United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT [Docket No. 41]
JENNIFER C. BOAL, Magistrate Judge.
In this action, Plaintiff Luis Vizcaino alleges, inter alia, that he retained defendant Alex F. Isaac as his agent, who then breached the parties' contract, breached his fiduciary duties to Vizcaino, and misappropriated Vizcaino's monies. Docket No. 1. Isaac, who is pro se, filed a counterclaim. Docket No. 27. Vizcaino has moved to dismiss the counterclaim or, in the alternative, for a more definite statement. Docket No. 41. For the following reasons, the Court recommends that the District Judge grant in part and deny in part the motion to dismiss and deny the motion for a more definite statement.
I. PROCEDURAL BACKGROUND
On April 9, 2015, Vizcaino filed his complaint. Docket No. 1. Isaac filed an answer on October 19, 2015. Docket No. 16. On November 23, 2015, Isaac filed a counterclaim. Docket No. 27.
Vizcaino filed the instant motion to dismiss or, in the alternative, for a more definite statement, on December 14, 2015. Docket No. 41. Isaac did not file a written response. The Court heard oral argument on January 20, 2016, at which Isaac appeared and participated.
The Counterclaim contains three counts. Count 1, titled "Breach of Contract, 2011, " alleges as follows. In 2011, Isaac negotiated a contract with the New York Yankees baseball team on behalf of Vizcaino, who had played for the Yankees before. Counterclaim ("CC") ¶ 1.1. Vizcaino had agreed to pay a $37, 500 fee to Isaac upon execution of the contract. CC ¶ 1.2. Vizcaino failed a drug test and the contract was cancelled. CC ¶ 1.3. Vizcaino never paid Isaac his commission. CC ¶ 1.4.
Count 2, titled "Breach of Contract, 2012, " alleges as follows. In 2012, Isaac negotiated a contract with the New York Yankees baseball team on behalf of Vizcaino. CC ¶ 2.1. Vizcaino had agreed to pay a $37, 500 fee to Isaac upon execution of the contract. CC ¶ 2.2. Vizcaino failed a drug test and the contract was cancelled. CC ¶ 2.3. Vizcaino never paid Isaac his commission. CC ¶ 2.4.
Finally, Count 3, titled "Expenses from the Sale of a House, " alleges the following. Vizcaino owned a house in New Jersey in which he lived for a while. CC ¶ 3.1. While Vizcaino lived there, he never paid the mortgage. CC ¶ 3.2. The lender was about to foreclose the house. CC ¶ 3.3. Vizcaino gave Isaac a power of attorney to sell the house. CC ¶¶ 3.4. Isaac retained a real estate broker through which he found a buyer. CC ¶ 3.5. Vizcaino had an unpaid judgment against him from a private jet company he used for transportation and did not pay. CC ¶ 3.6. This creditor put a lien on the house. CC ¶ 3.7. The buyer backed out of the purchase and the house was later sold in a short sale. CC ¶¶ 3.8, 3.9. Isaac retained a lawyer who arranged for the lender to release their deficiency so that the house could be sold. CC ¶ 3.10. Vizcaino never paid Isaac's bill for these services. CC ¶ 3.11.
A. Motion To Dismiss
1. Standard Of Review
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
Furthermore, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Decotiis v. Whittemore, 635 F.3d 22, 28-29 (1st Cir. 2011) (citation omitted). "A document filed pro se is to be liberally construed, ' and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). While the court must accept as true all of the factual allegations contained in the complaint, that doctrine is not applicable to legal conclusions. Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id .; see also Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009) ("In other words, a plaintiff must offer more than an unadorned, the-defendant-unlawfully-harmed-me accusation, ' in order to claim a ...