Gifford v. American River Transportation Company
MEMORANDUM OPINION & ORDER denying 22 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Thomas B. Russell on 6/26/2011. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CASE NO. 5:10-CV-9
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Plaintiff’s Motion to Dismiss Defendant’s
Counterclaim for Failure to Plead Allegations with Sufficient Particularity (Docket #22).
Defendant has responded (Docket #25). Plaintiff has not replied. This matter is now ripe for
Plaintiff filed suit in this Court on January 19, 2010, seeking damages under the Jones
Act, the general maritime law of unseaworthiness, and the general maritime law of maintenance
and cure. On March 14, 2011, Defendant filed an amended answer and counterclaim. The
Counterclaim contains two counts: (I) General Maritime Law - Recovery of Maintenance, Cure
and Other Benefits, and (II) Fraud. Plaintiff has now moved to dismiss the Counterclaim,
arguing that Defendant failed to state its claims of fraud with particularity as required by Federal
Rule of Civil Procedure 9(b).
Rule 9(b) requires that “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “To satisfy
Rule 9(b), a complaint of fraud, at a minimum, must allege the time, place, and content of the
alleged misrepresentation on which [the plaintiff] relied; the fraudulent scheme; the fraudulent
intent of the defendants; and the injury resulting from the fraud.” United States ex rel. Marlar v.
BWXT Y-12, L.L.C., 525 F.3d 439, 444 (6th Cir. 2008) (internal quotation marks and citations
omitted). Plaintiff alleges that Defendant has failed to plead specific dates, places and the
persons to whom the alleged statements were made.
Defendant argues that the Counterclaim satisfies Rule 9(b) because the necessary
information has been plead with particularity, “i.e.,: (1) Times – April 2005 and October 2, 2008
- April 2009; (2) Place – application for employment with ARTCO and Plaintiff’s treating
doctors; (3) Content – concealment of history of lupus and receipt of Social Security benefits;
and (4) Damages – $18,230.19.” Def.’s Resp., DN 25, p. 3. In addition, Defendant notes that it
submitted numerous supporting documents in its motion to amend which provide more than
enough information to give Plaintiff fair notice of Defendant’s claims.
The Court has reviewed Defendant’s Counterclaim and finds that the allegations of fraud
were plead with sufficient particularity. Accordingly, IT IS HEREBY ORDERED that
Plaintiff’s Motion to Dismiss is DENIED.
June 26, 2011
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