Summary
denying motion to dismiss fraud claim where defendant could "prepare an adequate answer from the allegations in the amended complaint" and could "prepare his own discovery and thus prepare an adequate defense to suit"
Summary of this case from Atlantic City Racing Assoc. v. Sonic Financial Corp.Opinion
Proceeding on defendant's motion to dismiss plaintiff's amended complaint on ground it failed to contain sufficient averments of fraud. The District Court, Wood, J., held circumstances constituting fraud were stated with sufficient particularity.
Motion denied.
Walter E. Alessandroni, U.S. Atty., for the Eastern District of Pa., by Daniel J. DiGiacomo, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
John P. Mason, and Owen B. Rhoads, Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., for defendant Elmer T. Frasch.
WOOD, District Judge.
The defendant Elmer T. Frasch has moved to dismiss the plaintiff's amended complaint on the ground that it fails to comply with the requirements of Rule 9(b) of the Federal Rules of Civil Procedure, 28 U.S.C. That rule provides in pertinent part as follows:
‘ In all averments of fraud * * * the circumstances constituting fraud * * * shall be stated with particularity * * *’ .
Defendant Frasch contends that he cannot prepare an appropriate answer to the complaint because of its lack of detailed allegations concerning defendant Frasch's part in the alleged fraud. Therefore, argues Frasch, the amended complaint should be dismissed.
We think that the defendant Elmer T. Frasch can prepare an adequate answer from the allegations in the amended complaint. Using the additional information furnished by the plaintiff's answers to defendant's interrogatories, the defendant can prepare his own discovery and thus prepare an adequate defense to this suit. The circumstances do not warrant a dismissal under Rule 9(b). A motion for a more definite statement can be granted where the pleading is so vague or ambiguous that the moving party cannot frame a responsive pleading. (See Moore's Federal Practice, Vol. 2, page 1911). Therefore, we enter the following Order:
Order
And now, to wit, this 14 day of March, 1961, it is hereby ordered that the defendant Elmer T. Frasch's motion to dismiss the plaintiff's amended complaint is denied.