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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO DAVID E. ROMAN RIVERA, et. al., Plaintiff, v. PUERTO RICO ELECTRIC AUTHORITY, et. al., Defendants. OPINION AND ORDER Plaintiffs filed the instant action on behalf of themselves and a putative class alleging that the Puerto Rico Electric Power Authority (PREPA) violated the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. 1962(a), (d)(Section 1962) when PREPA sent them fraudulent monthly energy bills through the internet and mail.1 5). Pending before the Court is PREPAs motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and Plaintiffs opposition thereto. (Docket Nos. 11 and 12). For the (Docket No. 1, pages 2-6; Docket No. 7-1, page POWER Civil No. 11-2003(DRD)

reasons stated below, PREPAs motion is hereby GRANTED in part and DENIED in part.

Plaintiffs also bring suit against several of PREPAs current and past executive directors and members of PREPAs Governing Board (collectively, the Directors). (Docket No. 1, 13-16). The Directors do not join in PREPAs pending motion to dismiss.

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I. FACTUAL HISTORY2 PREPA is Puerto Ricos sole electricity provider. (Docket No. 1, 2). PREPA is governed by a nine member board composed of both Each month,

elected and appointed officials. (Docket No. 1, 3).

PREPA sends its customers bills via the United States Postal Service or the internet. (Docket No. 7-1, pages 5, 58, 64).

Plaintiffs allege that the bills were fraudulent as they did not reflect their real consumption of electricity . . . did not reflect the real cost of power purchase[d] or the real cost of fuel used to generate the electricity consumed by them, and charges them twice for fuel and power purchase[d]. (Docket No. 7-1, page 60).

In June of 2000, PREPA established a new tariff scheme. (Docket No. 1, 4). The new scheme includes a fuel adjustment

charge (FAC) paid by customers for energy PREPA generates and energy PREPA purchases from two co-generating companies. No. 1, 4). (Docket

The FAC was put into effect via a formula that (Docket No. 1, 5). PREPA

includes a factor of 1/.89.

justifies the FAC as a means to recoup an 11% fee PREPA it owes to municipalities in lieu of taxes. (Id.; Docket No. 7-1, page 3). Id.

However, PREPA has not paid the 11% fee in full or in part. Moreover, even if PREPA paid the 11% fee, the 1/.89

factor

increases customers bills by over 12.35%, more than the 11% needed

The following facts, which are assumed to be true, are gathered from the complaint and Plaintiffs RICO Statement. (Docket Nos. 1 and 7-1). See Efron v. Embassy Suites (Puerto Rico), Inc., 47 F. Supp. 2d 200, 211 (D.P.R. 1999).

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to cover the amount PREPA owes to the municipalities.

Id.

Plaintiffs claim that since 2007, at the latest, Plaintiffs also paid inflated energy bills because of PREPAs billing

policies.

(Docket No. 1, 54(b)).

Although PREPA generates more

electricity than needed to fulfil consumer demand, PREPA bills Plaintiffs for the fuel needed to generate the electricity, not just fuel used to generate the electricity it actually sells. (Docket No. 7-1, page 3). the entire amount of Similarly, PREPA charges Plaintiffs for it purchases from the co-

electricity

generating plants, not just the amount of electricity it actually sells to Plaintiffs. Id.

PREPAs investment of profits received as a result of the alleged mail and wire also resulted in inflated monthly energy bills. (Docket No. 1, 9). PREPA maintains Rather than investing in modern an antiquated system and older

technology, technology.3

(Docket No. 1, 10; Docket No. 7-1, page 5-6).

During this period, PREPA also invested the proceeds from its allegedly fraudulent practices to hire more employees. The new

hires increased the payroll and required PREPA to increase bond emissions. (Docket No. 1, 10). Moreover, PREPA also used this

fraudulent scheme to incur in late charges in the payment of its fuel bills, further increasing the over billing via the FAC.

Specifically, the complaint states that PREPA has not invested in more cost effective fossil fuels such as natural gas or Aeolic acid. (Docket No. 1, 10). Plaintiffs allege that PREPA has not invested in new technologies so they can continue taking advantage of the FAC. Id.

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(Docket No. 71, page 6). Plaintiff filed a complaint on October 9, 2011 and a RICO Statement on October 28, 2011. (Docket Nos. 1 and 7). Plaintiffs

assert that PREPA violated Section 1962(a) when Plaintiffs were harmed by PREPAs investment of proceeds earned from the alleged fraudulent monthly bills and Section 1962(d) when PREPA conspired with the Directors to violate Sections 1962(a),(b) and (c). On

December 28, 2011, PREPA moved to dismiss Plaintiffs complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Docket No. 11). 2012.4 Plaintiffs opposed PREPAs motion on January 9,

(Docket No. 12). II. MOTION TO DISMISS STANDARD

Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). When

addressing a motion to dismiss, we accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff[]. Gargano v. Liberty Intl Underwriters, Inc., However, under Bell Atlantic

572 F.3d 45, 48-49 (1st Cir. 2009).

v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff must provide the grounds of his entitlement [with] more than labels and

conclusions. See Ocasio-Hernandez v. Fortuo-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (in order to show an entitlement to relief a
4

PREPA elected not to submit a reply despite the Court granting PREPA leave to do so. (Docket No. 14).

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complaint must contain enough factual material to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).)(quoting Twombly, 550 U.S. at 555) (citation omitted). Thus, a plaintiff must, and is now required to, present allegations that nudge [his] claims across the line from conceivable to plausible in order to comply with the requirements of Rule 8(a). Id. at 570; see e.g. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). When considering a motion to dismiss, the Courts inquiry occurs in a two-step process under the current context-based plausibility standard established by Twombly, 550 U.S. 544, and Iqbal, 129 S.Ct. 1937. Context based means that a Plaintiff must allege sufficient facts that comply with the basic elements of the cause of action. that plaintiffs See Iqbal, 129 S.Ct. at 1949-1950 (concluding complaint was factually insufficient to

substantiate the required elements of a Bivens claim, leaving the complaint with only conclusory statements). First, the Court must

accept as true all of the allegations contained in a complaint[,] discarding legal conclusions, conclusory statements and factually threadbare recitals of the elements of a cause of action. 129 S.Ct. at 1940. Yet we need not accept as true Iqbal, legal

conclusions from the complaint or naked assertion[s] devoid of further factual enhancement. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949) -5-

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(quoting Twombly, 550 U.S. at 557). Under the second step of the inquiry, the Court must determine whether, based upon all assertions that were not discarded under the first step of the inquiry, the complaint states a plausible claim for relief. Iqbal, 129 S.Ct. at 1950. This second step is

context-specific and requires that the Court draw from its own judicial experience and common sense to decide whether a

plaintiff has stated a claim upon which relief may be granted, or, conversely, whether dismissal under Rule 12(b)(6) is appropriate. Id. Thus, [i]n order to survive a motion to dismiss, [a]

plaintiff must allege sufficient facts to show that he has a plausible entitlement to relief. Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009). [W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] that the pleader is entitled to relief. Iqbal, 129 S.Ct. at 1950(quoting inferences Fed. must R. be Civ. at P. 8(a)(2)). as plausible Furthermore, as any such

least

obvious

alternative explanation. Id. at 1950-51 (citing Twombly, 550 U.S. at 567). A plaintiff is not entitled to proceed perforce by

virtue of allegations that merely parrot the elements of the cause of action. Ocasio-Hernandez, 640 F.3d at 12, (citing Iqbal, 129

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The First Circuit has cautioned against equating plausibility with an analysis of the likely success on the merits, affirming that the plausibility standard assumes pleaded facts to be true and read in a plaintiffs favor even if seemingly incredible. Seplveda-Villarini v. Dept of Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550 U.S. at 556); Ocasio-Hernandez, 640 F.3d at 12 (citing Iqbal, 129 S.Ct. at 1950); see Twombly, 550 U.S. at 556 ([A] well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely.)(internal quotation marks omitted); see Ocasio-Hernandez, 640 F.3d at 12 (citing Twombly, 550 U.S. at 556)([T]he court may not disregard properly pled factual allegations, even if it strikes a savvy judge that actual proof of those facts is improbable.). Instead, the First

Circuit has emphasized that [t]he make-or-break standard . . . is that the combined allegations, taken as true, must state a

plausible, [but] not a merely conceivable, case for relief. Seplveda-Villarini, 628 F.3d at 29. However, a complaint that rests on bald assertions,

unsupportable conclusions, periphrastic circumlocutions, and the like will likely not survive a motion to dismiss. Aulson v.

Blanchard, 83 F.3d 1, 3 (1st Cir. 1996); Snchez v. United States, 671 F.3d 86, 92 (1st Cir. 2012)(we must credit the plaintiffs well-pled factual allegations and draw all reasonable inferences in

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the plaintiffs favor.)(internal quotations omitted).5 Similarly, unadorned factual assertions as to the elements of the cause of action are inadequate as well. 631 F.3d 592 (1st Cir. 2011). Penalbert-Rosa v. Fortuno-Burset, Specific information, even if not

in the form of admissible evidence, would likely be enough at [the motion to dismiss] stage; pure speculation is not. Id. at 596;

see Iqbal, 129 S.Ct. at 1951 (To be clear, we do not reject [] bald allegations nonsensical. . . on . the It ground is the that they are unrealistic of or

conclusory

nature

[the]

allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.); see Mendez

Internet Mgmt. Servs. v. Banco Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and Iqbal standards require District Courts to screen[] out rhetoric masquerading as litigation.). III. DISCUSSION Plaintiffs allege that PREPA violated Sections 1962(a) and (d) when PREPA sent them fraudulent monthly energy bills through the United States Postal Service and internet. (Docket No. 1, pages 26). PREPA contends that the suit brought against them must be

dismissed because: (1) Plaintiffs allegations of mail and wire fraud are not pled with sufficient particularity; (2) Plaintiffs fail to allege an injury resulting from the investment of

Although the First Circuit was analyzing a Rule 12(b)(1) motion in Snchez and the present inquiry is under Rule 12(b)(6), [t]he same standard applies to both subsections. Roman-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 45 n.3 (1st Cir. 2011).

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racketeering income distinct from an injury caused by the alleged racketeering itself; and (3) Plaintiffs plead that PREPA is both a defendant and the RICO enterprise. A. General Rico Requirements: Racketeering Activity To state a RICO claim, (2) Plaintiffs must plead of an enterprise, (3) four core a

elements:

(1) conduct,

through

pattern, (4) of racketeering activity.

Giuliano v. Fulton, 399

F.3d 381, 386 (1st Cir. 2005)(internal citations and quotations omitted). At issue is the fourth element, whether Plaintiffs

claim must be dismissed because Plaintiffs insufficiently pled that PREPA or the Directors engaged in racketeering activity. (Docket No. 11, pages 6-7). Section 1961(1) lists conduct qualifying as a racketeering activity. Plaintiffs allege that PREPA engaged in wire and mail

fraud in violation of 18 U.S.C. 1341, 1343 when they sent Plaintiffs inflated monthly energy bills. Wire and mail fraud

consist of three essential elements: that Defendants (1) engaged in a scheme to defraud; (2) with the specific intent to defraud; and (3) used the United States mails and/or the interstate wire in furtherance of the scheme. McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 790 (1st Cir. 1990). Wire fraud

requires an additional allegation that the communications cross state lines. Hernandez v. Ballesteros, 333 F.Supp.2d 6, 12 (D.P.R. 2004)(An essential element of the federal wire fraud statute is -9-

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the use of interstate communication lines.). A party alleging mail or wire fraud must state with

particularity the circumstances constituting the fraud.

See Fed

R. Civ. P. 9(b)(Rule 9(b)). To satisfy Rule 9(b)s particularity requirement Plaintiffs must state the time, place and content of the purported mail and wire fraud. Cordero-Hernandez v. HernandezBallesteros, 449 F.3d 240, 244 (1st Cir. 2006)(internal citations and quotations omitted). PREPA argues that Plaintiffs Section

1962(a) claim fails because it insufficiently plead the time place and content of the alleged mail and wire fraud. pages 6-7). Plaintiffs mail and wire fraud allegations are sufficient. Plaintiffs allege that since 2000, PREPA sent Plaintiffs monthly bills via U.S. Mail and the internet that were fraudulent. (Docket No. 7-1, pages 5, 58, 63-64). Plaintiffs allege that their monthly bills were fraudulent because: (1) the factor implementing the FAC increases customers bills by over 12.35%, more than 1.35% above the amount required to cover the 11% tax PREPA owes to the municipalities; (2) PREPA did not pay the 11% tax in full or in part; (3) PREPA bills Plaintiffs for the fuel needed to generate the electricity it produces, not just fuel used to generate the electricity PREPA sells to Plaintiffs; and (4) PREPA charges Plaintiffs for the entire amount of electricity it purchases from the co-generating plants, not just the amount of electricity it -10(Docket No. 11,

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actually sells to Plaintiffs. Plaintiffs plead the time

(Docket No. 7-1, page 3). (every month since 2000),

Thus, place

(Plaintiffs monthly electricity bills) and content (fraudulent energy bills) of PREPAs alleged mail and wire fraud.6 B. 18 U.S.C. 1962(a): Investment of Racketeering Income A claim brought pursuant to Section 1962(a) is premised on injury by means of [a] defendants investment of racketeering income. Ouaknine v. MacFarlane, 897 F.2d 75, 77 (2d Cir. 1990).

To state a claim under Section 1962(a), Plaintiffs must plead that they were [1] harmed by reason of . . . [Defendants] use or investment of income from [2] a pattern [3] of racketeering

activity [4] in some enterprise . . . [5] engaged in interstate or foreign commerce. See Compagnie De Reassurance DIle de France v. New England Reinsurance Corp., 57 F.3d 56, 91 (1st Cir.

1995)(citing 18 U.S.C. 1962(a),(c)).

At issue is the first

element, whether Plaintiffs sufficiently plead that they were harmed by PREPAs investment of proceeds from its racketeering activity. To pass muster, harmed Plaintiffs by PREPAs complaint investment must of plead that it

Plaintiffs

were

proceeds

received from PREPAs alleged racketeering - mail and wire fraud. See id. Plaintiffs injury flowing from the investment of the

PREPA also argues that Plaintiff has not plead that the alleged wire fraud crossed state lines. (Docket No. 11, page 7). However, Plaintiffs pleadings state, on numerous occasions, that PREPA sent Plaintiffs fraudulent energy interstate via the internet. (Docket No. 1, 6, 11, 49, 53, 54(a)-(b); see Docket No. 1, 3-4, 11).

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proceeds it received from the alleged mail and wire fraud must be distinct from the injury arising from the racketeering activity itself. Lightening Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1188

(3d Cir. 1993)([T]he plaintiff must allege an injury resulting from the investment of racketeering income distinct from an injury caused by the predicate acts themselves.)(cited favorably in Compagnie De Reassurance DIle de France, 57 F.3d at 91. Here, Plaintiffs allege that Defendants committed mail and wire fraud when they sent Plaintiffs inflated monthly bills. (Docket No. 1, pages 2-6; Docket No. 7-1, page 5). As a result of

the alleged mail and wire fraud, Plaintiffs were forced to pay inflated monthly energy bills. Plaintiffs posit that PREPA

invested the profits it received from

the alleged mail and wire

fraud in: (1) maintaining an antiquated system and technology; (2) hiring excess employees; and (3) incurring late charges for failing to pay its fuel bills on time. no. 7-1, page 5-6). (Docket No. 1, 9-10, 32; Docket

Like Plaintiffs injury suffered as a result

of the mail and wire fraud, PREPAs investment of racketeering income also resulted in having to pay inflated bills. 1, 9, 32)(This reinvestment of the proceeds (Docket No. from the

aforementioned pattern of racketeering has artificially maintained high . . . electric bills of plaintiffs and members of the class, causing them harm in their property and businesses.). Thus, Plaintiffs purported injury flowing from PREPAs investment of -12-

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racketeering income is indistinct from Plaintiffs injury flowing from Defendants alleged racketeering activity: both the alleged mail and wire fraud and the investment of income derived from the alleged mail and wire fraud harmed plaintiffs by causing them to overpay for their energy bills. action pursuant to Section Accordingly, Plaintiffs cause of is hereby DISMISSED WITH

1962(a)

PREJUDICE. B. Section 1962(d): Conspiracy A claim brought under Section 1962(d) requires a plaintiff to plead that the conspirators agreed to facilitate or further an endeavor which, if completed, would satisfy all of the elements of a substantive [RICO] offense. Civ. 00122, 2001 WL White v. Union Leader Corp., No. at *78(D.N.H. July 13,

821527,

2001)(collecting cases). section 1962(d) by

Plaintiffs allege that PREPA violated with the Directors to violate

conspiring

sections 1962(a), (b) and (c). 7-1, pages 6-7).

(Docket No. 1, 60-68; Docket No.

As a threshold matter, that the Court already concluded that Plaintiffs substantive fail claim to state a claim under 1962(a), not the only

levied

against

PREPA,

does

necessitate

dismissal of Plaintiffs conspiracy claim. The First Circuit Court of Appeals holds that if the pleadings do not state a substantive RICO claim upon which relief may be granted, then the conspiracy claim also fails. Efron v. Embassy Suites (Puerto Rico), Inc., -13-

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223 F.3d 12, 21 (1st Cir. 2000)(citing Howard v. American Online, Inc., 20 F.3d 741, 751 (9th Cir. 2000); Salinas v. United States, 522 U.S. 52, 65 (1997)). Although Plaintiffs may not state a

substantive RICO claim against PREPA, the Court has not had the opportunity to evaluate whether Plaintiffs state a claim against the Directors. Because it is unclear whether Plaintiffs complaint states a substantive RICO violation, Plaintiffs conspiracy claim does not, perforce, fail. Laverty v. Massad, No. 0840126, 2009 WL 1873646, at *9 n.3 (D. Mass. Mar. 10, 2009); see United States v. Cianci, 378 F.3d 71, 90 (1st Cir. 2004)(We reiterate that RICO conspiracy does not require proof that a defendanthimself

committed or agreed to commit two predicate acts requisite for a substantive RICO offense under 1962(c).)(quoting Salinas, 522 U.S. at 61-66). Thus, the Courts inquiry is limited to

determining whether Plaintiffs plead that PREPA violated Section 1962(d) for conspiring to violate sections 1962(a), (b) and (c). Plaintiffs allegation that PREPA conspired to violate Section 1962(c) fails. The First Circuit has held that in pleading a claim

under Section 1962(c), the same entity cannot do double duty as both the RICO defendant and the RICO enterprise. Miranda v. Ponce Federal Bank, 948 F.2d 41, 44-45 (1st Cir. 1991). Thus, for PREPA

to be held liable under Section 1962(d) for conspiring to violate Section 1962(c), Plaintiffs must plead that PREPA is a separate entity from the alleged RICO enterprise. -14See Miranda, 948 F.2d at

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45 n.4. Here, Plaintiffs action against PREPA brought pursuant to Section 1962(d) must be dismissed because PREPA is alleged to be both a defendant and the RICO enterprise. Id.; Docket No. 1,

47(Defendants have used PREPA as an enterprise, within the meaning of 18 U.S.C. 1961(4), to carry out its pattern of racketeering activity.). Plaintiffs allegation that PREPA conspired to violate In

sections 1962(a) and (b) does not suffer a similar fate.

stating a claim under section 1962(a) and (b), a corporation may be plead as both a RICO defendant and a RICO enterprise. Schofield v. First Commodity Corp. of Boston, Schreiber 1393, 793 F.2d 28, Co. Cir. 31 v. (1st Cir.

1986)(Section Furniture

1962(a)); 806 F.2d

Distrib. (9th

Serv-Well

Co.,

1398

1986)(Section

1962(a)); Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir. 1989)(Section 1962(a)); Liquid Air Corp. v. Rogers, 834 F.2d 1297, 1307 (7th Cir. 1987)(sections 1962(a) and (b)); Landry v. Air Line Pilots Assn Intl AFL-CIO, 892 F.2d 1238, 1259 (5th Cir. 1990)(Section 1962(b)); But see, Official Publns, Inc. v. Kable News Co., 884 F.2d 664, 668 (2d Cir. 1989)(suggesting, in dicta, that a corporation may not be an enterprise and a defendant under Section 1962(b)). Thus, because PREPA may be both a

defendant and the enterprise under sections 1962(a) and (b), Plaintiffs Section 1962(d) claim alleging a conspiracy to violate

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sections 1962(a) and (b) subsists.7 See United Energy Owners Comm., Inc. v. U.S. Energy Mgmt. Sys., Inc., 837 F.2d 356, 364 (9th Cir. 1988)(cited favorably in Stewart v. Wachowski, No. WL 2980783 at *10 (C.D. Cal. Sept. 28, 2004). Accordingly, Plaintiffs action brought against PREPA pursuant to Section 1962(d) for conspiring to violate Section 1962(c) is hereby DISMISSED WITH PREJUDICE. Plaintiffs action brought 032873, 2004

against PREPA pursuant to Section 1962(d) for conspiring to violate sections 1962(a) and (b) survives. IV. Conclusion For the aforementioned reasons, Defendants motion to dismiss (Docket No. 11) is hereby GRANTED in part and DENIED in PART. Specifically, Plaintiffs cause of action brought against PREPA pursuant to Section 1962(d) for conspiring to violate sections 1962(a) and (b) remains viable. However, Plaintiffs Section

1962(a) claim against PREPA is hereby DISMISSED WITH PREJUDICE. Similarly, Plaintiffs Section 1962(d) claim against PREPA for

The Court notes that Plaintiffs Section 1962(d) action against PREPA may also be dismissed for another reason. Under the intracorporate conspiracy doctrine, a corporation, such as PREPA, is incapable of conspiring with its agents, such as the Directors. See generally, David W arner, Are The Corporation And Its Employees The Same?: Piercing The Intracorporate Conspiracy Doctrine In A Post-enron W orld, 55 U. Kan. L. Rev. 1057 (2007); In re Tyco Intl, Ltd., No. 02-1335, 2007 W L 1703023, 22, Fed. Sec. L. Rep. P 94, 351 (D.N.H. June 11, 2007). However, an exception to the intracorproate conspiracy doctrine applies to individuals within a single entity when they are pursuing personal interests wholly separate and apart from the entity. See Rosenberg v. City of New York, No. 094016, 2011 W L 4592803, at *13 (E.D.N.Y. Sept. 30, 2011)(internal citations and quotations omitted). Courts of Appeal are split on whether the intracorporate conspiracy doctrine applies to RICO conspiracy claims and the First Circuit Court of Appeals has yet to definitively extol on the applicability of the doctrine in the RICO context. Id. This Court leaves this matter for another day as the doctrine was not raised, let alone briefed, by any litigants.

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conspiring to violate Section 1962(c) is hereby DISMISSED WITH PREJUDICE.8 IT IS SO ORDERED. In San Juan, Puerto Rico, this 25th day of September, 2012. /s/ DANIEL R. DOMNGUEZ DANIEL R. DOMNGUEZ U.S. District Judge

Although these claims are dismissed from the instant suit in their entirety, the Court will refrain from issuing a partial judgment at this time because the First Circuit strongly disfavors partial judgments as they foster piecemeal review. See Nichols v. Cadle Co., 101 F.3d 1448, 1449 (1st Cir. 1996) (piecemeal appellate review invites mischief. Because the practice poses a host of potential problems we have warned, time and again, that Rule 54(b) should be used sparingly.); Gonzalez Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318 (1st Cir. 2009)(cautioning that piecemeal appeals are disfavored and that, therefore, Rule 54(b) should be employed with great circumspection.); Zayas-Green v. Casaine, 906 F.2d 18, 21 (1st Cir. 1990) (This final judgment rule . . . furthers the strong congressional policy against piecemeal review.)(quoting In re Continental Investment Corp., 637 F.2d 1, 3 (1st Cir. 1980)); College of Dental Surgs. of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 38 (1st Cir. 2009) (As a general proposition, courts discourage piecemeal appeals.); Comite Pro Rescate De La 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 (1974).

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