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concluding plaintiff failed to plead actual fraud with particularity because complaint alleged no facts to establish the debtor obtained money by actual fraud
Summary of this case from Ind. ex rel. Dep't of Workforce Dev. v. Quaglio (In re Quaglio)Opinion
Bankruptcy No. 08-23482 JPK. Adversary No. 09-2095.
1-21-2010
In re Jack WEICHMAN, Debtor. Domenico Lazzaro, MD, Joseph Pabon M.D. and Associated Pathologists of Munster Indiana, P.C., Plaintiffs, v. Jack Weichman, Defendant.
Richard M. Davis, Esq., Valparaiso, IN, for Plaintiffs, Domenico Lazzaro, M.D., Joseph Pabon, M.D. and Associated Pathologists of Munster Indiana, P.C. Miriam R. Stein, Esq., Chicago, IL, for the Defendant, Jack Weichman.
This adversary proceeding was commenced by a complaint filed on April 20, 2009 by the plaintiffs Domenico Lazzaro, MD; Joseph Pabon M.D.; and Associated Pathologists of Munster Indiana, P.C. ("plaintiffs") against Jack Weichman ("defendant"). The complaint generally seeks to except from discharge certain claims alleged against the defendant by the plaintiffs, pursuant to provisions of 11 U.S.C. § 523(a)(2), 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6). On May 19, 2009, the defendant filed a motion to dismiss, based exclusively on Fed.R.Bankr.P. 7012(b)/Fed.R.Civ.P. 12(b)(6). The matters relating to this motion have been fully briefed by the parties.
There has been no objection to the court's exercise of jurisdiction. The court has jurisdiction of this adversary proceeding pursuant to 28 U.S.C. § 1334(b), 28 U.S.C. § 157(a) and (b), and N.D.Ind.L.R. 200.1. This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(I).
The court notes at the outset that both parties have approached and briefed matters relating to the defendant's motion to dismiss as if the matter before the court is in the nature of a summary judgment action. The motion to dismiss is premised solely on the face of the pleadings, and no matters outside of the pleadings have been presented to the court. Much of the discussion and analysis presented by the parties in their respective memoranda argue facts and contentions, rather than focus on the pleading requirements applicable to Rule 12(b)(6). Those pleading requirements are relatively straightforward, and the court will address the motion to dismiss in terms of those straightforward rules rather than dissecting and analyzing the arguments made by each of the parties in their respective memoranda.
Rule 12(b)(6), made applicable to adversary proceedings by Fed.R.Bankr.P. 7012(b), provides for the defense of "failure to state a claim upon which relief can be granted".
The decision of the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), now provides the definitive standard for allegations which must be provided in a complaint pursuant to Fed.R.Civ.P. 8(a) and the standards by which a complaint is measured under that rule in the face of a Rule 12(b)(6) motion. Bell Atlantic Corp. eschewed the long-standing formulation of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)—that a complaint does not state a claim only if "no set of facts" could be postulated which would provide a ground for relief. The new standard is stated as follows:
This case presents the antecedent question of what a plaintiff must plead in order to state a claim under § 1 of the Sherman Act. 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," in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d
247, 251 (C.A.7 1994), a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (hereinafter Wright & Miller) ("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the ASSUMPTION THAT ALL THE allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely"). (footnote omitted)
As the court stated in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007):
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." [citation omitted] 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. [citation omitted] The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [citation omitted] Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'" [citation omitted]
. . .
[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [citation omitted] . . . [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. [citation omitted] Determining 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. [citation omitted] But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not "show[n]"—"that the pleader is entitled to relief." [citation omitted]
The foregoing are the basic standards by which the sufficiency of a complaint is judged against a challenge pursuant to Rule 12(b)(6). In addition, when allegation are fraud are made, or are necessary to be made to sustain a claim, Fed.R.Civ.P. 9(b) [made applicable to adversary proceedings by Fed.R.Bankr.P. 7009] comes into play. The rule states:
(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
Application of the requirements of Rule 9(b) is also straightforward. The manner in which compliance is to be had with the rule has been well-defined by the United States Court of Appeals for the Seventh Circuit. In Graue Mill Development Corp. v. Colonial Bank & Trust Company of Chicago, 927 F.2d 988, 992-93 (7th Cir. 1991), the following was stated:
Graue Mill's second argument on appeal is that the district court erred in dismissing the RICO counts in its complaint for failure to allege predicate acts of fraud with sufficient specificity. The starting point for pleading fraud claims under RICO is Rule 9(b) of the Federal Rules of Civil Procedure. That rule states that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." (emphasis added). Rule 9(b) effectively carves out an exception to the otherwise generally liberal pleading requirements under the Federal Rules. We read 9(b) to mean that RICO plaintiffs, like all other parties pleading fraud in federal court, must "`state the time, place and content'" of the alleged communications perpetrating the fraud. U.S. Textiles Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1268 n. 6 (7th Cir.1990) (quoting New England Data Servs. Inc. v. Becher, 829 F.2d 286, 291 (1st Cir.1987)); see also Moore v. Kayport Package Express, 885 F.2d 531, 540 (9th Cir.1989). Most importantly, complaints charging fraud must sufficiently allege the defendant's fraudulent intent. See Haroco v. American Nat'l Bank & Trust Co., 747 F.2d 384, 403 (7th Cir.1984), aff'd on other grounds, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). "Cryptic statements" suggesting fraud are not enough; "`[m]ere allegations of fraud ..., averments to conditions of mind, or references to plans and schemes are too conclusional to satisfy the particularity requirements.'" Flynn v. Merrick, 881 F.2d 446, 449 (7th Cir.1989) (quoting Hayduk v. Lanna, 775 F.2d 441, 444 (1st Cir. 1985)). Rather, pleadings must state the "specific content of the false representations as well as the identities of the parties to the misrepresentation." Moore, 885 F.2d at 540; see also Skycom Corp. v. Telstar Corp., 813 F.2d 810, 818 (7th Cir.1987) (complaint which "[did] not identify a single [fraudulent] statement ... or specify why that statement [was] fraudulent" failed to satisfy the requirements of Rule 9(b)).
To similar effect is the following statement in Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771, 777 (7th Cir.1994):
Rule 9(b) states that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The rule is said to serve three main purposes: (1) protecting a defendant's reputation from harm; (2) minimizing "strike suits" and "fishing expeditions"; and (3) providing notice of the claim to the adverse party. See Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 924 (7th Cir.1992); DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987). Although some have questioned Rule 9(b)'s effectiveness in serving these purposes, the caselaw and commentary agree that the reference to "circumstances" in the rule requires "the plaintiff to state `the identity of the person who made the misrepresentation, the time, place and content of the misrepresentation,
and the method by which the misrepresentation was communicated to the plaintiff.'" Uni*Quality, 974 F.2d at 923 (quoting Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir.1992)); see also Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1020 (7th Cir.1992) (stating that in a RICO action "the complaint must, at a minimum, describe the predicate acts with some specificity and `state the time, place, and content of the alleged communications perpetrating the fraud'") (quoting Graue Mill Dev. Corp. v. Colonial Bank & Trust Co., 927 F.2d 988, 992 (7th Cir.1991)); DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.) (stating that Rule 9(b) "particularity" means "the who, what, when, where, and how: the first paragraph of any newspaper story"), cert. denied, 498 U.S. 941, 111 S.Ct. 347, 112 L.Ed.2d 312 (1990); 5 Wright & Miller, supra, § 1297, at 590. (footnote omitted)
This interpretation of Rule 9(b) has been consistently applied by the United States Court of Appeals for the Seventh Circuit, and continues to be so applied. As stated in Windy City Metal Fabricators & Supply, Inc. v. CIT Technology Financing Services, Inc., 536 F.3d 663, 669 (7th Cir. 2008):
Despite its use of inartful terminology, the district court properly dismissed the plaintiffs' fraud claims for failure to state with particularity "who made the fraudulent statement, when the fraudulent statement was made, and how the fraudulent statement was made." Id. at *3. The district court did not require the complaint to provide actual evidence of the claims; it merely required that the claims be pleaded with the requisite particularity. See id. Moreover, the district court correctly determined that the complaint failed to plead with particularity the who, when and how of the alleged frauds, all of which are required by Rule 9(b) for allegations of fraud. See Gen. Elec. Capital, 128 F.3d at 1078; DiLeo, 901 F.2d at 627. The district court therefore properly dismissed the fraud counts for failure to comply with Rule 9(b). (footnote omitted)
The foregoing are the criteria against which the sufficiency of the complaint is to be judged. To apply those criteria, however, it is necessary to determine the elements of the causes of action sought to be asserted by the complaint, and to compare those elements with the allegations of the complaint. Both parties have devoted an extensive amount of writing to their respective contentions as to the law to be applied with respect to actions under 11 U.S.C. § 523(a)(2), § 523(a)(4) and § 523(a)(6). Unfortunately, neither of the parties addressed cases decided by this court which specifically designate the elements necessary to sustain an action under each of the foregoing statutes.
These parties are not alone in omissions of this nature. It is frustrating to the court that parties who submit legal memoranda to the court many times fail to discover in their research cases of this court which definitively set forth the standards which the court will apply to a particular action. That would seem to be a logical starting point in any research project, but instead many parties cite a plethora of cases from courts of appeal other than the Seventh Circuit and from other jurisdictions, when all the while there is a definitive case in this Division which addresses the parties' contentions. Perhaps this court's research method is antiquated, but it would seem that the order of researching to determine law which any court might apply to a specific issue would be: first, decisions of the court itself; second, decisions of the United States Supreme Court; third, decisions of the United States Court of Appeals for the Seventh Circuit; fourth, decisions of the United States District Court for the Northern District of Indiana; fifth, decisions of other United States Courts of Appeal; last, decisions of United States District Courts and United States Bankruptcy Courts in venues other than this court.
In In re Hostetter, 320 B.R. 674 (Bankr.N.D.Ind.2005), this court set forth the elements of a cause of action which it will apply to actions under 11 U.S.C. § 523(a)(2)(A). While these elements were primarily developed with respect to actions under that statute premised upon "false pretenses" or "a false representation", the elements also have applicability to an action under that section based upon "actual fraud". In Hostetter, the following was stated as to the base elements for an action under 11 U.S.C. § 523(a)(2)(A):
Although the precise formulation and specification of the number of elements varies from decision to decision, in order to sustain a prima facie case of fraud under § 523(a)(2)(A), courts have traditionally required a creditor to establish that: (1) the debtor made a representation to the creditor; (2) at the time of the representation, the debtor knew it to be false or the representation was made with such reckless disregard for the truth as to constitute willful misrepresentation; (3) the debtor made the representation with the intent and purpose of deceiving the creditor; (4) the creditor relied on the representation resulting in a loss to the creditor; and (5) the creditor's reliance was justifiable;FN5 In re Sheridan, 57 F.3d 627, 635 (7th Cir. 1995); Mayer v. Spanel Int'l, Ltd. (In re Mayer), 51 F.3d 670, 673, 676 (7th Cir.), cert. denied, 516 U.S. 1008, 116 S.Ct. 563, 133 L.Ed.2d 488 (1995); In re Maurice, 21 F.3d 767, 774 (7th Cir.1994). The creditor must prove each element by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991); In re Bero, 110 F.3d 462, 465 (7th Cir. 1997). Finally, "exceptions to discharge are to be construed strictly against a creditor and in favor of the debtor." In re Scarlata, 979 F.2d 521, 524 (7th Cir. 1992), reh. en banc den. 1993; In re Zarzynski, 771 F.2d 304, 306 (7th Cir. 1985). FN5. In Field v. Mans, 516 U.S. 59, 70, 116 S.Ct. 437, 446, 133 L.Ed.2d 351 (1995), the Supreme Court held that a creditor's reliance need only be justifiable, not reasonable.
320 B.R. at 681. The court further delineated the nature of the representation necessary for sustaining a § 523(a)(2)(A) action, as follows:
The bottom line is that the defendant must have made the representation of the promise to pay with the intent and purpose of deceiving the creditor; i.e., intentional/actual fraud. As eloquently stated by the Honorable Kent Lindquist: This finding of fact as to intention will obviously have to be determined by circumstantial evidence in most cases as direct evidence of the Defendant's state of mind at the time of purchase is seldom expressly indicated. Although this is certainly a difficult task, it is no greater a task than any other cause of action that includes intent or state of mind as a necessary element. And the existence of fraud may be inferred if the totality of the circumstances present a picture of deceptive conduct by the Debtor which indicates he intended to deceive or cheat the creditor. In re Fenninger, 49 B.R. 307, 310, supra; In re Taylor, 49 B.R. 849, 851, supra. The Court may logically infer this intent not to pay from the relevant facts surrounding each particular case. See, In re Kimzey, 761 F.2d 421, 424, supra. And a person's intent, his state of mind, has
been long recognized as capable of ascertainment and a statement of present intention is deemed a statement of a material existing fact sufficient to support a fraud action. In re Pannell, 27 B.R. 298, 302 (Bankr. E.D.N.Y.1983). In re Faulk, 69 B.R. 743, 755 (Bankr. N.D.Ind.1986).
320 B.R. at 684-685. For the purposes of Rule 9(b) with respect to actions premised upon "false pretenses" or "actual fraud", the elements do not differ much from the foregoing. In the court's view, an action for "false pretenses" under § 523(a)(2)(A) differs from an action based upon "false representation" only in the nature of the predicate conduct giving rise to the fraud, i.e., the creation of an appearance of circumstances as contrasted to an actual statement regarding circumstances. The concept of "actual fraud" is a bit more difficult to delineate, but again, that action is premised upon fraudulent conduct, undertaken with the intent and purpose of deceiving another, upon which a creditor justifiably relied, resulting in a loss to the creditor.
In In re Tsikouris, 340 B.R. 604 (Bankr.N.D.Ind.2006), this court addressed its analysis of the concept of "fiduciary capacity" under 11 U.S.C. § 523(a)(4). In doing so, the court sought to reconcile the somewhat conflicting decisions of the United States Court of Appeals for the Seventh Circuit with respect to this concept. Certain forms of a "fiduciary capacity" have been relatively well-defined by the case of In the Matter of Marchiando, 13 F.3d 1111 (7th Cir.1994). This court commented on Marchiando's analysis as follows:
The teaching of Marchiando is not only that a statutory or contractual designation of an individual as a "trustee" or "fiduciary" has no real relevance to the determination of "fiduciary capacity" under § 523(a)(4). The primary lesson to be learned from the case is that there must be a "res" in existence before the designated "fiduciary" relationship truly arises. In this case, the only "res" there is arose only when Tsikouris did not make payments to the union benefit plans after the amount of the required payment was determined. Thus, because there was no "res" prior to that time, Tsikouris did not act in a "fiduciary capacity" in any manner with respect to the "debt" which the Plaintiffs seek to except from his discharge.
340 B.R. at 614. The most problematic Seventh Circuit case with respect to a relationship which constitutes a "fiduciary" relationship is In re Frain, 230 F.3d 1014 (7th Cir.2000). This court addressed Frain, and synopsized its concept of a "fiduciary capacity" as follows:
In this Court's view, Frain is based upon the premise that a "fiduciary" relationship existed between Frain and his two fellow shareholders—much as would be the case in the relationship among a managing partner and limited partners in a partnership—and that this relationship rose to the level of the "fiduciary capacity" required by 11 U.S.C. § 523(a)(4) because of the structuring of the relationship in a way which provided Frain with total control over the focus of the fiduciary relationship: existing assets of the corporation, and the manner in which the corporation would disburse monies on its obligations. Contrast that to the instant case. Under the principles of Marchiando, no possible "fiduciary" relationship arose in this case until Tsikouris failed to pay the "employer's component" obligations to the union benefit plans: the Plaintiffs had no interest of any kind in the proceeds or assets of Tsikouris' business until the debt asserted
in this case arose, and when it did, their interest was merely a debt, as was true in Marchiando. Additionally, the "ascendancy of power/position" critical to the analysis in Frain does not exist at all here. The union benefit plans are associated with the union, and due to that association are far more powerful than is a small sole proprietorship which employs union members in its business. Unions have the ability to totally immobilize an employer who does not fulfill the terms of a collective bargaining agreement, and for the Plaintiffs in this case to suggest that Tsikouris was in a position of ascendant power over a trade union and its associated employee benefit plans borders on the preposterous. As the foregoing cases establish, a critical component of a fiduciary relationship within the scope of 11 U.S.C. § 523(a)(4) is a res which exists as the focus of the relationship, much as would be the circumstance in the case of an express trust created to manage property deposited into the trust at the inception of the fiduciary relationship; See, Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987). A mere promise to pay a debt when circumstances giving rise to the obligation to pay come into existence, made by an individual to another person or entity of equal or superior standing, is not within the ambit of 11 U.S.C. § 523(a)(4); In re Woldman, 92 F.3d 546 (7th Cir.1996). Even if a statute or ordinance labels a relationship to be a "fiduciary" relationship, that label has no consequence under § 523(a)(4) unless there is an existing res which is mandated by law to be the subject of the labeled relationship; In re McGee, 353 F.3d 537 (7th Cir.2003) [holding that a municipal ordinance which required the deposit of security deposits paid by tenants to a landlord into a segregated account, created a "fiduciary" relationship under 11 U.S.C. § 523(a)(4), in specifically delineated contrast to the circumstances outlined above in Marchiando, supra.]
Finally, in In re Whiters, 337 B.R. 326 (Bankr.N.D.Ind.2006), the court stated its construction of the elements of an action under 11 U.S.C. § 523(a)(6). As stated in Whiters, determination of cases under § 523(a)(6) has been made extraordinarily complicated by the decision of the United States Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). In Whiters, the court stated the following as to the basic elements of an action under § 523(a)(6) following the decision in Geiger:
Putting the foregoing together, the Court determines that in order to sustain an action under 11 U.S.C. § 523(a)(6) a creditor must demonstrate the following: 1. That the debtor's actions caused an "injury" to the person or property interest of the creditor. 2. That the debtor's actions which caused the injury were the result of "willful" conduct by the debtor by which the debtor intended to effect an injury to the person or property interest of the creditor. 3. That the debtor's "willful" acts were undertaken in a "malicious" manner. Viewed as outlined above, the Geiger standard is extremely strict for creditors to meet. That is as it should be. Exceptions to discharge are supposed to hook "bad actors", not those who merely act poorly. When we troll the murky depths of dischargeability from our place on the shore immediately above the dam, our goal is to snare the lampreys in the stream, not the carp and the catfish. Moreover, in the context of 11 U.S.C. § 523(a)(6), as is true with any
exception to discharge, the creditor must prove each element of the dischargeability action by a preponderance of the evidence—Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991); In re Bero, 110 F.3d 462, 465 (7th Cir.1997), and "exceptions to discharge are to be construed strictly against a creditor and in favor of the debtor." In re Scarlata, 979 F.2d 521, 524 (7th Cir.1992), reh. en banc den. 1993; In re Zarzynski, 771 F.2d 304, 306 (7th Cir.1985).
337 B.R., at 339. This court further adopted a "subjective" standard with respect to the willfulness element of § 523(a)(6), stating:
As the emphasized portion of the above-quoted section establishes, reference to the Restatement Second of Torts does not negate a totally "subjective" standard: in order to constitute "willful" conduct, a debtor must either "desire the consequences of his act" [target harm to another entity's person or property], or himself/herself believe that harm is substantially certain to result from his/her actions. After Geiger, there is no room for the "objective" inquiry into the probabilities of harm, because to do so renders the "willful" element of § 523(a)(6) tantamount to the mere intention to act without intending the consequences of the act in relation to the injury. Geiger requires "you knew that would hurt", not "any idiot would/should have known that would hurt".
337 B.R. 326, 343. Finally, the court defined "malicious" under the statute as follows:
"Malicious" means "`in conscious disregard of one's duties or without just cause or excuse; it does not require ill will or a specific intent to do harm.'" In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994) (quoting Wheeler v. Laudani, 783 F.2d 610, 615 (6 th Cir.1986)) (emphasis added). Consequently, a debtor's actions are not automatically labeled malicious simply because they are wrongful. In re Posta, 866 F.2d 364, 367 (10th Cir.1989). There must also be a consciousness of wrongdoing. In re Stanley, 66 F.3d 664, 668 (4th Cir.1995). It is this knowledge of wrongdoing, not the wrongfulness of the debtor's actions, that is the key to malicious under § 523(a)(6). Posta, 866 F.2d at 367; In re Cardillo, 39 B.R. 548, 550 (Bankr. D.Mass.1984). Without it there can be no "conscious disregard of one's duties," Thirtyacre, 36 F.3d at 700, only an unconscious one. Accord, In re Grier, 124 B.R. 229, 233 (Bankr.W.D.Tex.1991)("Simply because the sale was in violation of the security agreement and was in fact an intentional sale on the part of the debtor should not be enough to trigger a finding of malice."). See also, Davis, 293 U.S. at 328, 332, 55 S.Ct. at 153 (a willful and malicious injury does not automatically result from every tortious conversion). ... That being said, "malicious" intent must be established as a separate element. Under this element, per Thirtyacre, supra., the focus of malice is whether the debtor "deliberately or intentionally" disregarded his/her obligations with respect to the creditor's interests in the debtor's property.
326 B.R. at 349-50.
We now apply the pleading standards of Fed.R.Civ.P. 8(a), as defined by Bell Atlantic, and Fed.R.Civ.P. 9(b) to the elements necessary to establish a base claim under § 523(a)(2), § 523(a)(4), and § 523(a)(6).
Count I of the complaint seeks to asset an action under 11 U.S.C. § 523(a)(2). However the plaintiffs may seek to distinguish the three separate provisions of § 523(a)(2)(A) ["false pretenses", "a false representation", or "actual fraud"], each of those separate bases for an exception to discharge involve fraud, and thus each of those separate bases requires compliance with Fed.R.Civ.P. 9(b).
The complaint does not designate the sub-section of § 523(a)(2) under which it proposes to proceed. Because no "statement in writing" is mentioned anywhere in the complaint, the court determines that the motion to dismiss should be granted with respect to any action sought to be asserted under 11 U.S.C. § 523(a)(2)(B), and that the dismissal will be with prejudice.
Count I is deficient under any of the three potential causes of action. First, to the extent that it seeks to assert an action for "false representation", the complaint fails to satisfy the requirements of "when, what, where and who" required by Rule 9(b) with respect to any representation. In rhetorical paragraph 35 of the complaint, the statement is made that "Weichman made false representations to the effect that the various investments were all doing well, making money and there were no problems when in fact the opposite was the truth". Whatever these representations might have been were not adequately pleaded under Rule 9(b). Moreover, Count I does not satisfy the requirements of Rule 8(a) with respect to any concept that the defendant obtained anything from the plaintiffs, a predicate for the application of § 523(a)(2). Distilled to its essential allegations, the complaint asserts that the plaintiffs invested money, that Weichman was somehow involved in the management of those investments, that Weichman did not provide them with adequate information concerning the status of investments, and that they lost "virtually every dollar invested" [rhetorical paragraph 37]. All of the allegations of the complaint relate to apparent conduct after the initial act of investment, and there is nothing in the complaint which can be remotely construed to allege that Weichman initially obtained property based upon false representations.
The court determines that the motion to dismiss should be granted with respect to any action for obtaining money or property by "a false representation".
The foregoing analysis also applies to any action sought to be asserted for obtaining money or property by "false pretenses". There is nothing in the complaint that can be reasonably construed to factually assert the obtaining of any property under "false pretenses", again because acts alleged occurred after the initial investment was made. Moreover, the circumstances of fraud are not alleged with the particularity required by Rule 9(b).
The plaintiff's memorandum of law contains a good deal of factual argument about the theory of "false pretense" in relation to the allegations of the complaint. The arguments in the memorandum are not the issue: the issue is the factual allegations of the complaint itself. The complaint cannot be augmented by the plaintiff's memorandum of law to explain its insufficiencies.
Finally, with respect to actual fraud, the complaint is also insufficient. Again, the complaint to fails to satisfy the standard of Rule 9(b) by pleading the circumstances of actual fraud with particularity. Also, as was previously true with the other two theories of the plaintiff under § 523(a)(2)(A), the complaint fails to state any facts which established that money was obtained by the defendant by means of "actual fraud".
The court determines that the motion to dismiss should be granted to the extent that Count I seeks to assert a claim for the obtaining of money or property under "false pretenses" or by means of "actual fraud".
Count II asserts an action under 11 U.S.C. § 523(a)(4) based upon an asserted "fiduciary" relationship between the plaintiffs and the defendant.
There are no allegations in this complaint which can be read in any manner to assert a claim for either embezzlement or larceny.
To the extent that Count II seeks to assert an action based upon "fraud ... while acting in a fiduciary capacity", the complaint fails to satisfy the pleading requirements of Fed.R.Civ.P. 9(b) by failing to state the circumstances alleged to constitute fraud with the necessary degree of particularity. The principal provisions of Count II with respect to the factual assertions of the plaintiffs' action are stated in rhetorical paragraphs 43 and 44, and none of those assertions satisfy the pleading requirements of Fed.R.Civ.P. 9(b) with respect to an action premised upon fraud.
The court thus determines that the motion to dismiss should be granted with respect to Count II to the extent it seeks to assert an action under § 523(a)(4) for "fraud ... while acting in a fiduciary capacity".
The concept of "defalcation" under § 523(a)(4) does not necessarily involve fraudulent conduct. More or less, an action in this context requires wrongful, malicious conduct which gives rise to harm. Rhetorical paragraphs 43 and 44 essentially state a laundry list of things that the plaintiffs assert Weichman "should have done" but the manner in which these alleged failures constitute a claim for "defalcation" under § 523(a)(4) and caused a loss to the plaintiffs giving rise to a debt excepted from discharge— are not pleaded in the manner required by Fed.R.Civ.P. 8(a) as construed by Bell Atlantic.
The court thus determines that the motion to dismiss should be granted with respect to any action sought to be asserted by Count II of the complaint for "defalcation ... while acting in a fiduciary capacity" under 11 U.S.C. § 523(a)(4).
Last, we turn to Count III, which is premised on 11 U.S.C. § 523(a)(6). Count III is totally confusing, both with respect to the entities which it alleges were involved in some form of conduct alleged to be harmful to the plaintiffs, and further with respect to the injury alleged to have been sustained by the plaintiffs. In part, Count III seems to seek to assert a claim for intentional interference with a contract, or intentional interference with a business opportunity, which are both torts under Indiana tort law and which, if properly established under the requirements of § 523(a)(6), could constitute an "injury" cognizable under that section. Of the three counts in the complaint, this one comes the closest to satisfying the requirements of Fed.R.Civ.P. 8(a), but it is so garbled in its focus that it does not satisfy those requirements.
The court finds that the motion to dismiss should be granted as to Count III because that count does not satisfy the pleading requirements of Fed.R.Civ.P. 8(a) as construed by Bell Atlantic.
Well, so, the complaint didn't do so well in light of the motion to dismiss, did it? The court has determined that every separate action sought to be asserted in each count of the complaint should be dismissed in response to the defendant's motion to dismiss under Rule 12(b)(6). However, that does not end this case.
Fed.R.Civ.P. 12(b)(6), incorporated into contested matters by operation of Fed. R.Bankr.P. 7012(b), provides that "(e)very defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted." Rather than state the Rule 12(b)(6) defense which it has raised in a responsive pleading (i.e., an answer), the defendant has exercised the option provided to it by Rule 12(b) to assert that defense in a separate motion which raises the ground of "failure to state a claim upon which relief can be granted" as a defense to the plaintiff's action. Properly understood, this defense asserts that based upon the allegations/averments of the plaintiff's complaint, the complaint does not state any cognizable legal basis upon which any relief requested by the complaint can be granted in relation to the defendant. The court has determined previously in this decision that the defendant's motion must be sustained. However, the mere sustaining of the motion does not address whether the plaintiff is entitled to, or may be allowed by the court to, proceed subsequently in this case with respect to an attempt to assert a claim against the defendant. The granting of the Rule 12(b)(6) motion determines only that, based upon the complaint before the court, the plaintiff has failed to establish any claim upon which relief can be granted against the defendant.
The court must next determine the effect of its granting of the defendant's motion in relation to the course of further proceedings in this case, i.e., does the granting of the motion conclusively end the litigation as to Weichman?
It must first be noted that there is a distinction between dismissal of the complaint in response to the defendant's motion, and dismissal of the action in response to that motion. The dismissal of the complaint does not end the litigation, while dismissal of the action does. As stated in Paganis v. Blonstein, 3 F.3d 1067, 1070 (7th Cir.1993):
The dismissal of a complaint does not end the litigation. Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463 (7th Cir.1988); Bieneman v. City of Chicago, 838 F.2d 962, 963 (7th Cir.1988); Benjamin, 833 F.2d at 671; Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). "In contrast, a dismissal of the entire action ends the litigation and forces the plaintiff to choose between appealing the judgment or moving to reopen the judgment and amend the complaint pursuant to Fed. R.Civ.P. 59 or Rule 60." Benjamin, 833 F.2d at 671. See also Car Carriers, 745 F.2d at 1111. Therefore, if a judgment entry dismisses only the complaint, it is not a final judgment.
Dismissal of the action is a final appealable judgment, and absent a statement by the court to the contrary in the final judgment of dismissal, dismissal of the action by a final judgment entry is "on the merits", and thus a dismissal "with prejudice"; Fed.R.Bankr.P. 7041/Fed.R.Civ.P. 41(b). Thus, if the court were to dismiss the action without stating that dismissal was "without prejudice" in the final judgment, the action would be dismissed with prejudice and in order to file an amended complaint, the plaintiff would have to file a motion for relief from the judgment pursuant to Fed.R.Bankr.P. 9023/Fed.R.Civ.P. 59(e) or pursuant to Fed.R.Bankr.P. 9024/Fed.R.Civ.P. 60(b); Foster v. DeLuca, 545 F.3d 582, 584-85 (7th Cir.2008); Furnace v. Board of Trustees of Southern Illinois University, 218 F.3d 666, 669 (7th Cir. 2000). The Seventh Circuit Court of Appeals is not quite clear on the implication of dismissing a complaint with prejudice, but it suffices to say that such a dismissal would in all probability be construed as a dismissal of the action as well; See, Paganis, supra.
The United States Court of Appeals for the Seventh Circuit has dropped "heavy hints" over the years as to whether or not a complaint or action should be dismissed with prejudice in response to a defendant's initial Rule 12(b)(6) motion to dismiss the original complaint. In Redfield v. Continental Casualty Corp., 818 F.2d 596, 609-610 (7th Cir.1987); Rehearing & Rehearing En Banc denied July 8, 1987; the United States Court of Appeals for the Seventh Circuit stated:
It is true that plaintiffs' amended complaint failed to allege that Anthony Cairo was the sole beneficiary under the Chicago Title land trusts, although that fact could be reasonably inferred from the insurance contracts attached to the complaint. Nevertheless, this failure was at most a technical defect which in no way warranted a dismissal with prejudice. See Rainbow Trucking, Inc. v. Ennia Ins. Co., 500 F.Supp. 96, 98 (E.D.Pa.1980) (failure to allege insurable interest did not render complaint fatally defective). In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, the Supreme Court set out the general policy of the federal courts favoring liberal construction of pleadings. "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Id. at 48, 78 S.Ct. at 103. Professors Wright and Miller have similarly commented: A dismissal under Rule 12(b)(6) generally is not on the merits and the court normally will give plaintiff leave to file an amended complaint. The federal policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that plaintiff be given every opportunity to cure a formal defect in his pleading. * * * Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim. 5 Wright & Miller, Federal Practice & Procedure § 1357, at 611-613. See also Musikiwamba v. ESSI, Inc., 760 F.2d 740, 753 (7th Cir.1985); Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir.1985); Micklus v. Greer, 705 F.2d 314, 317 n. 3 (8th Cir.1983); Jureczki v. City of Seabrook, 668 F.2d 851, 854 (5th Cir.1982) (dismissal with prejudice is a drastic remedy to be used only where a lesser sanction would not better serve the interests of justice). Although we think that requiring plaintiff Redfield at this point to amend the complaint to include the above allegation would be of limited usefulness, because of our disposition in Part IV infra, Redfield on remand should be given leave to amend the amended complaint to include an allegation setting out Cairo's interest in the Chicago Title & Trust land trusts. (footnote omitted)
As stated in Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.2008):
Relief under Rules 59(e) and 60(b) are extraordinary remedies reserved for the exceptional case, Dickerson v. Board of Education of Ford Heights, Ill., 32 F.3d 1114, 1116 (7th Cir.1994), and "the mere desire to expand the allegations of a dismissed complaint does not, by itself, normally merit lifting the judgment." Camp, 67 F.3d at 1290. Yet the district court left the plaintiff with little recourse
but to file a motion under Rules 59(e) and 60(b) because it simultaneously granted the defendants' motion to dismiss and terminated the case. District courts routinely do not terminate a case at the same time that they grant a defendant's motion to dismiss; rather, they generally dismiss the plaintiff's complaint without prejudice and give the plaintiff at least one opportunity to amend her complaint. See generally Furnace v. Bd. of Trs., 218 F.3d 666, 669 (7th Cir.2000) (noting that "while this court has not accorded talismanic importance to the fact that a complaint ... was dismissed `without prejudice,' generally, an order dismissing a complaint without prejudice `is not appealable because the plaintiff may file an amended complaint.' ") (internal citations and quotations omitted); see also Kaplan v. Shure Bros., 153 F.3d 413, 417 (7th Cir. 1998) (same); Farrand v. Lutheran Bhd., 993 F.2d 1253, 1254 (7th Cir.1993) (same). (emphasis supplied)
See, Health Cost Controls v. Skinner, 44 F.3d 535 (7th Cir.1995).
From the foregoing, it is clear to the court that the United States Court of Appeals for the Seventh Circuit has assumed that trial judges granting a motion to dismiss pursuant to Rule 12(b)(6) will in most instances accord a plaintiff the opportunity to amend a complaint which fails to state a claim upon which relief can be granted, before entering a final judgment of dismissal with prejudice of the action sought to be asserted by the plaintiff against the defendant by that complaint.
The circumstances under which a federal trial court is required to provide the plaintiff with an opportunity to amend a complaint dismissed pursuant to Rule 12(b)(6) has never been addressed by the United States Court of Appeals for the Seventh Circuit. This issue has had only scant direct determination by other courts. Based upon the court's research, the most active court in the context of this narrow issue is the United States Court of Appeals for the Eleventh Circuit, which has an interesting history with respect to the issue. In Bank v. Pitt, 928 F.2d 1108, 1111-1112 (11th Cir.1991), the following was stated:
A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). "[A] district court's discretion to dismiss a complaint without leave to amend is `severely restrict[ed]' by Fed. R.Civ.P. 15(a), which directs that leave to amend `shall be freely given when justice so requires.'" Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir.1988) (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (Former 5th Cir.1981)). Where it appears a more carefully drafted complaint might state a claim upon which relief can be granted, we have held that a district court should give a plaintiff an opportunity to amend his complaint instead of dismissing it. See Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir.1985); Dussouy, 660 F.2d at 597-99 FN4 This is still true where the plaintiff does not seek leave until after the district court renders final judgment, see Thomas, 847 F.2d at 773 (after district court dismissed plaintiff's complaint with prejudice, plaintiff filed motion for reconsideration that was denied; this court reversed and remanded, directing that plaintiff be permitted to amend his complaint), and even where the plaintiff never seeks leave to amend in the district court, but instead appeals the district court's dismissal, see Sarter v. Mays, 491 F.2d 675, 676 (5th Cir.1974)
(complaint dismissed with prejudice and plaintiff appealed; court of appeals stated that "if the complaint does not adequately apprise the defendant of the nature of the plaintiff's claim, the court should allow the plaintiff to amend the pleadings to more plainly delineate the cause of action rather than dismiss the complaint.").FN5
FN4. Dussouy is a Former Fifth Circuit case decided in November 1981. The Eleventh Circuit has never decided whether Former Fifth Circuit cases decided after September 30, 1981, are binding precedent. In dicta, however, we have indicated that such cases are binding precedent. See Tallahassee Branch of NAACP v. Leon County, 827 F.2d 1436, 1440 n. 1, cert. denied, 488 U.S. 960, 109 S.Ct. 402, 102 L.Ed.2d 391 (1988); Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982). One commentator has reached the same conclusion. See Baker, A Primer on Precedent in the Eleventh Circuit, 33 Mercer L.Rev. 1175 (1983). We treat Dussouy as binding, but note that our decision would be unaffected even if the case is not binding.
FN5. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
If our precedent leaves any doubt regarding the rule to be applied in this circuit, we now dispel that doubt by restating the rule. Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.FN6
FN6. We note that the rule that a plaintiff be given at least one chance to amend his complaint before the district court dismisses it with prejudice is consistent with the Federal Rules' fundamental goal that disputes be resolved on the merits, rather than on the pleadings. Under the Federal Rules, "the purpose of pleading is to facilitate a proper decision on the merits." Conley, 355 U.S. at 48, 78 S.Ct. at 103. Dismissing an action without granting even one chance to amend is contrary to this goal.
We note two important caveats to this rule. First, where the plaintiff has indicated that he does not wish to amend his complaint, the district court need not dismiss with leave to amend. In Friedlander v. Nims, 755 F.2d 810 (11th Cir. 1985), during a hearing the district judge indicated several times to plaintiff's counsel that the complaint was deficient with regard to one defendant and recommended appropriate changes. Although counsel agreed with the judge that the complaint was deficient, and expressed an intent to amend it, he nevertheless failed to do so. In this situation, where the district court has a clear indication that the plaintiff does not want to amend his complaint, the court may properly dismiss without leave to amend. The second caveat to the rule is that if a more carefully drafted complaint could not state a claim under the standard of Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, dismissal with prejudice is proper.
In Bank, the United States Court of Appeals for the Eleventh Circuit adopted a relatively bright line standard for trial courts with respect to when dismissal pursuant to Rule 12(b)(6) should be automatically accompanied by an opportunity for the plaintiff to file an amended complaint. However, this standard was overruled by the United States Court of Appeals for the Eleventh Circuit in Wagner v. Daewoo Heavy Industries America Corp., 314 F.3d 541, 542 (11th Cir.2002):
In this en banc opinion, we address whether this case should be remanded to the district court with instructions to permit the plaintiff to amend his complaint. Under Bank, we would answer that question in the affirmative. 928 F.2d at 1112 ("Where a more carefully drafted complaint might state a claim, a
plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice."). We, however, have determined that the Bank rule should no longer be followed. As a result, we overrule Bank and substitute the following rule: A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.
In announcing its new rule, the Court stated that the new rule was in consonance with other Circuit Courts of Appeal which had addressed the issue, including the United States Court of Appeals for the Seventh Circuit in Cohen v. Illinois Institute of Technology, 581 F.2d 658, 662 (7th Cir.1978). Apart from the fact that pronouncements of the Eleventh Circuit Court of Appeals have no compelling effect on this court, the court does not read the cited Seventh Circuit case as having anything to do with the issue addressed in Wagner, and thus the statement of the United States Court of Appeals for the Eleventh Circuit as to the law of the United States Court of Appeals for the Seventh Circuit, as expressed in that case, carries no weight whatsoever with this court. This court thus does not deem the law of the United States Court of Appeals for the Seventh Circuit to be in consonance with the decision announced in Wagner, supra.
Thus, an unanswered question in the Seventh Circuit is the extent to which a federal trial court must accord a plaintiff an opportunity to file an amended complaint when the court determines that a Rule 12(b)(6) motion to dismiss the plaintiff's original complaint should be granted. The court deems the law of the Seventh Circuit to clearly state that in most instances, federal trial courts should grant the plaintiff an opportunity to file an amended complaint before either the complaint or the action is dismissed with prejudice in response to a Rule 12(b)(6) motion. Absent any controlling precedent to the contrary in the Seventh Circuit, the court is free to adopt a rule on its own which the court deems to be in consonance with pronouncements of the United States Court of Appeals for the Seventh Circuit. As stated, the court does not deem the United States Court of Appeals for the Seventh Circuit to be in parallel with the rule announced by the United States Court of Appeals for the Eleventh Circuit in Wagner v. Daewoo Heavy Industries America Corp., supra. Rather, this court views the United States Court of Appeals for the Seventh Circuit to be more in consonance with the rule announced by the United States Court of Appeals for the Eleventh Circuit in Bank v. Pitt, supra., and it is that rule which the court adopts. Thus, when the court has determined that a Rule 12(b)(6) motion should be granted with respect to a complaint, the court will provide the plaintiff with one chance to file an amended complaint before the case or complaint is dismissed with prejudice, if "a more carefully drafted complaint might state a claim". This rule is subject to two exceptions. First, in a circumstance in which the plaintiff has stated conclusively on the record that he/she/it does not desire in any context to file an amended complaint, no leave to amend will be granted. Secondly, if a more carefully drafted complaint in the court's view could not state a claim for relief under the standards for review of a Rule 12(b)(6) motion stated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the court may dismiss the action with prejudice without providing leave to file an amended complaint. The review in this context is limited to the record in which the complaint was filed, and does not encompass any extraneous matters otherwise known by the court.
In the instant case, the court determines that neither the complaint nor any of its counts should be dismissed at this time with prejudice. It is a close call with respect to Count I as to whether to dismiss the complaint in its entirety under § 523(a)(2)(A), but giving the complaint the latitude which the court deems the Seventh Circuit Court of Appeals to require, the court deems it possible for the plaintiffs to assert a § 523(a)(2)(A) action by means of a more carefully drafted complaint. The court cautions the plaintiffs that in filing the amended complaint, if the plaintiffs so choose to do, the court expects a very specific delineation of the circumstances of any alleged fraud under the pleading requirements of Rule 9(b), and the manner in which the alleged fraud constitutes "obtaining" money or property within the parameters of § 523(a)(2). Count II's failings are significant, but not to the extent of Count I's. It is possible to glean from the averments relevant to Count II that a cause of action could be potentially asserted for "fraud" or "defalcation" by the defendant while acting in a "fiduciary" capacity. However, as was true with Count I, the averments of Count II fall far short of any sustainable allegation under Fed.R.Civ.P. 9(b), and also fail to establish any kind of "debt" incurred by the defendant to the plaintiffs as a result of any alleged fraud or defalcation. Count III comes the closest of the three counts to asserting a cause of action under a specific provision of § 523(a). However, the averments of Count III are so garbled that the court cannot ascertain the focus of its claim for exception from discharge, cannot ascertain the nature of the "debt" arising from the asserted injury to property, and thus cannot ascertain the nature of the "debt" sought to be excepted from discharge.
Pursuant to the foregoing, the court determines that although the defendant's motion to dismiss has been granted in its entirety, the plaintiffs should be accorded an opportunity to file an amended complaint, and thus that the plaintiffs' complaint should not be dismissed with prejudice.
IT IS ORDERED, ADJUDGED AND DECREED that the motion to dismiss filed on May 19, 2009 is granted in its entirety, without prejudice to the plaintiffs' filing of an amended complaint.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiffs shall file an amended complaint on or before February 18, 2010.