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PENA v. GUZMAN

February 10, 2004.

OCTAVIO PENA, Plaintiff -against- EMMANUEL GUTIERREZ GUZMAN, Defendant


The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Octavio Pena brings this action in diversity alleging that Emmanuel Gutierrez Guzman ("Gutierrez") failed to pay him for services Pena rendered under a contract. Pena seeks to recover damages based on (1) breach of contract, (2) quantum meruit, (3) unjust enrichment, (4) constructive trust, and (5) fraud. Gutierrez now moves to dismiss the claims for constructive trust and fraud pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that plaintiff fails to set forth claims for relief, and to strike certain "immaterial, impertinent, or scandalous" language from the complaint pursuant to Fed.R.Civ.P. 12(f).

I. Background

 A. The Parties

  Octavio Pena maintains a place of business in New York and is a citizen of Pennsylvania. Gutierrez is an attorney authorized to practice in Mexico who now resides in Canada. In the past, he and plaintiffs brother, Gabriel Garcia Pena Rey ("Garcia Pena"), were partners at a Mexican law firm entitled Garcia Pena Gutierrez. (Compl. ¶¶ 2, 7). Page 2

 B. The Facts

  The following facts are as set forth in the complaint. In July of 1998, a Mexican court awarded Gutierrez and Garcia Pena $13,715,504 from Commercial Union Assurance Company, PLC ("Commercial Union"). (Am. Compl. ¶ 12). Gutierrez and Garcia Pena were concerned about their ability to recover that judgment because Commercial Union neither acknowledged the validity of the Mexican judgment nor had any assets in Mexico, (Am. Compl, ¶ 15).

  1. Contract Negotiations

  Pena alleges that Gutierrez traveled to New York in July of 1998 and met Pena there. (Am. Compl. ¶¶ 10, 13). They then traveled together to Pennsylvania. During that trip, Gutierrez requested Pena's help in recovering the judgment from Commercial Union and offered to pay him between 10% and 15% of the sum recovered, with a minimum payment of $1,000,000. (Am, Compl. ¶ 13). Plaintiff agreed to help and that oral agreement was confirmed by a letter dated August 17, 1998. (Am. Compl. ft 13, 20; Exh. A). Plaintiff then began his efforts to collect the judgment. (Am. Compl., Exh. B).

  2. Pena's Efforts to Recover the Judgment

  In August 1998, Pena's initial steps to recover the judgment included starting investigations and developing a plan to travel to Switzerland to meet with Commercial Union executives. Gutierrez paid him his expenses for those efforts. (Am, Compl. ¶¶ 25-26). The next month, Pena traveled first to Switzerland and then to Mexico and met with Garcia Pena and Gutierrez there. (Am. Compl. ¶¶ 27, 28). In Mexico, the parties executed a written contract in which Gutierrez agreed to pay $1,000,000 to plaintiff upon recovery of any sum from Commercial Union and to reimburse any expenses incurred by Pena. (Am. Compl. ¶ 30; Exh. Page 3

  B). The written contract contains no references to any percentage of recovery that may be due and instead obligates Gutierrez and Garcia Pena to pay the $1,000,000 fee regardless of the means or amount of any recovery. (Id.). Gutierrez denies that he ever entered into this contract. (Answer, ¶ 30).

  In October through December of 1998, Pena continued investigating the facts and advising Gutierrez and Garcia Pena on recovery strategies. (Am. Compl. ¶¶ 31-34). He claims that although he was promised $15,000 in repayment of his expenses for that period, he received only $6,500. (Am. Compl. ¶ 47).

  For at least two months beginning in December, Pena repeatedly tried to contact Garcia Pena and Gutierrez but was told that they were away or unable to speak with him. (Am. Compl. ¶ 47). This was allegedly part of a plan ...


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