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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO HOME ORTHOPEDICS CORP., PLAINTIFF,
V.

CIVIL NO.: 11-01591 (DRD)

RAL RODRGUEZ; JOS A. LINARES; PAUL PINO; JULIO F. JULI; JAVIER MAGRI MELNDEZ; LUIS GORIS GARCA; ARLENE MARRERO; DIRECTORS AB, BC, CD, DE, EF, FG, GH, HI, IJ, JK, KL, OF HUMANA HEALTH PLANS OF PUERTO RICO (D/B/A HUMANA); DIRECTORS LM, MN, NO, PQ, QR, RS, ST, TU, UV, VW, WX, OF MEDICAL CARD SYSTEM, INC. (MCS); A, B, C, D, E, F, G, H, I INSURANCE COMPANIES, DEFENDANTS.

RE: R.I.C.O. ACT; TORTIOUS INTERFERENCE CONTRACTS; TORT PLAINTIFF DEMANDS TRIAL BY JURY

WITH

JULIO JULI AND JAVIER MAGRIS MOTION TO DISMISS

TO THE HONORABLE COURT: COME NOW Defendants Julio F. Juli and Javier Magri Melndez, through the undersigned attorneys, and respectfully state and request as follows: I. INTRODUCTION. Plaintiff HOME ORTHOPEDICS CORP. (hereinafter HOC) has filed a complaint [Dkt. No. 1] seeking indemnification for violation of the Racketeer Influenced and Corrupt Organizations Act (hereinafter RICO) and for tortious interference with contractual relations. While the complaint was filed on June 21, 2011, and still at this time no summons have been issued or served 1 , painfully for Julio Juli and Javier Magri, the Complaint was highly publicized on July 1, 2011, when the Puerto Rico Daily Sun, on its front page headline, informed

Nor were they even requested for more than a week after the filing of the complaint.

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of its filing. Although it is the appearing co-defendants right to await formal service of process before responding to the libelous and offensive allegations contained therein, they voluntarily waive such service of process in an effort to advance a just and speedy resolution and adjudication of the purported causes of action before this Court. Having analyzed the allegations made by HOC, 2 Julio Juli and Javier Magri hereby move to dismiss all possible claims brought against them. As will be shown, the larger part of Plaintiffs Complaint consists of conclusory and bald assertions lacking supporting facts. HOC frames its allegations against these defendants in a generalized and conclusory manner neglecting to identify who did what to whom, when, where, how, and why or to show any conduct that is a violation of law. Furthermore, and most importantly, Plaintiff has framed a case where fraud lies at the core of the action. Consequently, the allegations against Julio Juli and Javier Magri, as individual personal defendants, are insufficiently pled pursuant to the corresponding heightened pleading standard of Fed. R. Civ. P. 9(b). They are vague and ambiguous and cannot reasonably require them to answer or to frame a responsive pleading. Moreover, the factual narrative contained in the Complaint is not sufficient to show that Plaintiff has a plausible claim against neither Julio Juli nor Javier Magri, thus submitting them to attack and the burdens of defense on the basis of a nonspecific complaint. There is no showing that Plaintiff is entitled to relief under RICO or the Puerto Rico Civil Code for alleged tortious interference with contractual obligations. Thus, Plaintiff does not give fair notice to Julio Juli

Pursuant to the allegations of the Complaint ([Cplt. 72 Dkt. 1] and [Exh. 13 Dkt 1]) its filing appears to be an attempt to extend to Federal Court an acrimonious litigation between two business parties before the Court of First Instance, San Juan, Superior Part which commenced in 2009. All of the claims now brought before this Honorable Court either are actually pending in said litigation or could have been made a part of said litigation, including the federal RICO claim. Thus, at the outset, it points to be a mechanism being utilized by HOC to exert pressure against Clinical Medical Services, Inc. (hereinafter CMSI) to settle or otherwise stop prosecuting said litigation.

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or Javier Magri regarding the grounds upon which the claims against them are based and they cannot responsibly answer HOCs Complaint without engaging in guesswork and conjecture. II. LEGAL ANALYSIS In order to analyze a motion to dismiss a claim under the RICO statute and under article 1802 of the Puerto Rico Civil Code for alleged tortious interference with contractual relations, the Court is called to examine the allegations pursuant to (A) Fed. R. Civ. P. 12(b), (B) the heightened pleading standard under Fed. R. Civ. P. 9(b), and (C) the most recent United States Supreme Court interpretations of Fed. R. Civ. P. 8(a) and its corresponding plausibility standard as set by Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and interpreted in Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (2009). A. RULE 12 (B)(6)- MOTION TO DISMISS STANDARD OF REVIEW

When evaluating motions under Fed. R. Civ. P. 12(b)(6) requesting the dismissal of a claim for failure to state a claim upon which relief can be granted the Court must accept as true all well-pleaded factual averments and indulg[e] all reasonable inferences in the plaintiffs favor. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). See also Parker v. Hurley, 514 F. 3d 87, 90 (1st Cir. 2008). Moreover, a complaint must set forth factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). The analysis of a 12(b)(6) motion is closely linked to the sufficiency of the pleadings under the Federal Rules of Civil Procedure. Consequently, the courts analysis under Fed. R. Civ. P. 8(a) and Fed. R. Civ. P. 9. is extremely pertinent. The Supreme Court in recent years has clarified the requirements of an adequately pled federal complaint in Iqbal, supra; Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007);

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Twombly, supra; Swierkiewicz v. Soreman N.A., 534 U.S. 506, 122 S.Ct. 992 (2002) and Crawford-EL v. Britton, 523 U.S. 574, 118 S.Ct. 1584 (1998). B. RULE 9(B)- HEIGHTENED PLEADINGS STANDARD OF REVIEW

Foremost, allegations of fraud and related causes of action, such as RICO where the element of fraud is closely tied to the predicate acts, are subject to a heightened pleading standard. 3 In that regard, Plaintiff has failed to meet this standard as to Julio Juli and Javier Magri in its general allegations. This heightened pleading standard also governs cases where a conspiracy is tied to the fraud. Even where allegations of fraud are based on information and belief, supporting facts on which the belief is founded must also be set forth in the Complaint. 4 The reasons as to why a Plaintiff must plead its RICO case in compliance with Fed. R. Civ. P. 9(b) is clear.
Federal Rule of Civil Procedure 9(b) requires that fraud be pled with particularity. This requirement is designed to accomplish three purposes: (i) to provide a defendant with adequate notice of the charges levelled [sic] against him so that the defendant will be able to prepare an adequate answer and defense; (ii) to eliminate complaints that seek to obtain discovery of
3

Fed. R. Civ. P. 9(b) states: Fraud, Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally.

Hayduk v. Lanna, 775 F.2d 441, 443, 444 (1st Cir. 1985) (dismissing causes of action for insufficiency of pleading of fraud, conspiracy to commit the fraud and allegations of fraud based on information and belief.); cases cited therein; and U.S. ex rel. Jarvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 226 (1st Cir. 2004) revkd on other grounds. In other words, a plaintiff must specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent. the complaint [is required] to set forth the who, what, where, and how of the events at issue. The plaintiffs must allege specific facts supporting an inference of fraud. Murungi v. Texas Guaranteed, 646 F.Supp.2d 804, 810 (E.D. La. 2009) citing Dorsey v. Portfolio Equities, Inc., 540 F.3d 333 (5th Cir. 2008) (addressing the who, what, when, where and how requirement.) Besides the burden of proof, the party who alleges fraud must produce evidence which is strong, clear, unchallengeable, convincing and conclusive, since a mere preponderance of the evidence is not sufficient to establish the existence of fraud in our jurisdiction. Id. See also Puerto Rico Power Authority, 472 F. Supp. 2d at 139. Mere conclusions, conjectures, and suppositions or suspicions are not of themselves sufficient to substantiate an allegation of fraud. Id. See also Puerto Rico Power Authority, 472 F. Supp. 2d at 139. If the facts are susceptible of a natural and probable explanation which is compatible with the good faith and honesty of the parties, fraud is not established. Id.

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unknown fraud; and, (iii) to protect a defendant from injury to his reputation from frivolous or unfounded charges of wrongdoing. Since the label racketeer attaches to a RICO defendant from the moment the action is filed, the third criterion is particularly important in the RICO context. Many plaintiffs rely on the stigma associated with RICO to orchestrate early settlements of claims that are meritless. For the defendant, the motion to dismiss is the only way to oppose such efforts at their inception.

(Emphasis supplied and footnotes within citation omitted.) Davis J. Howard, Moving to Dismiss a Civil RICO Action, 35 Clev. St. L. Rev. 423, 444-445 (1986/1987). Moreover, the legal presumption [is] that everybody acts in good faith and that private transactions are conducted in good faith and according to law, In re Las Colinas, Inc., 294 F. Supp. 582, 598 (D. P.R. 1968), rev'd. on other grounds, 426 F.2d 1005 (1st Cir. 1970). 5 Finally, the new plausibility standard under Rule 8 also applies to Rule 9(b)'s requirement for pleading fraud. As this Honorable Court has recently explained:
[There] is no excuse for the failure to make comprehensible the specific claims and facts supporting those claims that would comprise a plausible claim for relief. This is especially true in light of Federal Rule of Civil Procedure 9(b)'s command to state the circumstances constituting fraud with particularity, as well as of the recent Supreme Court decisions in Twombly and Iqbal requiring Plaintiffs to plead their claims with greater factual specificity.

Cintrn-Luna v. Romn-Bultrn, 668 F.Supp.2d 315,318 (D. P.R. 2009, Prez-Gimnez, J.). 6 C. RULE 8(A)- CONTEXT-BASED PLAUSIBILITY STANDARD OF REVIEW UNDER IQBAL

Fed. R. Civ. P. 8(a) states that [a] pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief.

There is a legal presumption that everybody acts in good faith and that private transactions are conducted in good faith and according to law. Whoever alleges fraud has to destroy these presumptions. In re Las Colinas, 294 F. Supp. at 598. See also Puerto Rico Power Authority v. Action Refund, 472 F. Supp. 2d 133, 138 (D. P.R. 2006). Furthermore, [s]ince the presumption is in favor of the good faith and honesty and against fraud, the party who alleges fraud must prove its existence with uncontroverted and unchallengeable facts. Id. at 599 (citing Bamberger v. Schoolfield, 160 U.S. 149 (1895). See also Puerto Rico Power Authority, 472 F. Supp. 2d at 138. This same analysis has been reached in other districts. See, S.E.C. v. Mozilo, 2009 WL 3807124 at *14 (CD. Cal. 2009) (when applying the Rule 9(b) standard, in order to survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. (citing Iqbal and mentioning Wright & Miller).
6

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Furthermore, Plaintiff must also sufficiently plead its cause of action so as to show that it is entitled to relief and not simply allege through well pleaded facts the existence of just a mere possibility of misconduct. Iqbal, 129 S.Ct. at 1950. 7 Moreover, even those properly pled factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Twombly, 127 S.Ct. at 1959. 8 If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal. Artuso v. Vertex Pharms., Inc., 637 F.3d 1. 5 (1st Cir. 2011) Iqbal, provided a two-step process by which courts may analyze motions to dismiss under the context based plausibility standard. In order to follow the suggested analysis, the court must first accept as true all the allegations contained in the complaint. However, to do so, the

Iqbal and Twombly interpret the duties of all plaintiffs when drafting their pleadings under Fed. R. Civ. P. 8(a)(2). This is the same standard applicable to the instant motion to dismiss for failure to state a claim. Pursuant to the standard set forth in Twombly, a plaintiff cannot depend on a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action . . . . Iqbal, 129 S.Ct. at 1949 quoting Twombly, 550 U.S. at 555. Instead, Plaintiff must tender statements with enough detail to provide defendant with fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555. Bare recitals of a cause of action supported by conclusory allegations will not suffice to give proper notice to a defendant. Moreover, conclusory statements will not be entitled to the benefit of assuming their truth when challenged by a request for dismissal. Iqbal, 129 S.Ct. at 1949-1950, 1951.
8

After the United States Supreme Courts ruling in Iqbal, even in non heightened pleading standard cases, one must test the allegations of the complaint pursuant to a flexible plausibility standard, and subject to the basic tenants of pleadings. The pleader must amplify a claim with some factual allegations, where such amplification is needed to render the claim plausible. A complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. (Citations to Twombly omitted.) Iqbal, 129 S.Ct. at 1949. Even though Rule 8 does not require detailed factual allegations it still demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Ibid. The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ibid. [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. Id. at 1950 citations to Rule 8. Thus, even in cases where there is no heightened pleading standard, Plaintiff cannot rely on conclusory statements, legal conclusions, or on facts that are merely consistent with a defendants liability.

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court is obligated to prune the complaint by identifying and eliminating all conclusory allegations, bald assertions, legal conclusions and formulaic recitations of the elements of a cause of action. 9 III. ANALYSIS OF HOCS COMPLAINT UNDER THE IQBAL TWO-PRONG TEST The Complaint lists seven specifically identified individuals, among them Julio Juli and Javier Magri, and expounds on two causes of action. The pre-pruned Complaint speculates that Ral Rodrguez, the principal of CMSI, a current service provider of durable medical equipment to Medical Card System, Inc. (hereinafter MCS), two of HOCs employees, codefendants Juli and Magri, and two Humana Health Plans of Puerto Rico (hereinafter Humana) employees, Arlene Marrero and Luis Goris Garca, supposedly extorted HOC and its principal, Jess Rodrguez. A second cause of action is for alleged interference with HOCs contractual relations with MCS, several medical companies, physicians, and Humana. The supposed extortion allegedly initiates in 2004 and centers at that time on HOCs then ongoing business relationship with MMM Healthcare, Inc. (hereinafter MMM). As a result of HOC not complying with a supposedly fraudulently induced agreement entered into between HOC and CMSI to maintain HOC supplying MMM, co-defendant Ral Rodrguez allegedly extorted HOC by threatening HOC with losing its business with MMM if he did not comply with the terms of the contract and then trying to judicially collect on the alleged debt arising under their contractual agreement. Plaintiff also speculates that HOCs contract with MCS, which first terminated in 2006; the subsequent HOC proposal that was not adopted by MCS; and its not being chosen among
9

The plausibility standard of Iqbal has been applied by the First Circuit, most notably in the recent cases of OcasioHernndez v. Fortuo-Burset, ___ F.3d ___, 2011 WL 1228768 (1st Cir. April 1, 2011); Ros-Coln v. ToledoDvila, ___ F. 3d ___, 2011 WL 1138847 (1st Cir. March 30, 2011); Sepulveda-Villarini v. Department of Educ. of Puerto Rico, 628 F.3d 25 (1st Cir. 2010).

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MCSs service providers for prosthetics and orthotics, was a result of Ral Rodrguez living up to his threats that if HOC did not comply with the allegedly fraudulently induced agreement between HOC and CMSI, its business would suffer the consequences. In 2009, CMSI sued HOC in the Puerto Rico Court of First Instance, San Juan Superior Part for breach of the allegedly fraudulently induced contract. Supposedly, during settlement conversations, Ral Rodrguez threatened Jess Rodrguez with losing MCSs and Humanas business. Plaintiff further speculates that since in 2010, HOC in fact permanently lost its MCS contract, allegedly without any explanation 10 , it must have been as a result of CMSIs and Ral Rodrguezs active interference. HOC further speculates in a conclusory manner that the named MCS officers, Juli and Magri, allegedly conspired for the benefit of HOCs competitors Diabetic Solutions, Nazareno Services, Inc., and RPS Medical Equipment. It concludes, without any factual allegation, that one of the MCS officers, Julio Juli, used his position to unduly influence MCS providers. HOC also states, without a basis on a factual allegation, that Julio Juli and Javier Magri induced Humana and MCS to breach or terminate their contracts and business relationships with HOC. Additionally, without any reference to any facts, HOC charges that Raul Rodrguez, Julio Juli and Javier Magri interfered with the medical companies and convinced them to breach HOCs contract or business relationships with physicians. The allegations against the two Humana employees, Luis Goris Garca and Arlene Marrero, follow a similar blueprint. It is alleged that HOC had a direct relationship with Humana since 2004 and that without explanation it was terminated or partially terminated in 2009. No specific facts tying CMSI, Ral Rodrguez and Humana are alleged, but as part of the RICO

However, as will be discussed, a reading of the exhibits included with the Complaint show that HOC was among the prosthetics and orthotics service providers that were not chosen by MCS after MCS conducted an evaluation of its prosthetics and orthotics net of providers and made changes.

10

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charge thrusted at Humanas officers, it is stated that the termination of the relationship between Humana and HOC was the culmination of Ral Rodrguezs threats as prognosticated and as the result of the alleged extortion scheme. Furthermore, there are allegations regarding communications from Humana regarding HOCs status as provider and its alleged continuing intervention with HOCs business relations with doctors and hospitals around the island. While Plaintiff has elaborated an interesting though outlandish theory, it has not provided factual allegations to allow Julio Juli and Javier Magri to respond to the conclusory allegations directed at unspecified defendants and/or unnamed persons, to the allegations related to fraud, or to the allegations regarding supposedly predicate or illegal conduct, thus preventing them from adequately defending themselves. The most conspicuous omission of detail is the inability to ascertain their participation in the fraudulent actions and/or the behavior directed towards the related conspiracy or illegal acts. The facts stated by HOC which refer to Julio Juli are circumscribed to an alleged statement that HOCs status as an exclusive provider of MMM was a reason for HOC not being chosen to be a part of MCSs network of service providers and his alleged participation in two meetings, one in which he supposedly stated that MCS could not contract directly with HOC because of a preexisting contract between HOC and CMSI, and another in which supposedly Raul Rodriguez interrupted to state the same. [Cplt. 65-68, 80 Dkt. 1]. The allegations stated by HOC which refer to Javier Magri are circumscribed to his allegedly having participated in a meeting where he indicated that the decision as to the remaining service providers was not his and to his having subscribed two letters included as exhibits to the Complaint. One letter referred to a stay of the termination of the contract between HOC and MCS and the other, addressed to the Health Care Organizations, Hospitals and Participating Doctors, among others, announcing the names of the companies that had been

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selected to be a part of MCSs Prosthetics and Orthotics network of providers after performing an evaluation of the applicants. [Cplt. 79-80 Dkt. 1] and [Exh. 15 & 18 Dkt. 1]. As analyzed below, the allegations presented by Plaintiff do not offer fair notice of what the claims are and the grounds upon which they rest, nor do they cross the line between possibility and plausibility of entitlement to relief. Iqbal, 129 S.Ct. at 1949. Those specific factual allegations against Julio Juli and Javier Magri are insufficient to show that Plaintiff is entitled to relief and do not comply with the plausibility standard of the two-prong test.. A. FIRST PRONG: PRUNING THE COMPLAINT

In order to survive a motion to dismiss, one must sift through the allegations and accept as true only the well-pleaded factual allegations. These remaining factual allegations must then be sufficient to state a plausible claim for relief. We will address each category separately. 11 1. GENERAL ALLEGATIONS UNNAMED DEFENDANTS AGAINST
UNDISCLOSED AND OTHERWISE

General allegations against undisclosed and otherwise unnamed defendants are evidently not directed against Julio Juli or Javier Magri and additionally are insufficient under the heightened pleadings standard of Rule 9(b). Thus they should be eliminated. 2. FORMULAIC RECITATION OF THE ELEMENTS OF A CAUSE OF ACTION

Plaintiff speculates that Mr. Julio F. Juli, by allegedly stating to HOCs representative that MCS could not negotiate directly with HOC because CMSI had a prior agreement with HOC for these negotiations, was party to an effort to extort HOC and Jess Rodriguez by means of misrepresentation and fraud, in order to benefit CMSI. [Cplt. 65-66 Dkt. 1] This is a

Upon a study of the allegations of the Complaint, once the conclusory allegations, bald assertions and formulaic recitals are eliminated and the well-pleaded factual allegations are accepted as true (for purposes of this motion only), HOC fails to state a plausible claim for relief. The facts alleged on the face of the complaint do not nudge the claims from the conceivable to the plausible.

11

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conclusory allegation; but even if true, it could not be deemed to be an extortion, misrepresentation, or fraud. The Complaint charges that Juli told, convinced and affirmed, to HOC and Jesus Rodriguez the [sic] MCS could not legally sign directly with them, while being fully aware that this was a falsity. Similarly he told MCS that they could not contract with HOC. Thus he effectively controlled the relationship for profit. [Cplt. 68 Dkt. 1]. This statement is truly a conclusory allegation and a bald assertion of an element of a possible cause of action. Moreover, this matter is closely related to the alleged fraud and misrepresentation. The statement is not sufficient under the heightened pleading standard of when, where and how this alleged fraud and control of the relationship for profit occurred and should be eliminated. The un-pruned Complaint also states that They are also actors having taken actions in concert or as part of an association in fact which were designed to damage or diminish the market of HOC. [Cplt. 81 Dkt. 1]. This statement is a bald assertion and a formulaic allegation of elements of a cause of action. It fails to provide a factual narrative upon which to support the speculative accusation or provide the necessary details of who did what to whom, when, where and how and should therefore also be eliminated. The unstrained Complaint claims that Julio Juli and Javier Magri used their positions at MCS to allegedly extort HOC and other providers like HOC and also, cooperate to forward CMSIs economic interests. [Cplt. 83 Dkt. 1]. This statement is also a bald assertion and a conclusory allegation. Furthermore, it does not comply with the heightened pleading standard because it fails to state the when, where, how, who, or what of the alleged extortion to HOC and others or how CMSIs economic interest was forwarded by any action whatsoever. There is no

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factual narrative as to Julio Juli or Javier Magri in any manner, form or way extorting Jess Rodriguez or HOC. Plaintiff has failed to properly dress his accusations. Furthermore, HOC, out of the blue, states that Julio F. Juli and Javier Magri allegedly acted in benefit of Diabetic Solutions, Nazareno Services, Inc., and RPS Medical Equipment, HOCs competitors. [Cplt. 84 Dkt. 1]. Even though this is indeed a conclusory allegation and bald assertion, even if taken as true, the same does not give notice as to the improper conduct that would create a possible cause of action in a manner that would allow the defendants to defend themselves. It fails to state a cause of action upon which relief can be granted in favor of HOC. Additionally and incomprehensibly as to why it would be so, the un-sifted allegations of the Complaint state that co-defendants Luis Goris Garca and Arlene Marrero, employees at Humana during the alleged misconduct, cooperated to forward Julio F. Julis economic interests. [Cplt. 103 Dkt. 1]. This libelous, inexplicable, and unfounded statement is purely conclusory and does not allow Mr. Juli to adequately respond or to defend himself. Paragraphs 104, 106, 107, 108, 109, 110 12 , 111, 112, 113, 121, 122, and 123 generally refer to defendants, without specifying which defendants. Furthermore, the allegations in these paragraphs are purely conclusory. 13 Plaintiff fails to dress its accusations and does not describe how Julio Juli and Javier Magri participated in said actions, or the conduct that should be deemed to be illegal, or even how they profited or caused damage and loss in a legally precluded
It is important to note that paragraph 110 of the complaint does have subparagraphs (i) through (xxvii). However, Javier Magri is not mentioned in these subparagraphs in any manner or form and Julio Juli is only mentioned to the extent that Luis Goris Garca and Arlene Marrero, of Humana, forwarded his economic interests. This conclusory allegation discussed above and identified as an inadequate allegation. 13 They allege that defendants violated the law, extorted HOC, defrauded merchandisers, conspired to defraud, made threats of business violence or violence to business, racketeered, used the mail and wires, fraudulently obtained money, knew of each others actions, interfered with HOCs property interest or with the execution of HOCs business, aided and abetted and rendered substantial assistance to each other, threatened harm, profited from their action, obtained money and services from HOC, coerced HOC and acted so as to HOC not obtain contracts.
12

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manner. Plaintiff relies on just stating that every fact describing Defendants actions constitutes a predicate act under RICO. These allegations do not comply with the heightened pleading standard of Fed. R. Civ. P. 9(b) or Fed. R. Civ. P. 8(a) as defined in Iqbal and Twombly. [Cplt. 104-113, 121-123 Dkt. 1] since they are formulaic recitals of the elements of a cause of action. Furthermore, the factual narrative as to Julio Juli and Javier Magri does not support such conclusions. Paragraph 114 of the Complaint is just a list of the elements of Section 1962 of the RICO statute, in a conclusory matter identifying Mr. Juli and Mr. Magri as persons, and persons employed or associated with CMSI. Clearly this does not comply with a sufficiently pled factual allegation that would impede the dismissal. [Cplt. 114 Dkt. 1] Likewise, paragraphs 115, 117, and 118 contain a series of conclusory statements and bald assertions that merely recite different elements of a RICO violation without providing any factual narrative to sustain them. [Cplt. 115, 117-118 Dkt. 1] Additionally, Plaintiff libelously states that Julio F. Juli allegedly uses his position as President of MCS to unduly influence providers yet fails to state a single fact to support its baseless accusation. [Cplt. 120 Dkt. 1]. Similarly, paragraphs 125-130 of the un-pruned Complaint are recitals of the elements of a tortious interference with contractual obligations cause of action where HOC makes naked conclusory allegations, by which Julio Juli and Javier Magri are unjustifiably accused of tortiously interfering with HOCs relationship with the medical companies, physicians, MCS and

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Humana 14 . [Cplt. 125-130 Dkt. 1]. Consequently, these co-defendants do not have proper notice of the claims against them in a manner that they can reasonably defend themselves. 3. 1. 2. REMAINING TRIMMED ALLEGATIONS AGAINST JULIO JULI

Juli, Magri and Ral Rodriguez are allegedly close friends. 15 [Cplt. 81 Dkt. 1]. Mary Davis, MD, MCS representative, and Michael Soler, on HOCs behalf, met in order to discuss HOCs proposal. Julio Juli allegedly participated in the referred meeting. [Cplt. 64 Dkt. 1]

3.

In that meeting, Julio Juli allegedly indicated MCS could not negotiate directly with HOC because CMSI had an exclusivity-percentage agreement with HOC for those negotiations, and they could only be made through CMSI. [Cplt. 65 Dkt. 1].

4.

Subsequently, Julio Juli allegedly coordinated a meeting with Michael Soler regarding HOC, and supposedly Ral Rodrguez appeared at the meeting and told Soler that HOC could not negotiate directly with MCS because CMSI had an exclusivity-percentage agreement with HOC for those negotiations, and they could only be made through CMSI [Cplt. 68 Dkt. 1]

5.

Juli then told, convinced and affirmed, to HOC and Jesus Rodriguez the [sic] MCS could not legally sign directly with them. He also allegedly told MCS that they could not contract with HOC. [Cplt. 68 Dkt. 1]

6.

However, MCS did not negotiate through CMSI. HOC in fact did negotiate and met directly with MCS to discuss the matters related to orthotics, prosthetics and implants. [Cplt. 67 & 70 Dkt. 1].

In addition that the allegations are not sustained with any factual context, one cannot even fathom or understand how Julio Juli and Javier Magri could interfere with HOCs relationship with Humana. 15 This conclusory statement, even if taken as true cannot lead to a plausible conclusion or inference of misconduct.

14

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7.

Subsequently, Javier Magri in a meeting held in April of 2010, allegedly told Jess Rodrguez that the decision to end the contract between MCS and HOC in 2010 was Julio Julis and that the purported reason given was that HOC was an exclusive provider of MMM [Cplt. 80 Dkt. 1], while CMSI allegedly is a provider of MCS and also of American Health, also under exclusive terms. [Cplt. 80 Dkt. 1]

8.

Hector L. Pastor, supposedly told Jess Rodriguez that he would schedule a meeting between Julio Juli and HOC. However, days later, Pastor told Rodrguez that Julio Juli [had] nothing to talk with him. [Cplt. 82 Dkt. 1] 4. REMAINING TRIMMED ALLEGATIONS AGAINST JAVIER MAGRI

9. 10.

Juli, Magri and Raul Rodriguez allegedly are close friends. 16 [Cplt. 81 Dkt. 1] During the April 19, 2010 meeting in which Pastor participated, Magri allegedly told Jess Rodrguez that the decision to end the contract was not his. [Cplt. 79-80 Dkt. 1]

11.

Magri signed a letter dated June 23, 2010, informing of a stay of the termination of the Prosthetics and Orthotics Suppliers Agreements. [Exh. 15 Dkt. 1].

12.

Javier Magri signed a subsequent letter dated August 31, 2010, informing that MCS, after re-evaluating their network of providers and deciding to make changes to the same, had chosen three providers effective October 1, 2010. HOC was among the suppliers that had not been selected. [Exh. 18 Dkt. 1]. 5. OTHER TRIMMED FACTUAL ALLEGATIONS

13.

As early as November 16 of 2006, MCS terminated HOCs contract because it was reevaluating its policies. [Cplt. 59 Dkt. 1] and [Exh. 8 Dkt 1].

16

See footnote 15.

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14.

As a result, all contracts with prosthesis companies were terminated and new policies were put in place. [Exh. 9 Dkt 1].

15. 16.

Said re-evaluation process began in 2006-2007. [Exh. 8-10 Dkt 1]. On February 22, 2007, the Credentials Committee met to discuss HOCs request to be chosen as a provider. [Exh. 9 Dkt 1].

17.

The Credential Committee found that HOC did not comply with the requirements since its prosthetists did not have the requested certifications. One of the prosthetists was working for another entity and a credentials check showed that he had allegedly been suspended for ethical reasons. [Exh. 9 Dkt 1].

18.

On March 12, 2007, HOC was given, in reconsideration, the opportunity to complete the procedures necessary to have its prosthetists certified and placed certain prohibitions regarding the handling of patients by certain prosthetists. [Exh. 11 Dkt 1].

19.

This termination and the change in MCSs policies occurred prior to Julio Juli working for MCS. [Cplt. 62 Dkt. 1]

20.

In 2008, HOC voluntarily made a proposal to provide services under a capitation or capitated agreement. [Cplt. 61 Dkt. 1].

21.

In spite of the allegations that MCS was supposedly informed that it could not negotiate with HOC, MCS allegedly informed HOC that it would not negotiate through codefendant CMSI [Cplt. 67 Dkt. 1] and thus HOC met directly and negotiated matters with MCS. [Cplt. 70 Dkt. 1].

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22.

On March 31, 2010, MCA and its Subsidiaries notified all its providers in written form the decision to terminate all of the Prosthetics and Orthotics Supplier Agreements effective May 31, 2010. [Cplt. 77 Dkt. 1] and [Exh. 15 Dkt 1]. 17

23.

The reasons for the termination of all the providers were that MCS had decided to reevaluate its net of providers and then selected only three after engaging in said reevaluation process. HOC was among the many providers not chosen. [Exh. 18 Dkt 1].

24.

The Prosthetics and Orthotics Supplier Agreement was an agreement terminable at will. [Exh. 8 Dkt. 1].

25.

HOC filed before the Administracin de Seguros de Salud de Puerto Rico (ASES) a complaint related to its termination by MCS [Exh. 21 Dkt 1].

26.

CMSI filed a complaint against HOC in the Court of First Instance, San Juan Superior Part, to enforce the allegedly fraudulently induced agreement. [Cplt. 72 Dkt. 1] and [Exh. 13 Dkt 1] B. SECOND PRONG: STATING A PLAUSIBLE CLAIM WITH REMAINING ALLEGATIONS 1. ELEMENTS OF THE CAUSES OF ACTION UNDER RICO

Plaintiff claims causes of action under RICO 18 U.S.C. 1962 (c) and (d), in its civil context and Article 1802 of the Puerto Rico Civil Code. The 18 U.S.C. 1962 (d) Claim The RICO statute states that [i]t shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section. 18 U.S.C. 1962(d). In order to state a cause of action under 18 U.S.C. 1962 (d), plaintiff must state a viable conspiracy

Plaintiff fails to include the actual termination letter and in an opportunistic fashion only attaches as an Exhibit a follow-up letter postponing the termination until later dates [Exh. 15 Dkt 1] and omits to state in the body of the complaint that all the providers had been terminated [Exh 18 Dkt 1].

17

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charge. To state a claim for conspiracy a plaintiff must allege the existence of at least one overt act by a defendant in furtherance of the conspiracy and the assent of each defendant to the conspiracy. 18 To succeed under 1962(d) a plaintiff must show that the defendants were parties to an unlawful agreement or that defendants knowingly agreed to further its affairs through the commission of various offenses.
19

As will be stated below, Plaintiff does not provide

any facts that would show a conspiracy, unlawful agreement, predicate act, or commission of offenses by Julio Juli and Javier Magri. Plaintiff fails to provide any factual narrative that would lead a reasonable person to conclude that the elements, necessary to constitute a conspiracy, have been properly alleged. Plaintiff cannot survive a motion to dismiss on veiled speculation. The 18 U.S.C. 1962 (c) Claim Plaintiff also claims violations of 18 U.S.C. 1962(c), which states the following.
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of unlawful debt.

A cause of action under 18 U.S.C. 1962 (c) requires a finding that the defendant be employed or associated with the enterprise. Plaintiff identifies CMSI as the enterprise. However, there is no factual narrative as to how Julio Juli and Javier Magri, are employed, associated or in any way have an interest in CMSI and its endeavors or directly or indirectly, conduct or participate in CMSIs affairs. The only allegation is that some of co-defendants are allegedly close friends.

Salinas v. United States, 522 U.S. 52, 65 (1997). An actionable claim under section 1962(d) ... requires that the complainant's injury stem from a predicate act within the purview of 18 U.S.C. 1961(1). Miranda, 948 F.2d at 48. JJ Alvarez v. Westernbank, 2009 WL 4730776 *5 (D.P.R., Dec 4, 2009). 19 See Miranda, 948 F.2d at 47-48; see also First City National Bank & Trust v. Federal Deposit Insurance Co., 730 F.Supp. 501 (E.D.N.Y.Jan.16, 1990) (dismissing claim under 1962(d) because no agreement shown between named defendants). JJ Alvarez, supra.

18

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The United States Supreme Court has adopted an operation or management test by which the courts are to analyze the alleged relationship.
Once we understand the word conduct to require some degree of direction and the word participate to require some part in that direction, the meaning of 1962(c) comes into focus. In order to participate, directly or indirectly, in the conduct of such enterprise's affairs, one must have some part in directing those affairs. Of course, the word participate makes clear that RICO liability is not limited to those with primary responsibility for the enterprise's affairs, just as the phrase directly or indirectly makes clear that RICO liability is not limited to those with a formal position in the enterprise, but some part in directing the enterprise's affairs is required. The operation or management test expresses this requirement in a formulation that is easy to apply.

Reves v. Ernst & Young, 507 U.S. 170, 179, 113 S.Ct. 1163, 1170 (1993). Under the operation or management test under 18 U.S.C. 1962(c), Plaintiff has failed to state that Julio Juli and Javier Magri conducted or participated, directly or indirectly, in the activity of CMSI or the alleged enterprise, much less as to when and how. Plaintiff is unable to show that Juli or Magri in any way, shape or form directed the alleged enterprise and formed part of its operation or management. To state a claim under section 1962(c) [or (a)], a plaintiff must allege each of the four elements required by the statute: (1) conduct (2) of an enterprise, (3) through a pattern (4) of racketeering activity.
20

The predicate acts of which the RICO statute speaks are, basically,

acts indictable under any one or more of certain specified criminal laws. 21 No Illegal Conduct The Complaint fails to allege sufficient facts from which one could plausibly infer that Juli and Magri participated in racketeering activity. Plaintiff fails to provide any factual narrative by which a conduct punishable under Puerto Rico Criminal Statutes or an act
North Bridge Ass., Inc. v. Boldt, 274 F .3d 38, 42 (1st Cir.2001) as cited in JJ Alvarez v. Westernbank, 2009 WL 4730776 *4. Giuliano v. Fulton, 399 F. 3d 381, 386 (1st Cir. 2005) as cited in La Carpa Corp. v. Baer, 2010 WL 3955813 *4 (D. P.R. Sept. 30, 2010).
21 20

Feinstein v. Resolution Trust Corp., 942 F.2d 34, 42 (1st Cir.1991) (citing 18 U.S.C. 1961(1)(B)). as cited in JJ Alvarez v. Westernbank, 2009 WL 4730776 *7.

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constituting an unlawful activity described in 18 U.S.C. 1961 (1) could be alleged as to Juli and Magri. Plaintiffs allegations of extortion or any other illegal conduct by Juli and Magri are conclusory allegations naked of any factual support. Even though Plaintiff does allege wire fraud 22 , the acts described in the complaint do not refer to any such conduct by Julio Juli or Javier Magri. Mail or wire fraud requires proof of (1) a scheme to defraud based on false pretenses; (2) the defendant's knowing and willing participation in the scheme with the specific intent to defraud; and (3) the use of interstate mail or wire communications in furtherance of the scheme. Snchez v. Triple-S Mgmnt. Corp., 492 F.3d 1, 9-10 (1st Cir. 2007). But even if the allegation would be deemed to include the letters sent by Magri, a study of the same would show that their content cannot be considered to be part of a scheme to defraud based on false pretenses. The facts responding to the particular elements necessary to constitute mail or wire fraud are not stated. 23 No Pattern A RICO claim requires the showing of at least two predicate acts of racketeering activity. [Citing Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12, 15 (lst Cir.2000)] The mere occurrence of two or more predicate acts, however, does not constitute a pattern. Id. A plaintiff must also demonstrate (1) that the predicate acts are related, and (2) that they pose a threat of continued criminal activity. [Referring to Feinstein v. Resolution Trust Corp., 942 F.2d 34, 44 (1st Cir.1991) JJ Alvarez v. Westernbank, 2009 WL 4730776 *8.

The Complaint states that on January 9, 2006, in an effort to continue the alleged extortion of HOC, CMSI sent an e-mail (wire fraud) to Jess Rodrguez. [Cplt. 44 Dkt. 1] 23 In addition, in order for a plaintiff to bring a valid RICO claim, he or she needs to show that there is a causal nexus between the racketeering activity and the plaintiff's injury. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 266-68 (1992). In the present case, however, HOC has failed to allege sufficient facts from which one could plausibly infer a causal relationship between any acts of Juli and Magri and any injuries allegedly suffered.

22

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HOC has failed to allege sufficient facts from which one could plausibly infer that there was a pattern of predicate acts. Plaintiff fails to allege the sufficient quantity of predicate acts to meet the statutory minimum, and even if it did, fails to establish that they are a pattern because they are too circumscribed to demonstrate the requisite continuity. Even conceding, for argument's sake only, that the alleged actions by Juli and Magri are indeed predicate acts and that such acts are related to one another, the Complaint still fails to state a claim under RICO because the allegations are insufficient to establish the pattern element of the claim, given that one cannot infer either close-ended or open-ended continuity. No Open-Ended Pattern Viewing plaintiffs allegations under the closed-ended approach, the alleged predicate acts of Javier Magri of a meeting in 2010, and possibly two letters in June and August of 2010, does not satisfy the minimum requirement for a closed-ended continuity. Similarly, the alleged factual narrative regarding Julio Juli is undertaken in a short time frame in the year 2008. Even if extending the term to the year 2010, it is alleged throughout a less than 24-month period. Although this time frame exceeds the minimum requirement for closed-ended continuity of more than a few weeks or months, H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 242 (1989), it is not so long a period, nor are there so many predicate acts that other indicators of continuity-or lack of them-are without significance. Efron, 223 F.3d at 17. Where, as here, the alleged racketeering is neither so extensive in reach nor so far beyond the minimum time period that common sense compels a conclusion of continuity, the fact that a defendant has been involved in only one scheme with a singular objective and a closed group of targeted victims [is also] highly relevant. Id. at 18. Plaintiff wants the court to infer and speculate that Julio Juli and Javier Magri participated in a single narrow scheme to defraud a single victim, HOC, by

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allegedly misrepresenting its relationship with CMSI. These allegations do not state a RICO claim based on a closed-ended series of predicate acts. 24 No Open-Ended Pattern Under the open-ended approach, Plaintiff has not alleged any specific threat of repetition extending indefinitely into the future. Moreover, although the Complaints allegations, if proven to be true, they do not plausibly demonstrate that Julio Juli or Javier Magri would seek to repeat the alleged fraud or schemes in this or other business settings, such that racketeering activity is their regular way of conducting business. See Efron, 223 F.3d at 19 (citing H.J. Inc., 492 U.S. at 243; Roeder v. Alpha Indus., Inc., 814 F.2d 22, 31 (1st Cir.1987) (no suggestion that defendants used similar means to obtain other subcontracts, or that they bribed anyone else)). It is not reasonable to infer from the allegations that there is a risk of a broader scheme, or that the allegedly fraudulent acts directed at HOC would continue indefinitely into the future. HOC does not allege any other behavior that would prove that the alleged predicate acts were part of an ongoing scheme or that they were Julis or Magris regular way of doing business. For that reason, there is no open-ended continuity in this case. Because there is neither close-ended nor open-ended continuity, the pattern element of the RICO Act claim is not met. Since that element is a necessary condition for a RICO Act claim, the Court should dismiss that claim against Julio Juli and Javier Magri.
See Efron, 223 F.3d 12 (dismissing RICO claim where alleged acts comprised a single effort over [21-month period] to wrest control of a particular partnership from a limited number of its partners) (citing Apparel Art Intl., Inc. v. Jacobson, 967 F.2d 720, 723 (1st Cir.1992) ([A] single criminal episode, or event, is not a pattern ... [because] its parts, taken together, do not amount to or pose a threat of continued criminal activity.); Edmondson & Gallagher v. Alban Towers Tenants Assn, 48 F.3d 1260, 1265 (D.C.Cir.1995) (combination of single scheme, single injury, and few victims ... makes it virtually impossible for plaintiffs to state a RICO claim); Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1545 (10th Cir.1993) (Where the scheme has a limited purpose, most courts have found no continuity.); Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir.1990) (affirming dismissal of RICO claim where a closed-ended series of predicate acts ... constituted a single scheme to accomplish one discrete goal, directed at one individual with no potential to extend to other persons or entities); Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir.1989) ( Defendants actions were narrowly directed towards a single fraudulent goal.)).
24

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2.

ELEMENTS OF CAUSES OF ACTION UNDER ARTICLE 1802 INTERFERENCE WITH CONTRACTUAL OBLIGATIONS

FOR

TORTIOUS

The Puerto Rico Supreme Court has recognized a cause of action for tortious interference with contractual obligations under Article 1802 of the Puerto Rico Civil Code. Gen. Off. Prod. Corp. v. A.M. Capens Sons, Inc., 15 P.R. Offic. Trans. 727 at *3-4, 115 D.P.R. 553 (1984); Dolphin Int. of P.R., Inc .v. Ryder Truck Lines, Inc., 1991 WL 735928 P.R. Offic. Trans. *4, 127 D.P.R. 869 (1991). The elements of a cause of action for tortious interference with contractual obligations requires that 1) there must be a contract with which a third person interferes (if an expectancy or a profitable financial relationship for which there is no contract is interfered with the action does not lie); 2) fault must be present, so the Plaintiff must show that the third party has acted tortiously with the knowledge of the contracts existence; 3) plaintiff must suffer a damage; and 4) the damage must be a consequence of the tortious acts of the third person. Gen. Off. Prod. Corp. 15 P.R. Offic Trans. 727 at *4; Dolphin, 1991 WL 735928 P.R. Offic. Trans. At *4; Jusino v. Walgreens, 155 D.P.R. 560, 575-576 (2001). The doctrine of tortious interference with contractual obligations requires that there be a contract. An interference with expectancy is not deemed a conduct actionable as a tortious interference with contractual obligations. Gen. Off. Prod. Corp. 15 P.R. Offic Trans. 727 at *4; Dolphin, 1991 WL 735928 P.R. Offic. Trans. at *6. The termination of a contract at will is not subject to liability for tortious interference with contractual obligations and is subject to the defense based on the theory of privilege of competition. Dolphin, 1991 WL 735928 P.R. Offic. Trans. at *6-7. Plaintiff mentions that MCS originally terminated its contract in 2006. The Complaint specifically states that Julio Juli was not employed by MCS at that time, nor is there any factual

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narrative regarding Julio Juli and Javier Magri as to said termination. Furthermore, the Exhibits included in the complaint state ample reasons for the termination of the relationship and identify that the type of agreement was terminable at will. Consequently, there is no cause of action for tortious interference with a contractual obligation for said events.. HOC then complains that it presented a proposal to MCS to change the relationship to capitated services. Consequently, from the actual allegations of the Complaint one must conclude that said proposal is not a contract between MCS and HOC for which there could have been an actionable tortious interference. Lastly, Plaintiff complains that its business relationship with MCS was terminated. However, given by its own admissions and attached Exhibits, the relationship could be terminated at will and MCS gave its reasons for termination. Consequently, said termination is not actionable and would be subject to the privilege of competition defense. Moreover, the cause of action needs to be against a third party. The Puerto Rico Supreme Court has recognized that there is no cause of action against employees of a corporation for alleged tortious interference with contractual obligations between Plaintiffs and the corporation for which defendants work. Jusino, 155 D.P.R at 586-587. Consequently, to the extent that Plaintiff is claiming that MCS employees/officers tortiously interfered with its business relationship with HOC, it fails to state a claim upon which relief can be granted. Also see La Carpa, 2010 WL 3955813 at *3-4 (D. P.R. Sept. 30, 2010) and cases cited therein. Therefore, for the same reasons stated herein, there is no possible cause of action as stated in Paragraph 130 of the complaint for alleged interference with prospective business relations, expectations, or advantages. 25

Plaintiff also in a conclusory manner accuses Mr. Juli and Mr. Magri of interfering with HOCs relationships with medical companies, Humana and physicians. However, the allegations lack any factual narrative. On the contrary, the factual narrative regarding HOCs relationship with Humana, the medical companies and the physicians identify other alleged actors. Consequently, Plaintiff fails to state a plausible cause of action against Juli

25

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IV.

CONCLUSION

Plaintiff has not stated its claim adequately. The causes of action cannot be supported by showing any set of facts consistent with its allegations. Even taking the well-pled facts as true, these do not show a plausible cause of action as Plaintiff has not nudged its claims across the line from conceivable to plausible. Iqbal, 129 S.Ct. at 1951. WHEREFORE, for the reasons stated above, Julio Juli and Javier Magri move that the Court pursuant to Fed. R. Civ. P. 12(b)(6) dismisses all causes of action presented against them by Plaintiff HOME ORTHOPEDICS CORP. RESPECTFULLY SUBMITTED. WE HEREBY CERTIFY that on this same date the foregoing was electronically filed with the Clerk of the Court using the CM/ECF System which will send notification of such filing to all attorneys of record registered in the use of the CM/ECF system. In San Juan, Puerto Rico, this 5th day of July, 2011.

DEL TORO & SANTANA

Attorneys for Julio Juli and Javier Magri Plaza Scotiabank, Suite 610 273 Ponce de Len Avenue San Juan, Puerto Rico 00917 Tel. (787) 754-8700 Fax (787) 756-6677
S/ ROBERTO SANTANA APARICIO

USDC-PR 122811 E-mail: rsantana@dtslaw.com

s/ BERENICE B. BELLOTTI
USDC-PR 214802 E-mail: bbellotti@dtslaw.com
and Magri as to any interference with HOCs relationships with Humana, the medical companies and the physicians.