Rose v. Davis

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
MICHAEL ROSE, 	)
)
Plaintiff, 	)
)
v. 	) 	C.A. No. 23-13 WES
)
JOHN DAVIS a.k.a. JACK DAVIS, 	)
)
Defendant. 	)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
This case arises from a business arrangement gone sour. 	Pro
se 	Plaintiff 	Michael 	Rose 	brings 	this 	unjust 	enrichment 	case
against 	his 	former 	business 	partner, 	Defendant 	John 	Davis. 	Now
before the Court are Defendant Davis’s Motions to Dismiss, ECF No.
9, 	and 	for 	a 	More 	Definite 	Statement 	and 	to 	Strike, 	ECF 	No. 	10.
For the reasons provided below, the Court GRANTS in part and DENIES
in part both motions.
I. Background
Plaintiff alleges the following: 	Plaintiff is a real estate
broker 	in 	Florida. 	Pleadings 	1, 	ECF 	No.1-2. 	At 	the 	time 	in
question, 	Defendant 	was 	a 	real 	estate 	broker 	operating 	out 	of
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 1 of 15 PageID #:
<pageID>

2
Massachusetts.1 	Id. 	In 2012, Plaintiff approached Defendant and
orally offered that he and Defendant “equally split all commissions
or 	fees 	generated 	through 	real 	estate 	closings 	[or] 	transactions
. 	. 	. 	. 	[entered 	into] 	either 	independently 	or 	collaboratively.”
Id. 	Defendant 	agreed. 	See 	id. 	Thereafter, 	Plaintiff
independently executed three deals.2 	Id. at 2-3.
The first of these deals involved real estate in Stillwater,
Oklahoma, 	and 	closed 	on 	April 	1, 	2014. 	Id. 	at 	3. 	In 	May 	2014
Plaintiff closed a second deal in Waco, Texas. 	Id. 	The third and
final deal involved real estate in Flagstaff, Arizona, and closed
on October 1, 2019. 	Id. 	Pursuant to the oral agreement, Plaintiff
split 	the 	fees 	and 	commissions 	he 	earned 	with 	Defendant, 	sending
a total of $147,681.65, fifty percent of Plaintiff’s total earnings
from the independent deals, to Defendant.3 	See id. at 2. 	Plaintiff
alleges 	that 	during 	this 	time 	Defendant 	also 	independently
negotiated 	and 	closed 	an 	unspecified 	number 	of 	deals 	but 	never
1 	Defendant 	has 	since 	relocated 	to 	Rhode 	Island. 	Pleadings
1, ECF No. 1-2.
2 During this time, Plaintiff also negotiated three deals with
Defendant. 	Pleadings 	2. 	The 	funds 	transferred 	as 	part 	of 	these
deals are not at issue.
3 	For 	the 	first 	two 	deals, 	Plaintiff 	sent 	Defendant 	a 	total
of 	$97,681.65 	split 	between 	two 	payments. 	Pleadings 	3. 	For 	the
third, he transferred $50,000. 	See id.
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 2 of 15 PageID #:
<pageID>

3
shared his commissions with Plaintiff. 	Id. at 3.
Plaintiff 	brought 	this 	lawsuit 	alleging 	that 	Defendant 	was
unjustly 	enriched 	by 	the 	three 	payments 	because 	Defendant 	never
held up his end of the bargain to share the commissions made from
deals he entered into independently. 	In response, Defendant filed
a 	motion 	to 	dismiss 	arguing 	that 	the 	statute 	of 	limitations 	has
run 	with 	respect 	to 	the 	first 	two 	deals, 	so 	the 	corresponding
unjust 	enrichment 	claims 	must 	be 	dismissed. 	Defendant 	further
contends that, as a result, this Court no longer has jurisdiction
because 	the 	dismissal 	of 	the 	first 	two 	unjust 	enrichment 	claims
lowers 	the 	jurisdictional 	amount 	to 	below 	the 	requisite 	$75,000.
Defendant 	has 	also 	filed 	a 	motion 	for 	a 	more 	definite 	statement
and to strike.
II. Discussion
A. Motion to Dismiss
1. Legal Standard
To 	survive 	a 	motion 	to 	dismiss, 	a 	complaint 	must 	set 	forth
sufficient facts to establish a “claim to relief that is plausible
on 	its 	face.” 	Bell 	Atl. 	Corp. 	v. 	Twombly, 	550 	U.S. 	544, 	570
(2007). 	Although the Court need not find the claim to be probable,
it 	must 	find 	the 	claim 	to 	be 	more 	than 	merely 	possible 	in 	order
for 	it 	to 	withstand 	a 	motion 	to 	dismiss 	for 	failure 	to 	state a
claim. 	Ashcroft 	v. 	Iqbal, 	556 	U.S. 	662, 	678 	(2009). 	Claims
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 3 of 15 PageID #:
<pageID>

4
comprised 	of 	“meager, 	vague, 	or 	conclusory” 	statements 	are
insufficient and should be dismissed. 	Alston v. Spiegel, 988 F.3d
564, 571 (1st Cir. 2021) (citing SEC v. Tambone, 597 F.3d 436, 442
(1st Cir. 2010)).
When reviewing a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, the Court must assume the
truth of well-pleaded facts and give the plaintiff the benefit of
all 	reasonable 	inferences. 	Cook 	v. 	Gates, 	528 	F.3d 	42, 	48 	(1st
Cir. 	2008). 	When 	a 	claimant 	is 	pro 	se, 	their 	complaint 	is
construed “liberally.” 	Foley v. Wells Fargo Bank, N.A., 772 F.3d
63, 	75 	(1st 	Cir. 	2014) 	(citing 	Erickson 	v. Pardus, 551 U.S. 89,
94 (2007)).
2. Statutes of Limitations
Defendant argues that Plaintiff’s first two unjust enrichment
claims, 	connected 	to 	the 	2014 	payments, 	are 	barred 	by 	the
applicable 	statute 	of 	limitations. 	Mot. 	Dismiss 	3, 	ECF 	No. 	9.
Specifically, 	Defendant 	argues 	that 	the 	applicable 	law 	is 	either
Massachusetts 	(the 	state 	where 	he 	was 	located 	at 	the 	time 	in
question) or Florida (the state where Plaintiff was located at the
time 	in 	question), 	and 	that 	the 	claims 	are 	barred 	under 	either
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 4 of 15 PageID #:
<pageID>

5
statute of limitations.4 	Id. at 4.
For 	unjust 	enrichment 	claims, 	Florida 	applies 	a 	four-year
statute 	of 	limitations, 	Fla. 	Stat. 	§ 	95.11(3)(j); 	Wang 	v. 	Revere
Capital 	Management, LLC, CASE No. 22-CV-80884-RUIZ/MAYNARD, 2023
WL 	2198570, 	at 	*7 	(S.D. 	Fla. 	Feb. 	15, 	2023), 	while 	Massachusetts
applies 	a 	six-year 	statute 	of 	limitations, 	Mass. 	Gen. 	Laws 	ch.
260, 	§ 	2; 	AA 	& 	D 	Masonry, 	LLC 	v. 	South 	St. 	Bus. 	Park, 	107 	N.E.3d
1229, 	1233 	n.10 	(Mass. 	App. 	Ct. 	2018). 	Thus, 	Defendant 	argues
that, 	under 	either, 	the 	claims 	related 	to 	the 	2014 	deals 	are
untimely 	as 	it 	has 	been 	just 	over 	nine 	years 	since 	Plaintiff
transferred the money. 	Mot. Dismiss 4. 	Although Plaintiff seems
to 	object 	to 	the 	very 	idea 	that 	a 	specific 	law 	should 	apply 	at
all, 	he 	advocates 	for 	application 	of 	Rhode 	Island’s 	ten-year
statute 	of 	limitations, 	see 	R.I. 	Gen. 	Laws 	§ 	9-1-13, 	as 	Rhode
Island 	is 	the 	forum 	state. 	In 	addition, 	he 	argues 	that 	even 	if
Florida’s 	or 	Massachusetts’s 	statute 	of 	limitations 	applies, 	the
running 	of 	the 	statute 	of 	limitations 	was 	tolled, 	making 	both
claims 	timely.5 	Fact 	Sheet 	1, 	ECF 	No. 	1-1; 	Am. 	Resp. 	1, 	ECF 	No.
4 Defendant specifically advocates for application of Florida
law. 	However, given the Court’s determination, infra, it need not
decide which law applies.
5 Plaintiff refers to his tolling argument as the “continuing
offense 	doctrine.” 	Fact 	Sheet 	1, 	ECF 	No. 	1-1; 	Am. 	Opp’n 	3, 	ECF
No. 18. 	However, his legal arguments are more akin to advocating
application 	of 	the 	discovery 	rule. 	See, 	e.g., 	id. 	at 	5. 	This
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 5 of 15 PageID #:
<pageID>

6
18.
Because this Court sits in Rhode Island and this case is based
on diversity jurisdiction, it uses Rhode Island choice of law rules
to 	determine 	which 	statute 	of 	limitations 	applies. 	The 	Rhode
Island 	Supreme 	Court 	utilizes 	an 	interest-weighing 	approach 	to
determine which statute of limitations should apply in situations
such 	as 	this. 	See 	Webster 	Bank, 	Nat’l 	Ass’n 	v. 	Rosenbaum, 	268
A.3d 556, 560 (R.I. 2022). 	This approach requires review of “the
particular 	facts 	[to] 	determine 	therefrom 	the 	rights 	and
liabilities of the parties in accordance with the law of the state
that bears the most significant relationship to the event and the
parties.” 	Id. 	(quoting 	Harodite 	Indus., 	Inc. 	v. 	Warren 	Elec.
Corp., 24 A.3d 514, 534 (R.I. 2011)).
Under the interest-weighing approach, the Court analyzes the
following factors: “(1) Predictability of results. (2) Maintenance
of 	interstate 	and 	international 	order. 	(3) Simplification 	of 	the
judicial 	task. 	(4) Advancement 	of 	the 	forum’s 	governmental
interests. 	(5) Application 	of 	the 	better 	rule 	of 	law.” 	Id. 	at
561 (quoting Woodward v. Stewart, 243 A.2d 917, 923 (R.I. 1968)).
Despite Plaintiff’s arguments to the contrary, none of these
factors 	point 	to 	application 	of 	Rhode 	Island’s 	statute 	of
distinction is immaterial, however, as neither doctrine applies to
save his untimely claims. 	See infra at n.8 and accompanying text.
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 6 of 15 PageID #:
<pageID>

7
limitations 	because 	Rhode 	Island’s 	only 	connections 	to 	this
dispute 	are 	that 	Defendant 	now 	lives 	here 	and 	the 	action 	was
commenced 	here. 	Rhode 	Island 	has 	no 	significant 	relationship 	to
the event and parties in this dispute. 	See id. at 560.
Further, 	the 	Court 	need 	not 	determine 	whether 	Florida 	or
Massachusetts 	law 	applies6 	because 	regardless 	of 	which 	law 	is
applied the result will be the same: Plaintiff’s claims regarding
the 2014 payments are untimely.
Under 	Florida 	law, 	“[t]he 	time 	within 	which 	an 	action 	shall
be 	begun 	under 	any 	statute 	of 	limitations 	runs 	from 	the 	time 	the
cause 	of 	action 	accrues.” 	Fla. 	Stat. 	§ 	95.031. 	“The 	statute 	of
limitations 	for 	an 	unjust 	enrichment 	claim 	begins 	to 	run 	at 	the
time 	the 	alleged 	benefit 	is 	conferred 	and 	received 	by 	the
defendant.” 	Flatirons Bank v. Alan W. Steinberg Ltd. P'ship, 233
So. 	3d 	1207, 	1213 	(Fla. 	Dist. 	Ct. 	App. 	2017). 	Here, 	the 	statute
began 	to 	run 	when 	Plaintiff 	transferred 	the 	money 	from 	the 	two
deals 	to 	Plaintiff 	in 	2014. 	Further, 	given 	the 	rigid 	statutory
framework 	governing 	statutes 	of 	limitations, 	the 	Florida 	Supreme
Court has clarified that unjust enrichment claims are not subject
to 	tolling 	or 	accrual 	exceptions. 	R.R. 	v. 	New 	Life 	Cmty. 	Church
6 The Court notes that the answer to this question may differ
when it comes to what law might apply to the 2019 claim given that
Defendant 	moved 	to 	Rhode 	Island 	in 	2017. 	See 	Def.’s 	Supp. 	Mem.
Law 2 n.3, ECF No. 26.
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 7 of 15 PageID #:
<pageID>

8
of 	CMA, 	Inc., 	303 	So. 	3d 	916, 	923 	(Fla. 	2020). 	Accordingly,
regardless 	of 	how 	the 	Court 	classifies 	Plaintiff’s 	“continuing
violation” 	argument, 	see 	supra 	n.5, 	under 	Florida 	law 	the 	claims
relating to the 2014 payments are barred as untimely.
Massachusetts 	has 	a 	more 	flexible 	approach 	to 	unjust
enrichment 	claims. 	The 	Supreme 	Judicial 	Court 	has adopted 	“a
discovery 	rule 	for 	the 	purpose 	of 	determining 	when 	a 	cause 	of
action accrues, and thus when the statute of limitations starts to
run.” 	Bowen 	v. 	Eli 	Lilly 	& 	Co., 	557 	N.E.2d 	739, 	741 	(1990); 	see
also AA & D Masonry, 107 N.E.3d at 698. 	Under the rule, “a cause
of 	action 	accrues 	for 	purposes 	of 	the 	statute 	of 	limitations 	on
the happening of an event likely to put the plaintiff on notice of
facts 	giving 	rise 	to 	the 	cause 	of 	action.” 	AA 	& 	D 	Masonry, 	107
N.E.3d 	at 	1234 	(quoting 	Demoulas 	v. 	Demoulas 	Super 	Mkts., 	Inc.,
677 	N.E.2d 	159, 	174 	(Mass. 	1997)). 	“A 	plaintiff 	may 	be 	put 	on
‘inquiry notice’ [that a cause of action has accrued] where it is
informed of facts that would suggest to a reasonably prudent person
in the same position that an injury has been suffered as a result
of the defendant’s conduct.” 	Id. at 1234 (quoting Commonwealth v.
Tradition (N. Am.) Inc., 71 N.E.3d 142, 150 (Mass. Ap. Ct. 2017)).
Massachusetts 	courts 	“test 	the 	accrual 	of 	a 	cause 	of 	action 	by
what 	a 	reasonable 	person 	in 	the 	plaintiff's 	position 	would 	have
known ‘or on inquiry would have discovered at the various relevant
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 8 of 15 PageID #:
<pageID>

9
times.’” 	Id. (quoting Bowen, 557 N.E.2d at 743).
Under the alleged circumstances, a reasonably prudent person
in 	Plaintiff’s 	position 	would 	have 	inquired 	as 	to 	the 	status 	of
the agreement rather than waiting for some potential payment from
Defendant. 	Given 	Defendant’s 	status 	as 	a 	real 	estate 	broker, 	it
would 	be 	unreasonable 	to 	assume 	that 	between 	2012 	(the 	year 	the
agreement 	was 	entered 	into) 	and 	2023 	(the 	year 	Plaintiff 	filed
suit) Defendant did not enter into a single real estate contract.
At 	the 	very 	least, 	it 	would 	be 	unreasonable 	to 	not 	inquire 	as 	to
the status of the agreement, especially after transferring profits
from his own independent real estate deals.7 	See AA & D Masonry,
107 N.E.3d at 1235 (holding that the discovery rule did not apply
where a reasonably prudent plaintiff would have inquired after not
receiving 	payment). 	Given 	the 	relationship 	between 	the 	parties,
Plaintiff 	could 	have 	easily 	reached 	out 	to 	Defendant 	to 	inquire
and 	could 	have 	expected 	an 	honest 	reply. 	Thus, 	the 	Court 	agrees
with 	Defendant 	that 	a 	reasonably 	prudent 	person 	in 	Plaintiff’s
position 	would 	have 	inquired 	about 	the 	status 	of 	the 	deal, 	and,
therefore, Plaintiff cannot take advantage of the discovery rule.8
7 Indeed, Plaintiff himself acknowledges, “I should have asked
him.” 	Ans. Mot. Dismiss 4, ECF No. 13.
8 	Similarly, 	application 	of 	the 	“continuing 	violation
doctrine” does not save Plaintiff’s claims. 	See supra n.5. 	The
Massachusetts Supreme Judicial Court has only applied this concept
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 9 of 15 PageID #:
<pageID>

10
Accordingly, the Court concludes that, as with the application of
Florida law, under Massachusetts law the claims regarding the 2014
payments are untimely. 	As a result, Defendant’s Motion to Dismiss,
ECF No. 9, is GRANTED with respect to these claims.
3. Subject Matter Jurisdiction
Defendant next argues that dismissal of the first two claims
deprives the Court of subject matter jurisdiction because removal
of 	those 	claims 	drops 	the 	amount 	in 	controversy 	below 	$75,000.
Mot. Dismiss 11. 	Defendant is mistaken.
The amount in controversy is determined at the time of filing
or 	removal 	and 	“[e]vents 	occurring 	subsequent 	to 	the 	institution
of 	suit 	which 	reduce 	the 	amount 	recoverable 	below 	the 	statutory
limit 	do 	not 	oust 	jurisdiction.” 	Spielman 	v. 	Genzyme 	Corp., 	251
F.3d 1, 5 (1st Cir. 2001) (quoting St. Paul Mercury Indem. Co. v.
to discrimination cases, see Padmanabhan v. City of Cambridge, 166
N.E.3d 	1010, 	1017 	n.13 	(Mass. 	2021), 	and 	has 	noted 	that 	“[t]his
exception 	for 	violations 	of 	a 	continuing 	nature 	recognizes 	that
some 	claims 	of 	discrimination 	involve 	a 	series 	of 	related 	events
that 	have 	to 	be 	viewed 	in 	their 	totality 	in 	order 	to 	assess
adequately their discriminatory nature and impact,” Silvestris v.
Tantasqua 	Reg. 	Sch. 	Dist., 	847 	N.E.2d 	328, 	338 	(Mass. 	2006)
(quoting 	Ocean 	Spray 	Cranberries, 	Inc. 	v. 	Mass. 	Comm’n 	Against
Discrimination, 808 N.E.2d 257, 266 (Mass. 2004)). 	Here, Plaintiff
has 	not 	established 	that 	such 	a 	concept 	applies 	to 	unjust
enrichment claims, and the Court is not convinced that the alleged
facts 	set 	out 	a 	series 	of 	related 	events 	that 	must 	be 	viewed
together to fully assess the impact. 	See id.
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 10 of 15 PageID #:
<pageID>

11
Red Cab Co., 303 U.S. 283, 289–90 (1938)). 	Accordingly, dismissal
of the first two claims does not deprive the Court of jurisdiction
over the third.
B. 	Motion for a More Definite Statement and to Strike
First, Defendant argues that the Court should order Plaintiff
to 	provide 	a 	more 	definite 	statement 	that 	“eliminates 	improper
argument 	and 	rhetorical 	questions, 	and 	complies 	with 	the
provisions 	of 	Rule[s] 	8 	and 	10 	of 	the 	Federal 	Rules 	of 	Civil
Procedure.” 	Mot. 	More 	Definite 	Statement 	or 	to 	Strike 	(“Def.’s
Mot.”) 6, ECF No. 10.
A motion for a more definite statement should be granted where
“a 	pleading 	to 	which 	a 	responsive 	pleading 	is 	allowed 	... 	is 	so
vague 	or 	ambiguous 	that 	the 	party 	cannot 	reasonably 	prepare 	a
response.” 	Fed. 	R. 	Civ. 	P. 	12(e). 	“Such 	a 	motion 	is 	appropriate
where the pleading fails to ‘give[ ] notice of the claim or claims
asserted 	therein.’” 	Pranda 	Jewelry 	Pub. 	Co. 	Ltd. 	v. 	PoshMark,
Inc., C.A. No. 20-025 WES, 2020 WL 4347272, at *2 (D.R.I. July 29,
2020) (quoting Wheelock v. Rhode Island, No. CA 06-366 S, 2006 WL
3391507, 	at 	*1 	(D.R.I. 	Nov. 	22, 	2006)). 	Further, 	“[a] 	court 	may
order 	a 	more 	definite 	statement 	‘where 	it 	is 	left 	to 	guess 	the
legal 	foundation 	supporting 	a 	plaintiff's 	claims.’” 	Silvia 	v.
Raimondo, C.A. No. 17-310-JJM-LDA, 2017 WL 11477124, at *1 (D.R.I.
Sept. 	29, 	2017) 	(quoting 	McMann 	v. 	Central 	Falls 	Det. 	Facility
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 11 of 15 PageID #:
<pageID>

12
Corp., 	No. 	CA 	13-570 	ML, 	2013 	WL 	5565507, 	at 	*6 	(D.R.I. 	Oct. 	8,
2013)).
However, courts “are solicitous of the obstacles that pro se
litigants 	face, 	and 	while 	such 	litigants 	are 	not 	exempt 	from
procedural rules, [courts] hold pro se pleadings to less demanding
standards 	than 	those 	drafted 	by 	lawyers 	and 	endeavor, 	within
reasonable limits, to guard against the loss of pro se claims due
to 	technical 	defects.” 	Dutil 	v. 	Murphy, 	550 	F.3d 	154, 	158 	(1st
Cir. 2008).
Here, 	although 	Defendant 	is 	correct 	that 	Plaintiff 	has
included 	some 	superfluous 	and 	unnecessary 	material 	in 	his
pleadings, 	Defendant 	has 	not 	argued, 	and 	the 	Court 	has 	not
determined, that the pleadings are so vague or ambiguous that the
Defendant cannot craft a response. 	See Fed. R. Civ. P. 12(e). 	In
fact, Defendant was able to draft a motion to dismiss in response
to 	Plaintiff’s 	pleadings. 	However, 	Plaintiff’s 	Response 	in
Opposition, ECF No. 19, indicates his agreement that numbering the
paragraphs 	of 	the 	complaint 	is 	appropriate.9 	Plaintiff 	has 	not,
9 Plaintiff’s brief provides “I have numbered the paragraphs
and I have also briefly explained what the paragraphs mean.” 	Am.
Resp. Opp’n (“Pl.’s Opp’n”) 2, ECF No. 19. 	Thus, although he has
acknowledged 	a 	willingness 	to 	number 	the 	allegations 	in 	his
Complaint, 	Plaintiff 	has 	not 	provided 	a 	workable 	amended
complaint.
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 12 of 15 PageID #:
<pageID>

13
however, provided an amended complaint that complies with Federal
Rule 	of 	Civil 	Procedure 	10(b) 	and, 	accordingly, 	is 	directed 	to
file an amended complaint that includes numbered paragraphs within
fourteen days of the entry of this decision.
Finally, Defendant argues that the allegations regarding his
character 	and 	intent,10 	“attacks” 	on 	Defendant’s 	prior 	counsel,11
extensive 	references 	to 	confidential 	settlement 	communications,12
“philosophical 	arguments 	. 	. 	. 	regarding 	the 	nature 	of 	American
justice,” and various exhibits13 must be stricken. 	Def.’s Mot. 6-
9.
Pursuant 	to 	Federal 	Rule 	of 	Civil 	Procedure 	12(f), 	“[t]he
10 	Defendant 	takes 	specific 	issue 	with 	Plaintiff’s
characterization of him as “mendacious” and the “speculation[s] as
to 	[his] 	intent.” 	Mot. 	More 	Definite 	Statement 	or 	to 	Strike
(“Def.’s Mot.”) 6, ECF No. 10.
11 	Defendant 	argues 	that 	Plaintiff’s 	statements 	regarding
Defendant’s 	former 	counsel—specifically 	the 	assertion 	that
Plaintiff 	plans 	to 	file 	a 	disciplinary 	complaint 	against 	him—are
irrelevant to the claims. 	Def.’s Mot. 6.
12 The offending references are present throughout Plaintiff’s
pleadings 	and 	in 	various 	exhibits, 	including 	a 	copy 	of 	a 	demand
letter sent to Defendant and Defendant’s response. 	Def.’s Mot. 6-
7.
13 	Defendant 	specifically 	addresses 	the 	various 	exhibits
Plaintiff 	has 	filed 	that 	contain 	email 	correspondence 	between
himself and various parties regarding their memories of the events
out 	of 	which 	this 	case 	arises. 	Def.’s 	Mot. 	8-9; 	see 	ECF 	Nos. 	2,
2-3, 2-7, 2-9, 2-10, 2-11.
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 13 of 15 PageID #:
<pageID>

14
court may strike from a pleading . . . 	any redundant, immaterial,
impertinent, 	or 	scandalous 	matter.” 	However, 	motions 	to 	strike
“are 	narrow 	in 	scope, 	disfavored 	in 	practice, 	and 	not 	calculated
to readily invoke the court’s discretion. . . . 	This is so because
striking a portion of a pleading is a drastic remedy and . . . it
is 	often 	sought 	by 	the 	movant 	simply 	as 	a 	dilatory 	or 	harassing
tactic.” 	Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 59 (1st
Cir. 	2013) 	(citations 	and 	internal 	quotation 	marks 	omitted).
“[T]he movant must demonstrate that prejudice would result if the
offending 	material 	remained 	in 	the 	pleadings.” 	Ross-Simons 	of
Warwick, Inc. v. Baccarat, Inc., 182 F.R.D. 386, 398 (D.R.I. 1998).
In 	reviewing 	Defendant’s 	arguments, 	the 	Court 	pays 	special
attention to Plaintiff’s pro se status and affords him more leeway
than 	it 	would 	a 	practicing 	attorney. 	The 	Court 	concludes 	that
Defendant has established prejudice with respect to all references
to 	settlement 	communications 	between 	his 	counsel 	and 	Plaintiff
(and 	Plaintiff’s 	former 	counsel). 	Accordingly, 	all 	such
references 	as 	well 	as 	the 	offending 	exhibits, 	ECF 	Nos. 	2-6
(response 	to 	demand 	letter), 	2-8 	(demand 	letter), 	2-11 	(attorney
email) 	are 	stricken. 	Similarly, 	the 	Court 	agrees 	that 	the
information contained in ECF No. 2-1 is sensitive and confidential.
The 	Court 	previously 	placed 	this 	document 	under 	seal 	to 	protect
Defendant’s 	information. 	Accordingly, 	Plaintiff 	is 	directed 	to
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 14 of 15 PageID #:
<pageID>

15
file a redacted version.
With 	respect 	to 	Defendant’s 	other 	arguments, 	the 	Court
concludes 	that 	Defendant 	has 	not 	established 	prejudice 	such 	that
these documents or allegations should be stricken.
III. Conclusion
For the reasons provided above, the Court GRANTS in part and
DENIES 	in 	part 	Defendant’s 	Motion 	to 	Dismiss, 	ECF 	No. 	9.
Specifically, 	the 	Court 	grants 	the 	Motion 	only 	as 	it 	relates 	to
Plaintiff’s unjust enrichment claims regarding the 2014 payments.
Additionally, 	the 	Court 	GRANTS 	in 	part 	and 	DENIES 	in 	part
Defendant’s 	Motion 	for 	a 	More 	Definite 	Statement 	and 	to 	Strike,
ECF No. 10.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: 	August 21, 2023
Case 1:23-cv-00013-MRD-PAS Document 27 Filed 08/21/23 Page 15 of 15 PageID #:
<pageID>