Filing 16

MOTION to Dismiss Constructive Fraud Claim, filed by Defendant AUSTRALIAN GOLD, INC.., (O'Gara, Thomas)

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MDG INTERNATIONAL, INC. v. AUSTRALIAN GOLD, INC. Doc. 16 Case 1:07-cv-01096-SEB-TAB Document 16 Filed 10/17/2007 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION MDG INTERNATIONAL, INC., Plaintiff, v. AUSTRALIAN GOLD, INC., Defendant ) ) ) ) ) ) ) ) ) ) Case No. 1:07-cv-1096-SEB-TAB DEFENDANT AUSTRALIAN GOLD'S MOTION TO DISMISS CONSTRUCTIVE FRAUD CLAIM Australian Gold, Inc. ("Australian Gold"), moves to dismiss Count II of MDG International, Inc.'s ("MDG") Complaint, alleging constructive fraud, for failure to comply with the requirements of Federal Rule of Civil Procedure 9(b). In support of its motion, Australian Gold relies on its brief in support, filed contemporaneously herewith and incorporated herein by reference, and states the following: 1. A claim for constructive fraud under Indiana law requires a special relationship between the parties out of which a fiduciary duty arises. 2. With regard to the relationship between MDG and Australian Gold, MDG's claim for constructive fraud alleges only that "Australian Gold, as manufacturer, owes a duty to MDG, its distributor." (MDG Complaint at 97.) 3. This bare allegation of a contractual relationship between the parties does not sufficiently allege the special relationship necessary to give rise to a fiduciary duty under Indiana law. Case 1:07-cv-01096-SEB-TAB Document 16 Filed 10/17/2007 Page 2 of 2 4. Accordingly, MDG has not met the requirements of Federal Rule of Civil Procedure 9(b) that allegations of fraud be pled with particularity. WHEREFORE, Australian Gold respectfully requests that the Court grant its motion and dismiss Count II of MDG's Complaint for failure to plead fraud with particularity. / s / Thomas F. O'Gara Richard A. Kempf, No. 11597-49 Thomas F. O'Gara, No. 19678-49 Peter J. Prettyman, No. 25057-49 Attorneys for Defendant Australian Gold, Inc. SOMMER BARNARD PC One Indiana Square, Suite 3500 Indianapolis, IN 46204 317-713-3500 317-713-3699 (fax) CERTIFICATE OF SERVICE The undersigned hereby certifies that on October 17, 2007, a copy of the foregoing was filed electronically. Notice of this filing will be sent to the following parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. Edward O. DeLaney DELANEY & DELANEY LLC Elizabeth A. Schuerman DELANEY & DELANEY LLC Kathleen A. DeLaney DELANEY & DELANEY LLC /s/ 675514 Thomas F. O'Gara 2

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