Opinion
Case No. 04-60327-CIV-DIMITROULEAS.
June 4, 2004
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR MORE DEFINITE STATEMENT
THIS CAUSE came before the Court upon Defendant Autobank Acceptance Corporation's Motion for More Definite Statement [DE-7]. The Court has carefully considered the Motion, Plaintiffs Charles R. Hobbs and Karen R. Simmons' Memorandum in Opposition to the Motion for More Definite Statement [DE-12], and Defendant Autobank Acceptance Corporation's Reply [DE 13], and is otherwise fully advised in the premises.
I. BACKGROUND
Plaintiffs bought a Jeep Cherokee from Defendant BH Cars, Inc., (hereinafter "Dealership") on or about March 17, 2003. (Compl. ¶ 9, 11, Ex. A.) Plaintiffs allege that before Plaintiffs purchased the vehicle, the Dealership forged the names of Dave A. Jackson and Claudenette E. Alred, the previous owners of the Jeep Cherokee, on the title of the vehicle in violation of the Federal Odometer Act. (Compl. ¶ 32, 35.) Mr. Jackson and Ms. Alfred had purchased the Jeep Cherokee from the Dealership on January 15, 2001; Autobank Acceptance Corporation (hereinafter "Finance Company") financed the vehicle, recording a lien on the title. (Compl. ¶ 32, 33.) The Finance Company repossessed the Jeep Cherokee from Mr. Jackson and Ms. Alfred several weeks before Plaintiffs purchased the vehicle. (Compl. ¶ 34.)
Plaintiffs allege that the Finance Company knew the Dealership was going to forge the signatures of the previous owners and aided and abetted in the forgery by releasing the title to the Dealership. (Compl. ¶ 36.) Plaintiffs further allege that the Finance Company reported the satisfaction of the previous owners' lien to the State of Florida, which the Dealership allegedly needed to resell the vehicle to Plaintiffs. (Compl. ¶ 36.) Plaintiffs allege that the Dealership did not provide the actual title certificate to Plaintiffs in violation of the Federal Odometer Act and, as a result, Plaintiffs were not aware that the vehicle had been recently repossessed. (Compl. ¶ 37.)
On or about April 1, 2003, the Finance Company repossessed the Jeep Cherokee from Plaintiffs because of a purported default in payment of the Finance Agreement. (Compl. ¶ 48.) Plaintiffs allege that the Finance Company failed to provide statutory notice of private or public sale to Plaintiffs, and the sale of the vehicle by the Dealership after repossession was not conducted in a commercially reasonable manner, as required by the Uniform Commercial Code. (Compl. ¶ 50, 51.)
In this Complaint, Plaintiffs bring three claims against the Dealership and the Finance Company. Count I is an action solely against the Dealership for violation of the Truth in Lending Act. Count II is an action against both the Dealership and the Finance Company for violations of the Federal Odometer Act, and Count III is an action against the Finance Company for violation of Article IX of the Uniform Commercial Code. The Finance Company's Motion for More Definite Statement only addresses Count II and Count III of Plaintiffs' Complaint.
Plaintiffs believe that the Finance Company's Motion is really a motion to dismiss under Fed.R.Civ.P. 12(b)(6), rather than a motion for a more definite statement under Fed.R.Civ.P. 12(e), and therefore have provided the Court with additional information relating to a motion to dismiss. However, it is clear that the Finance Company intended to bring a motion for a more definite statement. Therefore, the Court will not rule on a motion to dismiss that was not raised, or fully briefed, by either party.
II. DISCUSSION A. Motion for More Definite Statement
A party may move for a more definite statement before the filing a responsive pleading if a "pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed.R.Civ.P. 12(e). Parties moving for more a definite statement are required to indicate the defects in the pleading and what details are sought from the nonmoving party. Id.
Federal courts disfavor motions for more definite statement, in the light of the liberal pleading and discovery requirements.Bazal v. Belford Trucking Co., Inc., 442 F. Supp. 1089, 1101-02 (S.D. Fla. 1977). Pleadings provide notice; discovery procedures provide the intricacies of the issues and evidence for trial.Id. at 1102. Motions for a more definite statement are not substitutes for discovery. Betancourt v. Marine Cargo Mgmt., 930 F. Supp. 606, 608 (S.D. Fla. 1996). Therefore, motions for a more definite statement will only be granted if "the pleading is so vague or ambiguous that the opposing party cannot respond in good faith or without prejudice to himself." Adelphia Cable Partners, L.P. v. E A Beepers Corp., 188 F.R.D. 662, 665 (S.D. Fla. 1999).
"In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). The purpose of the particularity requirement in Rule 9(b) is to notify defendants as to the "precise misconduct with which they are charged" and to protect defendants "against spurious charges of immoral and fraudulent behavior." Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988) (quoting Seville Indus. Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir. 1984). "The application of the rule, however, must not abrogate the concept of notice pleading." Id. Plaintiffs satisfy the requirements of Rule 9(b) when they allege:
(1) precisely what statements were made in what documents or oral representations or what omissions were made, and
(2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and
(3) the content of such statements and the manner in which they misled the plaintiff, and
(4) what the defendants obtained as a consequence of the fraud.Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir. 1997) (internal citations omitted). However, plaintiffs may use "alternative means" to satisfy the requirements of the Rule. Id.; Durham, 847 So.2d at 1512. The court may apply the requirements of the Rule less stringently if a defendant has "knowledge or control" of "specific factual information" relating to the allegations of fraud. U.S. v. Morehouse Med. Assocs. Inc., No. 02-14429, 2003 WL 2201936, at *3 (11th Cir. Aug. 15, 2003); U.S. ex. rel. Stinson, Lyons, Gerline Bustamante P.A. v. Blue Cross Blue Shield of Ga., 755 F. Supp. 1040, 1052 (S.D. Ga. 1990). When the requirements are relaxed, fraud may be pleaded on information and belief of fraud if there are sufficient allegations of fact to support the belief. U.S. ex. rel Russell v. Epic Healthcare Mgmt. Group, 13 F.3d 304, 308 (5th Cir. 1999).
B. Federal Odometer Act Claim (Count II)
The Finance Company argues that it is entitled to know specifically the portion(s), part(s) and/or section(s), subpart(s), and paragraph(s) of all federal and/or state laws that Plaintiffs rely upon in their Complaint and the way or manner in which the Finance Company violated the Federal Odometer Act. Plaintiffs need only provide enough information in their pleading to give notice; they are not required to specify all of the sections or paragraphs of the statutes in their Complaint.
As to the federal claim, Plaintiffs have provided enough information to put the Finance Company on notice and permit a response to the allegations. Plaintiffs make it clear that Count II is an action for violation of the Federal Motor Vehicle Information and Cost Act, 49 U.S.C. § 32710 et seq., commonly called the "Federal Odometer Act." (Compl. ¶ 30.) Plaintiffs refer specifically to § 32705 of the Act in their Complaint, which requires the transferor to disclose, in writing, the mileage stated on the odometer. (Compl. ¶ 39, 40.) Plaintiffs also refer to § 32710, which permits a plaintiff to file a civil action under the Odometer Act and to recover damages for a violation of the Act. (Compl. ¶ 43.)
As to the state law claims under Count II, the Finance Company argues that Plaintiffs must identify the state laws to which Plaintiffs refer in their Complaint; the Complaint alleges that "[i]nstead of complying with federal and state law, the Dealership, through its agents, representatives and/or employees, forged the signature of the Prior Vehicle Owners to the title on the Vehicle . . ." (Compl. ¶ 37.) Accordingly, the Court finds that Plaintiffs' vague reference that the Dealership failed to comply with state law is insufficient to permit the Dealership to respond in good faith to this allegation. Likewise, it is insufficient to put the Finance Company, who purportedly aided and abetted in the violation of state law, on notice. Therefore, Plaintiffs must provide a more definite statement as to Count II of their Complaint to include the specific state laws that the Dealership and the Finance Company allegedly violated. Since, this Court is otherwise requiring Plaintiffs to amend their Complaint, the more definite statement may be satisfied in an Amended Complaint.
Plaintiffs state in their Memorandum that the requirements for transferring title to a lienholder upon repossession are found in Chapter 319 of the Florida Statutes. Specifically, they mention that Section 319.28[2](b) of the Florida Statutes requires that the secured party submit an affidavit to the State of Florida describing the facts of repossession, and Section 319.35 of the Florida Statutes makes it unlawful to knowingly supply a false written odometer statement and to knowingly furnish "false information on the odometer readings." Violation of either statute is a felony of the third degree. Fla. Stat. §§ 319.28(2)(b), 319.35. However, Plaintiffs have not cured the defects in the Complaint since they do not indicate the relevance of these state laws under their federal claim, i.e. whether Plaintiffs are intending to bring a similar claim under state law or whether Plaintiffs are referring to these statutes merely to bolster their federal claim.
The Finance Company also argues that Plaintiffs failed to plead their allegations of fraud with particularity as required by Rule 9(b). This Court finds that Plaintiffs have satisfied three of the four pleading requirements for fraud stated by the Eleventh Circuit in Brooks, 116 F.3d at 1371. Plaintiffs allege that the Dealership forged the signatures of the prior owners on the title to the Jeep Cherokee and withheld the title from Plaintiffs; these actions prevented Plaintiffs from discovering that the vehicle had been recently repossessed and permitted the Dealership to resell the vehicle. Thus, Plaintiffs' Complaint included the statement and document in which the alleged fraud is contained, the content and manner in which fraud is alleged and the benefit resulting from the fraud.
Plaintiffs did not allege specific information regarding the second element suggested in Brooks, the time, place, and person responsible for the fraud. However, the time, place and person who forged the signature of the previous owners is well within the knowledge and control of the Dealership, and Plaintiffs can easily find out the information during discovery. In addition, Plaintiffs have met their pleading requirements through alternative means; Plaintiffs provided a distinct time period of several weeks in which the alleged fraud occurred (between the repossession of the previous owners and the sale of the vehicle to Plaintiffs) and indicated that it was the Dealership's agents, representatives or employees who committed the fraud. Therefore, the Court finds that Plaintiffs have sufficiently pleaded with particularity the circumstances constituting fraud.
Rule 9(b) only requires the " circumstances constituting fraud" to be plead with particularity. (emphasis added). Thus, it does not require Plaintiffs to plead with particularity the other elements of aiding and abetting fraud. See Fidelity Funding of Cal., Inc. v. Reinhold, 79 F. Supp.2d 110, 122 (E.D.N.Y. 1997) (stating the elements that plaintiff must demonstrate to state a claim for aiding and abetting fraud include the "existence of fraud, defendant's knowledge of the fraud, and that the defendant provided substantial assistance to advance the fraud's commission"); Pelster v. Ray, 987 F.2d 514, 523 (8th Cir. 1993) (permitting an auctioneer to be liable for common law fraud when the auctioneer knows of the odometer tampering and aids in the sale of the vehicle).
C. Uniform Commercial Code Claim (Count III)
The Finance Company argues that Count III is vague and ambiguous because Plaintiffs purportedly bring this claim solely against the Finance Company, but then allege that both Defendants failed to conform to the UCC. The title of Count III, "Action for Violation of Article IX, Uniform Commercial Code, As To Finance Company," indicates that the action is brought against the Finance Company. However, Plaintiffs allege in Count III that the Dealership did not sell the vehicle in a commercially reasonable manner within the meaning of the UCC, and that Plaintiffs are entitled to recover damages as a direct and proximate result of the Dealership's failure to comply with the UCC. (Compl. ¶ 51, 53.) In addition, the Finance Company argues that the Plaintiffs mistakenly alleged that the Dealership is entitled to recover attorney's fees and court costs under the Financing Agreement. (Compl. ¶ 54.) (emphasis added). Plaintiffs concede that the Complaint is confusing at first glance and agree to amend their Complaint with respect to their claim under the UCC. Therefore, Plaintiffs must amend their Complaint to clarify their allegations against both Defendants.In conclusion, Plaintiffs are required to file a more definite statement or amend Count II of their Complaint to include any and all allegations that the Finance Company or the Dealership violated state laws, including which state laws they violated. Further, Plaintiffs are required to amend Count III of their Complaint to clarify whether the claims were brought against the Finance Company, the Dealership, or both Defendants, and to include specific allegations as to the role of each Defendant in failing to comply with the Uniform Commercial Code.
III. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that:
1. The Finance Company's Motion for More Definite Statement [DE-7] is hereby GRANTED IN PART.
2. Within ten (10) days of this Order, Plaintiffs shall provide a more definite statement or amend Count II of their Complaint in conformity with this Order.
3. Within ten (10) days of this Order, Plaintiffs shall amend Count III of their Complaint in conformity with this Order.
4. Plaintiffs' Motion for Leave to Exceed Page Limit [DE-11] is hereby GRANTED.