100 F. Supp. 3d 126
D.P.R.2015Background
- Plaintiff Mark Anthony Burk (former pro golfer) developed a sizzle reel for a reality TV program and sought executive producers to secure a network deal.
- Plaintiff engaged defendant Eric Paulen (president of Bald Bull Entertainment — BBE) after Paulen represented he had significant TV industry contacts (including with the Travel Channel) and could pitch the reel.
- Parties discussed re-editing the reel; Plaintiff provided raw footage and Paulen promised to produce and shop the project; no written contract or clear payment/compensation terms were pleaded.
- Plaintiff alleges Paulen (and BBE) never actually contacted networks (other than a single meeting with producer Ross Greenberg), misrepresented his contacts/ability, and caused Plaintiff economic harm.
- Plaintiff sued for breach of contract, fraud in formation (dolo), negligence (Art. 1802), lack of good faith, and obstinacy; Paulen and BBE moved to dismiss under Fed. R. Civ. P. 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract — was there an enforceable contract? | Burk alleges mutual assent that Paulen/BBE would produce and secure a network deal; damages from failure to perform. | No consideration alleged; no payment or agreed compensation, so no valid contract. | Dismissed — plaintiff failed to plead necessary consideration; no valid contract. |
| Fraud/dolo in formation — did Paulen induce consent by deceit? | Burk says Paulen exaggerated contacts/abilities; would not have agreed otherwise. | Allegations are conclusory; plaintiff fails to identify specific false statements or Paulen’s knowledge of falsity. | Dismissed — plaintiff did not plausibly plead intentional deceit/bad faith to vitiate consent. |
| Negligence (Art. 1802) — independent tort liability? | Damages flowed from Paulen’s failure to promote project; negligence claim available alongside contract. | Duty alleged is contractual; no separate non-contractual duty pleaded. | Dismissed — claim duplicates alleged contract duties; no separate basis for Article 1802 liability pleaded. |
| Lack of good faith & obstinacy (attorneys’ fees) | Paulen acted in bad faith in formation and performance; fees sought if defendants delay payment. | No contract alleged; no bad faith pleaded; no obstinacy shown; counsel pro bono. | Dismissed — no valid contract or pleaded bad faith; no basis for attorney-fee award. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard — legal conclusions insufficient)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (Twombly plausibility standard)
- Schatz v. Republican State Leadership Comm., 669 F.3d 50 (First Circuit on two-step plausibility review)
- Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1 (First Circuit applying Iqbal/Twombly)
- Puerto Rico Elec. Power Auth. v. Action Refund, 515 F.3d 57 (elements of contract under Puerto Rico law)
- Citibank Global Markets, Inc. v. Rodriguez Santana, 573 F.3d 17 (presumption of good faith; dolo/burden to plead bad faith)