DWINGA, III v. FRANCISCAN UNIVERSITY OF STEUBENVILLE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUNAWAY RECORDS )

PRODUCTIONS, LLC, )

)

Plaintiff, )

)

v. ) Civil Action No. 21-752

)

FRANCISCAN UNIVERSITY )

OF STEUBENVILLE, )

)

Defendant. )

MEMORANDUM OPINION

Presently before the Court is the Partial Motion to Dismiss Counts II-IV of Plaintiff’s

Amended Complaint, filed by Defendant Franciscan University of Steubenville (the “University”),

for failure to state claims upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, and Memorandum in Support (Docket Nos. 11, 12), as well as the

Response and Brief in Opposition filed by Plaintiff Runaway Records Productions, LLC

(“Runaway”) (Docket Nos. 13, 14), and the University’s Reply (Docket No. 16). For the reasons

set forth herein, the University’s motion is granted in part and denied in part.

I. Background

As the parties are well-acquainted with the factual background of this case, at this juncture

the Court will present an abbreviated version of the facts as alleged in the Amended Complaint

and in the light most favorable to Runaway.

The University is located in Steubenville, Ohio. (Docket No. 10, ¶ 9). Since 2014, the

parties have been in a contractual relationship in which Runaway has provided various production

services, including, but not limited to, audio and visual production, broadcasting, and videotaping

of various conferences, religious services, and concerts. (Id. ¶¶ 8, 10). The parties entered into

their most recent contract in the form of an Independent Contractor Agreement (the “Agreement”)

on or about February 26, 2020, covering calendar years 2020, 2021, and 2022. (Id. ¶¶ 11, 25;

Docket No. 10-1). Pursuant to this Agreement, Runaway agreed to provide its services for several

in-person conferences held at the University’s main campus between June 2020 and August 2020,

along with other video processing, recording, and duplication services, and to provide similar

services for calendar years 2021 and 2022. (Docket Nos. 10; 10-1 at 2). However, the University

canceled its events in 2020 after the onset of the COVID-19 pandemic and then did not remit

payment to Runaway for contracted-for services. (Docket No. 10, ¶¶ 13, 28, 30, 55). Even then,

the University continued to possess Plaintiff’s equipment and permitted another vendor to use it

for the University’s benefit. (Id. ¶¶ 41, 64, 70). This action ensued.

Runaway’s Amended Complaint alleges claims against the University for breach of

contract (Count I), tortious interference (Count II), unjust enrichment (Count III), and conversion

(Count IV). (Docket No. 10). In response, the University filed a Partial Motion to Dismiss Counts

II-IV of the Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which

relief can be granted. (Docket No. 11). The University’s motion and supporting briefs also seek

to strike Exhibit B to the Amended Complaint along with related averments concerning settlement

discussions. (Docket No. 12 at 6-7). The motion has been fully briefed by the parties and it is

now ripe for decision.

II. Standards of Review

A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

In considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the

complaint must be accepted as true and must be construed in the light most favorable to the

plaintiff, and the court must “‘determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.

2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). While Federal Rule of Civil Procedure

8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled

to relief,” the complaint must “‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555

(internal citation and quotation marks omitted)). Moreover, while “this standard does not require

‘detailed factual allegations,’” Rule 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555); Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

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.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). The Supreme Court has noted that 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. (citing Twombly, 550 U.S.

at 556). The standard “‘does not impose a probability requirement at the pleading stage,’ but

instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal

evidence of’ the necessary element.” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at

556). Moreover, the requirement that a court accept as true all factual allegations does not extend

to legal conclusions; thus, a court is “‘not bound to accept as true a legal conclusion couched as a

factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555 (internal citation

and quotation marks omitted)).

B. Moton to Strike Pursuant to Fed. R. Civ. P. 12(f).

Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading

. . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The

purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid

unnecessary forays into immaterial matters.” Bessemer Sys. Fed. Credit Union v. Fiserv Solutions,

LLC, 472 F. Supp. 3d 142, 155 (W.D. Pa. 2020) (internal quotation marks and citations omitted).

“A decision to grant or deny a motion to strike a pleading is vested in the trial court’s discretion.”

Id. (internal quotation marks and citations omitted). However, motions to strike “‘are not favored

and usually will be denied unless the allegations have no possible relation to the controversy and

may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.’” Id.

(quoting Hay v. Somerset Area Sch. Dist., Case No. 3:16-cv-229, 2017 WL 2829700, at *3 (W.D.

Pa. June 29, 2017) (quoting Tennis v. Ford Motor Co., 730 F. Supp. 2d 437, 443 (W.D. Pa. 2010))).

III. Discussion

A. Choice of Law

The choice of law rules of the forum state—here, Pennsylvania—apply to litigation before

a federal court sitting in diversity. See Specialty Surfaces Int’l, Inc. v. Continental Cas. Co., 609

F.3d 223, 229 (3d Cir. 2010) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).

In that regard, Pennsylvania courts generally apply the state law that the parties have agreed upon.

See DL Resources, Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 216 (3d Cir. 2007) (citing

Nationwide Mut. Ins. Co. v. West, 807 A.2d 916, 920 (Pa. Super. Ct. 2002) (“In contract disputes,

Pennsylvania courts generally honor the parties’ choice of law provisions.”)). Accordingly, Ohio

law will apply to Plaintiff’s breach of contract claim at Count I of the Amended Complaint because

the Agreement at issue contains a choice of law provision stating that “[t]his [A]greement shall in

all respects be interpreted, enforced, and governed under the laws of the State of Ohio.” (Docket

No. 10-1 at 6).

The University’s motion does not concern Runaway’s breach of contract claim at Count I,

but instead seeks to dismiss Runaway’s common law claims asserted at Counts II through IV.

Runaway does not clearly state its position on whether Pennsylvania or Ohio law applies to these

claims. For its part, the University contends that Ohio law applies to these claims because of the

choice of law provision contained in their Agreement. However, the choice of law provision

“‘do[es] not govern tort claims between contracting parties unless the fair import of the provision

embraces all aspects of the legal relationship.’” Broederdorf v. Bacheler, 129 F. Supp. 3d 182,

191 (E.D. Pa. 2015) (quoting Jiffy Lube Int’l, Inc. v. Jiffy Lube of Pa., Inc., 848 F. Supp. 569, 576

(E.D. Pa. 1994)). “[C]ourts analyze choice of law provisions to ‘determine, based [up]on their

narrowness or breadth, whether the parties intended [for the agreement] to encompass all elements

of their association.’” Grimm v. Citibank (S. Dakota), N.A., Civil Action No. 08-788, 2008 WL

4925631, at *4 (W.D. Pa. Nov. 14, 2008) (quoting Composiflex, Inc. v. Advanced Cardiovascular

Sys., Inc., 795 F. Supp. 151, 157 (W.D. Pa. 1992)). For example, the court in Jiffy Lube found that

the use of “this agreement” in the choice of law provision at issue demonstrated its restricted scope

and its applicability only to the contract claims at issue. See 848 F. Supp. at 576.

Based on the foregoing principles, the Court finds that the Agreement between the parties

is narrowly drawn because the language in its choice of law provision speaks only to “this

agreement,” and not to all matters concerning the parties. Accordingly, the contractual choice of

law provision does not apply to Runaway’s non-contract claims at Counts II through IV of the

Amended Complaint.

Where, as here, a contractual choice of law provision does not apply to particular claims,

the Court must separately analyze the remaining claims to determine the law that applies. See

Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006) (“Because choice of law

analysis is issue-specific, different states’ laws may apply to different issues in a single case.”).

The first step is to determine if there is an actual or real difference between the potentially

applicable laws. See Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir. 2007). If no

difference exists, no further analysis is necessary, and the law of the forum state applies. See id.;

see also State Farm Fire & Cas. Co. v. Holmes Prods., 165 F. App’x 182, 185 n.1 (3d Cir. 2006)

(“[B]ecause there is no conflict between the laws of other states that may have an interest . . . a

court shall apply the law of the forum state.”).

B. Application of Pennsylvania Law to Plaintiff’s Non-Contractual Claims

1. Count II – Tortious Interference with Business Relations

There appears to be no meaningful difference between the elements required to establish

tortious interference claims under Pennsylvania law and Ohio law, and the parties do not identify

any such differences.1 Under Pennsylvania law, in order to recover damages for the tort of

intentional interference with an existing or prospective contractual relation, Plaintiff must plead

and prove the following elements:

(1) the existence of a contractual, or prospective contractual relation

between the complainant and a third party;

(2) purposeful action on the part of the defendant, specifically intended to

harm the existing relation, or to prevent a prospective relation from

occurring;

(3) the absence of privilege or justification on the part of the defendant; and

1 Runaway asserts that Ohio and Pennsylvania similarly adopt section 767 of the Restatement (Second) of

Torts, implying that there is no difference or conflict. (Docket No. 14 at 8). While the University mistakenly contends

that the choice of law provision in the parties’ Agreement governs Runaway’s non-contract claims, it likewise

identifies no conflicts between Pennsylvania and Ohio law applicable to those claims. (Docket No. 16 at 1-2).

(4) the occasioning of actual legal damage as a result of the defendant's

conduct.

Strickland v. Univ. of Scranton, 700 A.2d 979, 985 (Pa. Super. Ct. 1997); see also Pittsburgh

Logistics Sys., Inc. v. Cox Logistics LLC, No. 20-817, 2021 WL 811394, at *8 (W.D. Pa. March

3, 2021); Germain v. Wisniewski, No. 15-1279, 2016 WL 4158994, at *7 (W.D. Pa. Aug. 5, 2016)

(quoting Acumed LLC v. Advanced Surgical Servs. Inc., 561 F.3d 199, 212 (3d Cir. 2009)); cf.

Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib. Co., Inc., 774 N.E.2d 775, 780 (Ohio

Ct. App. 2002) (delineating the elements of a tortious interference claim); Super Sulky, Inc. v. U.S.

Trotting Ass’n., 174 F.3d 733, 741 (6th Cir. 1999) (stating that Ohio law recognizes causes of action

for both tortious interference with a business relationship and tortious interference with contract

rights, and further stating that they differ only in that one requires proof of a contractual

relationship), cert. denied, 528 U.S. 871 (1999). In the absence of any conflicting differences, the

Court will apply Pennsylvania law.

Runaway alleges that the University breached their Agreement, “force[ed]” Runaway to

“accept new, less beneficial terms,” and prevented Runaway from “engaging in any new

production contracts with third parties” while knowing that Runaway was struggling financially.

(Docket No. 10, ¶¶ 45-60). Runaway further alleges that the University “interfered with the

prospective contracts and financial arrangements [Runaway] had with third parties.” (Id. ¶ 51).

The University seeks dismissal of this claim, arguing, in essence, that Runaway failed to plead

action on the part of the University specifically intended to harm Runaway’s existing business

relations with third parties, or to prevent such prospective business relations from occurring.

Rather, according to the University, Runaway merely repackaged its breach of contract claim as a

tort, alleging that the consequence of the University’s intentional breach of the parties’ Agreement

interfered with prospective contracts with those unidentified third parties. The Court agrees.

Pennsylvania does not recognize a cause of action for tortious interference where the

plaintiff’s business relationships with third parties are adversely affected as a consequence of a

defendant’s breach of contractual obligations to the plaintiff.2 See Valley Forge Convention &

Visitors Bureau v. Visitor’s Servs., Inc., 28 F. Supp. 2d 947, 951 (E.D. Pa. 1998) (citing Glazer v.

Chandler, 200 A.2d 416, 418 (Pa. 1964)). However, Pennsylvania does recognize the possibility

of such claims if the breaching conduct “is undertaken with the intention of injuring the plaintiff’s

business relationships.” Id. (citing George A. Davis, Inc. v. Camp Trails Co., 447 F. Supp. 1304,

1310 (E.D. Pa. 1978)). Even so, it is not sufficient to show that the University intentionally

breached its contract or that the University should have foreseen that its breach would have caused

Runaway to lose business. See id. at 951-52. Rather, Runaway “must show that the [University]

acted for the malevolent purpose of interfering with [its] existing or prospective business

relationships.” Id. at 951.

Here, Runaway has averred that the University intentionally breached the parties’

Agreement, knowing that doing so would cause Runaway to be “unable to pay its employees,

service providers, vendors, contractors, equipment manufacturers and distributors for any new

production work” and would “prevent [Plaintiff] from engaging in any new production contracts

with third parties.” (Docket No. 10, ¶¶ 53-54). Courts have held that such averments outlining

foreseeable consequences of breaching a contract are not sufficient to plead a tortious interference

claim. See Valley Forge Convention & Visitors Bureau, 28 F. Supp. 2d at 952. Runaway contends,

however, that it also has pled, in essence, a malevolent purpose by averring that “[The

University’s] motive in this interference was to ensure that Runaway would be crippled, unable to

take on any new production contracts with third parties if Runaway was mired in a forced contract

2 Again, there is no conflict between Pennsylvania and Ohio law on this point. See Reengineering Consultants,

LTD. v. EMC Corp., No. 2:08-cv-47, 2009 WL 113058, at *6 (S.D. Ohio Jan. 14, 2009).

renegotiation with [the University].” (Docket No. 10, ¶ 52). However, when reading this averment

in the context of Runaway’s Amended Complaint as a whole, this averment alleges that the

University’s motive was to cripple Runaway to “force” it to renegotiate the parties’ Agreement

(id. ¶¶ 12, 13(c), 35, 36, 49, 55, 57). See Iqbal, 556 U.S. at 679 (explaining that “[d]etermining

whether a complaint states a plausible claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense”). Again, courts

have held that “[a] breach of contract motivated by a defendant’s desire to reduce costs or increase

profits or to avoid the consequences of a ‘bad bargain’” – such as the absence of a force majeure

clause to protect from the vicissitudes of a global pandemic – “will not support an intentional

interference claim.” Valley Forge Convention & Visitors Bureau, 28 F. Supp. 2d at 952 (citing

George A. Davis, Inc., 447 F. Supp. at 1310).

The Court therefore finds that Runaway has failed to state a plausible claim of tortious

interference with business relations. Accordingly, Count II of the Amended Complaint will be

dismissed without prejudice.

2. Count III – Unjust Enrichment

Runaway alleges a claim for unjust enrichment as an alternative to its breach of contract

claim. (Docket No. 10, ¶¶ 61-68). More specifically, Runaway asserts that the University was in

possession of its equipment and continued to use such equipment for its events despite failing to

pay for such possession and usage. (Id.). The University argues, however, that Runaway has not

sufficiently pled the elements necessary to prove its unjust enrichment claim.

Like the tortious interference claim, there appears to be no meaningful difference between

the elements required to establish an unjust enrichment claim under Pennsylvania law and Ohio

law, and the parties do not identify any such differences. Under Pennsylvania law, to establish

unjust enrichment, Runaway must plead and prove the existence of “‘[1] benefits conferred on

defendant by plaintiff, [2] appreciation of such benefits by defendant, and [3] acceptance and

retention of such benefits under such circumstances that it would be inequitable for defendant to

retain the benefit without payment of value.’” Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa.

Super. Ct. 1995) (quoting Wolf v. Wolf, 514 A.2d 901, 905-06 (Pa. Super. Ct. 1986), overruled on

other grounds, Van Buskirk v. Van Buskirk, 590 A.2d 4 (Pa. 1991)); cf. Resource Title Agency,

Inc. v. Morreale Real Estate Services, Inc., 314 F. Supp. 2d 763, 771-72 (N.D. Ohio 2004) (stating

that “the three necessary requirements for unjust enrichment claims [are]: (1) plaintiff conferred a

benefit on defendant; (2) defendant knew of such benefit; and (3) defendant retained the benefit

under circumstances where it would be unjust to do so without payment”). Again, in the absence

of any conflicting differences, the Court will apply Pennsylvania law.

The University contends that Runaway’s unjust enrichment claim is precluded by the

parties’ Agreement and therefore should be dismissed. Indeed, under Pennsylvania law, Runaway

may not recover under a theory of unjust enrichment if the parties’ relationship is governed by a

written contract. See Brezinski v. Widener University, 582 F. Supp. 3d 257, 267-68 (E.D. Pa. 2022)

(citing Shafer Elec. & Constr. v. Mantia, 67 A.3d 8, 13 (Pa. Super. Ct. 2013), aff’d on other

grounds, 96 A.3d 989 (Pa. 2014)); Premier Payments Online, Inc. v. Payment Sys. Worldwide, 848

F. Supp. 2d 513, 527 (E.D. Pa. 2012) (“Unjust enrichment is a ‘quasi-contractual doctrine’ that

does not apply in cases where the parties have a written or express contract.” (citing Hershey Foods

Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir. 1987)). Nevertheless, “a party may plead

alternative theories of breach of contract and unjust enrichment when there is a dispute about the

existence or validity of the contract in question.” Power Restoration Int’l, Inc. v. Pepsico, Inc.,

No. 12-1922, 2013 WL 5636618 at *6, (E.D. Pa. Oct. 11, 2013) (internal citations and quotation

marks omitted); see also Khawaja v. RE/MAX Cent., 151 A.3d 626, 633 (Pa. Super. Ct. 2016).

Here, however, the parties do not dispute the existence or validity of an agreement that governs

their relationship, so it is nonetheless appropriate to dismiss the unjust enrichment claim even

though pled in the alternative.3 See Brezinski, 582 F. Supp. 3d at 268 (citing Grudkowski v.

Foremost Ins. Co., 556 F. App’x 165, 170 n.8 (3d Cir. 2014)); Hickey v. Univ. of Pittsburgh, 535

F. Supp. 3d 372, 380 (W.D. Pa. 2021) (“[A]n unjust enrichment claim cannot stand where it

addresses conduct within the scope of the parties’ agreement – even if the contract does not have

a precise term governing the dispute at issue.”).

The Court therefore finds that Runaway has failed to state a plausible claim of unjust

enrichment. Accordingly, Count III of the Amended Complaint will be dismissed without

prejudice.

3. Count Four – Conversion

Like the unjust enrichment claim, the University also seeks to dismiss Runaway’s

conversation claim because of the existence of the parties’ Agreement that governs their

relationship. And, again, the parties do not identify any difference or conflict between

Pennsylvania and Ohio law regarding conversion claims. Under Pennsylvania law, conversion is

a tort by which the defendant deprives the plaintiff of his right to a chattel or interferes with the

plaintiff’s use or possession of a chattel without the plaintiff’s consent and without lawful

justification. See Hickey, 535 F. Supp. 3d at 381 (citing Pioneer Com. Funding Corp. v. Am. Fin.

Mortg. Corp., 855 A.2d 818, 827 (Pa. 2004)); cf. RAE Assocs., Inc. v. Nexus Commc’ns, Inc., 36

N.E.3d 757, 765 (Ohio Ct. App. 2015) (delineating the elements of the tort of conversion) (citing

3 See Docket No. 10, ¶ 25, and Docket No. 12 at 12. However, in the event the University subsequently asserts

defenses to Runaway’s breach of contract claim that challenge the existence or validity of the parties’ Agreement,

then upon a sufficiently supported motion, Runaway will be granted leave to amend its Amended Complaint to add

an alternative claim for unjust enrichment.

Dice v. White Family Cos., Inc., 878 N.E.2d 1105, 1109 (Ohio Ct. App. 2007)). Accordingly, the

Court will apply Pennsylvania law.

The University contends that the conversion claim should be dismissed because Runaway’s

purported right to its equipment is “factually intertwined” with the parties’ Agreement that is the

subject of Runaway’s breach of contract claim. Courts applying Pennsylvania law have dismissed

conversion claims under the gist of the action doctrine where the alleged entitlement to the chattel

arises solely from the contract between the parties. See Premier Payments Online, Inc, 848 F.

Supp. 2d at 529 (citing Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 622-23 (E.D. Pa. 2010)

(collecting cases)). “However, ‘[w]hen a plaintiff has a property interest in the thing that is the

subject of a [conversion] claim, the gist of the action doctrine does not bar recovery under a

conversion theory even though the property may also be the subject of a contract.’” Id. (quoting

Brown & Brown, Inc., 745 F. Supp. 2d at 623).

Here, Runaway avers that the parties’ Agreement requires it to provide audio, visual,

production, and other related services for a three-year period covering years 2020, 2021, and 2022,

and that the University terminated the Agreement in 2020. (Docket No. 10, ¶¶ 11, 12). Runaway

further avers that it had purchased equipment and installed it on the University’s campus for use

when delivering contracted-for services during the 2020-22 period, and that despite terminating

the parties’ Agreement in 2020, the University has retained possession of this equipment and has

used it or permitted another vendor to use such equipment for its own benefit. (Id. ¶¶ 14, 17, 19,

41, 64, 70, 71, 72). Accordingly, at this preliminary stage of the litigation, the Court declines to

determine whether the gist of the action doctrine bars the conversion claim. See Premier Payments

Online, Inc, 848 F. Supp. 2d at 529 (citing cases).

Accordingly, the University’s Partial Motion to Dismiss is denied to the extent it seeks the

dismissal of Count IV of the Amended Complaint.

C. Runaway’s Averments and Exhibits Concerning Settlement Discussions

In addition to seeking dismissal of Counts II, III, and IV, the University also seeks to strike

Exhibit B from the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f) for

containing settlement discussions that could be deemed inadmissible pursuant to Federal Rule of

Evidence 408.4

Federal Rule of Evidence 408 provides, in pertinent part:

(a) Prohibited Uses. Evidence of the following is not admissible—on

behalf of any party—either to prove or disprove the validity or amount

of a disputed claim or to impeach by a prior inconsistent statement or

contradiction:

(1) furnishing, promising, or offering—or accepting, promising to

accept, or offering to accept—a valuable consideration in

compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about

the claim—except when offered in a criminal case . . . .

(b) Exceptions. The court may admit this evidence for another purpose,

such as proving a witness’s bias or prejudice, negating a contention of

undue delay, or proving an effort to obstruct a criminal investigation or

prosecution.

The University contends that Exhibit B to the Amended Complaint contains inadmissible

settlement discussions that could be offered to prove or disprove the validity or amount of a

4 In its briefing, the University argues that the Court should strike Exhibit B from the Amended Complaint

pursuant to Fed. R. Civ. P. 12(f). (Docket Nos. 12, 16). The Court takes note, however, that the University’s motion

itself seeks as an alternative to its partial motion to dismiss that Plaintiff be ordered to plead a more definite statement

as to damages pursuant to Fed. R. Civ. P. 12(e). (Docket No. 11). Because both parties have construed this portion

of the University’s motion, through their briefing, as being a motion to strike, the Court likewise construes the

University’s motion in this regard as a motion to strike pursuant to Fed. R. Civ. P. 12(f). The Court also notes that

the University’s briefing, at times, expresses a desire to strike not just Exhibit B but also certain related averments set

forth in the Amended Complaint. However, the University never identifies which averments that it requests be

stricken, by paragraph number or otherwise, so the Court will not attempt to identify averments to be stricken that the

University itself did not identify.

disputed claim, while Runaway contends that these materials would be admissible when offered

for another purpose.5

Either party may be correct as to the issue of admissibility, but that determination is

premature at this nascent pleading stage of the action. For now, though, the question before the

Court is whether the putative settlement discussions reflected in Exhibit B to the Amended

Complaint are immaterial to Plaintiff’s claims. In the Court’s estimation, the contents of Exhibit

B are potentially inadmissible and not necessary to support the claims Plaintiff attempts to aver,

and thus Exhibit B is presently immaterial and should be stricken from the Amended Complaint

pursuant to Rule 12(f). See Ciolli v. Iravani, 625 F. Supp. 2d 276, 289 (E.D. Pa. 2009) (striking

portions of a complaint that allege evidence of settlement negotiations). However, the Court

makes this determination without prejudice to either party’s ability to seek or oppose discovery

concerning these materials or proffer or oppose the introduction of such materials into the

evidentiary record at an appropriate time in accordance with the Federal Rules of Civil Procedure,

the Federal Rules of Evidence, and applicable law.

IV. Conclusion

For the reasons stated, the University’s Partial Motion to Dismiss Counts II, III, and IV of

Plaintiff’s Amended Complaint pursuant to Rule 12(b)(6) is granted in part and denied in part. To

the extent the University’s motion seeks the dismissal of Counts II and III of the Amended

Complaint, the motion is granted. To the extent the University’s motion seeks the dismissal of

Count IV of the Amended Complaint, the motion is denied. Accordingly, Counts II and III of the

5 Runaway also argues that these materials should not be stricken based upon case law regarding the scope of

discovery pursuant to Federal Rule of Civil Procedure 26. However, whether and to what extent parties may undertake

discovery involving potentially inadmissible settlement discussions is far afield of the issue presently before the Court.

Amended Complaint are dismissed without prejudice to amendment with sufficient facts to state a

claim upon which relief can be granted.

Furthermore, to the extent the University’s motion seeks to have Exhibit B stricken from

the Amended Complaint pursuant to Rule 12(f), the motion is granted, and Exhibit B is stricken

from the Amended Complaint. The Court’s determination in this regard is made without prejudice

to either party’s ability to seek or oppose discovery concerning these materials or proffer or oppose

the introduction of such materials into the evidentiary record at an appropriate time.

An appropriate Order follows.

Dated: October 5, 2022 s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record