

The handwriting is on the wall. Swierkiewicz has sounded thedeath knell for the imposition of a heightened pleading standardexcept in cases in which either a federal statute or specific CivilRule requires that result. In all other cases, courts faced with thetask of adjudicating motions to dismiss under Rule 12(b)(6) mustapply the notice pleading requirements of Rule 8(a)(2). Under thatrule, a complaint need only include "a short and plain statement ofthe claim showing that the pleader is entitled to relief." Thisstatement must "give the defendant fair notice of what theplaintiff's claim is and the grounds upon which it rests." Conley v.Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Stateof mind, including motive and intent, may be averred generally. Cf.Fed. R. Civ. P. 9(b) (reiterating the usual rule that "malice, intent,knowledge, and other condition of mind of a person may beaverred generally"). In civil rights actions, as in the mine-run ofother cases for which no statute or Federal Rule of CivilProcedure provides for different treatment, a court confronted witha Rule 12(b)(6) motion "may dismiss a complaint only if it is clear

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that no relief could be granted under any set of facts that could beproved consistent with the allegations." Hishon v. King &Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229(1984).

It is undisputed that plaintiffs must [s]tate a claim to relief that is plausible on its

face, not merely conceivable. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct

1955, 1969, 167 L. Ed. 2d 929 (2007). The approach that the Supreme Court set forth

in Swierkiewiczrequires the Court to treat complaints more liberally. For example, the

First Circuit previously required plaintiffs to "set forth in their complaint 'factua

allegations, either direct or inferential, regarding each material element necessary tosustain recovery .'" Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir

1989) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)).

Swierkiewicz makes clear that a complaint that does not address itself to every element

of every claim may nevertheless be adequate under Rule 8(a). In addition, where

Defendant's improper intent is an essential element of a plaintiff's claim, the First Circuit

has insisted upon "specific, nonconclusory factual allegations giving rise to a reasonable

inference of discriminatory intent." Judge v. City of Lowell, 160 F.3d 67, 75 (1st Cir

1998) (emphasis in original); See also, Aulson, 83 F.3d at 3 (faulting plaintiffs for relying

on bald assertions and unsubstantiated conclusions of law in setting forth their claims)

Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52-53 (1st Cir. 1990). Yet

Swierkiewicz clearly indicates that it is not fatal to Plaintiff's case that some of his

allegations at this stage may be legal conclusions rather than facts. Swierkiewicz, 122

S. Ct. at 999; see Higgs v. Carver, 2002 U.S. App. LEXIS 5617, No. 01-1559, 2002 WL

481227, (7th Cir. Apr. 1, 2002) (reading Swierkiewiczto mean that "[a] complaint that

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complies with the federal rules of civil procedure cannot be dismissed on the

ground that it is conclusory or fails to allege facts.") Greenier v. Pace, Local No

1188, 201 F. Supp. 2d 172, 177 (D. Me. 2002) (Emphasis added.)

By the same token, both the United States as well as the Puerto Rico Supreme

Court have established that: "[a] complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,

45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Hishon v. King & Spalding, 467 U.S.

69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984); Miranda v. Ponce Fed. Bank,948 F.2d 41, 44 (1st Cir. 1991). The court must accept as true the well-pleaded factua

averments contained in the complaint, while at the same time drawing all reasonable

inferences there from in favor of the plaintiff. McDonald v. Santa Fe Trail Transp. Co.

427 U.S. 273, 276, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976); Correa-Martinez v

Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir. 1990). Flamand v. American Int'l Group

876 F. Supp. 356, 360-361 (D.P.R. 1994).

In fact, the court must exercise its judgment cautiously in the pursuance of

serving the best interests of justice. Therefore, plaintiffs are relying on this Honorable

Courts best judgment in adjudicating the present issues.

The US Supreme Court has made it clear that:

[o]nce a claim has been stated adequately, it may be supportedby showing any set of facts consistent with the allegations in thecomplaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.1955, 1969, 167 L. Ed. 2d 929 (2007). As such, in order to survivea motion to dismiss, a complaint must state a claim to relief that isplausible on its face, not merely conceivable. Id. at 1974. The FirstCircuit has interpreted Twomblyas sounding the death knell forthe oft-quoted language ofConleyv. Gibson, 355 U.S. 41, 45-46,

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78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), that "a complaint should notbe dismissed for failure to state a claim unless it appears beyonddoubt that the plaintiff can prove no set of facts in support of hisclaim which would entitle him to relief." Rodriguez-Oritz v. MargoCaribe, Inc. 490 F. 3d 92, 94-95 (1st Cir. 2007), quotingTwombly,

127 S. Ct. at 1969. Still, a court must "treat all allegations in theComplaint as true and draw all reasonable inferences therefrom infavor of the plaintiff." Rumford Pharmacy, Inc. v. City of EastProvidence, 970 F.2d 996, 997 (1st Cir. 1992). Muniz-Rubertev.Pereira-Castillo, 2010 U.S. Dist. LEXIS 5401, 2-3 (D.P.R. Jan. 22,2010).

In the District of Puerto Rico the First Circuit has followed the US Supreme Court

and has interpreted the applicable legislation as follows: A plaintiff's obligation to

"provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels andconclusions, and a formulaic recitation of the elements of a cause of action will not do."

Twombly, 127 S. Ct. at 1965. That is, "factual allegations must be enough to raise a

right to relief above the speculative level, on the assumption that all allegations in the

complaint are true." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008); Velez v.

Almestica Lopez, 2009 U.S. Dist. LEXIS 107073 (D.P.R. Nov. 17, 2009).

While in Velez v. Almestica Lopez, supra,the Court reinforced that [a] plaintiff's

obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do." Twombly, 127 S. Ct. at 1965. That is, factual allegations must be enough

to raise a right to relief above the speculative level, on the assumption that al

allegations in the complaint are true." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008)

Hence, plaintiffs argue that their factual allegations are sufficient and undoubtedly raise

the above mentioned right to relief.

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By the same token, the court has the ineludible duty of evaluating the allegations

and taking them as true as long as plaintiffs comply with the well established rule from

Bell Atlantic Corp. v. Twombly, 127 S Ct. 1995 (2007) among other applicable

jurisprudence. Otherwise, the law would not serve its purpose.

For the reasons set forth herein, Plaintiffs oppose co-defendants motions to

dismiss as set forth at docket numbers 43, 44, 46-48.

B. Plaintiffs 42 USC 1983 claim and Articles 1802 and 1803 claims are not

time barred.

Plaintiffs claims under 42 USC 1983 and Articles 1802-1803 of the Puerto RicoCivil Code are not time barred.

Pursuant to the Puerto Rico Civil Code the statute of limitations for damages

claims under Article 1802 and 1803 is one year from the date of accrual. Carreras Rosa

v. Alves Cruz, 127 F.3d 172 (1stCir. 1997). The prescriptive period begins to run when

the injured party knew or should have known of the injury and of the likely identity of the

tortfeasor. Tokyo Marine & Fire Ins. Co., Ltd. v. Perez & Cia., de Puerto Rico, 142 F.3d

1, 3 (1st Cir. 1998).

Article 1873 of the Puerto Rico Civil Code states that an injured party may

interrupt the prescriptive period in one of three ways. As per Article 1873, one of these

three ways is through an extrajudicial claim.

The instant complaint was filed on June 15, 2010. As per the complaint, most o

the Plaintiffs went to the Corporation of the State Insurance Fund (hereinafter CFSE

requesting treatment between the years 2000 and 2007 due to medica

conditions/symptoms which originated while employed by Puerto Rico Aqueduct and

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Sewer Authority (hereinafter PRASA), while other Plaintiffs were intentionally and

knowingly chilled out by PRASA and/or CFSE from the exercise of their rights. [Dckt. 1

78, 156]

On July 31, 2008, Plaintiffs sent an extrajudicial claim letter, whereby effectively

tolling the prescriptive period for the damages and injuries suffered by Plaintiffs. [Ex. 1

On October 21, 2008, PRASA issued a written response. On October 30, 2008

Plaintiffs responded to PRASAs October21st letter. [Ex. 2] On July 30, 2009, Plaintiffs

sent a second extrajudicial claim letter. [Ex. 3]

Here, Plaintiffs extrajudicial claim letters, copies of which were also served uponthe Puerto Rico Department of Justice, dated July 31, 2008 and July 30, 2009 served to

effectively toll the prescriptive period. Therefore, the complaint, filed on June 15, 2010

was filed within the statutory time period as set forth under the Puerto Rico Civil Code.

Consequently, Plaintiffs claims under 42 USC 1983 and Articles 1802 and 1803

of the Puerto Rico Civil Code are not time barred.

Moreover, and in the alternative, Plaintiffs claims that the damages set forth in

the complaint are not time barred because of the doctrine of continuing damages.

Plaintiffs medical conditions are a consequence of their exposure to hazardous/toxic

materials while employed by and performing job related duties for PRASA. Even

though some of Plaintiffs no longer are employed by and/or have retired from PRASA

their medical conditions subsist and will continue to afflict them until the time of their

death (hereinafter PRASA employees Plaintiffs).

These conditions have the effect and have had the effect of complicating

Plaintiffs performance of everyday life activities and functions. As a consequence

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Plaintiffs spouses and offspring have also been affected, not only by watching their

loved ones health deteriorate right in front of their eyes, and in watching them suffer as

they attempt to perform and carry out everyday life activities, but also by the

consequential exposure and contamination of hazardous/toxic materials that emanated

from the PRASA employee Plaintiffs and which was suffered by their respective

spouses and offspring, among others; as well as the emotional damages suffered as a

consequence of knowing that because of them their family has also been afflicted.

Plaintiffs have and continue to suffer damages as a result of defendants

negligence, actions and/or omissions. Since the PRASA employee Plaintiffscommenced to report themselves to the CFSE for the various medica

symptoms/conditions they perceived, they were initially treated in some form or another

by the CFSE, however, they would later be discharged without treatment. Nonetheless

they continued and continue to suffer from the conditions for which they reported to the

CFSE, some of which, through the passage of time, have been aggravated and/or

caused other complications.

Consequently they have been placed the burden of financing their own medica

treatment for conditions which resulted as a result to exposure and contamination with

hazardous/toxic materials, and which have manifested themselves differently in each

Plaintiff, as well as those which where aggravated as a result of said exposure. In

addition to this, Plaintiffs have an additional financial burden to carry, not only must they

personally finance the costs of the above referenced medical conditions, but they must

also finance the medical costs associated with the conditions experienced by either their

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spouses and/or offspring as a result of their consequential contamination and exposure

to the toxic materials.

For instance:

(i) Carlos Cintrn Martinez, reported to the CFSE in 2004, in June 2009 he was

granted disability for his conditions; his medical conditions persist to this day;

(ii) Roberto Morales Cintron reported to the CFSE on August 2007 were her was

diagnosed with bursitis, among other conditions, he was discharged but his conditions

persist to this day;

(iii) Daniel Morales Cruz, reported to the CFSE on October 2006, where hisconditions were related to aluminum exposure, however he was discharged in February

2008 without any treatment, nonetheless his medical conditions persisted and persist to

this day;

(iv) Luis Morales Velazquez, reported to the CFSE on September 2007, his

conditions were related to aluminum exposure, his conditions persist to this day;

(v) Juan Ramon Rivera Rosado, reported to the CFSE on February 2004, his

symptoms were related to metal exposure, he was discharged by the CFSE on August

2006, however his medical conditions persist to this day;

(vi) Jose Rodriguez Padilla, reported to the CFSE on November 2006, he is

currently under treatment and his conditions persist to the present day;

(vii) Juan Rodriguez Perez reported to the CFSE in 2007, his symptoms were

related to aluminum exposure, he is currently receiving treatment and his conditions

persist to the present day;

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(viii) Bienvenido Rodriguez Sosa was given a full disability by CFSE on March

2008, however, his medical conditions persist to the present day.

(ix) Angel Bernardy Vidal, an electromechanic at the Cayey Plant was exposed

and contaminated with toxic/hazardous materials. As a result of this contamination, his

wife, Laura Rivera Madera, and their son Angel Javier Bernardy Rivera, have also been

exposed and contaminated with said toxic materials.

(x) Andres Torres Diaz, is a sewer system worker at the Cayey Plant. As a resul

of his exposure and contamination to hazardous/toxic materials, his wife and children

have also been contaminated.These are only some of the Plaintiffs set forth in the complaint, however, they

serve to illustrate that their medical conditions are on-going, they are related to thei

exposure to toxic/hazardous materials while employed by PRASA, that both PRASA

and the CFSE had and have knowledge of this, and that CFSE would discharge

Plaintiffs without treatment even when knowing that the medical conditions they

manifested were work related, and that the spouses and offspring of PRASA employee

Plaintiffs were also affected and contaminated.

Consequently, Plaintiffs claims under 42 USC 1983 and Articles 1802 and 1803

of the Puerto Rico Civil Code are not time barred and therefore should not be

dismissed.

C. Plaintiffs do not fail to state a claim pursuant to 42 USC 1983.

The present action is brought, in part, under section 1983. This section reads as

follows:

Every person who under color of any statute, ordinance,regulation, custom, or usage, of any State or Territory or the

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District of Columbia, subjects, or causes to be subjected, anycitizen of the United States or other person within the jurisdictionthereof to the deprivation of any rights, privileges, or immunitiessecured by the Constitution and laws, shall be liable to the partyinjured in an action at law, Suit in equity, or other proper

proceeding for redress, except that in any action brought against ajudicial officer for an act or omission taken in such officer's judicialcapacity, injunctive relief shall not be granted unless a declaratorydecree was violated or declaratory relief was unavailable. For thepurposes of this section, any Act of Congress applicableexclusively to the District of Columbia shall be considered to be astatute of the District of Columbia.

Section 1983 does not create independent substantive rights, but instead

provides a cause of action by which individuals may seek monetary damages forgovernmental violations of rights protected by federal law. See, Albright v. Oliver, 510

US 266, 271 (1994). Additionally, this section applies not only to the Commonwealth of

Puerto Rico but also to its instrumentalities with the same force as to any other state of

the Union. See, Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002).

To sustain an action under 1983, a plaintiff is to establish that (i) the conduct

complained of was committed under color of state law, (ii) the conduct worked a denia

of rights secured by the Constitution or laws of the United States, and (iii) that there is a

causal connection linking the defendants conduct to the alleged deprivation. See

Cepero-Rivera v. Fagundo, 414 F.3d 124 (1st Cir. 2005), Gutierrez-Rodriguez v

Cartagena, 882 F.2d 553 (1st Cir. 1989).

Co-defendant, Dr. Roman Franco, was employed by the CFSE. The CFSE is a

public corporation of the Commonwealth of Puerto Rico; co-defendant Jose Ortiz

Vazquez and Eufemio Toucet were the Director and Su-Director of PRASA

respectively. Hence, Dr. Roman Franco, Jose Ortiz Vazquez and Eufemio Toucet, are

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for purposes of section 1983, an employee of the state, and consequently a person who

acts under color of state law.

While performing his duties, Dr. Roman did in fact relate the conditions of some

Plaintiffs to their exposure to hazardous materials while employed at PRASA

Furthermore, as stated in the complaint at paragraphs 150 to 157, from 2006 to 2008

the CFSE commenced a pattern of revoking and/or not relating Plaintiffs medica

conditions to exposure of hazardous/toxic material at the behest of PRASA. Although

some of CFSE personnel declined to follow these instructions as set forth by PRASA

other medical CFSE personnel did go along with PRASAs instructions and terminated

Plaintiffs from CFSE, revoked and/or denied relating their condition to hazardous/toxic

material exposure. PRASA was so adamant that its instruction be followed by CFSE

that PRASA, through its officials, held regular meetings with CFSE personnel. The

consequential effect of these instructions imparted by PRASA and followed by CFSE

being that if Plaintiffs conditions were not related to their exposure and contamination

with hazardous/toxic materials they would not be entitled to medical treatment under the

Puerto Rico Work Accident Compensation Act and therefore not afforded treatment by

the CFSE. [Complaint at 143-144].

PRASA, through its officials, Jose Ortiz Vazquez and Eufemio Toucet, and

PRASAs administration at the time of the events, ONDEO and Compaas de Aguas

de Puerto Rico, engaged in conduct under color of state law. Through this conduct they

incurred in a willful and knowing behavior whose only objective and purpose was to

thwart Plaintiffs right to life and property. The conduct incurred in by these defendants

is not only reprehensible but intentionally seeks to deprive Plaintiffs of the medica

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attention they sought as a result of work related injuries and/or illness; illnesses which

not only deprive them obtaining and pursuing and maintaining work but also deprive

them of the capacity to earn an income and consequently encroaching their right to

property, but which are also, in their majority, degenerative conditions which gravely

affect their performance and limit daily activities. In doing so, defendants are attempting

at Plaintiffs right to life and property.

In light of the above, Plaintiffs section 1983 claims against co-defendants should

not be dismissed.

D. Fifth Amendment claimThe fifth amendment of the United States Constitution applies to actions of the

federal government. See, Gerena v. PR Legal Serv., Inc., 697 F.2d 447 (1st Cir. 1983)

The claims raised in the instant complaint are against the Commonwealth of Puerto

Rico, its instrumentalities, agencies and employees. The complaint does not set forth or

raise claims against the federal government, instrumentalities or employees.

Furthermore, the complaint, in its section titles causes of action does not set forth and

request relief for remedy under the Fifth Amendment.

In light of the above, Plaintiffs voluntarily dismiss claims under the Fifth

Amendment.

E. Fourteenth Amendment Claim

The Fourteenth Amendment states in part that nor shall any state deprive any

person of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

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The Due Process Clause of the Fourteenth Amendment provides that certain

substantive rights, such as, life, liberty, and property, cannot be deprived except

pursuant to constitutional procedures. Cleveland Bd. of Educ. v. Loudermill, 470 US

532 (1985).

Due process is the principle that the government must respect all of the lega

rights that are owed to a person according to the law. Due process holds the

government subservient to the law of the land protecting individual persons from the

state. When a government harms a person without following the exact course of the

law, then that is a due process violation which offends the rule of law.Plaintiffs in the instant case have had their substantive rights encroached on by

defendants and its employees. As stated in the complaint at paragraphs 146-159

Defendants participated in, where involved in and/or had knowledge of PRASAs intent

to ensure that the CFSE thwarted and/or denied Plaintiffs the medica

attention/treatment and/or benefits they so desperately needed. Medical attention

required as a direct consequence to their exposure to hazardous/toxic materials while

performing job related functions during their employment with PRASA. By the same

token PRASA knowingly dissuaded some Plaintiffs from going to the CFSE and

receiving the needed medical attention, and prompted CFSE to dissuade Plaintiffs from

obtaining medical attention and pursuing a claim for medical attention within the CFSE.

By conducting themselves in such a manner, Defendants engaged in conduct

conducive to depriving Plaintiffs of their rights as afforded by the 14 th Amendment

particularly their right to life, liberty and property.

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Employees have the right to seek medical attention at the CFSE for job related

conditions. In the instant case, Plaintiffs had the right to seek medical attention at the

CFSE for their job related conditions and be given adequate treatment for these

Nonetheless, defendants, in some instances dissuaded Plaintiffs from going to the

CFSE and seek the medical attention needed, in others dissuaded Plaintiffs from

continuing to seek the medical attention being provided to them by the CFSE, denied

Plaintiffs medical treatment or revoked Plaintiffs the medical treatment being

sought/obtained at the CFSE.

Furthermore, through PRASAs negligence and wanton disregard for the safety

of its employees, the spouses and offspring of these employees have also been

personally and directly adversely affected. By acting in said manner Defendants

effectively encroached Plaintiffs right to life. Defendants have encroached Plaintiffs

right to the enjoyment of life and daily activities, and must now suffer for the rest of their

lives from medical conditions which they otherwise would not have been subjected to

had it not been for their exposure to hazardous/toxic materials; and in some instances

they must suffer the aggravation of pre-existing conditions which otherwise would not

have been aggravated/accelerated had it not been but for the exposure to such toxic

materials.

Defendants engaged in this conduct without granting and/or allowing PRASA

employee Plaintiffs the opportunity to object to their denial of medical attention by the

CFSE. Furthermore, Defendants engaged in this conduct by dissuading Plaintiffs from

seeking medical attention. In acting in such a manner Defendants effectively thwarted

Plaintiffs right to seek medical treatment/benefits for job related medical conditions at

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CFSE for conditions obtained as result of performing their job duties for PRASA.

[Complaint at 143-144]. It is unreasonable for state instrumentalities and its

employees to deny and interfere with a persons right to seek medical attention.

Consequently, Defendants encroached Plaintiffs right to life, by denying and/or

attempting to deny them medical treatment.

Through their conduct Defendants incurred in a willful and knowing behavior

whose only objective and purpose was to thwart Plaintiffs right to life and property. The

conduct incurred in by these defendants is not only reprehensible but intentionally seeks

to deprive PRASA employee Plaintiffs of the medical attention they seek as a result ofwork related injuries and/or illness; illnesses which not only deprive them obtaining and

pursuing and maintaining work thereby depriving them of the capacity to earn an

income and consequently encroaching their right to property; but which are also, in their

majority, degenerative conditions which gravely affect their performance and limit daily

activities; and which have the same effect in their spouses and offspring. In doing so

defendants are attempting at Plaintiffs right to life and property.

In light of the above, Plaintiffs constitutional claims against defendants should not

be dismissed.

F. Plaintiffs wives and children do not lack standing to sue under 42 USC

1983.

Section 1983 does not create independent substantive rights, but instead

provides a cause of action by which individuals may seek monetary damages for

governmental violations of rights protected by federal law. See, Albright v. Oliver, 510

US 266, 271 (1994). Additionally, this section applies not only to the Commonwealth of

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Puerto Rico but also to its instrumentalities with the same force as to any other state of

the Union. See, Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002).

Plaintiffs in the instant complaint are comprised of a group of PRASA employees

their spouses, offspring, and heirs (when applicable). Defendants claim that these

plaintiffs lack standing to sue under section 1983 and the RICO Act given that the

aggrieved conditions were not personally endured and/or suffered by them but by the

PRASA employee plaintiffs.

Plaintiffs contend that the spouses and offspring of the PRASA employee

plaintiffs did directly and personally suffer the aggrieved conditions suffered by thePRASA employee plaintiffs; conditions which were suffered by them as a result of

defendants negligence and wanton disregard for the safety and care of the PRASA

employee plaintiffs in the workplace.

As a result of their work duties, conditions and/or environment the PRASA

employee plaintiffs were exposed to and contaminated with hazardous/toxic materials

which exposure led to health issues. As a direct result of the PRASA employee

plaintiffs exposure to and contamination with hazardous/toxic materials, their spouses

and offspring were in turn subject to exposure to hazardous/toxic materials and eventua

contamination, as a result of which their constitutional rights, among others, were

violated as set forth and expressed in the previous section.

For instance:

(i) Plaintiff Angel Bernardy Vidal is an electro mechanic at the Cayey Plant. As a

result to his exposure and consequential contamination with toxic/hazardous materials

his wife and offspring were also contaminated. His wife, Laura Rivera Madera, had

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blood work analysis done in February-March 2008, she was 34 at the time. Her blood

work results indicated that she had high levels of aluminum in serum, her aluminum

level was 11, when the normal range is between 0-9. Also, their son, Angel Javier

Bernardy Rivera, was exposed and contaminated by said toxic materials. Angel Javie

Bernardy Rivera, born in November 1992, had blood analysis done in December of

2007. His blood work results indicated that his aluminum level was 9, which is high fo

a fifteen year old boy.

(ii) Plaintiff, Andres Torres Diaz, is a sewer system worker at the Cayey Plant

As a result of his exposure and contamination to hazardous/toxic materials, his wife andoffspring have also been contaminated. Specifically, his daughter, Adrianamary Torres

Vazquez, had a blood analysis done on December 12, 2007, she was eighteen years

old at the time, and her blood work revealed an aluminum blood serum level of 16

Also, his daughter Olmary Torres Vazquez, had blood analysis done on December 18,

2007, she was twenty one years old at the time of the exam, and her blood work

revealed an aluminum blood serum level of 11. Both of which are high.

The above serves to illustrate that Defendants wanton disregard for the safety

and well being of its employees had the direct effect of affecting the health not only of

the PRASA employee Plaintiffs but also that of their spouses and offspring

Defendants actions directly affected the relationship and well being of these PRASA

employee plaintiffs spouses and offspring. In doing so, not only has their health been

afflicted, but so have their rights been violated as a result of defendants actions

inaction and negligence.

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As can be seen, these relatives were not only incidentally affected by the events

upon which the suit is based, but they were also directly and personally affected by

them.

In light of the above, Plaintiffs constitutional claims against defendants should not

be dismissed.

G. The RICO Act 2

Section 1962 (c) and (d) of the RICO Act state that:

(c) It shall be unlawful for any person employed by or associatedwith any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate, directlyor indirectly, in the conduct of such enterprises affa irs through apattern of racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any ofthe provisions of subsection (a), (b), or (c) of this section.

To state a claim under section 1962(c), the plaintiff is to allege (1) conduct, (2) of

an enterprise, (3) through a pattern, (4) of racketeering activity. Efron v. Embassy

Suites (Puerto Rico), Inc. 223 F.3d 12, 14 (2000).

As to individual defendants, the complaint is to allege that (1) there is an

enterprise affecting interstate or foreign commerce; (2) that the defendant is associated

with the enterprise; (3) that the defendant participated in the conduct of the enterprises

affairs; and (4) that the participation was through a pattern of racketeering activity. See

Puerto Rico American Insurance CO. v. Burgos, 556 F. Supp. 2d 86, 90 (DPR 2008).

With regards to these, to participate in the conduct of an enterprise, it is to be

demonstrated that the defendant had some part in the operation and management of

2 On January 20, 2011, docket number 57, Plaintiffs filed their RICO Statement. Plaintiffs hereby adoptand incorporate by reference the statements set forth in their RICO Statement, without having to restatethe same in their totality.

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the enterprise itself. See, Reves v. Enrst & Young, 507 US 170 (1992). As to the term

pattern, it is required that at least two predicate acts of racketeering activity committed

within a ten year span and proof of continuity sufficient to show that the predicate acts

constitute a pattern of said racketeering activity. See, Efron, supra.

Given that for purposes of a RICO claim both PRASA and CFSE are considered

enterprises, we now turn our attention to the individual named defendants. In the

instant case Dr. Iris Otero, at the time was the Medical Director of the CFSE. As such it

is clear that she was associated with CFSE and as Medical Director participated in the

conduct of CFSEs enterprise affairs. Dr. Iris Otero participated in the conduct of theenterprise, CFSE, and took actions against Plaintiffs for their exercising their right to

seek and obtain medical treatment for job related health issues and sought to deny

them said treatment.

The unlawful conduct displayed by defendants in the instant case was in violation

of 18 U.S.C. 1962 (c) and (d), inasmuch as defendants were fully aware that the CFSE

determinations regarding the adjudication of relationship, termination, and all other

determinations made by CFSE, would be sent or notified to Plaintiffs and PRASA,

through mail or telephone, and still conspire to do so. Defendants were also fully aware

that their determinations contained false statements and still acted upon them either by

aiding in their creation, promoting their distribution or confirming their false statements.

Thus, the co-defendants violated 18 USC 1341 and 1343, as extended by 1346,

which constitutes a predicate racketeering act pursuant to 18 USC 1961(1).

In their motion to dismiss, co-defendants, Dr. Roman Franco, CFSE and Iris

Otero, claim that Plaintiffs RICO claims fall short inasmuch as the claims fraud are not

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pled with the particularity required by FRCP 9(b). However, in Davila Uviles v. RYS

Intern. Corp., 443 F. Supp. 2d 133 (DPR 2006), the First Circuit has warned that

dismissal of a claim should be automatic if the particularity requirement of FRCP 9(b) is

not satisfied. When a plaintiffs allegations make likely a RICO claim, the court is to

determine whether the claim warrants discovery in order for plaintiffs to be able to

amend the defective pleading, if any.

At the time of the events set forth in the complaint, Defendants were fully aware

that Plaintiffs had an entitlement to receive medical treatment and compensation from

CFSE their exposure and contamination to hazardous/toxic material poisoning, and theensuing two-year period of paid sick leave from the PRASA and their actions

admonishing the injured employees with criminal, civil and administrative sanctions for

claiming their rights to treatment and paid leave inflicted wrongful fear upon them with

the purpose of extorting him in violation of the Hobbs Act. 18 USC 1951 and this

constitutes a predicate racketeering act pursuant to 18 USC 1961 (1) (a).

PRASA, CFSE, ONDEO, Compaa de Aguas acted in accordance in an effort to

terminate all treatment of PRASA employees by the CFSE, who were in paid sick leave

among other circumstances and to not accept any additional PRASA employees

claiming work related health problem that had to do with exposure to hazardous/toxic

materials, misused the U.S. Mail and telephone wire to forward documents and

communicate information containing false information in furtherance of a scheme or

artifice to defraud.

As set forth in Plaintiffs RICO Statement, co-defendant, Dr. Roman Franco, was

the toxicologist who examined some of the plaintiffs referred by the CFSE, and is an

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individual capable of holding a legal or beneficial interest in property, and as such, is

considered a PERSON within the meaning of 18 USC 1961(3).

As such, co-defendant, Dr. Roman Franco, was employed by or associated with

co-defendants PRASA and CFSE, which in term are considered as enterprises within

the meaning of 18 USC 1961(4). This co-defendant conducted or participated, directly

or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering

activity, when in an effort to terminate all treatment of PRASA employees by the CFSE,

who were in paid sick leave among other circumstances and to not accept any

additional PRASA employees claiming work related health problem that had to do withaluminum poisoning and similar conditions, misused the U.S. Mail and telephone wire to

forward documents and communicate information containing false information in

furtherance of a scheme or artifice to defraud.

As previously mentioned Dr. Iris Otero, at the time was the Medical Director of

the CFSE. As such it is clear that she was associated with CFSE and as Medica

Director participated in the conduct of CFSEs enterprise affairs, and as such is

considered a person within the meaning of 18 USC 1961(3). Dr. Iris Otero participated

in the conduct of the enterprise, CFSE, and took actions against Plaintiffs for their

exercising their right to seek and obtain medical treatment for job related health issues

Specifically, co-defendant Dr. Iris Otero, conducted or participated, directly or indirectly

in the conduct of such enterprises affairs through a pattern of racketeering activity

when in an effort to terminate all treatment of PRASA employees by the CFSE, who

were in paid sick leave among other circumstances and to not accept any additional

PRASA employees claiming work related health problem that had to do with aluminum

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poisoning and similar conditions, misused the U.S. Mail and telephone wire to forward

documents and communicate information containing false information in furtherance of

a scheme or artifice to defraud. [See, Complaint at 148-153, 165, 167]

Co-defendant, Dr. Iris Otero, has already admitted in the motion to dismiss that

that she was Medical Director of CFSE from July 2005 to December 31, 2006. [Dckt

44, p.5] From the Complaint, it is clear that various meetings took place between

PRASA and CFSE officials from June 2005 to October 2006, period in which Dr. Otero

was Medical Director of the CFSE. Meetings in which Dr. Otero participated and/or was

informed of which. As stated in the Complaint at paragraphs 151 and 153, Dr. Oteroparticipated in at least one of these meetings in which PRASA representative

demanded that the CFSE terminate the treatment of at least 300 PRASA employees on

paid leave, among others. Furthermore, and as stated in paragraph 153 of the

Complaint, after the October 18, 2006, in which Dr. Otero participated, the CFSE

implemented a pattern of (i) falsely and unlawfully revoking the adjudication relationship

that had been made between several employees symptoms of aluminum poisoning and

the workplace conditions at PRASA; and (ii) falsely an unlawfully denying the

adjudication of relationship between the symptoms of aluminum poisoning manifested

and presented by the PRASA employees and the workplace conditions at PRASA

Notifications of which were notified to Plaintiffs through the misuse of the U.S. Mail and

telephone wire to forward documents and communicate information containing false

information in furtherance of a scheme or artifice to defraud. This behavior sought to

hinder and/or deny Plaintiffs access to treatment under the CFSE, given that if the

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CFSE did not relate the condition to the workplace the Plaintiffs would not be afforded

treatment and benefits under the CFSE. [Complaint at 143-144]

Co-Defendants, Jose Ortiz Vazquez, Executive Director of PRASA, and Eufemio

Toucet, Executive Sub-Director of the PRASA are individuals capable of holding a lega

or beneficial interest in property, and as such, is considered a PERSON within the

meaning of 18 USC 1961(3).

Both of these co-defendants were employed by or associated with co-defendants

PRASA and CFSE, which in term have been consider as an enterprise within the

meaning of 18 USC 1961(4). These co-defendants conducted or participated, directlyor indirectly, in the conduct of such enterprises affairs through a pattern of racketeering

activity, when in an effort to terminate all treatment of PRASA employees by the CFSE,

who were in paid sick leave among other circumstances and to not accept any

additional PRASA employees claiming work related health problem that had to do with

aluminum poisoning and similar conditions, misused the U.S. Mail and telephone wire to

forward documents and communicate information containing false information in

furtherance of a scheme or artifice to defraud. Through their actions, these co-

defendants utilized an enterprise, such as PRASA, as a vehicle through which to

commit unlawful activities and engaged in racketeering activities. This behavior sough

to hinder and/or deny Plaintiffs access to treatment under the CFSE, given that if the

CFSE did not relate the condition to the workplace the Plaintiffs would not be afforded

treatment and benefits under the CFSE. [Complaint at 143-144]

The above mentioned co-defendants are liable for the damages and suffering

endured by Plaintiffs, inasmuch as they knowingly and with intent misused the U.S. Mai

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and wire communication to forward documents and communicate information containing

false information in furtherance of a scheme or artifice to defraud. Linguistically

speaking, an employee who conducts the affairs of a corporation through illegal acts

comes within the terms of a statue that forbids any person unlawfully to conduct an

enterprise particularly when the statue explicitly defines person to include any

individual capable of holding a legal or beneficial interest in property and defines

enterprise to include a corporation. 18 U.S.C. 1961 (3); Kushner Promotion, LTD

v King, et als, 533 U.S. 158 (2001).

In order to determine whether a corporation made a false or misleadingstatement with specific intent to defraud, we look to the state of mind of the individual

corporate officer and employees who made, ordered or approved the statement.

Southland Sec. Corp. v. Inspire Ins. Solutions Inc., 365 F. 3d 353, 366 (5 th Cir. 2004)

Additionally, all co-defendants above mentioned were fully aware that Plaintiffs had an

entitlement to receive medical treatment services and compensation from the CFSE for

their related aluminum poisoning, and the ensuing two-year period of paid sick leave

from the PRASA and their actions admonishing the injured employees with criminal, civi

and administrative sanctions for claiming their rights to treatment and paid leave

inflicted wrongful fear upon them with the purpose of extorting him in violation of the

Hobbs Act. 18 USC 1951 and this constitutes a predicate racketeering act pursuant to

18 USC 1961 (1) (a).

As previously mentioned, most, if not all of Plaintiffs went to the CFSE requesting

treatment and/or benefits between 2000 and 2007 due to conditions developed during

the time they were employed by PRASA. The determinations made by CFSE and

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PRASA were sent or notified to Plaintiffs and each other, through mail or telephone,

some particular instances of said notifications are:

(i) An administrative decision sent via mail by co-defendant CFSE to plaintif

Jos Rodrguez Pantoja, and co-defendant PRASA, on December, 14th, 2004, where it

states that his emotional condition was not work related.

(ii) An administrative decision sent via mail by co-defendant PRASA to

plaintiff Santos Burgos Cartagena, on May, 6th, 2008, where it states the negative of the

CFSE to consider him incapacitated and therefore the inability of the PRASA to give a

paid sick leave.(iii) An administrative decision sent via mail by co-defendant PRASA to

plaintiff Tito L. Gomez Soto, on November 15, 2007, where it states the negative of the

CFSE to consider him incapacitated and therefore the inability of the PRASA to give a

paid sick leave.

(iv) On December, 12th, 2006, plaintiff Hctor Luis Gmez Soto, was

discharge by the CFSE, who determine he was healthy and notified him of said decision

via mail. [Complaint at 100]

(v) On December, 11th, 2006, plaintiff Luis Angel Delgado Rojas, was

discharge by the CFSE, who determine he was healthy and notified him of said decision

via mail. [Complaint at 95]

Defendants are liable for the damages and suffering endured by Plaintiffs

inasmuch as their employees with knowledge and intent misused the U.S. Mail and wire

communications to forward documents and communicate information containing false

information in furtherance of a scheme or artifice to defraud.

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Corporations may be held liable for specific intents offenses based on the

knowledge and intent of their employees. N.Y Cent. & Hudson River R.R. Co. v

United States, 212 U.S. 481, 495 (1909); see, United States v. A & P Trucking Co., 358

U.S. 121, 125 (1958). Because a corporation only acts and wills by virtue of its

employees, the proscribed corporate intent depends on the wrongful intent of specific

employees. See, Saba v. Compagnie Nationale Air France, 78 F. 3d 664, 670 (D.C. Cir.

1996).

From the above, and as pled in the complaint, it is clear that the defendants

conspired to commit acts in direct detriment of Plaintiffs.With regards to conspiracy under RICO, a person can be guilty of a RICO

conspiracy even if she cannot be characterized as an operator or manager of a RICO

enterprise under Reves. This is because liability for conspiracy to violate RICO does

not turn on actual commission of any substantive RICO offenses under 1962(a),

1962(b) or 1962(c). Stated differently, the conspiracy provision of 1962(d) makes it

illegal merely to conspire to violate subsections (a), (b), (c) of 1962, and liability under

1962(d) is not coterminous with liability under the other substantive subsections of

1962. See, Paul Batista, Civil Rico Practice Manual, Third Edition, Aspen Publishers

2010 supplement, at p.3-84, citing MCM Partners, Inc. v. Andrews-Bartlett &

Associates, Inc., 62 F.3d 967 (7th Cir. 1995).

As stated in the complaint at paragraphs 76-78 and 147-157, Plaintiffs were

employees of PRASA under the administration of Ondeo and Compaa de Aguas.

During their employment, Plaintiffs were exposed to toxic/hazardous materials. In turn

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PRASA employee Plaintiffs exposed their spouses and offspring to these

toxic/hazardous materials, which exposure led to their eventual contamination.

As stated in the Complaint, Luis Cora, an investigator who worked for PRASA at

HOSO and OEA reported to HOSOs director Engineer co-defendant Pablo Reyes

Bonilla.3 On or about October 23, 2005, PRASA pressured Cora, to contact the

physicians in charge of adjudicating the relationship between workplace conditions

prevailing at PRASA and Plaintiffs aluminum poisoning ailments. In following these

instructions, Cora had to contact CFSE Regional Directors and ask them to discontinue

the treatment of PRASA employees who claimed to suffer symptoms associated withaluminum poisoning. Cora agreed to look into the claims but refused to suggest to the

physicians that employee treatment be terminated. Instead, Cora endeavored to gathe

as much information as possible, and make certain officers within the CFSE aware of

the PRASA intentions.

On June 9, 2005 a meeting was held between the PRASAs, Engineer co

defendant Reyes Bonilla and Attorney Obed Morales, Director of Human Resources

and several CFSE central directors and other regional medical directors, as well as the

CFSEs senior counsel. On said occasion, Reyes Bonilla requested that CFSE review

the cases of PRASA employees who alleged they had been poisoned with aluminum

Several specific cases were discussed, and Cora was asked to follow up on these

cases. Reyes and Morales requested that the CFSE terminate all treatment of PRASA

3 PRASA has two offices to manage workplace related injuries, one is the Office of Employee Assistancehereinafter referred to as the OEA, and the other is the Hygiene and Occupational Safety Office,hereinafter referred to as the HOSO; both of which deal with the injured employees in the instant caseThe OEAs purpose is directed at helping the employee obtain treatment. The purpose of the HOSO is todiscontinue and resolve manifestly or potentially hazardous practices within the workplace, look into theemployees treatment to assess its duration, and rehabilitate him in order to make him productive again.

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employees who were in paid sick leave and to not accept any additional PRASA

employees claiming a similar condition. As a result of this meeting, treatment for severa

employees reported to the CFSE was terminated by the CFSE, and specific instructions

were given to the CFSEs regional directors to review and discontinue the treatment of

PRASA employees who claimed to suffer symptoms associated with aluminum

poisoning.

During this endeavor, Cora visited the CFSEs offices and gathered information

regarding the length of the treatment and reported back to co-defendant Reyes Bonilla,

indicating that the condition was being related to the workplace conditions.On September 18, 2006, co-defendant Reyes Bonilla again became restless with

the high incidence of aluminum poisoning claims amongst PRASA employees. Reyes

Bonilla was concerned with the possibility that the instructions of the June 9 th meeting

had been ignored by the regional medical directors. Reyes Bonilla asked Cora to follow

up with the regional medical directors and to look into whether the instructions were

being followed. As a result, co-defendant Reyes Bonilla coordinated a meeting fo

October 18, 2006 with Cora, Dr. Iris Otero, Attorney Obed Morales, Head of Human

Resources at the CFSE, and Jorge Rios Piero, an accident investigator. In tha

meeting Reyes Bonilla demanded to Dr. Otero that the CFSE had to terminate the

treatment of around 300 employees which were on paid leave throughout the island.

Otero asked for a specified list, but warned that it would be suspicious to terminate

treatment to all employees that were on paid leave, and not terminate the treatment of

employees who were working while receiving treatment. Reyes Bonilla insisted on

terminating the treatment.

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Afterwards, co-defendant Reyes Bonilla implemented a weekly follow-up plan

that lasted until September 2008, through which he would ask Cora what regiona

medical directors he had contacted and what their response had been.

After the Otero meeting, the CFSE implemented a pattern of falsely and

unlawfully revoking the adjudications of relationship that had been made between

several employee symptoms of aluminum poisoning, and the workplace conditions that

prevailed at the PRASA. In other instances, the CFSE falsely and unlawfully denied an

adjudication of relationship between the symptoms of aluminum poisoning presented by

claiming employees, and that workplace conditions that prevailed at the PRASA. ReyesBonilla continued to exert pressure upon Cora to ask that treatment be discontinued,

and that no more aluminum poisoning cases be related to workplace conditions.

As a result of this, several medical directors and examiners throughout the CFSE

started to terminate the treatment to aluminum poisoning patients which came from the

PRASA and were on paid leave, as alleged above in the statements made in the claim

of each individual plaintiff in this case. In several occasions, as alleged above, the

medical directors, and examiners, would deny an adjudication of relationship falsely

determining that aluminum was not the cause of their symptoms. In other instances, as

alleged above, the medical examiners, and the medical directors, would try to dissuade

the plaintiffs from continuing their claims for treatment, services or compensation

falsely alleging that the plaintiff had not suffered any aluminum poisoning, that

aluminum was not poisonous, or that that the tests had been adulterated with dandruff

shampoo to simulate aluminum poisoning.

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Meanwhile, PRASA officers would also try to dissuade Plaintiffs, as alleged

above, from trying to consume their paid sick leave, or from filing their claims with the

CFSE altogether by admonishing them that their claims would be denied, and that their

attempt to claim the paid sick leave would cause the termination from their employment

with the agency.

On March 1, 2007 co-defendant Reyes Bonilla assigned the duties performed by

Cora, to another employee named Jos Roberto Lpez, a human resources specialist in

the Metropolitan Area. After Cora reported that none of the physicians at the CFSE

wanted to meet with him to discuss the treatment of PRASA employees Reyes Bonillabecame infuriated and demanded that he organize meetings with the regional directors

of the CFSE to try to have them push faster his request and the agreement that he had

reached with Otero. From March 2007 through to June 2007 the physicians, medica

examiners, and regional medical directors of the CFSE would refuse to give any

information to Cora because they did not trust that he was in on their efforts to

systematically deny or terminate the treatment of PRASA employees. As a result

Reyes Bonilla completely unauthorized Cora to seek the PRASA employee information

from CFSE sources and gave these duties solely to Lpez. That way the conspirators

would exclude Mr. Cora who had, both, affirmatively and passively behaved in such a

manner as to frustrate the means and manners of the conspiracy to reach its objective.

From the above, it is clear that co-defendants PRASA, and CFSE, as well as the

individual defendants have incurred in a pattern of racketeering in order to (i) unlawfully

deny the people of the Commonwealth of Puerto Rico, the plaintiffs, and other

employees not yet a party to this suit, who were entitled to an adjudication of

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relationship of their symptoms or injuries they suffered with their employment at the

PRASA, the honest services of the medical examiners at the CFSE; (ii) unlawfully deny

the plaintiffs, and other employees not yet a party to this suit, medical treatment,

services and compensation furnished by the CFSE, to which they were entitled to by

law; (iii) deny the people of the Commonwealth of Puerto Rico, the PRASA, the

plaintiffs, and other employees not yet a party to this suit, of the honest services of the

HOSO and OEA offices; and (iv) deny the plaintiffs of their entitlement to the two year

paid leave provision of the collective bargaining agreement and the personne

regulations of the PRASA.In order for their unlawful intention to give results and as part of their usual

administrative guidelines, co-defendants used the U.S. Postal service and the wire

communications to notify their resolutions and all other documentation related to the

cases, all of this, while being fully aware that those documents contained false

statements and with the sole intent to further their scheme or artifice to defraud the

Plaintiffs and limit their rights. Thus, acting in clear violation of 18 U.S.C. 1962 (c)

pursuant to 18 USC 1341 and 1343, as extended by 1346, which in terms constitutes

a predicate racketeering act pursuant to 18 USC 1961 (1). Co-defendants conspire

with each other to give rise to their fraudulent scheme, thus, acting also in clear violation

of 18 U.S.C. 1962 (d).

Co-defendants claim that Plaintiffs have not alleged wire fraud. We disagree. As

can be noted from the Complaint and as discussed herein, some of the notifications

provided to Plaintiffs regarding their CFSE status were sent through the postal system

and other was done via electronic mail. In todays technological era, wire

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communications are not limited to the geographical location of the parties involved.

Wire communications, more specifically electronic mail message, have a varied course

to travel. These communications do not merely travel from the senders outbox to the

recipients inbox, but must undergo a series of destination transfers in order to trave

from sender to recipient. The electronic message must travel from the senders mai

server to the recipients mail server, in achieving this the message must also travel from

hub to hub in order to go from the senders mail server to the recipients mail server

The location of these mail servers as well as their hosting servers location play an

integral role in the travel the mail communication must undergo to go from sender torecipient.

As stated in United States v. Barlow, 568 F.3d 215, 220-221 (5th Cir. 2009), in

discussing 18 U.S.C. 2422(b) and 18 U.S.C. 1470, the Court stated that:

Barlow misunderstands the statutes. Neither 2422(b) nor 1470requires proof of travel across state lines. Section 2422(b)requires the use of any facility or means of interstate orforeign commerce. Section 1470 requires the same with theadded specific that the obscene material be transfer[red] usingthat facility or means. In 2009, it is beyond debate that theInternet and email are facilities or means of interstate commerce.And, it is undisputed that Barlow conducted his entire affair withRebecca online-that is, using the Internet-and sent her obscenematerial by email. The interstate nexus requirements of thestatutes were satisfied irrespective of the agent's testimony.[Emphasis added].

In the case at hand, section 1343 states in part that Whoever, having devised or

intending to devise any scheme or artifice to defraud, transmits or causes to be

transmitted by means of wire, radio, or television communication in interstate or

foreign commerce, any writings, for the purpose of executing such scheme or

artifice, . [Emphasis added]. As in Barlow, supra, the statute at hand does not