Cirino v. Horgan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA CIRINO,
Plaintiff,
v.
KENNETH J. HORGAN and KEVIN SCOTT
BENTE,
Defendants.
Civil No. 25-1097 (GMM)
OPINION AND ORDER
Several motions stand before this Court. Plaintiff Maria
Cirino (“Plaintiff” or “Ms. Cirino”) filed a Motion to Dismiss
Amended Counterclaim (ECF No. 22) (“Motion to Dismiss”). (Docket
No. 34). Ms. Cirino then filed a Third Urgent Informative Motion
at Docket No. 49, to which Defendants Kenneth J. Horgan (“Mr.
Horgan”) and Kevin Scotte Bente (“Mr. Bente”) (collectively,
“Defendants”) in response filed a Motion to Exclude or Strike
“Third Urgent Informative Motion” (Dkt. #49) or, in the
Alternative, to Grant Defendants Leave to Respond to All Three
“Urgent Informative Motions” (“Defendants’ Motion to Strike”).
(Docket No. 55). Plaintiff also submitted a Motion for Partial
Summary Judgment and for Declaratory Judgment (“Motion for Partial
Summary Judgment”) at Docket No. 51; a Motion Requesting that Maria
Cirino’s Motion for Partial Summary Judgment and Statement of
Uncontested Material Facts Be Deemed Unopposed (“Motion Requesting
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PSJ Be Deemed Unopposed”) at Docket No. 52; and a Motion to Strike
Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion
for Partial Summary Judgment and for Declaratory Judgment or, in
the Alternative, For Leave to File Reply (“Plaintiff’s Motion to
Strike”). (Docket No. 56).
For the reasons discussed below, the Court GRANTS Plaintiff’s
Motion to Dismiss, DENIES Defendants’ Motion to Strike, NOTES
Plaintiff’s Third Urgent Informative Motion, DENIES Plaintiff’s
Motion for Partial Summary Judgment, DENIES Plaintiffs’ Motion
Requesting PSJ Deemed Unopposed; and DENIES Plaintiff’s Motion to
Strike.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
At the heart of this case sits the Pilgrim House Hotel
(“Pilgrim House”). The Provincetown, Massachusetts property is a
lodging and entertainment site co-owned by the parties. See (Docket
Nos. 50 at 2 ¶ 5; 53-1 at 2 ¶ 5). Plaintiff wants to sell Pilgrim
House. (Docket No. 1 at 1). The hotel is in arrears, Ms. Cirino
alleges; she wants to offload the property quickly and receive
remuneration for debts she believes Defendants owe her. (Id.). Mr.
Horgan and Mr. Bente disagree. See generally (Docket No. 22). They
contend Ms. Cirino’s version of the debts are incorrect; she
doesn’t have the power to sell the property unilaterally; and it
is Ms. Cirino, not them, who caused the purported economic harms
because Plaintiff allegedly interfered with entertainment
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contracts and spread false statements about Defendants. (Id. at
23-35). Both parties ask for this Court’s intervention.
Some background on how the parties got here. Ms. Cirino and
her partner Elizabeth Barbeau (“Ms. Barbeau”) struck a business
deal with Mr. Horgan and his partner Mr. Bente in February 2017.
(Docket Nos. 50 at 2 ¶ 5; 53-1 at 2 ¶ 5). On February 17, 2017 the
four executed a Purchase and Sale Agreement to buy Pilgrim House
for $2,6500.000. (Docket Nos. 50 at 2 ¶ 5; 53-1 at 2 ¶ 5). The
next day, all four entered into a Partnership Agreement, wherein
they declared that each held an equal twenty-five percent ownership
interest in Pilgrim House. (Docket Nos. 50 at 2 ¶¶ 6, 8; 53-1 at
2-3 ¶¶ 6, 8). They all signed an Operating Agreement on April 18,
2017, reiterating this joint ownership split. (Docket Nos. 50 at
2 ¶ 10; 53-1 at 3 ¶ 10).
Roughly five years later, on February 27, 2023, a subset of
the owners – Ms. Cirino, Mr. Horgan, and Mr. Bente, to the
exclusion of Ms. Barbeau – signed another agreement, at center
stage in this dispute. (Docket Nos. 50 at 3 ¶ 13; 53-1 at 4 ¶ 13).
The Agreement Among Maria Cirino, Ken Horgan, and Scott Bente (the
“Advance Agreement”), as drafted, describes Ms. Cirino as having
lent Mr. Horgan and Mr. Bente $125,000 in October 2022 (“October
loan”) for business activities related to the pair’s business
venture in Palm Spring, California at another hotel, Hotel Zoso;
it also notes that Mr. Horgan and Mr. Bente were delinquent on
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other payments owed to Ms. Cirino related to Pilgrim House. (Docket
Nos. 50 at 3 ¶ 15; 53-1 at 4 ¶ 15). To receive an additional
$200,000 advance and $35,000 loan - later amended to a $20,000
loan - and not have to repay either the October loan or the advance,
the Advance Agreement required Mr. Horgan and Mr. Bente to agree
to certain terms and conditions. (Docket Nos. 50 at 4-5 ¶¶ 16-22;
53-1 at 6-8 ¶¶ 16-22).
Relevant here are two: first, that “75% of the amount received
in relations to the Employee Retention Credit [(“ERC”)] is wired
to Cirino within 24 hours of receipt”; and second, Defendants agree
that Ms. Cirino “shall have full decision-making authority on the
valuation, timing and strategy with respect to the sale of the
Pilgrim House Hotel notwithstanding any agreement to the
contrary.” (Docket Nos. 50 at 4-5 ¶¶ 16-22; 53-1 at 6-8 ¶¶ 16-22).
If these conditions are not met, the $200,000 advance would be
converted into a loan; and if the loan was not paid in full by
December 31, 2024, then Defendants would automatically “agree to
transfer 5% of their interest in the Pilgrim House Hotel to Cirino
(or as directed by Cirino).” (Docket Nos. 50 at 5 ¶ 21; 53-1 at 7-
8 ¶ 21).
Separately, the Advance Agreement also states that Defendants
were “past due on existing hotel payments and rents to Cirino (or
entities affiliated with Cirino)” and requires Defendants to pay
off those debts by October 31, 2023; if not, “then a 25% penalty
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shall accrue and compound every six (6) months until the amount is
settled.” (Docket Nos. 50 at 5 ¶ 20; 53-1 at 7 ¶ 20).
Since the Advance Agreement, Plaintiff advances that
Defendants have: accrued underpaid debts, including the ERC, and
allowed debts to lapse; mismanaged Pilgrim House’s tax filings and
overall finances; blocked Ms. Cirino’s access to bank records; and
amassed loans that have cost Ms. Cirino her Massachusetts state
tax refunds and threatened foreclosure of Pilgrim House. See
(Docket No. 1 at 8-11). This moved Ms. Cirino to try and sell
Pilgrim House, which she understood to have “total dominion” over
based on the Advance Agreement. (Docket Nos. 51 at 10; 1 at 11-12
¶ 41). Defendants refused. (Docket No. 22 at 5 ¶ 13).
As a result, Ms. Cirino filed a Complaint on February 14,
2025, seeking declaratory relief to clarify the rights she believes
she’s owed pursuant to the Advance Agreement – paramount perhaps
that she has “full decision-making authority” to sell Pilgrim House
and is owed compensatory damages for past due loans and associated
interest related to the breach of the Advance Agreement. (Docket
No. 1 at 15-22). Plaintiff attaches to her Complaint multiple
documents, including: the signed Advance Agreement (Docket No. 1-
1); a notice indicating that Ms. Cirino’s Massachusetts tax refunds
were seized because of existing debt (Docket No. 1-2); a notice
threatening to suspend Ms. Barbeau’s driver’s license based on
overdue debts Ms. Cirino attributes to Defendants (Docket No. 1-
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3); and a demand letter sent to Defendants prior to the filing of
this lawsuit, along with unsigned proposed contracts to ratify Ms.
Cirino’s authority to sell Pilgrim House and transfer a percentage
of ownership from Defendants to Ms. Cirino pursuant to the Advance
Agreement. (Docket No. 1-4).
On May 12, 2025, Defendants filed an Amended Answer to the
Complaint and Amended Counterclaims (“Amended Answer”). (Docket
No. 22). Mr. Horgan and Mr. Bente deny much of Ms. Cirino’s version
of events. (Id. at 2-18). They instead paint a different picture.
Defendants allege that Ms. Cirino was a silent partner that is now
aggrandizing power to sell the hotel for her personal gain by
taking advantage of their financial situation. See (id. at 12, 19-
20). Defendants claim “creditors are being paid, [and] taxes are
being paid”; Ms. Cirino maintains access to the proper bank
accounts; they’ve regularly repaid loans owed to Ms. Cirino; and
“[a]ny payments in arrears can be met at the time of a sale or at
the 10-year buyout provision timetable” governed by the original
contract. (Id. at 10-11, 18, 30-32).
Mr. Horgan and Mr. Bente also repudiate the Advance Agreement
in its entirety. They assert that the contract “should be nullified
or revised” pursuant to Article 1258 of the Puerto Rico Civil Code,
P.R. Laws. Ann. tit. 31 § 9841 (“Article 1258”) by way of Ms.
Cirino “maliciously tak[ing] advantage of [their] need and
economic dependence” and under Article 1328 of the Puerto Rico
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Civil Code, P.R. Laws. Ann. tit. 31 § 10085 (“Article 1328”) for
usury. (Id. at 18-19).
Even if the Advance Agreement were valid, Mr. Horgan and Mr.
Bente contest Ms. Cirino’s interpretation of it. Defendants aver
that the ERC was paid in full, as the parties had an agreement
that it would be based on net, not gross proceeds, so Defendants
did not violate the Advance Agreement as to that term. (Id. at 6
¶ 17). Moreover, Mr. Horgan and Mr. Bente allege that the plain
language of the Advance Agreement does not give Ms. Cirino the
unequivocal right “to execute a sale out of her own volition.”
(Id. at 5 ¶ 13). “The agreement does not stipulate that Defendants
must agree to just any offer that results from Plaintiff’s right
to the listing of the business (value, timing, and strategy).”
(Id. at 16 ¶ 62).
On top of this, Defendants bring counterclaims. (Id. at 34-
36). Defendants allege a count of defamation against Plaintiff
because “Cirino has falsely accused Horgan of tax evasion,
embezzlement, and fraud, communicating those statements to
Management, Employees, Contractors and the public via Lyn Plummer
by making statements such as ‘Ken does not own Pilgrim House’ and
‘authorities will arrest him soon,’” with the “specific intent of
damaging Defendants’ reputation,” the impact of which Defendants
find “difficult to calculate, but [is] estimated to surpass
$250,000.” (Id. at 33 ¶ 116, 35 ¶¶ 131-32). More than twelve of
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these alleged contractors - entertainers such as Miss Conception,
Peaches Christ, Hedda Lettuce, and Madame, who were slated to
perform at Pilgrim House for the summer 2025 season – allegedly
reneged due to Plaintiff’s statements, “caus[ing] a revenue loss
[to Pilgrim House] that could approximate $1 million.” (Id. at 33-
35 ¶¶ 117, 122-27). Defendants also claim that these facts also
provide the basis for another counterclaim: tortious interference
with contractual relationships. (Id. at 34-35 ¶¶ 125-29). Mr.
Horgan and Mr. Bente bring a third claim for relief to recover
attorneys’ fees and costs as well. (Id. at 36 ¶¶ 133-34).
A squall of motions soon followed. The Court narrows its
inquiry to the documents recounted below.
A. Plaintiff’s Motion to Dismiss
On May 23, 2025, Ms. Cirino filed her Motion to Dismiss.
(Docket No. 34). She asserts that Defendants fail to state a claim
under Federal Rule of Civil Procedure 12(b)(6) and fail to join a
required party under Rule 12(b)(7), both of which militate
dismissal. (Id. at 1).
Ms. Cirino makes four arguments to support her motion. First,
as to the tortious interference claim, Plaintiff states that
Defendants do not effectively plead the necessary elements. (Id.
at 3). She asserts that Mr. Horgan and Mr. Bente failed to allege
the existence of a contract between any third party or the
specifics of that contract, including whether there was a fixed
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term. (Id. at 6-7, 9-10). Even if there were a contract, Plaintiff
alleges that the parties’ Partnership Agreement plainly states
that decisions requiring a contract require a “unanimous vote”;
and since Defendants do not plead that all partners agreed to hire
the entertainers – as they cannot – Plaintiff alleges no contract
could have existed for her to have interfered with, nonetheless
intentionally so. (Id. at 7-8, 11).
Second, Plaintiff alleges that Defendants similarly fail to
meet the pleading standard for their defamation claim. (Id. at 3).
Ms. Cirino argues Defendants’ allegations are conclusory and
insufficient because they do not “plead the circumstances in
detail, meaning to who, what, when, where, and how,” of the
statements made to allegedly ruin Defendants’ reputation and
business. (Id. at 11, 15 & n.4, 16). The statements were also
allegedly made not by Ms. Cirino but by Lyn Plummer, who is not a
party to this case, so Plaintiff believes she should not be liable
for a statement made by someone else. (Id. at 15). Nor is it
plausible on its face, Ms. Cirino says, that “Plaintiff would do
anything detrimental to Defendants’ business as that would be
tantamount to a self-inflicted wound,” since badmouthing
Defendants would likely harm the resale value of Pilgrim House,
thus affecting Plaintiff as well. (Id. at 16).
Ms. Cirino makes her last two arguments briefly. As to the
third claim for attorneys’ fees and costs, Plaintiff contends it
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should be dismissed because attorneys’ fees are remedies, not a
cause of action. (Id. at 17). Finally, Ms. Cirino argues that,
even if the claims survive 12(b)(6) review, they should fall for
failure to join Lyn Plummer in the lawsuit, who allegedly made the
defamatory statements that led to the supposed interference with
contractual relations with the entertainers. (Id. at 17-20).
On June 6, 2025, Mr. Horgan and Mr. Bente submitted their
Opposition to Motion to Dismiss Amended Counterclaims (“Opposition
to MTD”). (Docket No. 36). As to the defamation claim, Defendants
assert that they pled specifically that “Plaintiff reached out to
contracted performers” and “Plaintiff’s comments to entertainers
paint[ed] Horgan as an embezzler, a criminal, and a person soon to
be serving jail time,” along with the allegations including Lyn
Plummer, which they believe satisfies the required elements. (Id.
at 6-7) (quoting Docket No. 22 at 13 ¶ 45). As to tortious
interference, Defendants point to their Amended Answer to allege
that: Mr. Horgan signs all contracts with performers; Defendants
properly alleged the existence of contracts; and Ms. Cirino
improperly relies on her own interpretation of the Partnership
Agreement’s terms regarding the formation of the contract and this
Court should not consider these interpretations as authenticated.
(Id. at 6-9, 9 n.3). To supplement, Defendants submit their own
contract for the Court’s consideration: an unsigned contract
between Pilgrim House and Miss Conception (Kevin Levesque, or “Mr.
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Levesque”) detailing potential summer 2025 performances. (Docket
No. 36-1). In a footnote, Defendants elaborate on their argument,
providing new and specific information about Pilgrim House’s
attempt to contract with Mr. Levesque and another performer, and
Ms. Cirino’s alleged interference. (Docket No. 36 at 8 n.2).
Finally, regarding 12(b)(7), Defendants aver Lyn Plummer is not an
indispensable party because joint tortfeasors are not necessary
for ascertaining remedies. (Id. at 9-11).
The parties filed two more motions reiterating their
positions on this matter. On June 24, 2025, Plaintiff filed a Reply
to Opposition to Motion to Dismiss Amended Counterclaim (“Reply in
Support of MTD”). (Docket No. 39). Ms. Cirino admonishes Defendants
for attempting to inject new facts in a footnote for the Court’s
consideration. (Id. at 3-4). Reorienting the Court to the Amended
Answer, Plaintiff argues that Defendants’ descriptions about what
contracts are at issue are fatally vague and imprecise, and
Defendants still fail to “establish that Plaintiff is a third party
to the purported contracts.” (Id.). Defendants’ defamation claims,
Plaintiff reargues, are equally conclusory and fail to specify any
details that implicate Ms. Cirino. (Id. at 5). “[T]he statements
attributed to Plaintiff are not alleged to have been made by her
directly, but rather to have been communicated by Lyn Plummer . .
. . and unnamed third parties.” (Id.) (citing Docket No. 22 at 35
¶ 126). Lyn Plummer and these unnamed third parties, therefore,
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are “the primary actors whose alleged conduct gives rise to the
defamation claims” and must be included in the suit for it to
proceed. (Id. at 6).
Defendants filed their Surreply to Opposition to Motion to
Dismiss Amended Counterclaim (“Surreply”) on July 3, 2025. (Docket
No. 42). They disagree that they were implicitly amending their
pleadings. (Id. at 2). Nevertheless, Defendants argue that,
without considering any of their exhibits or new facts in the
Opposition to the MTD, their Amended Answer sufficiently meets the
pleading threshold for the reasons already mentioned. (Id. at 4).
B. Plaintiff’s Third Urgent Informative Motion and Defendants’
Motion to Strike
While parties hashed out their differences regarding the
Motion to Dismiss, Ms. Cirino filed a series of urgent informative
motions to this Court, (Docket Nos. 28, 32), in support of
Plaintiff’s Motion for Ex Parte Prejudgment Attachment, which is
pending before Magistrate Judge Marcos E. López (“Magistrate
López”). (Docket No. 8). These motions allege that Defendants are
liquidating their assets and attempting to sell their Florida
properties to avoid financial liability in anticipation of an
adverse judgment in this civil action. See generally (Docket Nos.
28, 32). Plaintiff urges the Court to take this into consideration
as to prevent Defendants from becoming purposefully insolvent to
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satisfy a potential judgment and expedite the relief sought.
(Docket Nos. 28 at 2; 32 at 2).
Defendants moved to strike these motions respectively.
(Docket Nos. 30, 32). Both were denied by Magistrate López. (Docket
Nos. 45, 46).
Ms. Cirino’s Third Urgent Informative Motion was filed on
August 14, 2025. (Docket No. 49). Plaintiff asks this Court to
consider nearly 300 pages of documents outlining the parties’
Massachusetts state court proceedings on conversion, fraud, and
corporate mismanagement claims that arise from the same events at
issue in this case, including a Verified Complaint and Jury Demand
and exhibits regarding the parties’ contracts, as detailed above,
as well as financial records on mortgages, loans, expenditure
reports, text message communications between Ms. Cirino and Mr.
Horgan, social media screenshots of the Pilgrim House Facebook
page publicizing Hotel Zoso events, and demand letter
communications. (Docket No. 49-1).
Again, Mr. Horgan and Mr. Bente filed another Motion to Strike
on August 29, 2025, requesting this Court ignore the motion or, in
the alternative, allow Defendants to reply to all three urgent
motions. (Docket No. 55).
C. Plaintiff’s Motion for Partial Summary Judgment
Ms. Cirino also filed a Motion for Partial Summary Judgment
on August 14, 2025, at Docket No. 51, alongside a Statement of
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Uncontested Material Facts in Support of Maria Cirino’s Motion for
Partial Summary Judgment and a Request for Declaratory Judgment
(“Plaintiff’s SUMF”) at Docket No. 50. There, Plaintiff requested
this Court “declare her rights under the Advance Agreement,
including her authority to direct the sale of the Hotel.” (Docket
No. 51 at 2). Plaintiff alleges that the Advance Agreement is
valid, and Defendants breached the contract by not repaying the
$20,000 loan. (Id. at 4-8). As a result, Ms. Cirino asks this Court
to rule on the declaratory judgment claim, affirming she has
“complete and unfettered right to control the sale” of the hotel
and declaring that Ms. Cirino “is entitled to a 5% increase in her
ownership interest in the Pilgrim House Hotel, and a corresponding
5% reduction in Defendants’ ownership interests.” (Id. at 9-10).
A day after Defendants’ response deadline passed, on August
29, 2025, Plaintiff filed their Motion Requested PSJ Be Deemed
Unopposed. (Docket No. 52).
That same day - without requesting leave to file tardy -
Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion
for Partial Summary Judgment and for Declaratory Judgment was
filed. (Docket No. 53). This was accompanied by Defendants’
Counterstatement of Contested and Uncontested Material Facts in
Support of Defendants’ Opposition to Maria Cirino’s Motion for
Partial Summary Judgment and Request for Declaratory Judgment
(“Defendants’ SUMF”). (Docket No. 53-1). In their responsive
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pleading, Defendants highlight their genuine dispute of Ms.
Cirino’s interpretation of the Advance Agreement and its validity
and whether they’ve defaulted on the ERC conditions. (Docket No.
53 at 14-23).
In response, on September 5, 2025, Plaintiff’s Motion to
Strike was filed, requesting the Court not consider Defendants’
motion because it was filed a day late without permission from the
Court to do so. (Docket No. 56).
The above matters are now fully briefed and ripe for
disposition.
II. LEGAL STANDARD
Numerous legal standards guardrail the Court’s analysis of
the motions before it.
A. Fed. R. Civ. P. 12(b)(6)-(7)
Foremost, this is a Court of limited jurisdiction. Federal
courts “possess only that power authorized by [the] Constitution
and [federal] statute[,] which is not to be expanded by judicial
decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994) (internal citations omitted). “It is to be presumed
that a cause [of action] lies outside this limited jurisdiction
and the burden of establishing the contrary rests upon the party
asserting jurisdiction” Id. at 377 (internal citations omitted).
“Federal courts . . . therefore must be certain that they have
explicit authority to decide a case”; otherwise, dismissal is
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warranted. Bonas v. Town of North Smithfield, 265 F.3d 69, 73 (1st
Cir. 2011).
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of the pleadings,
rather than the merits of the claim. See Twum-Baah v. Dep’t of
Agric., 299 F. Supp. 3d 369, 372 (D.P.R. 2018).
To survive a motion to dismiss, a claim must be plausible on
its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
plaintiff, or here a counterclaimant, can meet this standard when
it “pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausible “means something more than merely possible.” Zenon v.
Guzman, 924 F.3d 611, 616 (1st Cir. 2019) (internal citations
omitted). Gauging a pleaded situation’s plausibility “is a
‘context-specific’ job that compels [the Court] ‘to draw on’ [its]
‘judicial experience and common sense.’” Id. (quoting Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.
2012)). “Dismissal for failure to state a claim is appropriate if
the complaint fails to set forth factual allegations, either direct
or inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory.” Gagliardi v.
Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (internal quotation
marks and citations omitted).
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Under Rule 12(b)(6), a pleading can be dismissed for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). When evaluating a motion under this rule, a court
“must accept as true the well-pleaded facts of the complaint while
simultaneously drawing all reasonable inferences in plaintiff’s
favor.” LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (1st
Cir. 1998). After doing so, a court must determine if the
plaintiff’s allegations are sufficient to “raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
While engaging in this analysis, a court “may augment the[]
facts and inferences [from the complaint] with points gleaned from
documents incorporated by reference into the countercomplaint,
matters of public record, and facts susceptible to judicial
notice.” Starr Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920
F.3d 111, 114 (1st Cir. 2019) (quoting Haley v. City of Boston,
657 F.3d 39, 46 (1st Cir. 2011)) (internal quotations omitted). In
fact, when a complaint’s factual allegations are “expressly linked
to – and admittedly dependent upon – a document [offered by the
movant] (the authenticity of which is not challenged), that
document effectively merges into the pleadings and the trial court
can review it.” Beddall v. State St. Bank & Tr. Co., 137 F.3d 12,
17 (1st Cir. 1998) (citations omitted). Accordingly, federal
courts have discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in
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conjunction with a Rule 12(b)(6) motion and rely on it, thereby
converting the motion, or to reject it or simply not consider it.”
5C Wright & Miller Federal Practice and Procedure § 1366 (3d ed.
1998).
A 12(b)(7) motion, in turn, attempts to dismiss a claim for
failure to join a party under Rule 19. Fed. R. Civ. P. 12(b)(7).
This motion centers a “practical objective: to attain ‘judicial
economies of scale’ by resolving related disputes in a single
lawsuit, while also preventing that single lawsuit from becoming
hopelessly complex or unending.” Rivera Rojas v. Loewen Grp. Int’l,
Inc., 178 F.R.D. 356, 361 (D.P.R. 1998) (quoting Pujol v. Shearson
Am. Express, Inc., 877 F.2d 132, 134 (1st Cir. 1989)).
To grant a 12(b)(7) motion, a court must assess whether
joinder is proper under Rule 19. This “is a three-step process
that consists of: first, ascertaining whether the presence of the
absentee is necessary, if so, whether joinder of the absentee is
feasible and if not, if the presence of the absentee is
indispensable to the proceedings.” Colón v. Blades, No. 07-CV-
1380-JAG, 2009 WL 10680942, at *3 (D.P.R. Jan. 21, 2009) (quoting
Cook, Stratton & Co., Inc. v. Universal Ins. Grp., Inc., 241 F.R.D.
411, 417 (D.P.R. 2007) (citation modified)). If the absent party
is both necessary and joinder is infeasible, then this Court must
decide if it can proceed in “equity and good conscience” as defined
in Rule 19(b). Id.
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B. Fed. R. Civ. P. 56
Motions for summary judgment are governed by Rule 56. Summary
judgment is proper when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. Fed R. Civ. P. 56.
At this stage of a dispute, this Court’s function is not “to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); see also Nadherny
v. Roseland Prop. Co., Inc., 390 F.3d 44, 48 (1st Cir. 2004). In
this position, a trial court is to make legal determinations, not
involve itself in factfinding. See United Paperworkers Int’l Union
Local 14 v. Int’l Paper Co., 64 F.3d 28, 31 (1st Cir. 1995).
“Summary judgment is appropriate where, after drawing all
reasonable inferences in favor of the party against whom summary
judgment is sought, there is not the slightest doubt as to whether
a genuine issue of material fact exists.” Hopgood v. Merrill Lynch,
Pierce, Fenner & Smith, 839 F. Supp. 98, 103 (D.P.R. 1993), aff’d,
36 F.3d 1089 (1st Cir. 1994) (first citing Kennedy v. Josephthal
& Co., 814 F.2d 798, 804 (1st Cir. 1987); then citing Peckham v.
Ronrico Corp., 171 F.2d 653 (1st Cir. 1948)). An issue is genuine
when it is dispositive; a fact is material it has the potential to
affect the outcome of the suit. See id.
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The moving party bears the initial burden of proof; if that
is met, the burden shifts to the non-moving party to produce
sufficient evidence that demonstrates a jury is requires to resolve
the differing versions of the truth. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-25 (1986). The non-movant “must point to
competent evidence and specific facts to stave off summary
judgment.” Tropigas de P.R. v. Certain Underwriters at Lloyd’s of
London, 637 F.3d 53, 56 (1st Cir. 2011).
A court in evaluating a Rule 56 motion “does not ask which
party’s evidence is more plentiful, or better credentialled, or
stronger.” Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932,
936 (1st Cir. 1987). “Rather, the rule contemplates an abecedarian,
almost one dimensional, exercise geared to determining whether the
nonmovant’s most favorable evidence and the most flattering
inferences which can reasonably be drawn therefrom are sufficient
to create any authentic question of material fact.” Id.
An untimely opposition to a motion for summary judgment does
not necessarily mean that the motion prevails. See Méndez v. Banco
Popular de P.R., 900 F.2d 4, 7 (1st Cir. 1990). The Court still
must conclude that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
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as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp, 477
U.S. at 322.
“Be that as it may, the district court [is] not obliged to
consider [an] untimely opposition in applying the Rule 56
standard.” Méndez, 900 F.2d at 7; cf. Rabal Pinto v. Universidad
de P.R., 895 F.2d 18, 19 (1st Cir. 1990) (“The court has no
obligation to play nursemaid to indifferent parties.”); Higuera v.
Pueblo Int’l, Inc., 585 F.2d 555, 557 (1st Cir. 1978) (“There comes
a point when the question arises who is running the court —
counsel, or the judge. To this there can be but one answer.”).
C. Local Civ. R. 56
Motions for summary judgment are also governed by Local Civil
Rule 56. See Local Civ. R. 56. “Local Rule 56 is in service to
Federal Rule of Civil Procedure 56.” López-Hernández v. Terumo
P.R., 64 F.4th 22, 26 (1st Cir. 2023) (quoting Tropigas de P.R.,
Inc., 637 F.3d at 56). It is an “anti-ferret rule . . . intended
to protect the district court from perusing through the summary
judgment record in search of disputed material facts and prevent
litigants from shifting that burden onto the court.” Id.
Pursuant to this rule, the non-moving party must “admit, deny
or qualify the facts supporting the motion for summary judgment by
reference to each numbered paragraph of the moving party’s
statement of material facts.” Local Civ. R. 56(c). For facts that
are denied, a non-movant’s “opposing statement shall support each
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denial or qualification by a record citation. . .” Id. The non-
moving party’s opposing statement may also contain “a separate
section [of] additional facts, set forth in separate numbered
paragraphs and supported by record citation.” Id. The moving party
may then submit a reply that admits, denies, or qualifies the
nonmovant’s additional facts through “a separate, short, and
concise statement of material facts, which shall be limited to any
additional fact submitted by the opposing party” that is supported
by record citation. Id. 56(d).
“Under Local Rule 56, a district court is free, in the
exercise of its sound discretion, to accept the moving party’s
facts as stated . . . when the statements contained in the movant’s
Statement of Uncontested Facts . . . are not properly
controverted.” López-Hernández, 64 F.4th at 26; see also Ramírez-
Rivera v. DeJoy, 2023 WL 6168223, at *2 (D.P.R. Sep. 22, 2023)
(“The First Circuit’s repeated admonition on this issue in the
last few years, places the Puerto Rico federal bar on clear notice
that compliance with Local Rule 56 is a mandate, not a
suggestion.”).
III.ADMISSIBILITY OF PLAINTIFF’S THIRD URGENT INFORMATIVE MOTION
Before the Court proceeds to evaluate Plaintiff’s Motion to
Dismiss or Motion for Partial Summary Judgment, it must first
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address Plaintiff’s Third Urgent Informative Motion and subsequent
Defendants’ Motion to Strike.
First Circuit case law is clear on this point. “It is well-
accepted that federal courts may take judicial notice of
proceedings in other courts if those proceedings have relevance to
the matters at hand.” Kowalski v. Gagne, 914 F.2d 299, 305 (1st
Cir. 1990); Maher v. Hyde, 272 F.3d 83, 86 n.3 (1st Cir. 2001);
Rodi v. S. New Eng. Sch. of L., 389 F.3d 5, 19 (1st Cir. 2004).
The Third Urgent Informative Motion is undeniably relevant to the
instant case, as it submits a copy of Plaintiff’s verified
complaint before the Massachusetts state court which includes
critical information and exhibits – key among them communications
between the parties, financial records, and the Advance Agreement
– that strike at the core of this case.
The Third Urgent Informative Motion is also properly
authenticated at this stage of proceedings since this motion
presents a verified complaint. “A verified complaint is considered
the equivalent of an affidavit for purposes of record evidence.”
Gravel v. Spence, No. 23-CV-00315, 2024 WL 37688, at *1 (D. Me.
Jan. 3, 2024) (citing Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st
Cir. 1991) (verified complaint treated as “functional equivalent
of an affidavit” for summary judgment purposes to the extent it
satisfies the standards for evidence presented in a summary
judgment motion)).
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The Court’s notice of this motion, however, is necessarily
cabined. “[P]laintiff[] cannot sidestep [a] neglect to offer
evidence in this case by asking the court to rule on the basis of
the record in another case.” Guzmán–Ruíz v. Hernández–Colón, 406
F.3d 31, 36 (1st Cir. 2005); see also MVM Inc. v. Rodriguez, 568
F. Supp. 2d 158, 164 (D.P.R. 2008). As such, the acceptance of
Plaintiff’s urgent informative motions is not to be construed as
this Court greenlighting any attempts by Plaintiff to shirk off
its responsibilities under the Federal Rules of Civil Procedure to
engage in further discovery. This Court retains its right to make
its own findings of facts, primarily because “[f]acts adjudicated
in a prior case do not meet either test of indisputability
contained in Rule 201(b): they are not usually common knowledge,
nor are they derived from an unimpeachable source.” MVM Inc., 568
F. Supp. 2d at 164 (quoting Int’l Star Class Yacht Racing Ass’n v.
Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)).
Consequently, Plaintiff’s Third Urgent Informative Motion is
NOTED and Defendants’ Motion to Strike is DENIED.1
1 Considering that Defendants implicitly concede to this ruling by
employing this same rationale in their recent motions, see (Docket Nos.
72 and 80), the Court need not elaborate further.
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IV. MOTION TO DISMISS
Having addressed evidentiary concerns, this Court proceeds
in chronological order to address Plaintiff’s Motion to Dismiss.
A “‘federal court[] sitting in diversity,’” as here, must
“‘apply state substantive law and federal procedural law.’” Suero-
Algarín v. CMT Hosp. HIMA San Pablo Caguas, 957 F.3d 30, 39 (1st
Cir. 2020) (quoting Gasperini v. Ctr. for Humans., Inc., 518 U.S.
415, 427 (1996)). Thus, Puerto Rico law controls the interpretation
of tortious interference with contractual relations claim and the
defamation claim. See Baum-Holland v. Hilton El Con Mgmt., LLC,
964 F.3d 77, 87 (1st Cir. 2020) (applying Puerto Rico substantive
law in its diversity case).
A. Tortious Interference with Contractual Relationships
Puerto Rico’s general tort statute, Article 1536 of the 2020
Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 10801 (“Article
1536”), grounds this claim. To prevail on a tortious interference
suit, Mr. Horgan and Mr. Bente must show: “(1) existence of a
contract between two or more parties; (2) an act of interference
with that contract by a third-party defendant; (3) said act must
have been done with “fault” on [Ms. Cirino’s] part; (4) damage to
the [Defendants]; and (5) a causal nexus between the tortious act
and the injury.” Puma Energy Caribe, LLC v. Riollano-Caceres, No.
14-CV-1790-JAG, 2017 WL 11607783, at *14 (D.P.R. Dec. 14, 2017)
(citing New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287
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F.3d 1, 9 (1st Cir. 2002)). “Fault” here is understood to mean
that Ms. Cirino must have “intended to interfere with the contract,
knowing that this interference would cause injury to
[Defendants].” New Comm Wireless, 287 F.3d at 10 (citing Jusino
Figueroa v. Walgreens of San Patricio Inc., 155 D.P.R. 560, 2001
WL 1414693, at *5 (2001)).
After reviewing Defendants’ Amended Answer alongside
Plaintiff’s Motion to Dismiss, the Court finds that Defendants
failed to sufficiently plead the first two elements to survive a
12(b)(6) review.
i. Existence of a Contract
First, the Supreme Court of Puerto Rico has stated that to
establish the first element of a tortious interference claim a
party must demonstrate that the contract exists and contains a
fixed time period. A.M. Capen’s. Co., Inc. v. Am. Trading & Prod.
Corp., 202 F. 33d 469, 474 (1 st Cir. 2000); see also Dolphin
Int’l. of P.R. v. Ryder Truck Lines, 127 P.R. Dec. 869, 882-83
(P.R. Jan. 31, 1991) (holding that at-will contracts lacking an
expiration date cannot create a tortious interference cause of
action); Tilsor v. Oracle Caribbean, Inc., No. 19-CV-1875-PAD,
2022 WL 20814952 at *11 (D.P.R. Sep. 30, 2022) (citing R.R. Isla
Verde Hotel Corp. v. Howard Johnson Int’l, Inc., 121 F. App’x 870,
871 (1st Cir. 2005)) (“Existence of a contract for a fixed period
of time is indispensable.”). “If what is affected is a profitable
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financial relationship in the absence of a contract the [tortious
interference] action does not lie.” Tilsor, 2022 WL 20814952, at
*11.
Mr. Horgan and Mr. Bente fall short of satisfying this
element. In their Amended Answer, Defendants allege Ms. Cirino
committed tortious interference because she “obstructed Pilgrim
House’s entertainment programming[] by besmirching Horgan’s
reputation, and causing more than 12 artists who had agreed to
perform at the Pilgrim House to break their commitments.” (Docket
No. 22 at 33). Defendants go on to specify that Pilgrim House
“secured contracts with several high-demand performers for the
upcoming 2025 season.” (Id. at 34). These statements suffer from
vagueness. It is not clear which performers were contracted, and
if those were the performers Ms. Cirino allegedly interacted with.
Moreover, and more critically, Defendants do not specify whether
the contract is fixed to the “upcoming 2025 season” or only
inclusive of it; in other words, it is unclear whether the alleged
contract is open-ended.
This lack of specificity is fatal.2 For the Court to hold Ms.
Cirino to account for allegedly interfering with the contracts of
2 Defendants attempt to amend their initial pleadings by supplying much
more detail about their negotiations with Miss Conception and Peaches
Christ in their Opposition to MTD (Docket No. 36 at 9 n.2) and attach
as an exhibit the unsigned contract between Pilgrim House and Miss
Conception. (Docket No. 36-1). This information, however, will not be
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twelve performers, as Defendants request, the Court needs know to
plausibly satisfy the first element that there indeed existed
contracts containing fixed time periods between Pilgrim House and
the performers subject to Ms. Cirino’s alleged obstruction. Even
accepting all the information provided by Defendants in their
Amended Answer as true, as this Court must at this stage of review,
Defendants pleading fail to meet the first element’s requirements.
ii. Interference with Contract by a Third Party
As to the second element, Defendants must establish that Ms.
Cirino was a third party to the contract that allegedly existed
between Pilgrim House and performers. Yet an affiliate or
subsidiary of a company, as well as the agents of a company, that
is, its representatives, are not third parties for the purposes of
a tortious interference action. Jusino Figueroa v. Walgreens of
San Patricio Inc., 155 D.P.R. 560, 587-88 (2001)3 (holding that an
considered by the Court, as it is well-settled that a plaintiff may not
amend a complaint through arguments in an opposition brief. See Díaz-
Zayas v. Mun. of Guaynabo, 600 F. Supp. 3d 184, 195 (D.P.R. 2022) (“It
is axiomatic that the complaint may not be amended by the briefs in
opposition to a motion to dismiss.”) (quoting Velazquez-Ortiz v.
F.D.I.C., 2012 WL 1345174, at *6 (D.P.R. 2012)). Defendants’
disagreements with reliance with Díaz-Zayas in their Surreply is
inapposite because the case is being used not for its central holding
but for its articulation of a standard of review. See (Docket No. 56 at
3-4). Thus, the Court need not consider these after-the-fact allegations
in determining the sufficiency of the Amended Answer under Rule 12(b)(6).
Even if the Court were to consider it, the footnote only further affirms
that these two performers never signed any contract.
3 As no official translation of this Spanish language opinion is available, all
quotations are from and to the certified translation submitted by the parties.
See (Docket No. 34-1).
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agent of Walgreens who was not the General Manager but was someone
who had been involved with making contracts for the business before
was not a third party that could tortiously interfere with the
contract in question). Indeed, these agents are understood to be
“an alter ego of the company” for tortious interference purposes.
See id.
As conceded by Defendants in their Amended Answer (Docket No.
22) and Defendants’ SUMF (Docket No. 53-1), Ms. Cirino is a partner
of Pilgrim House with a percentage of ownership equal to that of
Mr. Horgan and Mr. Bente. Moreover, as both parties again concede,
Ms. Cirino has made agreements concerning Pilgrim House in the
past, such as the Advance Agreement. Even if Ms. Cirino is not the
“General Manager” of Pilgrim House who oversees the day-to-day
operations as Mr. Horgan alleges he does, she has had sufficient
prior dealings with Pilgrim House’s contracts as an equal owner of
the hotel that allows this Court to conclude she functioned as an
agent or co-principal of Pilgrim House’s behalf and is an “alter
ego” of Pilgrim House and is not a third party for tortious
interference purposes. Therefore Ms. Cirino cannot be considered
a third party to any contracts that between Pilgrim House and the
performers.
As such, for failure to satisfy the elements for tortious
interference with contractual relationships, the Court must
dismiss this claim.
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B. Defamation
Under Puerto Rico law, claims for defamation stem from three
sources: “(1) Section 8 of Article II of the Constitution of the
Commonwealth of Puerto Rico [(“Section 8”)]; (2) the Libel and
Slander Act of 1902, P.R. Laws Ann. tit. 32 §§ 3141–49 [(“Act of
1902”)]; [and] (3) Puerto Rico’s General Tort Statute, Article
1536 [].” Sarmonpal v. Blanco, No. 22-CV-1619-JAG, 2024 WL 1829258,
at *6 (D.P.R. Feb. 7, 2024) (citing Aponte v. Calderón, 284 F.3d
184, 197 (1st Cir. 2002)).
Each source bestows different protections. Section 8
guarantees that “[e]very person has the right to the protection of
law against abusive attacks on his honor, reputation and private
or family life.” Puerto Rico Const. Art. II § 8. This
constitutional provision supplies “a right of action without
enabling legislation.” Aponte, 284 F.3d at 197. (citing Porto v.
Bentley P.R., Inc., 132 D.P.R. 331, 343 (P.R. 1992)). Legislation
supplements this constitutional language. The Libel and Slander
Act of 1902 encompasses both libel and slander. P.R. Laws Ann.
tit. 32 § 3141, et seq. Relevant here, slander is defined as “a
false and unprivileged publication other than libel, which imputes
to any person the commission of a crime, or tends directly to
injure him in respect to his office, profession, trade or business,
or which by natural consequences causes actual damage.” Id. § 3143.
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And Article 1536, as state above, grounds a claimant’s ability to
bring a tort action for defamation.
These laws are cabined by the First Amendment’s free speech
provisions. See El Vocero de P.R. (Caribbean Intern. News Corp.)
v. Puerto Rico, 508 U.S. 147, 148 n. 1 (1993) (applying the First
Amendment’s free speech clause to Puerto Rico). Not all speech,
however, is protected; only “statements that cannot reasonably be
interpreted as stating actual facts about an individual” fall under
its protections. Diaz, 2020 WL 1042041, at *3 (quoting Milkovich
v. Lorain J. Co., 497 U.S. 1, 20 (1990)) (citation modified).
Examples such as “imaginative expression,” “loose, figurative, or
hyperbolic language,” Milkovich, 497 U.S. at 20-21, and “mere
obscenities and verbal abuses that are not objectively verifiable
and cannot be interpreted as factual” fall into this category and
are not considered defamatory. Diaz, 2020 WL 1042041, at *3 (citing
Beverly Enters., Inc. v. Trump, 182 F.3d 183, 187-88 (3d Cir. 1999)
Pursuant to Puerto Rico laws, “‘a private plaintiff asserting
a defamation claim against a private defendant,” as Defendants
state is the case here, “must show that the [opposing party] (1)
made a false statement, (2) in a negligent manner, (3) causing
actual damage to the plaintiff.’” Rojas-Buscaglia v. Taburno-
Vasarhelyi, 199 F. Supp. 3d 520, 536 (D.P.R. 2016), aff’d sub nom.
Rojas-Buscaglia v. Taburno-Vasarhelyi, 897 F.3d 15 (1st Cir. 2018)
(quoting Baltodano v. Merck, Sharp & Dohme (I.A.) Corp., 637 F.3d
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38, 43 (1st Cir. 2011)). The specific defamatory language used
must indeed be false; its veracity is a valid defense. Ayala-
Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 98 (1st Cir. 1996);
Villanueva v. Hernández Class, 128 D.P.R. 618, 643 (P.R. 1991).
Alongside these three elements, when a claim for defamation is
brought under Article 1536, a causal relationship between the
defamatory statements and the damages the defamed individual
suffered must be proven. See Rivera v. DHL Glob. Forwarding, 536
F. Supp. 2d 148, 157 (D.P.R. 2008).
Claims for defamation must satisfactorily plead these
elements. “[C]ountless district courts,” including this Court
under the laws of Puerto Rico, “have found that the requirements
of Rule 8 have not been met in cases where libel and slander claims
failed to allege the substance of the statements and/or the time
and place in which they were made.” Hawkins v. Kiely, 250 F.R.D.
73, 75 (D. Me. 2008) (citing four other district court decisions
finding imprecise pleading of what the defamatory statements were
led to dismissal); see also Ayala-Gerena, 95 F.3d at 98 (dismissing
under Puerto Rico defamation laws for the same imprecise
pleadings); Feliciano-Monroig v. AT&T Mobility P.R., Inc., No. 16-
CV-2810-JAG, 2019 WL 1486868, at *10 (D.P.R. Mar. 31, 2019) (same).
Key to this analysis, therefore, are the actual, specific
“false statements” allegedly communicated by Ms. Cirino. Rojas-
Buscaglia, 199 F. Supp. 3d at 536. The Amended Answer supplies
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three potential leads for what specific defamatory language Ms.
Cirino may have said.
First, “statements such as ‘Ken [Mr. Horgan] does not own
Pilgrim House’ and ‘authorities will arrest him soon’” were
“communicat[ed] . . . “to Management, Employees, Contractors, and
the public via Lyn Plummer,” which led Defendants to conclude that
“Cirino has falsely accused Horgan of tax evasion, embezzlement,
and fraud.” (Docket No. 22 ¶¶ 116, 131). Here, the specific alleged
defamatory statements – which were made and spoken aloud by Lyn
Plummer - are that: 1) Mr. Horgan does not own Pilgrim House; and
2) that he will be arrested soon. (Id.).
Second, the Amended Answer asserts that “Cirino called
Pilgrim House [Operations Manager] Kevin Street in late fall of
2024 ask [sic] him whether Horgan was stealing from Pilgrim House
and asked whether there was a second set of accounting books
showing Money In and Money Out.” (Id. ¶ 120). Here, the alleged
defamatory statements are two questions Ms. Cirino made at some
period of time in fall 2024 regarding accounting and potential
pilfering by Mr. Horgan. See (id.).
Third, the Amended Answer also states that “[t]he performers
informed [another Pilgrim House employee] that Cirino had
intimidated them and disseminated negative information about
Horgan and Pilgrim House to discourage them from performing there.”
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(Id. ¶¶ 124). No specific defamatory statements are identified
here.
Mr. Horgan and Mr. Bente gesture broadly to this constellation
of statements to say Ms. Cirino “intentionally besmirch[ed]
Horgan’s reputation, with the specific intent to cause more than
12 artists who had agreed to perform at the Pilgrim House
entertainment venue to break their commitments,” (id. ¶ 117), which
has caused them damages “that, at this time, are difficult to
calculate, but are estimated to surpass $250,000.” (Id. ¶ 132).
The Court disagrees.
Consider again the elements for defamation. Mr. Horgan and
Mr. Bente needed to show in their Amended Answer that Ms. Cirino
communicated a false statement. This cuts out the first potential
lead on communication grounds, because Lyn Plummer was the speaker,
not Ms. Cirino. Refuse & Env’t Sys., Inc. v. Indus. Servs. of Am.,
Inc., 932 F.2d 37, 40 (1st Cir. 1991) (“[I]t seems beyond cavil
that in order for a [party] to be found individually liable for
slander, the [party] must have personally made a slanderous
statement about the [other party].”).
This element does away with the second lead as well, as a
question is not a defamatory statement because it does not assert
an objectively verifiable fact. See Diaz, 2020 WL 1042041, at *3;
Villanueva, 128 D.P.R. at 643; Beverly Enters., 182 F.3d at 187-
88.
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Lastly, this first element also nixes the third potential
lead, because no specific words spoken by Ms. Cirino were
identified by Defendants – only that they were negative and
discouraging in tone. See (id. ¶ 124). As the First Circuit has
held, “unadorned, the-defendant-unlawfully-harmed-me accusations”
– such as Ms. Cirino broadly said negative things about Defendants
- are insufficient to survive a 12(b)(6) review. Haley v. City of
Boston, 677 F. Supp. 2d 379, 385 (D. Mass. 2009) (quoting Iqbal,
556 U.S. at 678); see also Peñalbert-Rosa v. Fortuño-Burset, 631
F.3d 592, 595 (1st Cir. 2011) (quoting same); Roebuck v. Dothan
Sec. Inc., 515 F. App’x 275, 280 (5th Cir. 2013) (concluding
allegations that defendant “in bad faith maligned, negligently
misrepresented, defamed, defrauded and slandered plaintiff
extremely and outrageously” were insufficient to survive 12(b)(6)
review).
On top of this, none of these statements as pled ever mention
Mr. Bente, so it is difficult for the Court to discern how any of
these potential leads could be causally tied to any specific
damages he suffered. See, e.g., Sánchez-Sifonte v. Fonseca, No.
22-CV-1444-RAM, 2023 WL 5753677, at *5 (D.P.R. 2023) (citing
Santilli v. Van Erp, 2018 WL 2172554, at *5 n.6 (M.D. Fla. 2018),
report and recommendation adopted, 2018 WL 2152095 (M.D. Fla. 2018)
(finding that the allegedly defamatory statements were not aimed
at one of the plaintiffs); Cate St. Cap. Inc. v. Indus. Intel.
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Inc., No. 14-CV-00200-JCN, 2015 WL 12564165, at *7 n.15 (D. Me.
Oct. 28, 2015) (explaining that “an action for defamation ‘is
personal to the plaintiff and cannot be founded on defamation of
another’”) (quoting Prosser & Keaton, Torts § 111 at 778 n.48 (5th
ed. 1984)); Restatement (Second) of Torts § 564 (1977) (explaining
that a defamatory statement concerns the person to whom the reader
or recipient reasonably understands the statement relates).
Taken together, the Court must also dismiss Defendants’
defamation claim under Rule 12(b)(6).
C. Attorneys’ Fees
“Generally speaking, a request for attorneys’ fees is not an
independent cause of action, but is rather a remedy that the Court
may award in its discretion.” New England Teamsters Sav. & Inv.
Plan v. First Student, Inc., No. 24-CV-186-SE, 2025 WL 2523645, at
*4 (D.N.H. Sep. 2, 2025) (quoting Steve C. v. Blue Cross & Blue
Shield of Mass., Inc., 450 F. Supp. 3d 48, 61 (D. Mass. 2020));
see also Sun Commodities, Inc. v. Island Fresh de Puerto Rico,
Inc., No. 20-CV-1236-GMM, 2024 WL 2300708, at *10 (D.P.R. May 21,
2024) (declining to reach an attorneys’ fees claim when the
substantive claims fall).
Therefore, the Court dismisses Defendants’ standalone claim
for attorneys’ fees and costs.
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D. Rule 12(b)(7)
As all of Defendants’ counterclaims against Plaintiff have
been dismissed, the Court does not reach the parties’ Rule 12(b)(7)
arguments.
In sum, this Court GRANTS Plaintiffs’ Motion to Dismiss.
V. UNCONTESTED FACTS AS TO THE PARTIAL SUMMARY JUDMENT
The Court now turns to the final motion before it: partial
summary judgment. To evaluate the parties’ claims, the Court
examined Plaintiff’s SUMF (Docket No. 50); Ms. Cirino’s Sworn
Statement (Docket No. 50-1); and the exhibits accompanying
Plaintiff’s SUMF, including the Partnership Agreement (Docket No.
50-2), the Operating Agreement (Docket No. 50-3), the Agreement
Among Maria Cirino, Ken Horgan and Scotte Bente (Docket No. 50-
4), Amendment Number One to Agreement Among Maria Cirino, Ken
Hor[g]an and Scott Bente (Docket No. 50-5), the first Demand Letter
(Docket No. 50-6), and the Second Demand Letter (Docket No. 50-
7). The Court has also reviewed Defendants’ SUMF (Docket No. 53-
1), along with Mr. Horgan’s Declaration Under Penalty of Perjury
of Kenneth [Hor]gan in Support of Opposition to Ex Parte Motion
for Prejudgment Attachment. (Docket Nos. 14-1, 53-3). After
crediting only material facts supported by admissible and accurate
record citations, the Court finds the following material facts are
not in dispute:
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1. Plaintiff, Ms. Cirino, is a resident of Dorado,
Puerto Rico. (Docket Nos. 1 ¶ 2; 8-1 at 1; 50 ¶ 1; 53-1
at 8).
2. Mr. Horgan is a resident of the state of
Massachusetts. (Docket Nos. 22 at 2, 20; 50 ¶ 2; 53-1 at
9).
3. Mr. Bente is a resident of the state of Florida.
(Docket Nos. 22 at 20; 50 ¶ 3; 53-1 at 9).
4. Mr. Horgan and Mr. Bente are married. (Docket Nos.
22 at 20; 50 ¶ 4; 53-1 at 9).
5. On February 17 and 18, 2017, Pilgrim House, LLC and
336R Commercial Street, LLC, executed a Purchase and
Sale Agreement and an Asset Purchase and Sale Agreement
with Pilgrim Heights, LLC, The Chad, LLC, and The Villa,
LLC for the purchase of the real property and business
formerly known as the Sage Inn and Lounge located at
Unit 1, The Pilgrim House Condominium, 336 Commercial
Street, Provincetown, MA 02657 (“Pilgrim House Hotel”)
for $2,650,000. (Docket Nos. 50 ¶ 5; 50-1 ¶ 2; 50-2 at
5; 53-1 ¶ 5).
6. On February 18, 2017, Ms. Cirino, Ms. Barbeau, Mr.
Horgan, and Mr. Bente entered into a Partnership
Agreement establishing a partnership known as “The
Pilgrim House” effective on February 6, 2017. (Docket
Nos. 50 ¶ 6; 50-2 at 1, 4; 53-1 ¶ 6).
7. Pursuant to Section II of the Partnership
Agreement, the Partnership’s primary purpose was “to
operate [the] 19 room hotel, lounges, and event space”
known as the Pilgrim House Hotel. (Docket Nos. 22 at 2;
50 ¶ 7; 50-2 at 1, 4; 53-1 ¶ 7).
8. Section IV of the Partnership Agreement, titled
“Interest and Authority,” granted each Partner – Mr.
Bente, Mr. Horgan, Ms. Barbeau, and Ms. Cirino – a 25%
ownership interest in the Partnership. (Docket Nos. 22
at 2; 50 ¶ 8; 50-2 at 2; 53-1 ¶ 8).
9. The Pilgrim House, LLC is a limited liability
company formed pursuant to the laws of the state of
Massachusetts. (Docket Nos. 50 ¶ 9; 50-2 at 2; 53-1
¶ 9).
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10. On April 18, 2017, the parties executed an
Operating Agreement for the Pilgrim House, LLC. (Docket
Nos. 50 ¶ 10; 50-2 at 2; 53-1 ¶ 9).
11. Section 2.1 of Article II of the Operating
Agreement provides the following:
2.1 The Company shall be Manager-managed. The
Manager need not be a Member. The number of
Managers is hereby initially fixed at four
(4), and the person identified as Manager on
Exhibit A, which is attached hereto and made
a part hereof, are currently serving as
Manager. The manager shall be solely
responsible for the management of the
Company’s business. They shall possess all
rights and powers generally conferred by the
Act and all rights and powers that are
necessary, advisable or consistent in
connection therewith and with the provisions
of this Agreement. The Manager shall also be
vested with all specific rights and powers
required for or appropriate to the management,
conduct or operation of the business of the
Company. Except for distributions made to
Members as set forth in this Agreement and any
fees for specific management services, the
Managers shall receive no compensation from
the Company for their actions taken as
Managers pursuant to this Agreement.
(Docket Nos. 50 ¶ 11; 50-3 at 2; 53-1 ¶ 11).
12. Exhibit A to the Operating Agreement identifies the
members of Pilgrim House, LLC as Mr. Bente, Ms. Cirino,
Ms. Barbeau, and Mr. Horgan, each holding a 25%
membership interest. (Docket Nos. 50 ¶ 12; 50-3 at 17;
53-1 ¶ 12).
13. Approximately five (5) years later, on February 27,
2023, the parties – Ms. Cirino, Mr. Horgan, and Mr. Bente
– executed the Agreement Among Maria Cirino, Ken Horgan,
and Scott Bente (the “Advance Agreement”). (Docket Nos.
50 ¶ 13; 50-4 at 1; 53-1 ¶ 13).
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14. Mr. Horgan and Mr. Bente appeared as the
“Borrowers” in the Advance Agreement, and Ms. Cirino is
identified as the “Lender.” (Docket Nos. 50 ¶ 14; 50-4
at 1; 53-1 ¶ 14).
15. The Advance Agreement puts forth that, “in October
2022, Cirino, as Lender, lent the Borrowers [Mr. Horgan
and Mr. Bente] $125,000 (the “October Loan”) pursuant to
a promissory note in relation to Borrower’s business
activities in Palm Springs, CA at the Hotel Zoso (the
[“]Zoso Lease”). (Docket Nos. 50 ¶ 15; 50-4 at 1; 53-1
¶ 15).
16. The Advance Agreement further states in the
Recitals that “the Borrowers [were] in need of further
funds to continue the Zoso Lease,” that “the Borrowers
[] bec[a]me delinquent with respect to certain payments
due to Cirino and parties affiliated with Cirino with
respect to the Pilgrim House Hotel in Provincetown, MA,”
and that “the Borrowers [were] in a partnership with
Cirino or a party affiliated with Cirino in relation to
a property referred to as the Amanda Lane property.”
(Docket Nos. 50 ¶ 16; 50-4 at 1; 53-1 ¶ 16).
17. The Advance Agreement also makes clear that, “in
order for Cirino to consider advancing more funds to
Borrowers, Cirino desires to set forth the terms upon
which additional funds will be advanced to resolve any
issues with the Borrowers with respect to the Pilgrim
House Hotel, the Amanda Lane property, and the loan
regarding the Zoso Lease,” and “the Borrowers desire to
agree to such terms set forth herein as an inducement to
Cirino to advance the funds requested with respect to
the Zoso Lease.” (Docket Nos. 50 ¶ 17; 50-4 at 1; 53-1
¶ 17).
18. The Advance Agreement sets forth the following
terms and conditions governing the loan between the
parties:
2. Cirino agrees to advance $200,000 (the
“Advance”) and loan $35,000 (the “Loan”) to
Borrowers subject to the terms of this Agreement
(and any further agreements deemed necessary by
Cirino’s counsel to effectuate the terms of this
Agreement).
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3. The Advance will not need to be repaid to Cirino
and the October Loan will be forgiven if the
following conditions are met:
a. 75% of the amount received in relation to
the Employee Retention Credit (the “ERC”
amount) is wired to Cirino within 24 hours of
receipt. It is anticipated that the ERC is
$324,341.05. If the ERC Amount does not get
paid to Cirino by August 31, 2023, then Cirino
shall have the option to convert the Advance
to a loan subject to the same terms as the
Loan set forth herein.
b. Borrowers agree to reduce their ownership
interest in Amanda Lane to 25% by transferring
an ownership interest of 25% to Cirino (or as
directed by Cirino). Borrowers agree that a
subsequent document will be prepared
effectuating this ownership change and they
agree to execute such document. In addition,
if the ERC Amount is not received by August
31, 2023, then the Borrowers agree to further
reduce their ownership in Amanda Lane to 10%
by transferring an additional ownership
interest of 15% to Cirino (or as directed by
Cirino).
c. Borrowers agree that with respect to Amanda
Lane, the sales proceeds shall be reduced by
development and rehab costs associated with
the property, including but not limited to,
any costs for design and architecture, legal,
building, and landscaping. Further, the net
sales proceeds shall be paid out
proportionally
(Docket Nos. 50 ¶ 18; 50-4 at 1-2; 53-1 ¶ 18).
19. Under Section 4 of the Advance Agreement, Mr. Bente
and Mr. Horgan agreed to the following language, of which
the interpretation is contested: “[in] consideration of
the Advance and the Loan, Borrowers agree that Cirino
shall have full decision-making authority on the
valuation, timing and strategy with respect to the sale
of the Pilgrim House Hotel notwithstanding any agreement
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to the contrary.” (Docket Nos. 50 ¶ 19; 50-4 at 2; 53-1
¶ 19).
20. The Advance Agreement, at Section 5 includes the
following provision concerning overdue hotel payments,
the interpretation of which is contested:
Borrowers are currently past due on existing hotel
payments and rents to Cirino (or the entities
affiliated with Cirino). Borrowers agree that from
this date forward existing hotel payments and rents
will be paid timely. With respect to the past due
amount, Borrowers agrees to bring those amounts
current as soon as possible. In the event the past
due amounts are not paid in full by October 31,
2023, then a 25% penalty shall accrue and compound
every six (6) months until the amount is settled.
(Docket Nos. 50 ¶ 20; 50-4 at 2; 53-1 ¶ 20).
21. Section Six of the Advance Agreement addresses the
loan’s due date, interest rate, and consequences of
nonpayment, stating, again of which the interpretation
is contested:
The Loan shall be due on December 31, 2023 and bear
an interest at 10% per annum; provided, however, if
the Loan is not paid in full by December 31, 2024,
including any penalty rate of 15%; then the
Borrowers agree to transfer 5% of their interest in
the Pilgrim House Hotel to Cirino (or as directed
by Cirino.)
(Docket Nos. 50 ¶ 21; 50-4 at 2; 53-1 ¶ 21).
22. On March 16, 2023, Ms. Cirino, Mr. Horgan, and Mr.
Bente executed an Amendment Number One to the Agreement
Among Maria Cirino, Ken Horgan and Scotte Bente (the
“Amendment”), reducing the Loan amount from $35,000 to
$20,000. (Docket Nos. 50 ¶ 22; 50-5 at 1; 53-1 ¶ 22).
23. In July 2023, the Pilgrim House Hotel received the
Employment Retention Credit (ERC) payment of $335,
722.63. The Defendants deposited a check for this
amount. (Docket Nos. 22 ¶ 16; 50 ¶ 23; 50-1 ¶ 18; 50-6
at 1; 53-1 ¶ 23).
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24. Mr. Horgan and Mr. Bente paid $228,219.71 of the
ERC amount to Ms. Cirino, which represents a contested
amount of the percentage owed to Ms. Cirino. (Docket
Nos. 50 ¶ 24; 50-1 ¶ 18; 50-6 at 1; 53-1 ¶ 24).
25. On January 23, 2025, Ms. Cirino, through counsel,
sent a Demand Letter to Mr. Horgan and Mr. Bente to
assert what she characterized as her right to exercise
control over Pilgrim House Hotel’s sale, in accordance
with her interpretation of the Advance Agreement. This
letter asked Defendants to cooperate with a potential
sale and to provide access to the company’s financial
information and systems. (Docket Nos. 50 ¶ 27; 50-7; 53-
1 ¶ 27).
26. Defendants did not respond to the Demand Letter.
(Docket Nos. 50 ¶ 28; 50-1 at 3; 53-1 ¶ 28).
27. On February 5, 2023, Ms. Cirino, through counsel,
sent Defendants a second demand letter requesting the
payment of all sums she considered to be outstanding by
February 13, 2025, and requested Defendants sign
documents providing Ms. Cirino with the authority to
execute any transaction she deemed appropriate
concerning the sale of the Pilgrim House Hotel. (Docket
Nos. 50 ¶ 29; 50-1 at 3; 50-6; 53-1 ¶ 29).
VI. PARTIAL SUMMARY JUDGMENT
Plaintiff requests this Court to answer two questions on
partial summary judgment: 1) Ms. Cirino’s right to “total dominion”
over the sale of Pilgrim House; and 2) the transfer of five percent
interest in Pilgrim House from Defendants to her. (Docket No. 51
at 9-10).
Before the merits, however, a threshold matter. Plaintiff
requested this Court deem her Motion for Partial Summary Judgment
unopposed because Defendants did not file a response by the
required deadline. See (Docket No. 52). Indeed, this delay does
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entitle this Court to reach said conclusion. See Méndez, 900 F.2d
at 6–7 (collecting cases across circuits that affirm a district
court’s authority to regulate its docket with discretion after
parties fail to adhere to court-imposed deadlines). To be sure, “a
district judge must often be firm in managing crowded dockets and
demanding adherence to announced deadlines. . . . [P]arties should
not be allowed casually to flout it or painlessly to escape the
foreseeable consequences of noncompliance.” Id.
That said, Plaintiff’s Motion that PSJ Be Deemed Unopposed is
DENIED. While Defendants’ defiance of its deadlines is vehemently
condemned – and will not be tolerated again – the Court recognizes
that the benefit of a balanced argument at the partial summary
judgment stage, given the weight of the motion, outweighs the one-
day delay.
Even if the Court deemed the motion unopposed, this “does not
mean . . . that summary judgment should automatically follow.”
Velez v. Awning Windows, Inc., 375 F.3d 35, 42 (1st Cir. 2004).
The Court’s duty “to test the undisputed facts in the crucible of
the applicable law in order to ascertain whether judgment is
warranted” persists in any setting – and perhaps even more
stridently so when there’s been no discovery. Id.
Plaintiff has “engaged in the unusual strategy of filing a
motion for summary judgment before any discovery has been
conducted. The First Circuit . . . has held that summary judgment
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is inappropriate where parties have had insufficient opportunity
to engage in discovery.” Fid. Real Est. Partners V LLC v. Lembi,
No. 06-CV-11141, 2006 WL 8458456, at *2 (D. Mass. Dec. 15, 2006)
(citing Velez, 375 F.3d at 39); see also Bissereth v. United
States, No. 21-CV-11068-ADB, 2023 WL 4373888, at *6 (D. Mass. July
6, 2023); Celotex Corp., 477 U.S. at 323 (noting summary judgment
must follow “adequate time for discovery”). “Because no discovery
has yet been taken in this case, the Court will not enter summary
judgment on behalf of the plaintiff unless it is exceedingly clear
that there are no genuine issues of material fact.” Id. (emphasis
added); see also Velez, 375 F.3d at 39.
Here, the Court notes that the parties have yet to engage in
any form of discovery, nor even schedule a Rule 26(f) conference.
In fact, the evidentiary scaffolding outside of the pleadings is
quite scarce. It largely consists of the series of urgent
informative motions Plaintiff submitted to this Court, (Docket
Nos. 28, 32, 49), which Defendants have not opined on.
Urgent informative motions, however, cannot and do not
supplant the Federal Rules of Civil Procedure. A few motions from
one party are a far cry from the robust discovery processes federal
district courts uphold.
With this in mind, and with an abundance of caution, this
Court turns to the merits of Plaintiff’s requests.
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Plaintiff requests this Court utilize its discretion under
the Declaratory Judgment Act to affirm she has certain rights. The
Declaratory Judgment Act provides that a court “may declare the
rights and other legal relations of any interested party,” 28
U.S.C. § 2201(a) (emphasis added), not that it must do so. This
text has long been understood “to confer on federal courts unique
and substantial discretion in deciding whether to declare the
rights of litigants.” MedImmune, Inc. v. Genentech, Inc., 549 U.S.
118, 136 (2007) (quoting Wilton v. Seven Falls Co., 515 U.S. 277,
286 (1995)); see also Cardinal Chem. Co. v. Morton Int’l, Inc.,
508 U.S. 83, 95 n. 17 (1993); Brillhart v. Excess Ins. Co. of Am.,
316 U.S. 491, 494–96 (1942). Courts have routinely held it is “more
consistent with the statute . . . to vest district courts with
discretion in the first instance, because facts bearing on the
usefulness of the declaratory judgment remedy, and the fitness of
the case for resolution, are peculiarly within their grasp.”
Wilton, 515 U.S. at 289.
Yet the paucity of “facts . . . within [the Court’s] grasp”
dictates much of this Court’s rulings. For starters, consider the
question of the Advance Agreement’s validity. Defendants allege
that the Advance Agreement should be nullified or revised pursuant
to Puerto Rico’s Civil Code. (Docket No. 22 at 18-19). According
to Defendants, the Advance Agreement is not valid because it was
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made with the purpose of taking advantage of Defendants’ economic
need. See (id.); see also (Docket No. 53 at 18-19).
Take Defendants’ Article 1258 assertions.4 It governs the
validity of contracts that are rooted in injury resulting from a
disproportionate economic advantage. P.R. Laws. Ann. tit. 31 §
9841. Article 1258 allows for the nullification or revision of
contracts procured through economic exploitation, particularly
when one party takes advantage of the economic dependence of
another to impose disproportionate obligations. Id.
Defendants, however, fail to meet the required pleading bar.
Rather, Mr. Horgan and Mr. Bente offer only cursory and conclusory
descriptions of Ms. Cirino’s fraudulent conduct related to the
Advance Agreement that fails to provide this Court enough
information to rule in their favor. See (Docket No. 22 at 18-19)
(claiming illicit and fraudulent behavior because the contract “is
the result of a brazen attempt by the Plaintiff to maliciously
take advantage of the need and economic dependence of the
Defendants and seeks to obtain a disproportionate and unjustified
windfall”); (id. at 29-34) (failing to describe Defendants’
4 Defendants also challenge the Advance Agreement’s validity under Article
1328, which regulate maximum allowable interest rates. P.R. Laws Ann.
tit. 31 § 10085. (Docket No. 22 at 18-19). But since deciding this
question would only invalidate the interest clause, not the contract as
a whole - as Article 1328 itself says - the Court need not address it
at this time to properly consider the Motion for Partial Summary Judgment
before it. See id.
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economic challenges); (Docket No. 53 at 9-14) (failing to describe
circumstances surrounding the Advance Agreement’s signing).
At times, Defendants even contradict the foundation of their
allegations: that they or Pilgrim House were facing economic
challenges which Ms. Cirino took advantage of. See (Docket No. 22
at 30) (“Despite these shortcomings, the growth and success of the
hotel business over the last seven years outpaced all plans,
industry norms and local competitors.”).
In light of the fact that parties made an Amendment to the
Advance Agreement and continued to rely on it for years later, as
uncontested in the Plaintiff’s SUMF and Defendants’ SUMF, see
(Docket Nos. 50, 53-1), and considering the absent or contradictory
information recounted above, Defendants fail to raise a successful
Article 1258 defense that would bar this Court’s reliance on the
Advance Agreement for partial summary judgment purposes.
Notwithstanding that validity of the Advance Agreement,
assuming arguendo it is valid would lead to a similar result: the
Court would still deny summary judgment as to Ms. Cirino’s requests
because the terms of the contract are ambiguous.
As this Court sits in diversity, Puerto Rico’s Civil Code
again provides some overarching principles for contract
interpretation. See P.R. Laws. Ann. tit. 31 § 9757. “A contract’s
text serves as the starting point for that inquiry.” Holsum de
P.R., Inc. v. ITW Food Equip. Grp. LLC, 116 F.4th 59, 67 (1st Cir.
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2024). “If the text is clear, then courts should adhere to the
text absent unusual circumstances.” Id. Contract terms are clear
when they are “lucid enough to be understood in one sense alone,
without leaving any room for doubt, controversies or difference of
interpretation.” Wells Real Estate Inv. Trust II, Inc. v.
Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 53 (1st Cir. 2010).
Where a contract is ambiguous or silent on an issue, however, the
intent of the parties at the time of contracting controls. Borschow
Hosp. & Med. Supplies, Inc. v. Cesar Castillo Inc., 96 F.3d 10, 16
(1st Cir. 1996); Marina Indus., Inc. v. Brown Boveri Corp., 114
D.P.R. 64, 69–70 (P.R. 1983). Determination of the parties’
intentions requires an examination of evidence surrounding the
contract’s inception, including “the occasion, the circumstances,
the persons involved, and the agreement they intended to
negotiate.” Ramirez, Segal & Latimer v. Rojo Rigual, 123 D.P.R.
161, 174 (1989).
As for the Court’s role, “while the threshold question of
whether the contract was ambiguous ‘present[s] a question of law
for the judge,’ the evaluation of ‘extrinsic evidence relevant to
the interpretation’ of the contract present[s] questions of fact
that preclude[] summary judgment.” Pérez-Pérez v. Hosp. Episcopal
San Lucas, Inc., 113 F.4th 1, 7 (1st Cir. 2024) (quoting Torres
Vargas v. Santiago Cummings, 149 F.3d 29, 33 (1st Cir. 1998)).
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Without the benefit of a fuller evidentiary record, the
Advance Agreement contains ambiguities that prevent the Court from
granting summary judgment. The Advance Agreement states that
Defendants agree that Ms. Cirino “shall have full decision-making
authority on the valuation, timing and strategy with respect to
the sale of the Pilgrim House Hotel notwithstanding any agreement
to the contrary.” (Docket Nos. 50 at 4-5 ¶¶ 16-22; 53-1 at 6-8 ¶¶
16-22). This statement, however, is ambiguous. “Full decision-
making authority” suggests totality over the sale of Pilgrim House,
but the narrowing to “valuation, timing and strategy” might exclude
certain aspects of the sale. In particular, the word “strategy”
could theoretically encompass final execution of the sale, or it
could be limited to just pre-sale coordination. The intent of the
parties, therefore, is key to the interpretation of this term.
This question of fact genuinely in dispute – answerable only after
the gathering of relevant extrinsic evidence – is one reserved for
the jury.
The same goes for Ms. Cirino’s second request: it too suffers
from a paucity of factual material available to overcome the
parties’ genuine disputes. The Advance Agreement stipulates that
if certain conditions are not met, the Advance would be converted
into a loan; and if the loan was not paid in full by December 31,
2024, then Defendants “agree to transfer 5% of their interest in
the Pilgrim House Hotel to Cirino (or as directed by Cirino).”
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(Docket Nos. 50 at 5 ¶ 21; 53-1 at 7-8 ¶ 21). But one of the
conditions triggering the transfer was whether “75% of the amount
received in relations to the Employee Retention Credit [(“ERC”)]
[was] wired to Cirino within 24 hours of receipt.” (Docket Nos. 50
at 4-5 ¶¶ 16-22; 53-1 at 6-8 ¶¶ 16-22). Parties dispute whether
this was satisfied. Defendants allege the parties understood that
it was to be seventy-five percent of the net, not gross, ERC;
Plaintiff argues the reverse. (Docket Nos. 1 at 8-11; 22 at 6 ¶
17). The contract’s terms on their own are silent as to whether
the agreement was to net or gross returns. As such, this too must
be reserved for the jury.
V. CONCLUSION
For the reasons explained above, the Court GRANTS Plaintiff’s
Motion to Dismiss, DENIES Defendants’ Motion to Strike, NOTES
Plaintiff’s Third Urgent Informative Motion, DENIES Plaintiff’s
Motion for Partial Summary Judgment, DENIES Plaintiffs’ Motion
Requesting PSJ Deemed Unopposed; and DENIES Plaintiff’s Motion to
Strike.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on January 14, 2026.
s/Gina R. Méndez-Miró
GINA R. MÉNDEZ-MIRÓ
UNITED STATES DISTRICT JUDGE
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