Schiavo v. Clover Network, LLC

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: June 6, 2025
Decided: July 28, 2025

Upon Defendant Clover Network’s Motion to Dismiss Amended Complaint
GRANTED

MEMORANDUM OPINION AND ORDER

Charles Schiavo, 829B Culbreath Street, Smyrna, DE 19977, Plaintiff, pro se.
Christina B. Vavala, Esquire; Stephen J. Kraftshick, Esquire, POLSINELLI, PA,
222 Delaware Avenue, Suite 1101, Wilmington, DE 19801, attorneys for Defendant
Clover Network, LLC.

WHARTON, J.
I. INTRODUCTION

On February 19, 2025 this Court granted Defendant Clover Network, LLC’s

(“Clover”) Motion to Dismiss Plaintiff Charles Schiavo’s (“Schiavo”) Complaint in

this case1 and his Complaint in a companion case, Charles Schiavo v. TD Bank USA

National Association.2 Despite being brought separately, the original complaints

were based on the same set of operative facts. They alleged 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. 3 He sought

compensatory damages in the amount of $25,000.00 and punitive damages of

$150,000.00.4 After sifting through Schiavo’s unstructured Complaint, the Court

identified two possible causes of action – breach of contract and theft, but found that

Schiavo had failed to state a claim for either.5 Documents integral to the Complaint

confirmed that Schiavo had no contract with Clover and there was no theft.6

1
Schiavo v. Clover Network, LLC, 2025 WL 551690 (Del. Super. Ct. Feb. 19,
2025, corrected Feb. 28, 2025).
2
Schiavo v. TD Bank USA National Association, 2025 WL 551742 (Del. Super. Ct.
Feb. 19, 2025).
3
Compl., D.I. 1.
4
Id.
5
Schiavo v. Clover Network, LLC, 2025 WL 551690, at *4.
6
Id.
2
Schiavo was granted leave to amend his Complaint, but with conditions.

Among those conditions were that: (1) any amended complaint must comply with

the pleading requirements of Superior Court Civil Rules 8(a), 9(b) (if fraud were

alleged), 10 (especially 10(b)), and 15(aa); (2) each claim must state all of the

elements necessary to allege each claim.7 Additionally, the Court permitted Schiavo,

if he chose, to join both Defendants in a single amended complaint.8 Finally, the

Court admonished Schiavo that it would strike any amended complaint that included

language personally attacking opposing counsel or the Court.9 This last warning was

necessary to dissuade Schiavo from continuing to submit intemperate filings

attacking counsel and the Court.10

On May 1, 2025, Schiavo filed his 27-page Amended Complaint.11 Although

both Defendants are joined in a single Amended Complaint, Schiavo curiously

expresses his opposition to joinder.12 Clover again moves to dismiss under Superior

7
Id. at *5.
8
Id.
9
Id.
10
Before he filed his Amended Complaint, the Court was forced to find Schiavo in
civil contempt due to his persistent ad hominum attacks on both opposing counsel
and the Court. Schiavo v. Clover Network, LLC, 2025 WL 1088547 (Del. Super. Ct.
Apr. 11, 2025).
11
Amend. Compl. D.I. 79.
12
Id. at ⁋ 2. Apparently, Schiavo misreads the Court’s language granting him
permission to file a single amended complaint as the Court requiring him to do so.
See, Id.
3
Court Civil Rule 12(b)(6).13 The motion contends that: (1) Schiavo’s breach of

contract claim is based on Clover’s alleged breach of the terms of a processing

agreement he had with Clover, but Clover is not a party to any processing agreement

with Schiavo; (2) Schiavo fails to allege the necessary elements of fraud; and (3)

Schiavo fails to state a claim for unlawful practice under the Delaware Consumer

Fraud Act.14 Alternatively, Clover asks the Court to dismiss the Amended

Complaint due to Schiavo’s continued disregard of this Court’s Orders.15

After carefully considering the parties contentions and the record, Clover’s

motion is GRANTED for two independent reasons. First, the Amended Complaint,

like its predecessor, fails to state a claim upon which relief can be granted. Second,

Schiavo’s Amended Complaint fails to follow this Court’s rules and orders despite

being on notice of the consequences of such failure. The Amended Complaint is

DISMISSED WITH PREJUDICE.

II. FACTS AND PROCEDURAL HISTORY

Schiavo initiated this action when he filed a Complaint against Clover in July

2024.16 He followed that Complaint with a separate one against TD Bank the next

13
Def.’s Mot. to Dismiss, D.I. 82.
14
Id. at ⁋ 1.
15
Id. at Sec. IV.
16
Compl., D.I. 1.
4
month based essentially on the same set of facts.17 Generally, his Complaint against

Clover set out the following: (1) Schiavo owns Jems Classic Autos (“Jems”);18 (2)

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;19 (3)

on May 26, 2024, Kevin Coin (“Coin”), a representative of Asplundh and an

authorized user of its credit card, paid Jems $9,500.00 for repairs completed to

date;20 (4) the payment was made by credit card over the telephone with a Clover

representative guiding Schiavo and Coin through the process;21 (5) the payment was

credited to Jems account on May 28, 2024;22 (6) on June 1st, Coin made a second

payment of $9,500.00;23 (7) this payment also was made by credit card over the

telephone, but this time without the assistance of a Clover representative;24 (8) on

June 3rd, this second $9,500.00 payment was credited to Jem’s account; 25 (9) on or

17
Compl., Schiavo v. TD Bank USA National Association, N24C-08-107 FWW,
D.I. 1.
18
Compl. at ⁋ 4, D.I. 1. The paragraphs in the Complaint were not numbered. For
reference purposes, the Court assigned them numbers sequentially.
19
Id. at ⁋ 6.
20
Id.
21
Id..
22
Id.
23
Id.
24
Id.
25
Id. at ⁋ 7. There is some confusion about the dates because ⁋ 6 reads, “On June
15th the second 9,500-dollar credit card payment was credited to the Jems bank
account on 6-3-24;” Also see, Ex. D.
5
about June 16th, Coin made a third credit card payment of $10,175.00;26 (10) this

payment was never credited to Jem’s account “specifically due to fraudulent activity

by Clover,” according to the Complaint.27

Based on those facts and other allegations, Schiavo brought claims for fraud

and theft.28 Clover moved to dismiss under Rule 12(b)(6).29 It argued that it had no

contractual arrangement with Schiavo and that he had failed to particularize his fraud

allegation.30 After briefing and oral argument jointly with Schiavo’s suit against TD

Bank, the Court dismissed the Complaint without prejudice to Schiavo to file an

amended complaint.31 But, because of the unstructured nature of Schiavo’s

Complaint, his disregard of pleading rules, including paragraph numbering

requirements, and his intemperate comments both in his pleadings and at oral

argument, the Court imposed conditions on the filing of an amended complaint.

Those conditions were: (1) any amended complaint must comply with the pleading

requirements of Rules 8(a); 9(b) (if fraud were alleged), 10 (especially 10(b)), and

26
Id. at ⁋ 8.
27
Id.
28
See generally, Compl., D.I. 1.
29
Mot. to Dismiss, D.I. 11.
30
Id.
31
Schiavo v. Clover Network, LLC, 2025 WL 551690, at *5.
6
15(aa); and (3) any amended complaint that included language personally attacking

opposing counsel or the Court would be stricken.32

Schiavo filed his Amended Complaint on May 1, 2025.33 He availed himself

of the Court’s offer to allow him to file a single Amended Complaint against both

defendants, but opposed joinder for trial.34 Before Schiavo filed his Amended

Complaint, however, the Court found it necessary to hold him in civil contempt as a

result of his contumacious language in several of his filings subsequent to the

Court’s decision dismissing his Complaint.35

The Amended Complaint improves upon the Complaint in at least one respect

– the paragraphs are numbered in compliance with Rule 10(b).36 Unfortunately, his

claims for relief are not “short and plain statement[s] of the claim[s]” showing his

entitlement to relief as required by Rule 8(a).37 Nor is each claim founded upon a

separate transaction or occurrence stated in a separate count as required by Rule

32
Id.
33
Amend. Compl., D.I. 79.
34
Id. at ⁋ 2.
35
Schiavo v Clover Network, LLC, 2025 WL 1088547 (Del. Super. Ct. Apr. 11,
2025).
36
Super. Ct. Civ. R. 10(b). (“All averments of claim or defense shall be made in
numbered paragraphs, the contents of which shall limited as far as practicable to a
statement of a single set of circumstances…”).
37
Super. Ct. Civ. R. 8(a).
7
10(b).38 Finally, the Amended Complaint does not indicate how it differs from the

Complaint as required by Rule 15(aa).39

Substantively, much of the Amended Complaint is given over to criticism of

opposing counsel and the Court’s decision dismissing his Complaint. In fact,

according to Schiavo, documentation obtained subsequent to the Complaint…”40

The Amended Complaint does raise a new claim of a violation of the Delaware

Consumer Fraud Act (“DCFA”).41 It adds more detail to his communications with

Clover and TD Bank and further expands on the circumstances related to the return

of the unsuccessful third payment of $10,175.00 to Asplundh’s Bank of America

account.

Clover moved to dismiss the Amended Complaint on May 20 th.42 Schiavo

submitted his Response on the June 18th.43

III. THE PARTIES’ CONTENTIONS

38
Super. Ct. Civ. R. 10(b). (“Each claim founded upon a separated 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.”).
39
Super. Ct Civ. R. 15(aa). (“A party serving an amended pleading shall indicate
plainly in the amended pleading in what respect the amendment differs from the
pleading which it amends.”).
40
Amend. Compl. at ⁋ 1 (emphasis in original), D.I. 79.
41
Id. at ⁋ 1.
42
Mot. to Dismiss Amend. Compl., D.I. 82
43
Pl.’s Resp., D.I. 85.
8
Clover’s Motion to Dismiss the Amended Complaint makes three arguments

for dismissal under Rule 12(b)(6). It also makes a fourth argument based on

Schiavo’s continued disregard of the Court’s orders. Schiavo’s breach of contract

claim is based on an allegation that Clover breached a “legal and binding

agreement[] to process credit card payments.”44 But, Clover has no processing

agreement with Jems.45 Rather, Jems entered into a Merchant Processing

Application and Agreement (“Processing Agreement”) with TD Bank.46 According

to Clover, under the Processing Agreement, Jems contracted with TD Bank to

process and settle Jems’ transactions and Clover merely provided point of sale

terminals and software to Schiavo to utilize for those transactions.47 Further,

Schiavo’s breach of contract claim is identical to its previously dismissed claim in

his Complaint and should be dismissed for that reason.48

Second, Clover contends that Schiavo has failed to sufficiently plead fraud. It

argues that Schiavo has failed to allege with particularity that Clover made a

44
Def.’s Mot. to Dismiss Amend. Compl. at ⁋ 4 (quoting the Amended Complaint
at ⁋ 4.), D.I. 82.
45
Id.
46
Id. Clover attaches a copy of its agreement with TD Bank to the Motion as Ex.
A.
47
Id. at ⁋ 5.
48
Id. at ⁋ 7
9
misrepresentation to him upon which he relied.49 At most, Schiavo alleges that

Clover made misrepresentations that others relied upon.50

Third, Clover maintains that Schiavo’s DCFA claim fails as a matter of law.51

In Clover’s view, not only did Schiavo fail to allege that Clover made any

misrepresentation to him as required under the DCFA, but all of the alleged conduct

took place after Schiavo entered into the Processing Agreement with TD Bank and

thus cannot be “in connection with” the sale or advertisement of services.52

Finally, Clover’s fourth basis for dismissing the Amended Complaint is that

Schiavo has continued to ignore the Court’s Orders. Specifically, Clover cites: (1)

Rule 8(a)’s requirement that the pleadings contain “a short and plain statement of

the claim;” (2) Rule 9(b)’s requirement that allegations of fraud be pleaded with

particularity; (3) Rule 10’s requirement that the numbered paragraphs be limited “to

a statement of a single set of circumstances;” (4) Rule 15(aa)’s requirement that

the Amended Complaint “indicate plainly” how it differs from the original

Complaint; and (5) Schiavo’s continued ad hominem attacks on counsel and the

Court.53

49
Id. at ⁋ 11.
50
Id.
51
Id. at Sec. III.
52
Mot. to Dismiss Amend. Compl., at ⁋⁋ 15, 16, D.I. 82.
53
Id. at ⁋⁋ 19-23.
10
Schiavo’s Response is less a defense of the Amended Complaint against the

specific arguments made by Clover than it is an attack on Clover’s counsel. He does

not address Clover’s argument concerning his breach of contract claim, except to

say that “Clover committed a felony, which is a breach of contract, fraud, and a clear

violation of Delaware State Law.”54 Nor does he address its argument concerning

his DCFA claim. He does vigorously dispute Clover’s contention that he has failed

to plead fraud with particularity, but those disputations are mostly conclusory.55

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.”56 The

Court's review is limited to the well-pled allegations in the complaint.57 In ruling on

a 12(b)(6) motion, the Court “must draw all reasonable factual inferences in favor

of the party opposing the motion.”58 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.”59 However, the Court will “ignore conclusory allegations that

54
Id. at ⁋ 6.
55
See id. at ⁋⁋ 1, 2, 6, 7, 8, 9, 10, and 12.
56
Browne v. Robb, 583 A.2d 949, 950 (Del. 1990).
57
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
58
Id.
59
Id.
11
lack specific supporting factual allegations.”60 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.”61

V. DISCUSSION

A. Breach of Contract Claim.

Clover’s breach of contract claim 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.62 The Processing Agreement was between Jems

and TD Bank.63 Clover inarguably is correct – it is not a party to the Processing

Agreement.64 Therefore, Schiavo has failed to state a claim for breach of contract.

Additionally, by failing to address Clover’s argument regarding his breach of

contract claim, the Court deems Schiavo to have waived opposition to it.65

60
Ramunno v. Cawley, 705 A.2d 1029, 10345 (Del. 1998).
61
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).
62
Id. at ⁋ 4.
63
Id. at ⁋ 5.
64
Id. at Ex. A.
65
Murphy v. State, 662 A.2d 1150, 1152 (Del. 1993) (“The failure to raise a legal
issue in the text of the opening brief generally constitutes a waiver of that
claim”); see also Emerald Partners v. Berlin, 726 A.2d. 1215, 1224 (Del.
1999) (citing Murphy, 632 A.2d at 1152) (“Issues not briefed are deemed waived.”).
12
B. Fraud Claim.

In order to survive a motion to dismiss a fraud claim, the party alleging fraud

must allege that: “(1) the defendant falsely represented a material fact or omitted

facts that the defendant had a duty to disclose; (2) the defendant knew that the

representation was false or made with a reckless indifference to the truth; (3) the

defendant intended to induce plaintiff to act or refrain from action; (4) the plaintiff

acted in justifiable reliance on the representation; and (5) the plaintiff was injured

by its reliance on the defendant's representation.”66

Superior Court Civil Rule 9(b) requires that “[i]n all averments of fraud or

mistake, the circumstances constituting fraud or mistake shall be stated with

particularity.”67 The particularity pleading standard requires a party to plead “the

time, place and contents of the false representations.”68 However, “[m]alice, intent,

knowledge, and other condition of a person may be averred generally.”69 The

requirement that fraud be pleaded with particularity “serves to discourage the

66
ITW Glob. Invs., Inc. v. Am. Indus. Partners Cap. Fund IV, L.P., 2015 WL
3970908, at *5 (Del. Super. Ct. Jun. 24, 2015).
67
Super. Ct. Civ. R. 9(b).
68
ITW Glob. Invs., Inc., at *5.
69
Super Ct. Civ. R. 9(b).
13
initiation of suits brought solely for their nuisance value, and safeguards potential

defendants from frivolous accusations of moral turpitude.”70

The first step for the Court in analyzing the viability of Schiavo’s fraud claim

is to identify a false representation made by Clover to Schiavo. The Court has

carefully read and re-read the Amended Complaint several times and can find only

one allegation of a representation made by Clover to Schiavo.71 That representation,

found at Paragraph 17 of the Amended Complaint, states:

After Plaintiff received the first two credit card payments
of $9,500.00 from Asplundh Engineering, I received a
phone call from a Clover representative named Ava,
stating that Clover was instructing TD Bank to hold the
third credit card payment of 10,175 dollars for six months
because of unfounded allegations of fraud on the part of
Asplundh Engineering and Jems Classic Autos.72

But, according to Schiavo, that representation is not false, nor did he misunderstand

it, because he alleges Clover did exactly what “Ava” said it was going to do by

instructing TD Bank to hold the third payment.73 As a result, Schiavo has failed to

allege the first element of fraud – that Clover made a false representation to him.

70
Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624
A.2d 1199, 1208 (Del. 1993).
71
The Amended Complete is rife with accusations that Clover’s counsel made false
representations, but, obviously, counsel’s comments cannot be retroactively
bootstrapped into an allegation of fraud in the initial transaction.
72
Amend. Compl. at ⁋ 17, D.I. 79.
73
Id.
14
Further, he has failed to allege that “Ava” knew the representation was false, that she

intended him to act or refrain from acting on it, and that he acted in justifiable reliance

on it.

C. Delaware Consumer Fraud Act Claim.

Under the DCFA, a private cause of action is available to victims of consumer

fraud.74 The DFCA, 6 Del. C. § 2513, states:

(a) The act, use or employment by any person of any
deception, fraud, false pretense, false promise,
misrepresentation, or the concealment, suppression, or
omission of any material fact with intent that others
rely upon such concealment, suppression or omission,
in connection with the sale, lease or advertisement of
any merchandise, whether or not any person has in fact
been misled, deceived or damaged thereby, is an
unlawful practice.75

The Amended Complaint makes passing references to the DFCA, but nowhere does

it attempt to lay out allegations corresponding to the elements of a violation of the

Act. It fails to allege any misrepresentation Clover made to Schiavo “in connection

with the sale, lease or advertisement of any merchandise.” In fact, the only

representation “Ana” made to Schiavo as Clover’s representative was well after its

equipment was placed with Jems. Additionally, as with his breach of contract claim,

74
6 Del. C. § 2525.
75
6 Del. C. § 2513(a).
15
Schiavo has failed to present any argument in opposition to Clover’s motion on his

DCDA claim. Thus, his opposition is deemed waived.

D. Failure to Comply with the Court’s Orders.

In both its decision dismissing Schiavo’s Complaint and its Order finding him

in civil contempt, the Court expressly warned Schiavo that he must follow the

Superior Court Civil Rules if he chose to file an amended complaint. In particular,

he was directed to comply with the pleading requirements of Rules 8(a), 9(b) if he

alleged fraud, 10, especially 10(b), and 15(aa).76 It further admonished him to be

civil.77

In its Motion to Dismiss the Amended Complaint, Clover argues alternatively

that the Amended Complaint should be dismissed for Schiavo’s failure to comply

with the Courts’s rules. Specifically, it faults the Amended Complaint for not

containing “a clear short and plain statement of its claim[s]” as required by Rule 8(a),

failure to allege fraud with the particularity as required by Rule 9(b), failure to limit

its paragraphs to “a statement of a single set of circumstances” as required by Rule

10, and failure to identify where the Amended Complaint differs from the original as

76
Schiavo v. Clover Network, LLC, 2025 WL 551690, at *5; Schiavo v. Clover
Network, LLC, 2025 WL 1088548, at *3.
77
Id.
16
required by Rule 15(aa).78 Finally, Clover maintains that the Amended Complaint

fails to adhere to both the Court’s Order dismissing the Complaint and its Order

finding Schiavo in civil contempt by continuing his “baseless allegations of

impropriety and ad hominum attacks against both the Court and opposing

counsel…”79 The Court treats this request as a motion to dismiss under Rule 41(b) –

“For failure of the plaintiff to prosecute or to comply with these Rules, or any order

of the Court, a defendant may move for dismissal of an action, or any claim against

the defendant.”80

In each instance, Clover is correct. It is obvious from the face of the Amended

Complaint that it does not comply with Rules 8(a), 10, and 15(aa). The Amended

Complaint levels most of its allegations of fraud against opposing counsel. It does

not comply with Rule 9(b) because it does not state “the time, place, and contents of

the false representations, as well as the identity of the person making the

misrepresentations as well as what he obtained thereby.”81 Ordinarily, the Court

gives considerable leeway to pro se litigants due to their unfamiliarity with the law

and rules of the Court. Here, however, Schiavo has been pointed to specific rules and

directed to follow them. The Rules bring order to the Court’s proceedings. Schiavo’s

78
Def.’s Mot. to Dismiss at Sec. IV, D.I. 82.
79
Id. at ⁋ 24.
80
Super. Ct. Civ. R. 41 (emphasis added).
81
Super. Ct. Civ. R. 9(b).
17
persistent refusal to follow them has had the opposite effect. He was warned of the

consequences of litigating the case by “Schiavo’s Rules” and now he must face the

consequence of dismissal. Because the Court imposes the maximum sanction of

dismissal, it is useful to set out a sufficient enough portion of the record to capture

the magnitude of Schiavo’s transgressions against the Court and opposing counsel.

The Court has had to chastise Schiavo on multiple occasions for his

continuous misbehavior throughout this litigation. The first occasion was after

Schiavo filed motions to strike82 and to sanction opposing counsel83 following

argument on Clover’s initial motion to dismiss. On December 18, 2024, the Court

entered an order striking both motions.84 The Court held that, to the extent the

motions “accuse[d] counsel of misconduct, the Court found them impertinent and

scandalous.”85 It explained that:

[w]hile the Court grants considerable leeway to pro se
litigants such as Mr. Schiavo, it does not grant them
license to make intemperate and defamatory accusations
against opposing counsel. Contrary to Mr. Schiavo’s
apparent belief, as demonstrated in these and prior filings,
every disagreement with opposing counsel, even where he
believes them to be factually incorrect, is not an
opportunity for him to accuse them of dishonesty and
professional misconduct. The Court admonishes Mr.
Schiavo to temper the language of any future filings.

82
D.I. 25.
83
D.I. 26.
84
D.I. 28.
85
Id. at 2.
18
Failure to do so runs the risk of the Court imposing
appropriate sanctions against him.86

Two days later, the Court admonished Schiavo again. In an Order dated

December 20, 2024, the Court struck Schiavo’s motions to amend his complaints

in both actions which were filed before he received the Court’s December 18 th

Order.87 It did so because they “[n]ot only repeat[ed] Mr. Schiavo’s ad hominum

attacks on opposing counsel, but they broaden[ed] the scope of his vituperative to

include the Court.”88 The Court warned him that the Court will not consider any

further filings “that include ad hominum attacks on anyone, including opposing

counsel and the Court.”89 It also noted that even if the motions to amend were not

stricken, they would be denied because they did not conform to Rule 15(aa).90

Schiavo next induced Frank Cascino, Vice President – Manager of Asplundh

Engineering Services to write the Court.91 Schiavo did so on the false representation

to Mr. Cascino that “the TD Bank/Clover lawyers have accused [Mr. Cascino] of

being involved in money laundering with [Schiavo].”92 The tone of Mr. Cascino’s

86
Id. at 2-3 (emphasis added).
87
D.I. 29, at 1-2.
88
Id. at 2.
89
Id.
90
Id.
91
D.I. 30.
92
Id. at 1.
19
letter was justifiably indignant – Mr. Cascino was “outraged and angry that TD

Bank/Clover lawyers [had] accused Jems and myself of money laundering with no

evidence … I am not a litigious person but I am so incensed that I am considering

legal action against TD Bank/Clover.”93 When asked at the civil contempt hearing

to identify where counsel had made that accusation, after a pause of more than five

minutes, Schiavo identified a comment at page 15, line 9 of the transcript of

argument on the Defendants’ motions to dismiss the Complaint. That comment was

made by neither counsel for Clover, nor TD Bank. Instead, the Court, addressing

counsel for TD Bank, said:

Well, you know, I am sort of curious here, because it
seems from reading things that this…although you alluded
to sort of a suspicious transaction, and, you know, I
understand that you have these dollar amounts in the
$10,000 range, roughly, occurring close together, that
there can be structuring considerations.94

In fact, counsel for TD Bank said, addressing that same issue:

…but I would note Mr. Schiavo’s own allegations are that
with a new customer, with whom it did not have a prior
course of dealing, he has multiple transactions just under
$10,000 in close proximity, which, if you don’t know
anything about those transactions, could look like
structured transactions designed to evade reporting
requirement.

93
Id. at 2.
94
Hr’g. Tr. (Dec. 9, 2024) at 15:9-16, D.I. 32.
20
There is nothing untoward about such transactions, but
it is also nothing that is reasonable conceivable that
could be wrong about asking additional questions about
them.95

Schiavo’s false accusations have not only unfairly maligned opposing counsel in the

eyes of a non-party, but also exposed them and their clients to potential litigation.

Mr. Schiavo communicated with Jason Blusk, docketing a letter to him on

February 10, 2025 that Schiavo wrote on February 4th.96 Mr. Blusk is identified in

the letter as “VP Operations Manager Merchant Solutions.”97 Mr. Blusk works for

TD Bank.98 In the letter, Schiavo demands that TD Bank “remit all money that was

stolen from my bank account, Jems Classic Autos, which would include the cash in

the Jems Classic Autos account at the time my account was fraudulently back charged

by TD Bank for the 10,175 dollars failed credit card payment I should have received

from my customer Asplundh Engineering.” He also threatens to take action with the

F.B.I. and the Comptroller of the Currency whom he copies on his letter.99

Contacting an employee of a represented party directly threatening criminal action in

95
Id. at 7:11-8:1.
96
D.I. 33.
97
Id.
98
Id.
99
Id.
21
order to gain an advantage in a civil action would not be looked upon favorably if

Schiavo were an attorney.

Schiavo docketed another letter – this one to the Court – on February 10th. In

that letter he described meeting with the FBI, the Comptroller of the Currency, and

the State of Delaware Bank Commissioner.100 He described a comment by the Court

at oral argument that “It sounds like Mr. Schiavo’s dispute is not with TD Bank but

Asplundh Engineering” as representing:

an extremely dangerous distorted understanding of reality,
which everyone 1) the FBI, 2) the Office of the
Comptroller of the Currency, 3) the ladies from the
Delaware State Banking Commissioner’s Office have
confirmed that your ignorance of the facts on the case after
six months should be considered intolerable.101

In commenting on oral argument, he wrote, “Trust me, it was everything I could do

watching you pompous blowhards ack [sic] like you were better than me while I was

the one telling the truth and you Judge Farris [sic] W. Wharton and the attorneys for

TD Bank and Clover were lying and placating each other, it was despicable,

hypocritical and completely unprofessional.”102 He closed by citing Scripture:

Therefore, it is important to realize the hypocrisy
displayed in your dismissal of my motion to strike the lies

100
D.I. 34.
101
Id.
102
Id.
22
advanced by the attorneys for TD Bank and Clover, the
Bible addresses your actions specifically, “Woe to those
who call evil good and good evil.” Isaiah 5:20, this Bible
verse highlights a significant ethical concern that has been
relevant throughout history, particularly in the Delaware
Court system. This verse warns against the tendency of
individuals or societies to mislabel actions, behaviors, or
ideologies that are inherently wrong (evil) as acceptable or
(good) and vice versa. Therefore, Judge Farris [sic] W.
Wharton when you denied my motion to strike the lies
(evil) advanced by the attorneys for TD Bank and Clover
you were calling evil good and my truth evil, this type of
bigoted understanding of reality cannot be tolerated in a
courtroom, consequently I am requesting you to recuse
yourself so that I can maybe get a fair trial assuming I can
get passed [sic] the next hurdle which is getting a trial by
jury.103

In response the Court granted Schiavo permission to file a motion asking the Court

to recuse itself. But it reminded him that his motion “must not go beyond the bounds

of civility to which the Court holds all litigants, including pro se litigants” and

“[f]ailure to adhere to the bounds of propriety will result in the same fate as his

prior impertinent filings.”104 No such motion was filed.

Schiavo filed another letter with the Prothonotary on February 13, 2025.105 In

it he complains about a letter he received from non-party Radius Global Solutions,

LLC alleging that he owed TD Bank $10,175.00. He states that he is “talking to the

103
Id.
104
Id.
105
D.I. 36.
23
FBI about filing criminal complaints against everyone involved in this chicanery

[presumably including the Court].”106

On February 19, the Court issued its decision dismissing Schiavo’s Complaint

against Clover without prejudice.107 Leave was granted to file an amended

complaint on 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 USA 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.108

Thus, the ground rules were clearly established for any amended complaint Schiavo

wished to file.

106
Id.
107
Schiavo v. Clover Network, LLC, 2025 WL 551690 (Del. Super. Ct. Feb. 19,
2025).
108
Id. at *5.
24
Schiavo did not take the dismissal well. His first letter, dated February 20th,

addressed to the Court, included, inter alia, requests for permission to file a

reargument motion and to request an evidentiary hearing.109 His requests were

accompanied by a threat to “contact the U. S. Attorney’s Office to file an official

complaint against you and the attorneys for TD Bank and Clover” if his requests

were not granted.110 After an exegesis on judicial ethics, he wrote:

before I take legal actions against you for violating court
rules and your extreme bias towards me, and against the
attorneys for Clover and TD Bank, along with the
collection agency TD Bank employed to defraud me out
of almost 11,000 dollar, I’m requesting you grant me leave
to file a motion to reconsider your dismissal of my original
complaints…111

He also challenged the accuracy of the transcript of oral argument – “after reading

the same it appears the transcripts of the oral argument have been altered and are by

no means complete.”112 He continued:

Judge Farris [sic] W. Wharton, if I’m correct and the
transcripts of the oral argument have been altered, this
altering of the transcript of the oral argument will also
become a topic of conversation I will be presenting to the
Delaware Judicial Ethics Advisory Committee and the
Commission on Judicial Conduct along with the State
Attorney General’s office sometime next week if I have to

109
D.I. 39.
110
Id.
111
Id.
112
Id. (emphasis in original).
25
go to war to protect my constitutional rights of due
process.113

He then selected 23 portions of the oral argument transcript to critique the Court in

disparaging fashion. To cite only one example:

2) Judge Farris [sic] W. Wharton, on page 9 of the
transcripts of the oral argument, I Charles Schiavo simply
said I didn’t hear that last comment, and instead of politely
stating to the attorney for TD Bank please repeat your last
statement, you Judge Farris [sic] W. Wharton went berserk
starting at page 9 lines 10-23 and lasting to page 10, lines
1-16, you started acting like a crazy person, demeaning me
for simply saying I didn’t hear the last statemen; this type
of egotistical demeanor can only come from someone that
holds an unhealthy hatred for someone or is a complete
bigot, holding a god-like attitude towards anyone not on
their professional level, because they don’t wear a black
robe. Trust me, it was disgusting to endure and completely
uncalled for, treating people with respect is essential if you
expect to get respect in return.114 Judge Farris [sic] W.
Wharton the next time we meet I expect an apology for
your unprofessional and intolerable behavior displayed
during oral argument and I’m sure the Delaware Judicial
Ethics Advisory Committee and the Commission on
Judicial Conduct along with the Attorney [sic] General
Office will whole heartedly agree.115

113
Id.
114
The irony here is not lost on the Court.
115
D.I. 39. The cited section of transcript reads:

MR. SCHIAVO: I didn’t hear that last comment.

THE COURT: Mr. Schiavo, you don’t talk to opposing
counsel, you talk to me. Okay?

26
Schiavo’s letter continued in that vein. On February 26th, the Court granted his

request to file a reargument motion116 with the caveat that it must be filed within five

days and comply with Rule 78(b)’s page limitations.117 It denied his request for an

MR. SCHIAVO: I’m sorry You Honor. I just didn’t
understand.

THE COURT: When you talk, you stand.

MR. SCHIAVO: Got it.

THE COURT: These are rule, ground rules of the
Court.

MR. SCHIAVO: I understand.

THE COURT: So I understand what you are trying to
say is you didn’t hear his last comment.

MR. SCHIAVO: That’s correct.

THE COURT: Okay? It comes through me, not
directly to him.

MR. SCHIAVO: I apologize.

THE COURT: All right. Fair enough. Apparently Mr.
Schiavo didn’t hear what you said. Go back to going into
a Rule 56 motion. Hr’g. Tr. at 9:10-10:16 (Dec. 4, 2024),
D.I. 32.

116
The Court had never required Schiavo to seek leave to file such a motion.
117
D.I. 40.
27
evidentiary hearing.118 It was not until March 7th that Schiavo filed his reargument

motion.119 The motion was denied because it was untimely and because it simply

rehashed what Schiavo had argued previously.120

Instead of filing an amended complaint, Schiavo wrote the Court on March

20th121 and again on the 21st.122 The March 20th letter repeated arguments about the

third credit card payment and included this comment:

…it became apparent that you never really grasped the
salient points of the complaint evidenced by your
irrational claims that my complaint should have been filed
against Asplundh Engineering, which is completely
insane. Judge no one possessing any cognitive reasoning
power whatsoever could make such an uneducated, and
completely contradictory comment that my claim should
be against Asplundh Engineering unless they are
cognitively disabled, a complete bigot, or they are being
bribed by TD Bank and/or Clover.123

Schiavo asked for an additional two weeks to file his amended complaint.124 The

March 21st letter, captioned “Regarding: Pissed off!,” reargued the Court’s order

dismissing Schiavo’s Complaint yet again.125 That letter expressed his feelings

118
Id.
119
D.I. 43.
120
D.I. 44.
121
D.I. 48.
122
D.I. 49.
123
D.I. 48.
124
Id.
125
D.I. 49.
28
about the Court – “I am questioning your integrity, no one in possession of their

cognitive skills or is not on the take can perform their job as poorly as you have over

the last six months” and “I’m perfectly convinced these proceedings are a scam, no

judge can do his job as poorly as you have without being on the take.”126 This letter

also asked for an additional two weeks to file an amended complaint and for

permission to add defendants.127

It was at this point where the Court’s patience with Schiavo ended and it

determined to address Schiavo’s conduct. Citing his March 20th letter and the

numerous instances where the Court had admonished him to abstain from

intemperate filings and to avoid ad hominum attacks on opposing counsel and the

Court, on March 24th the Court issued an Order pursuant to Rule 64.1 for Schiavo to

appear before the Court and show cause why he should not be held in civil contempt

for the language of his March 20th letter in violation of the Court’s Orders regarding

intemperate language.128

Prior to the Rule 64.1 hearing on April 11th, the Court received a letter from

Schiavo.129 In that letter he objected to the Court presiding at the hearing and

126
Id.
127
Id.
128
D.I. 51.
129
D.I. 67.
29
demanded a jury trial.130 He also says that he has “contacted several psychiatrists in

the State of Delaware, without referencing any names, I requested, to have you

analyzed to determine if you are suffering from cognitive issues, or if you are a

complete bigot, meaning you hate every pro se litigant or possible accepting a bribe

from the defendants.”131 He requested that the Court provide a letter immunizing

any such psychiatrist from retaliation.132

On April 11th, the Court held a hearing pursuant to Rule 64.1 where Schiavo

had the opportunity to show cause why the Court should not find him in civil

contempt. At that hearing, Schiavo acknowledged notice of the Court’s Orders

directing him to refrain from using uncivil language in his filings.133 However, when

given the opportunity to show cause why he should not be held in civil contempt, he

was unrepentant, insisting on the truth of his allegations about counsel and the Court

while attempting to relitigate the merits of his case.134 The Court found Schiavo in

civil contempt and required him to pay a sum of $1,000.00 in each case in order to

insure that any amended complaint: (1) complied with the pleading requirements of

Superior Court Civil Rules 8(a), 9(b) (if fraud were alleged), 10 (especially 10(b)),

130
Id.
131
Id. (emphasis in original).
132
Id.
133
Schiavo v. Clover Network, LLC, 2025 WL 1088547 (Del. Super. Ct. Apr.11,
2025).
134
Id. at *2.
30
and 15(aa); (2) that each claim was stated in separate counts, i.e. theft, fraud, breach

of contract, etc., and stated all of the elements necessary to allege such claim or risk

dismissal with prejudice upon appropriate motion.135 The Court warned Schiavo

that it would strike any amended complaint that included language personally

attacking opposing counsel or the Court.136 It advised him that the sanction was not

intended to be punitive. Rather, it was intended to cause him to amend his behavior

and comply with this Court’s expectations regarding civility towards opposing

counsel and the Court in any future filings.137

Schiavo paid the required sums and filed the Amended Complaint on May

5th.138 Despite being warned repeatedly to comply with specific rules of pleading,

the Amended Complaint fails. It contains no clear statement of claims, and no counts

set off and identified with specificity. It fails to satisfy Rule 8(a). Despite incanting

“fraud” incessantly, it fails to properly set out the elements of fraud or meet the

particularity requirement of Rule 9(b). While Schiavo numbers the paragraphs, he

fails to confine them to “a statement of a single set of circumstances,” nor does he

assert each claim “in a separate count” as required by Rule 10(b).139 It makes no

135
Id. at *3.
136
Id.
137
Id.
138
Amend. Compl., D.I. 79.
139
Super. Ct. Civ. R. 10(b).
31
attempt to satisfy Rule 15(aa)’s requirement to differentiate the Amended Complaint

from the original Complaint.

Finally, the Amended Complaint continues Schiavo’s assault on opposing

counsel and the Court. In Paragraph 3 he writes, “[H]owever, the Court has

discarded the truth established by hard evidence while believing in the unfounded

allegations by the attorneys for Clover and TD Bank, which is a clear violation of

Delaware Superior Court Rules. (See Exhibit Titled Delaware Superior Court

Rules).”140 The Rules to which Schiavo cites in the exhibit are Delaware Lawyers’

Rules of Professional Conduct Rules 3.3: Candor Toward the Tribunal and 8.4:

Misconduct and Superior Court Civil Rule 11: Signing Pleadings, Motions, and

Other Papers: Sanctions.141 The exhibit also includes a section captioned “Penalties

for Lying to the Court.142 For good measure Schiavo adds sections on: (1) Judicial

Ethics and Behavior, citing Delaware Code of Judicial Conduct Canon 2(A)

regarding impropriety and the appearance of impropriety; (2) Criminal Behavior,

citing Obstruction of Justice, and Misconduct in Office ; and (3) Violations of Court

Rules.143 Similarly, in Paragraph 5.6 he writes, that in order for the Court to have

dismissed his Complaint it had to:

140
Amend. Compl., at ⁋ 3 (emphasis in original), D.I. 79.
141
Id. at Exhibit Titled Delaware Superior Court Rules.
142
Id.
143
Id.
32
completely rely on the unfounded allegations made by the
attorneys for TD Bank and Clover as exculpatory evidence
with absolutely no documentation[s] to support their
claims, (Zero) which must call into question the integrity
of Judge Farris [sic] W. Wharton in the minds of everyone
involved in these proceedings, including the
Plaintiff…”144

He continues in Paragraph 6:

Therefore, the Court, relying upon the erroneous and
fabricated allegations advanced by the defense attorneys
during these entire proceedings and oral argument, has/
violated the Plaintiff’s constitutional rights of due process,
which must result, if it continues in complaints being filed
specifically against the attorneys for Clover and TD Bank,
their respective law firms and the State of Delaware due to
the actions of Judge Farris [sic] W. Wharton during these
entire proceedings.145

He writes in Paragraph 7, “for the Judge Farris [sic] W. Wharton to believe

otherwise must bring into question his integrity.”146 And, in Paragraph 8, “Therefore,

the above illogical and completely in accurate [sic] conclusion, made by Judge Farris

[sic] W. Wharton, stands at the foundation of the reasons why the Plaintiff called

into question the integrity of the attorneys…”147 He concludes the Amended

Complaint with the threat that:

144
Id. at ⁋ 5.6 (emphasis in original).
145
Id. at ⁋ 6.
146
Id. at ⁋ 7.
147
Id. at ⁋ 8.
33
if this Chicanery continues, the Plaintiff is going to file a
complaint against the attorneys for TD Bank and Clover
inclusive of their respective law firms for patently
misrepresenting the facts to the Court and the Plaintiff will
be forced to bring Judge Farris [sic] W. Wharton in front
of a discipline committee…148

These citations are merely examples. Virtually the entire Amended

Complaint is a frontal attack on opposing counsel and the Court.149 If that were not

enough, Schiavo attaches exhibits repeating comments for which he was held in civil

contempt.150

Schiavo’s Response to Clover’s Motion to Dismiss, if anything, is even worse.

In Paragraph 3 he writes:

In paragraph (2) the Clover attorney continues to advance
his [sic] erroneous understanding of Superior Court Rule
12(b)(6) in hopes of obtaining another dismissal. The
Clover attorney has the gall to suggest that the Plaintiff is
advancing “conclusory allegations that lack factual
support.”151

148
Id. Conclusion at 26.
149
Examples of his attacks on TD Bank’s counsel are set out in the Court’s
Memorandum Opinion dismissing his Amended Complaint against TD Bank.
Schiavo v. TD Bank USA National Association, 2025 WL _______ (Del. Super. Ct.
Jl. 28, 2025). Needless to say, a complaint should contain comments critical of
counsel only in the rarest of circumstances, if ever.
150
See, Id. Exhibit Titled Motion to Strike, at 5 (“Judge Farris [sic] W. Wharton is
either mentally incognizant [sic] or a complete bigot…”); Exhibit Titled Letter
Addressed to Judge Farris [sic] W. Wharton Titled “Pissed Off.”
151
Pl.’s Resp. at ⁋ 3, D.I. 84.
34
In Paragraph 7 he writes:

In Paragraph (8), the Clover attorney’s entire statement
says Plaintiff “provides no facts sufficient to allege the
necessary elements of a fraud claim.” This statement is a
complete mockery of the intellectual ability of the court.
The only human being presenting any form of evidence to
the Court throughout these entire proceedings has been the
Plaintiff, not the Attorneys for the defendants. The
Plaintiff suggests that the Clover attorney start considering
the ramifications of the Superior Court rules, see Exhibit
Titled Rules Violations for Attorneys and Judges,
before making similar unsubstantiated comments.152

The referenced exhibit is the same one he referenced in Paragraph 3 of his Amended

Complaint related to certain ethical rules for attorneys and judges and the

consequences for violating those rules.153

In Paragraph 8 he writes, “In Paragraph (9), the Clover attorney starts with

comments about pleading fraud with particularity. And concludes with ‘the Plaintiff

does not and cannot do so.’ The Clover attorney should re-read the Amended

Complaint.”154 In Paragraph 9 he writes, “ In Paragraphs (10 and 11) the Clover

attorney makes a comment that’s so convoluted it’s impossible to answer.”155

152
Id. at ⁋ 8 (emphasis in original).
153
Id. at Exhibit Titled Rules Violations for Attorneys and Judges; Amended
Compl. at Exhibit Titled Delaware Superior Court Rules, D.I. 79.
154
Id. at ⁋ 8.
155
Id. at ⁋ 9.
35
In Paragraph 14 he writes:

In Paragraphs (18-22), the Clover attorney says the
Plaintiff failed to comply with Superior Court Rules. The
Plaintiff suggests the Clover attorney start obeying
Superior Court Rules before asking the Court to dismiss
Plaintiff’s complaint for violating court-imposed
sanctions, which are far less egregious than the actions of
defense attorneys throughout these entire proceedings.156

Finally, in Paragraph 15 he writes:

In Paragraphs (23 and 24), the Clover attorney says the
Plaintiff continues to include baseless allegations against
the attorneys and the court, the only person who has
protected his integrity throughout these entire proceedings
is the Plaintiff. Therefore, the accusations of misconduct
are by no means baseless and unfounded; they are
extremely accurate. The conduct of the other parties has
been less than ethical and professional.157

For nearly a year now, Schiavo persistently has failed to abide by the Court’s

orders, both in terms of civility and rules of procedure. The Court has no expectation

that he would amend his behavior going forward if he were permitted to do so. Such

an expectation would be a fool’s errand upon which the Court will not embark. The

Court will not subject counsel to Schiavo’s vituperative should they be required to

engage with him personally or to attend unchaperoned depositions if the Court

156
Id. at ⁋ 14.
157
Id. at ⁋ 15.
36
allowed the case to go forward. Further, there is no reason to believe Schiavo would

honor the rules of evidence at a trial any more that he has honored the rules of civil

procedure thus far.

Schiavo either is unable or unwilling to abide by the Court’s rules and its

expectations of civility. The Court will countenance Schiavo’s contumacious

behavior no longer. It must end and it does now.

VI. CONCLUSION

THEREFORE, for the reasons explained above, Defendant Clover Network,

LLC’s Motion to Dismiss is the Amended Complaint is GRANTED. The Amended

Complaint is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, J.

37