IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHARLES SCHIAVO, ) ) Plaintiff, ) ) C.A. No. N24C-07-135 FWW v. ) ) CLOVER NETWORK, LLC, ) ) Defendant. )
Submitted: December 9, 2024 Decided: February 19, 2025
Upon Defendant Clover Network’s Motion to Dismiss GRANTED
MEMORANDUM OPINION AND ORDER
Charles Schiavo, 829B Culbreath Street, Smyrna, DE 19977, Plaintiff, pro se. Christina B. Vavala, Esquire; Stephen J. Kraftshick, Esquire (argued), POLSINELLI, PA, 222 Delaware Avenue, Suite 1101, Wilmington, DE 19801, attorneys for Defendant Clover Network, LLC.
WHARTON, J. I. INTRODUCTION
Plaintiff Charles Schiavo (“Schiavo”) has filed Complaints in this case and in
Charles Schiavo v. TD Bank USA National Association.1 Despite being brought
separately, the cases are based on the same set of operative facts. The Complaint
against Clover Network, LLC (“Clover”) alleges generally that Clover, in concert
with TD Bank USA National Association (“TD Bank”), fraudulently deprived him
of a credit card payment in the amount of $10,175.00.2 He seeks compensatory
damages in the amount of $25,000.00 and punitive damages of $150,000.00. 3
Clover moves to dismiss under Superior Court Civil Rule 12(b)(6) (“Rule
12(b)(6)”). 4 The motion contends that Schiavo’s claim is based on Clover’s alleged
breach of the terms of a processing agreement he had with Clover. 5 But Clover is
not a party to any processing agreement with Schiavo. 6 Rather, there is a processing
agreement between Schiavo and TD Bank.7
1 Charles Schiavo v. TD Bank USA National Association, C.A. No. N24C-08-107 FWW. TD Bank also moves to dismiss in that action. 2 Complaint, D.I. 1. 3 Id. 4 Def.’s Mot. to Dismiss, D.I. 11. 5 Id. at ⁋ 4. 6 Id. 7 Id. at ⁋ 5. 2 For the reasons set forth below, Clover’s motion is GRANTED. The
Complaint is DISMISSED without prejudice.
II. FACTS AND PROCEDURAL HISTORY
Schiavo owns Jems Classic Autos (“Jems”). 8 Jems signed an estimate with
Asplundh Engineering (“Asplundh”) to repair a 2023 Ford F-150 turbo vehicle for
approximately $29,000.00, less a 10% discount.9 On May 26, 2024, Kevin Coin
(“Coin”) of Asplundh paid Jems $9,500.00 for repairs completed to date.10 The
payment was made by credit card over the telephone with a Clover representative
guiding Schiavo and Coin through the process.11 The payment was credited to Jems’
account on May 28, 2024.12 On June 1st, Coin made a second payment of
$9,500.00.13 This payment also was made by credit card over the telephone, but this
time without the assistance of a Clover representative.14 On June 3rd, this second
$9,500.00 payment was credited to Jem’s account.15
8 Compl. at ⁋ 5, D.I. 1. The paragraphs in the Complaint are unnumbered. For reference purposes, the Court has assigned them numbers sequentially. 9 Id. 10 Id. 11 Id.. 12 Id. 13 Id. at ⁋ 6. 14 Id. 15 Id. Also see, Ex. D. 3 On or about June 16th Coin made a third credit card payment of $10,175.00.16
But, the Complaint alleges, this payment was never credited to Jem’s account
“specifically due to fraudulent activity by Clover.” 17 The Complaint alleges that
after the third payment was “stolen,” Schiavo received several telephone calls from
Ava who claimed to be a representative of Clover, “the credit card processing
company for TD Bank, Dover, Delaware.” 18 Ava sent Schiavo an email requesting
information she needed to investigate the third credit card payment and requested
Schiavo respond with his answers to her questions by email also. 19 Schiavo
responded to Ava’s email with the help of the manager of the TD Bank branch
location in Dover.20 After sending the email, Schiavo received another phone call
from Ava “stating they were alleging fraud and that Clover was going to keep the
third credit card payment of $10,175.00 for a minimum of 180 days before Clover
could make a clear determination.”21 Schiavo alleges he has made repeated
unsuccessful requests for Clover to send him written confirmation of the reasons it
16 Id. at ⁋ 7. 17 Id. 18 Id. at ⁋ 8. 19 Id. 20 Id. at ⁋ 9. 21 Id. 4 is keeping the third payment.22 Schiavo also alleges that Clover “stole” an additional
$689.00 from his account with no explanation from either Clover or TD Bank. 23
Finally, Schiavo alleges that he has contacted “the banker for Asplundh
Engineering, who works for Bank of America.24 The banker confirmed that Coin is
an authorized user of Asplundh’s credit card used to make the third payment and
that the third payment “has been transferred to Clover.”25
Schiavo speculates that Clover is behaving in this way because it “knows it
will take four to six months and ten thousand dollars in legal fees to properly litigate
this matter, plus, the desire to fight this type of chicanery is absent from the average
individual.”26 He further speculates that Clover knows that “incompetent’ and
biased regulatory agencies are too lazy to take any disciplinary action against it.27
So, it has decided to take advantage of a “very corrupt and broken system.”28
On August 20, 2024, Clover moved to dismiss pursuant to Rule 12(b)(6).29 It
argues that there is no contractual relationship between it and Jems/Schiavo as
22 Id. at ⁋ 10. 23 Id. at ⁋ 11. 24 Id. at ⁋ 13. 25 Id. (emphasis in original). 26 Id. at ⁋ 14. 27 Id. 28 Id. 29 Def.’s Mot. to Dismiss, D.I. 11. 5 alleged in the Complaint, and, thus, the Complaint fails to state a claim.30 After
briefing, the Court heard argument jointly on this case and Schiavo’s suit against TD
Bank on December 9, 2024.31
III. THE PARTIES’ CONTENTIONS
Clover’s Motion to Dismiss makes a single argument for dismissal under Rule
12(b)(6). It contends that Schiavo’s claim is based on an alleged breach of ‘“the
terms of”” Clover’s processing agreement with him. 32 But, Clover has no processing
agreement with Jems. 33 Rather, Clover entered into a Merchant Processing
Application and Agreement (“Processing Agreement”) with TD Bank. 34 According
to Clover, it contracted with TD Bank to process and settle Jems’ transactions and it
merely provided point of sale terminals and software to Schiavo to utilize for those
transactions. 35 For that reason, any claims Schiavo might have are more properly
brought against TD Bank, according to Clover.36
30 Id. 31 D.I. 24. 32 Def.’s Mot. to Dismiss, at ⁋ 4, D.I. 11. (quoting the Complaint). 33 Id. 34 Id. Clover attached a copy of its agreement with TD Bank to the Motion as Ex. A. 35 Id. at ⁋ 6. 36 Id. at ⁋ 7 6 Schiavo’s Response is largely a reaffirmation of the veracity of his
allegations, complete with what he contends are supporting documents. 37 He
questions why Clover was processing credit card payments for him for the past
thirteen months, including the first two Asplundh payments, if it had no
responsibility to do so. 38 More importantly, Schiavo denies the premise of Clover’s
motion – that he alleged a contractual relationship between Jems and Clover.
The facts are Plaintiff stated Clover was the credit card processing company for TD Bank at least ten times in Plaintiff’s original complaint, so there is no ambiguity in the disclaimer made by the Plaintiff in the original complaint, the facts are Clover had a responsibility to legally and ethically process the credit card payments for TD’s customers who were previously approved by Clover and subsequently, signed the Merchant Processing Agreement. 39
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHARLES SCHIAVO, ) ) Plaintiff, ) ) C.A. No. N24C-07-135 FWW v. ) ) CLOVER NETWORK, LLC, ) ) Defendant. )
Submitted: December 9, 2024 Decided: February 19, 2025
Upon Defendant Clover Network’s Motion to Dismiss GRANTED
MEMORANDUM OPINION AND ORDER
Charles Schiavo, 829B Culbreath Street, Smyrna, DE 19977, Plaintiff, pro se. Christina B. Vavala, Esquire; Stephen J. Kraftshick, Esquire (argued), POLSINELLI, PA, 222 Delaware Avenue, Suite 1101, Wilmington, DE 19801, attorneys for Defendant Clover Network, LLC.
WHARTON, J. I. INTRODUCTION
Plaintiff Charles Schiavo (“Schiavo”) has filed Complaints in this case and in
Charles Schiavo v. TD Bank USA National Association.1 Despite being brought
separately, the cases are based on the same set of operative facts. The Complaint
against Clover Network, LLC (“Clover”) alleges generally that Clover, in concert
with TD Bank USA National Association (“TD Bank”), fraudulently deprived him
of a credit card payment in the amount of $10,175.00.2 He seeks compensatory
damages in the amount of $25,000.00 and punitive damages of $150,000.00. 3
Clover moves to dismiss under Superior Court Civil Rule 12(b)(6) (“Rule
12(b)(6)”). 4 The motion contends that Schiavo’s claim is based on Clover’s alleged
breach of the terms of a processing agreement he had with Clover. 5 But Clover is
not a party to any processing agreement with Schiavo. 6 Rather, there is a processing
agreement between Schiavo and TD Bank.7
1 Charles Schiavo v. TD Bank USA National Association, C.A. No. N24C-08-107 FWW. TD Bank also moves to dismiss in that action. 2 Complaint, D.I. 1. 3 Id. 4 Def.’s Mot. to Dismiss, D.I. 11. 5 Id. at ⁋ 4. 6 Id. 7 Id. at ⁋ 5. 2 For the reasons set forth below, Clover’s motion is GRANTED. The
Complaint is DISMISSED without prejudice.
II. FACTS AND PROCEDURAL HISTORY
Schiavo owns Jems Classic Autos (“Jems”). 8 Jems signed an estimate with
Asplundh Engineering (“Asplundh”) to repair a 2023 Ford F-150 turbo vehicle for
approximately $29,000.00, less a 10% discount.9 On May 26, 2024, Kevin Coin
(“Coin”) of Asplundh paid Jems $9,500.00 for repairs completed to date.10 The
payment was made by credit card over the telephone with a Clover representative
guiding Schiavo and Coin through the process.11 The payment was credited to Jems’
account on May 28, 2024.12 On June 1st, Coin made a second payment of
$9,500.00.13 This payment also was made by credit card over the telephone, but this
time without the assistance of a Clover representative.14 On June 3rd, this second
$9,500.00 payment was credited to Jem’s account.15
8 Compl. at ⁋ 5, D.I. 1. The paragraphs in the Complaint are unnumbered. For reference purposes, the Court has assigned them numbers sequentially. 9 Id. 10 Id. 11 Id.. 12 Id. 13 Id. at ⁋ 6. 14 Id. 15 Id. Also see, Ex. D. 3 On or about June 16th Coin made a third credit card payment of $10,175.00.16
But, the Complaint alleges, this payment was never credited to Jem’s account
“specifically due to fraudulent activity by Clover.” 17 The Complaint alleges that
after the third payment was “stolen,” Schiavo received several telephone calls from
Ava who claimed to be a representative of Clover, “the credit card processing
company for TD Bank, Dover, Delaware.” 18 Ava sent Schiavo an email requesting
information she needed to investigate the third credit card payment and requested
Schiavo respond with his answers to her questions by email also. 19 Schiavo
responded to Ava’s email with the help of the manager of the TD Bank branch
location in Dover.20 After sending the email, Schiavo received another phone call
from Ava “stating they were alleging fraud and that Clover was going to keep the
third credit card payment of $10,175.00 for a minimum of 180 days before Clover
could make a clear determination.”21 Schiavo alleges he has made repeated
unsuccessful requests for Clover to send him written confirmation of the reasons it
16 Id. at ⁋ 7. 17 Id. 18 Id. at ⁋ 8. 19 Id. 20 Id. at ⁋ 9. 21 Id. 4 is keeping the third payment.22 Schiavo also alleges that Clover “stole” an additional
$689.00 from his account with no explanation from either Clover or TD Bank. 23
Finally, Schiavo alleges that he has contacted “the banker for Asplundh
Engineering, who works for Bank of America.24 The banker confirmed that Coin is
an authorized user of Asplundh’s credit card used to make the third payment and
that the third payment “has been transferred to Clover.”25
Schiavo speculates that Clover is behaving in this way because it “knows it
will take four to six months and ten thousand dollars in legal fees to properly litigate
this matter, plus, the desire to fight this type of chicanery is absent from the average
individual.”26 He further speculates that Clover knows that “incompetent’ and
biased regulatory agencies are too lazy to take any disciplinary action against it.27
So, it has decided to take advantage of a “very corrupt and broken system.”28
On August 20, 2024, Clover moved to dismiss pursuant to Rule 12(b)(6).29 It
argues that there is no contractual relationship between it and Jems/Schiavo as
22 Id. at ⁋ 10. 23 Id. at ⁋ 11. 24 Id. at ⁋ 13. 25 Id. (emphasis in original). 26 Id. at ⁋ 14. 27 Id. 28 Id. 29 Def.’s Mot. to Dismiss, D.I. 11. 5 alleged in the Complaint, and, thus, the Complaint fails to state a claim.30 After
briefing, the Court heard argument jointly on this case and Schiavo’s suit against TD
Bank on December 9, 2024.31
III. THE PARTIES’ CONTENTIONS
Clover’s Motion to Dismiss makes a single argument for dismissal under Rule
12(b)(6). It contends that Schiavo’s claim is based on an alleged breach of ‘“the
terms of”” Clover’s processing agreement with him. 32 But, Clover has no processing
agreement with Jems. 33 Rather, Clover entered into a Merchant Processing
Application and Agreement (“Processing Agreement”) with TD Bank. 34 According
to Clover, it contracted with TD Bank to process and settle Jems’ transactions and it
merely provided point of sale terminals and software to Schiavo to utilize for those
transactions. 35 For that reason, any claims Schiavo might have are more properly
brought against TD Bank, according to Clover.36
30 Id. 31 D.I. 24. 32 Def.’s Mot. to Dismiss, at ⁋ 4, D.I. 11. (quoting the Complaint). 33 Id. 34 Id. Clover attached a copy of its agreement with TD Bank to the Motion as Ex. A. 35 Id. at ⁋ 6. 36 Id. at ⁋ 7 6 Schiavo’s Response is largely a reaffirmation of the veracity of his
allegations, complete with what he contends are supporting documents. 37 He
questions why Clover was processing credit card payments for him for the past
thirteen months, including the first two Asplundh payments, if it had no
responsibility to do so. 38 More importantly, Schiavo denies the premise of Clover’s
motion – that he alleged a contractual relationship between Jems and Clover.
The facts are Plaintiff stated Clover was the credit card processing company for TD Bank at least ten times in Plaintiff’s original complaint, so there is no ambiguity in the disclaimer made by the Plaintiff in the original complaint, the facts are Clover had a responsibility to legally and ethically process the credit card payments for TD’s customers who were previously approved by Clover and subsequently, signed the Merchant Processing Agreement. 39
Finally, he disputes Clover’s contention that his claims are more properly brought
against TD Bank.
In addition, TD Bank at 11 of the “Merchant Processing Agreement” says if Plaintiff doesn’t receive the credit card payment[s], TD Bank is not responsible, consequently, the Plaintiff has every right and
37 Pl.’s Resp., D.I. 16. 38 Id. at 4. The pages in Schiavo’s Response are unnumbered. For citation purposes, the Court has assigned them page numbers beginning with the caption page. 39 Id. at 10 (emphasis in original). 7 responsibility to file a complaint against Clover, which is the credit card processing company for TD Bank.40
In reply, Clover notes that Schiavo cannot insert additional documents in his
response that are not already incorporated in the Complaint.41 It reasserts it position
that it had no contractual relationship with Jems and only provides point-of-sale
devices and related services to merchants but not payment processing services.42
Clover further argues that Schiavo misreads the Processing Agreement’s defined
terms. The Processing Agreement defines TD Bank as both the “Bank” and
“Processor.” 43 Under the Processing Agreement, Clover is not the “Processor” as
Schiavo mistakenly alleges.44 Clover cites the exhibits that it claims Schiavo
improperly attached to his Response as supporting its contention that any claim
Schiavo might have is against TD Bank and not it. 45 Finally, in Clover’s view,
absent any contract between it and Jems, the only way for Schiavo to state a claim
against Clover would be for it to allege that Clover was a third-party beneficiary,
which he has not pled. 46
40 Id. at 14 (emphasis in original). 41 Def.’s Reply, at ⁋ 2, D.I. 19. 42 Id. at ⁋ 3. 43 Id. at ⁋ 5. 44 Id. 45 Id. at ⁋ 6. 46 Id. at ⁋ 7. 8 III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim pursuant to Superior Court
Rule 12(b)(6) will not be granted if the “plaintiff may recover under any reasonably
conceivable set of circumstances susceptible of proof under the complaint.” 47 The
Court's review is limited to the well-pled allegations in the complaint. 48 In ruling on
a 12(b)(6) motion, the Court “must draw all reasonable factual inferences in favor
of the party opposing the motion.” 49 Dismissal is warranted “only if it appears with
reasonable certainty that the plaintiff could not prove any set of facts that would
entitle him to relief.”50 However, the Court will “ignore conclusory allegations that
lack specific supporting factual allegations.” 51 The Court may, “despite allegations
to the contrary,” dismiss a complaint “where the unambiguous language of
documents upon which the claims are based contradict the complaint’s
allegations.” 52
V. DISCUSSION
47 Browne v. Robb, 583 A.2d 949, 950 (Del. 1990). 48 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005). 49 Id. 50 Id. 51 Ramunno v. Cawley, 705 A.2d 1029, 10345 (Del. 1998). 52 Tigani v. C.I.P. Assocs., LLC, 2020 WL 2037241, at v*2 (Del. Apr. 27, 2020) (citing Malpiede v. Townson, 780 A.2d 1075, 1083 Del. 2001). 9 At the outset, the Court establishes the parameters for what information
among the various filings and arguments in the record it properly considers in
resolving the Motion. The Court’s review is limited to the well-pled allegations in
the Complaint. Additionally, however, the Court may consider matters outside the
Complaint “when a document is integral to a claim incorporated into a complaint.”53
“Generally, a document is integral to a complaint if it is the ‘source for the … facts
as pled in the complaint.’”54
Clover has attached the Processing Agreement referenced in the Complaint
to its Motion.55 Schiavo claims, inter alia, that Clover breached the terms of that
agreement.56 Accordingly, the Court finds the Processing Agreement integral to the
Complaint and considers it in resolving the Motion.
Schiavo has attached 16 exhibits to his Response. Five of the exhibits are
attached to the Complaint also. 57 Nevertheless, Clover objects to the insertion of all
of the exhibits to Schiavo’s Response. 58 Accordingly, the Court examines each to
53 Fortis Advisors LLC v. Allergen W. C. Holding, Inc. 2019 WL 5588876, at *3, (Del. Ch. Oct. 30, 2019). 54 Id. 55 Def.’s Mot. to Dismiss, Ex A, D.I. 11. 56 Complaint at ⁋ 1, D.I. 1. 57 Id. at Exs. A-F. 58 Def.’s Reply at ⁋ 2, D.I. 19. 10 determine if it is integral to the Complaint. Of the 16, two – Exhibits A 59 and A-1 -
are simply Court documents, including the Complaint and documents related to
service of process, and are irrelevant to the issues raised by the Motion.60 The others
are: (1) Jems business license, also attached to the Complaint as Exhibit A;61 (2) the
estimate for the repair of the Asplundh truck, also attached to the Complaint as
Exhibit B;62 (3) Jems’ TD Bank statement showing the deposit of the first payment
of $9,500.00, also attached to the Complaint as Exhibit C;63 (4) Jems’ TD Bank
statement showing the deposit of the second payment of $9,500.00, also attached to
the Complaint as Exhibit D; 64 (5) Bank of America statement for “Kevin C. Coin
Asplundh Engineering” showing a “Resolved Disputed Transaction” with Jems in
the amount of $10,175.00 from June 19th, “resolved” in favor of Asplundh and
credited to Asplundh on July 3rd in that amount; 65 (6) Risk Review Notification dated
June 20, 2024 from Merchant Services Risk Review Management to Schiavo
requesting additional information to validate a change in Jems’ processing volume,
also attached to the Complaint as Exhibit E; 66 (7) Jems’ TD Bank statement showing
59 There are two Exhibit As. The first is the Complaint and related service of process documents. The second is Jems’ business license. 60 Id. at unnumbered exhibit and Ex. A-1. 61 Id. at Ex. A. 62 Id. at Ex. B. 63 Id. at Ex. C. 64 Id. at Ex. D. 65 Id. at Ex. E. 66 Id. at Ex. F. 11 debits of $688.93 and $35.10 on July 3rd, also attached to the Complaint as Exhibit
F; 67 (8) letter dated July 24, 2024 from Jason Blusk to Schiavo; 68 (9) letter dated
August 9, 2024 from Schiavo to Jason Blusk; 69 (10) unreadably poor copy of a letter
to Kevin Coin dated July 3(?), 2024 asking him to keep copies of all documents
related to his charges; 70 (11) duplicate of Bank of America statement for “Kevin C.
Coin Asplundh Engineering”;71 (12) duplicate of unreadable letter to Kevin Coin;72
(13) TD Bank statements for Jems from August 2023 through June 2024; 73 (14)
duplicate of Ex. D; 74 (15) duplicate of Exhibit E;75 and (16) letter from Schiavo to
Channing Heng dated July 12, 2024.76 Excluding duplicates, there are 11
substantive exhibits, one of which is unreadable. Of the ten remaining exhibits, six
are attached to the Complaint. The Court finds that the other four are integral to the
Complaint as each of them are sources for facts pled in the Complaint, with the
exception of TD Bank statements for Jems from August 2023 through April 2024
which are not. Statements for May and June are integral as they too are sources for
67 Id. Ex. G-1. 68 Id. Ex. H. 69 Id. Ex. I. 70 Id. Ex. J. 71 Id. Ex. B-1. 72 Id. Ex. B-2. 73 Id. Ex. C. There appear to be two different exhibits labeled “Exhibit C.” 74 Id. Ex. D. 75 Id. Ex. E. 76 Id. Ex. F. There appear to be two different exhibits labeled Exhibit F. 12 facts pled in the Complaint. To be clear then, in resolving this Motion, the Court
considers only the Complaint, exhibits it finds integral to the Complaint, including
those attached to it, and arguments related to the Complaint and such integral
exhibits.
At the outset, the Court is confronted with at least two difficulties in
determining whether the Complaint can survive a Rule 12(b)(6) challenge. The first
is the Complaint itself. Rule 10(b) speaks to the form of pleadings:
(b) Paragraphs: Separate statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.77
The Complaint makes no attempt to comply with the rule. Rather it consists
of seven pages of narrative and argument in unnumbered paragraphs. 78 While
Schiavo’s failure to number the paragraphs of the Complaint can be
overcome, his failure to separate his various allegations of wrongdoing into
separate counts is more problematic. This failure has caused opposing
77 Super. Ct. Civ. R. 10(b). 78 Complaint, D.I. 1. 13 counsel and the Court to sift through the Complaint in an attempt to identify
specific theories of liability, and the facts purporting to support the necessary
elements of each theory. Schiavo’s Response presents its own set of
difficulties. Rule 78(b) limits responses in opposition to motions to six pages
in length. 79 Again, Schiavo makes no attempt to comply with the rule. His
Response runs to 23 pages, including the caption page.80
Clover focuses its Motion on Schiavo’s claim that “Clover ‘breached the
terms’ of its processing agreement with Plaintiff by ‘keeping approximately
11,000.00 dollars of the Plaintiff’s money.’” 81 Clover’s argument is simple – it did
not breach the terms of any processing agreement it had with Jems because it was
not a party to any processing agreement with Jems. 82 The Processing Agreement
was between Jems and TD Bank. 83 Clover inarguably is correct – it is not a party to
the Processing Agreement. 84 Indeed, Schiavo says as much in his Response - “The
facts are Plaintiff states Clover was the credit card processing company for TD Bank
at least ten times in Plaintiff’s original complaint.” 85 Therefore, Schiavo has failed
79 Super. Ct. Civ. R. 78(b). 80 Pl.’s Resp., D.I. 16. 81 Def.’s Mot. to Dismiss, at ⁋⁋ 1, 4 (quoting Compl. at 20), D.I. 11. 82 Id. at ⁋ 4. 83 Id. at ⁋ 5. 84 Id. at Ex. A. 85 Pl.’s Resp. at 10, D.I. 16. 14 to state a claim for breach of contract. But, Schiavo seems to be making an argument
that Jems is a third party beneficiary of an agreement Clover had with TD Bank –
“[T]he facts are clover had a responsibility to legally and ethically process the credit
card payments for TD Bank’s customers who were previously approved by Clover
and subsequently signed the Merchant Processing Agreement.”86 If that is Schiavo’s
claim, he fails to make it adequately in his Complaint.
Breach of contract is not the only claim Schiavo makes. It is not even his
most serious allegation. He alleges that Clover engaged in criminal behavior when
it “stole” $10,175.00 from him together with an additional $698.00.87 He further
opines as to Clover’s motive. He posits that Clover is “taking advantage of a very
corrupt and broken system” by continuing to hold the $10,175.00.88 The problem
with this contention is that Schiavo refutes it in his Response. He attaches as Exhibit
E and Exhibit B-1, 89 a Bank of America statement for “Kevin C. Coin Asplundh
Engineering.” The statement shows that Asplundh was credited with $10,175.00 on
July 3, 2024 relating to a June 19th transaction with Jems.90 The statement shows
that the money was returned to Asplundh as a result of a dispute that was resolved
86 Id. 87 Complaint at ⁋⁋ 1, 8, 11, 14 88 Id. at ⁋ 15. 89 It is unclear why Schiavo attaches it twice. 90 Pl.’s Resp. at Exs E and B-1. 15 in favor of its client – Asplundh.91 The Court may, “despite allegations to the
contrary,” dismiss a complaint “where the unambiguous language of documents
upon which the claims are based contradict the complaint’s allegations.”92 Here the
Bank of America statement unambiguously contradicts Schiavo’s claim that Clover
stole and kept the $10,175.00. Asplundh had the money two weeks after the
unsuccessful third transaction. Therefore any allegation against Clover based on
theft fails to state a claim.93
VI. CONCLUSION
THEREFORE, for the reasons explained above, Defendant Clover Network,
LLC’s Motion to Dismiss is GRANTED. The Complaint is DISMISSED without
91 Id. 92 Tigani v. C.I.P. Assocs., LLC, 2020 WL 2037241, at v*2 (Del. Apr. 27, 2020) (citing Malpiede v. Townson, 780 A.2d 1075, 1083 Del. 2001). 93 Despite the Court concluding that Schiavo has failed to state claims upon which he could obtain relief against Clover, there are certain facts which do not appear to be in dispute. They are; (1) Jems had a contract with Asplundh to repair Asplundh’s truck; (2) the first two payments, made by Kevin Coin on behalf of Asplundh, were successfully deposited in Jems’ account; (3) Kevin Coin was authorized to use the Asplundh credit card; (4) for whatever reason, the third payment of $10,175.00 was never successfully deposited into Jems’ account; and (5) the third unsuccessful payment was returned to Asplundh’s Bank of America account two weeks after the unsuccessful transaction. If, as Schiavo contends, Asplundh was willing to make the third payment and had the funds from the unsuccessful attempt in its account, why did Schiavo and Asplundh not try to complete the payment again, either by credit card or by an alternative payment method? No answer to that question has ever been tendered to the Court.
16 prejudice. Plaintiff Charles Schiavo is granted leave to file an Amended Complaint
no later than 30 days after the date of this Memorandum Opinion and Order subject
to the following conditions:
1. Any Amended Complaint shall comply with the pleading requirements
of Superior Court Civil Rules 8(a), 9(b) (if fraud is alleged), and 10 (especially 10(b));
2. Each claim shall state all of the elements necessary to allege such claim
or risk dismissal with prejudice upon appropriate motion;
3. Such Amended Complaint may join Clover Network, LLC and TD
Bank USA National Association as well as any other prospective defendant in a
single Amended Complaint either under this case, or under Schiavo v. TD Bank
National Association, C.A. No. N24C-08-107 FWW; and
4. The Court will strike any Amended Complaint that includes language
personally attacking opposing counsel or the Court.
IT IS SO ORDERED.
/s/ Ferris W. Wharton Ferris W. Wharton, J.