Filed: Oct. 18, 2011
Latest Update: Feb. 22, 2020
Summary: determined that its shredder was in working order. The complaint also listed all defendants in, their individual and official capacities, and Redondo conceded that, the official-capacity claims were barred by the Eleventh Amendment.Executive Director of [EQB] and President of its Governing Board.
United States Court of Appeals
For the First Circuit
No. 10-1865
REDONDO WASTE SYSTEMS, INC.; BIG BLUE CORP.,
Plaintiffs, Appellants,
HAYDEE REDONDO MAYMÍ; ANGEL LUIS PÉREZ RODRÍGUEZ,
Plaintiffs,
v.
CARLOS LÓPEZ-FREYTES, Former Executive Director of the Puerto
Rico Environmental Quality Board and President of its Governing
Board in his official and personal capacity; ANGEL BERRIOS-
SILVESTRE, Associate Member of the Governing Board of the Puerto
Rico Environmental Quality Board in his official and personal
capacity; EUGENE P. SCOTT-AMY, Vice-President of the Governing
Board of the Puerto Rico Environmental Quality Board; JULIO IVÁN
RODRÍGUEZ-COLÓN, Manager of the Land Program of the Puerto Rico
Environmental Quality Board and Alternate Member of its Governing
Board, in his official and personal capacity,
Defendants, Appellees,
JAVIER J. RUA, Executive Director of the Puerto Rico
Environmental Quality Board and President of its Governing Board,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Fernando Luis Gallardo, Sr., with whom Woods & Woods LLP was
on brief, for appellants.
Ivonne Cruz Serrano, with whom Maymí, Rivera & Rotger, P.S.C.
was on brief, for appellees.
October 18, 2011
THOMPSON, Circuit Judge. Plaintiffs Redondo Waste
Systems, Inc., and Big Blue Corp. (collectively "Redondo") appeal
the district court's dismissal of their complaint alleging various
malfeasance by the Puerto Rico Environmental Quality Board ("EQB").
Because Redondo's complaint states no plausible claim against any
identifiable defendant, we affirm.
Redondo is a Puerto Rico-based business engaged in the
treatment and disposal of regulated biomedical waste (sometimes
abbreviated RBW). On November 17, 2008, Redondo filed the
complaint at issue against the members of EQB's Governing Board,
specifically Javier Rua, Carlos López-Freytes, Angel Berrios-
Silvestre, Eugene Scott-Amy, and Julio Rodríguez-Colón. Whatever
its legal weaknesses, the complaint tells a somewhat coherent story
that we will now sum up.1
Until 2002, Redondo's main method of waste disposal was
incineration; that year, it invested in more environmentally
friendly shredding equipment. A year later, Redondo began
experiencing problems with its shredder. It therefore requested —
and received — defendant Julio Rodríguez-Colón's approval to use
autoclaves (which treat waste using high-temperature water vapor)
rather than the shredder. This arrangement apparently worked for
a few years, but in August 2006 EQB's inspector (and non-defendant)
1
Redondo's brief to us includes allegations that do not
appear in its complaint; we limit our discussion to material that
does appear in the complaint.
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María de los Angeles Ortiz recommended that EQB issue an order
shutting down Redondo's operations. On the same date, Ortiz
threatened to fine the operator of the Yauco landfill if it
received waste from Redondo. In November 2006, EQB ordered Redondo
to stop collecting waste and to select an alternative facility for
destroying the waste it had already accumulated.
For the next month, Redondo tried to work with EQB to get
up and running again, but EQB remained mute or unhelpful. In late
December 2006, Redondo sought a federal-court injunction requiring
EQB to certify a replacement shredder Redondo had purchased.
Redondo's complaint alleges that "the Court required EQB to certify
[Redondo's] shredder," but the district court docket shows that all
Redondo's requests for injunctive relief were denied. In any
event, Redondo resumed treating and disposing of waste in January
2007.
In February 2007, Redondo's second shredder broke.
Around the same time, an EQB inspector determined that Redondo had
been sending inadequately treated waste to the Yauco landfill.2
Again the landfill stopped receiving waste from Redondo. Redondo
sought a waiver from EQB (a request that EQB never acted on) and a
bankruptcy-court injunction ordering the Yauco landfill operator to
resume receiving treated waste from Redondo (which the court
2
The complaint says the inspection occurred in 2006, but we
may safely infer from context that 2007 is actually the correct
year.
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denied). In March 2007, EQB inspected Redondo's facility and
determined that its shredder was in working order. EQB accordingly
certified the shredder but ordered Redondo not to receive any more
waste until it had dealt with the four million pounds that had
accumulated while its equipment was broken or decertified. EQB
rejected several of Redondo's proposed plans for dealing with this
accumulated waste, finally appointing a company called Western
Medical to do the job.3
Redondo's complaint alleges that EQB treated Redondo's
competitor BFI/Stericycle much more favorably than it treated
Redondo. Before 2003, BFI/Stericycle did not properly destroy any
regulated biomedical waste but only once received a violation
notice from EQB. Nor did EQB ever stop any landfill from receiving
waste from BFI/Stericycle. Apparently because EQB would not act on
its own to make BFI/Stericycle conform to Puerto Rico's waste-
treatment laws, Dr. Haydee Redondo (an owner and corporate officer
of Redondo) filed a complaint with EQB in 2001. But it does not
appear anything came of this complaint; instead, EQB actually
authorized BFI/Stericycle to dispose of inadequately treated waste
in the Humaco landfill in 2002. Redondo makes no allegations about
any other aspect of EQB's treatment of BFI/Stericycle after 2002,
3
At the conclusion of this process, Redondo converted a
pending bankruptcy petition from reorganization to liquidation,
allegedly because of costs it incurred in dealing with EQB.
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save for the implication that in 2003 BFI/Stericycle began properly
destroying waste.
Redondo's complaint asserts four claims unmoored from any
predicate factual allegations: (1) a request for declaratory
judgment acknowledging that EQB's administrative adjudication
process violates due process because of actual or structural bias;
(2) an assertion that EQB retaliated against Redondo because of its
protected speech, in violation of the First Amendment and 42 U.S.C.
§ 1983; (3) an assertion that EQB deprived Redondo of property
without notice or hearing, in violation of the Fourteenth Amendment
and § 1983; and (4) an assertion that EQB arbitrarily treated
Redondo differently from its competitors, in violation of the
Fourteenth Amendment and § 1983. On May 13, 2009, the defendants
responded to the complaint with a Rule 12(b)(6) motion to dismiss.
On June 25, 2009, Redondo conceded portions of the motion to
dismiss,4 opposed others, and suggested that it would amend its
complaint (but did not actually file a proposed amended complaint).
On March 31, 2010, the district court granted the motion
to dismiss, relying primarily on the complaint's failure to link
any claim to any particular defendant. On April 28, 2010, Redondo
filed a motion to alter or amend judgment, finally attaching its
4
The complaint originally included individual plaintiffs, who
Redondo conceded should be dismissed from the complaint because
they lacked standing. The complaint also listed all defendants in
their individual and official capacities, and Redondo conceded that
the official-capacity claims were barred by the Eleventh Amendment.
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proposed amended complaint. The defendants objected, and on June
16, 2010, the court denied the motion. This appeal followed. We
have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court's order dismissing
Redondo's complaint.5 Rios-Colón v. Toledo-Davila, 641 F.3d 1, 4
(1st Cir. 2011). We must reinstate the complaint if it "has facial
plausibility" — in other words, if Redondo has pled "factual
content that allows [us] to draw the reasonable inference that the
defendant[s] [are] liable for the misconduct alleged." Ashcroft v.
Iqbal,
129 S. Ct. 1937, 1949 (2009). For us to draw such an
inference, Redondo's complaint must allege facts linking each
defendant to the grounds on which that particular defendant is
potentially liable.
Id. at 1948. If the complaint fails to do so,
then we must affirm the dismissal order.
Id.
The complaint fails the plausibility test spectacularly.
Not only is no defendant specifically linked to any actionable
conduct, but one of the captioned defendants is not even mentioned
5
Redondo suggests that we review the district court's
dismissal for abuse of discretion, and carps that the dismissal was
so far outside the bounds of judicial authority that it violates
due process. These positions are nonsensical. See Farm Credit
Bank of Balt. v. Ferrera-Goitia, 316 F.3d 62, 68 (1st Cir. 2003)
(rejecting "extravagant" argument that basic legal defects amount
to patent excess of power violating due process).
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in the body of the complaint. Here is a summary of every mention
of each defendant6:
Javier Rua appears in the caption as "Executive Director
of [EQB] and President of its Governing Board." The complaint
never mentions him again.
Carlos López-Freytes appears in the caption as "Former
Executive Director of [EQB] and President of its Governing Board."
The complaint alleges that he supervised the other defendants in
all their unspecified but allegedly illegal acts. Apparently when
Redondo purchased a shredder, the financing bank contacted López.
Additionally, Redondo sent López a letter requesting that an EQB
inspector visit its facility to certify its new shredder; López did
not answer the letter. And finally, after EQB shut down Redondo's
operations in 2006, López publically threatened to fine companies
that sent Redondo regulated biomedical waste anyway.
Angel Berrios-Silvestre appears in the caption as an
"Associate Member of the Governing Board of [EQB]." The complaint
mentions him once following the case caption. This mention reads
in its entirety: "[Berrios] is an Associate Member of the Governing
Board of the EQB and is being sued in his official and personal
capacity. As a member of the Board, he acted under color of law in
6
All quotes from the complaint are sic except as indicated by
brackets.
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enforcing Puerto Rico and federal environmental laws." According
to Redondo's complaint, he enforced the laws — that is all.
Eugene Scott-Amy appears in the caption as "Vice-
President of the Governing Board of [EQB]." The complaint alleges
that Scott worked for the law firm that represents BFI/Stericycle
before he worked for EQB. As a result of this work, he "continues
to have a strong friendship and ties to the partners and associates
of said law firm." The complaint contains no other mention of
Scott.
Julio Rodríguez-Colón appears in the caption as "Manager
of the Land Program of [EQB] and Alternate Member of its Governing
Board." The complaint alleges that Rodríguez was supervised by
defendant López. Rodríguez, in turn, supervised María de Los
Angeles Ortiz and María Janice Sostre-Rivera. The complaint
contains some conclusory allegations: he "wrongful[ly] refus[ed] to
issue a written authorization enabling the Plaintiffs to dispose
sterilized and destroyed RBW in EQB authorized landfills"; he
"conspired [with the co-defendants] to deprive the Plaintiffs of
their constitutional rights and grant BFI/Stericycle rights and
privileges and preferential treatment"; and he "actually promoted
[María] Ortiz's unlawful and constitutional revocation of Redondo's
operating permits by ordering the closing of multiple landfills
that had contracted disposing services with the Plaintiff[s]." The
complaint's specific allegations about Rodríguez are less
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inflammatory. He approved a waiver Redondo requested, allowing
Redondo to use autoclaves when its first shredder broke. Also,
when Redondo purchased another shredder, the financing bank
contacted Rodríguez. And, finally, Redondo sent Rodríguez a letter
requesting that an EQB inspector visit its facility to certify its
new shredder; Rodríguez did not answer the letter.
No set of allegations specific to any defendant comes
anywhere near to stating a valid claim. Rua disappears after the
caption. López and Rodríguez's failure to answer a letter is
hardly the stuff of constitutional violations. Berrios is only
alleged to have enforced Puerto Rico's environmental laws — quite
the opposite of illegal conduct. Scott has friends who are
lawyers; if this were grounds for suit, the entire legal profession
would be toast. None of the defendants is alleged to have acted
due to bias, to have retaliated against Redondo because of its
protected conduct, to have deprived Redondo of any liberty or
property interest without affording adequate procedural
protections, or even to have acted arbitrarily. Therefore, none of
Redondo's claims is facially valid.
Recognizing the complaint's lack of specificity as a
weakness on appeal, Redondo argues that every alleged EQB action
necessarily implies action by the EQB's members. Therefore, the
argument goes, each defendant is responsible for everything the
complaint alleges EQB did. But unless EQB requires the presence
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and assent of all its members to accomplish anything at all, one
cannot conclude that any particular member was involved in any
particular EQB decision. Cf., e.g., 12 L.P.R.A. § 8002a(a)
(decisions of the Governing Board require majority vote). Indeed,
the complaint does not allow us to distinguish between, e.g., Rua
— who Redondo now says is not even a defendant despite being an
alleged member of EQB's governing board — and Berrios — who Redondo
still insists is a proper defendant even though it has never
charged him with any specific misdeed. The whole point of notice
pleading is to apprise defendants of the claims against them, see
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); the complaint
here does not do so.
Redondo argued for the first time at oral argument, and
rather feebly at that, that dismissal was procedurally
inappropriate because discovery had only just closed when the
dismissal order entered. The idea is that the court deprived
Redondo of the opportunity to amend its complaint in order to
conform with the evidence brought to light by the discovery
process. This argument is both waived, see United States v.
Giggey, 551 F.3d 27, 36-37 (1st Cir. 2008), and unavailing.
According to the district court's scheduling order, discovery
closed on January 22, 2010.7 The court filed its dismissal order
7
The defendants requested that the court extend the discovery
period through May 10, 2010; Redondo opposed the motion. For its
part, Redondo sought an extension only for an expert report on
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on March 31, 2010, and the order entered a week later. Even
assuming Redondo only obtained smoking-gun evidence on the very
last day of discovery and therefore could not have produced a
can't-miss amended complaint earlier in the discovery process, it
would still have had more than two months to amend its complaint
before the dismissal order entered. Redondo failed to take
advantage of this more-than-adequate window and therefore cannot
complain now.
There is one loose end for us to tie up: Redondo says the
district court should have altered the judgment to allow it to file
a post-dismissal amended complaint. We can dispatch this argument
quickly. First, Redondo argues to us that the district court erred
in denying a Rule 15 motion to amend the complaint. But there was
no Rule 15 motion below; what we are reviewing is Redondo's Rule
59(e) motion to alter or amend judgment. Whether or not we
liberally construe this as including a Rule 15 motion to amend the
complaint, and whether or not Redondo has properly preserved and
presented the issue on appeal, the court did not abuse its
discretion in refusing to allow amendment of the complaint post-
judgment. See ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46,
damages. The court never acted on either request, dismissing the
complaint instead.
The docket does contain documents suggesting that the parties
ignored the scheduling order, ignored an order to appear for a
status conference, and continued conducting discovery after the
deadline had passed. The parties' flouting of court orders,
though, does nothing to help Redondo.
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55-58 (1st Cir. 2008). Second, the district court's denial of
Redondo's Rule 59(e) motion was utterly appropriate in any event,
because Redondo neither highlighted any newly discovered evidence
sufficient to resurrect its claims nor pointed to any manifest
error of law the district court committed. It would have had to do
one or the other in order to succeed. Marie v. Allied Home Mortg.
Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005) (noting that "[t]he
general rule in this circuit is that the moving party must either
clearly establish a manifest error of law or must present newly
discovered evidence" (internal quotation marks omitted)). Now, it
irrelevantly argues that the defendants would suffer no prejudice
if we were to reinstate the case post-dismissal. Needless to say,
this off-point argument fails.
Redondo's complaint did not meet even minimal pleading
standards; therefore, we affirm the district court's dismissal
order. The district court correctly denied Redondo's belated
attempt to remedy the complaint's deficiencies; therefore, we
affirm the district court's denial of Redondo's motion to alter or
amend. Costs to appellees. So ordered.
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