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