Hotz v. Fifth Third Bank, N.A.

Filing 15

MEMORANDUM AND ORDER. (See Full Order.) The Court will grant the Bank's motion for more definite statement and give Plaintiff twenty days to file an amended complaint to bring his fraud claims into conformity with the heightened pleading requirements of Rule 9(b). Accordingly, IT IS HEREBY ORDERED that Defendant Fifth Third Bank's Motion to Dismiss #10 , construed as a motion for more definite statement, is GRANTED. IT IS FURTHER ORDERED that Plaintiff is granted twenty (20) days, until September 6, 2016, to amend his petition for fraud and fraudulent misrepresentation in accordance with the foregoing. Signed by District Judge John A. Ross on 8/17/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GARY L. HOTZ, d/b/a CADD DESIGN
CONCEPTS,
Plaintiff,
v.
FIFTH THIRD BANK,
Defendants.

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No. 4:16-CV-00706 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Fifth Third Bank’s Motion to Dismiss
pursuant to Rule 9(b) and 12(b)(6). (Doc. No. 10) Plaintiff filed a response in opposition to the
motion on July 18, 2016. (Doc. No. 14) Defendant did not file a reply. The motion is therefore
fully briefed and ready for disposition.
Background
Plaintiff Gary L. Hotz, d/b/a CADD Design Concept (“Plaintiff”) filed his Petition for
Fraud and Fraudulent Misrepresentation (Complaint (“Compl.”), Doc. No. 4) in state court
seeking to recover damages from Defendant Fifth Third Bank (“Bank”) based on a credit card
Bank allegedly allowed Plaintiff’s former business partner to open in Plaintiff’s name for their
jointly owned business, SJS, LLC (“SJS”) or in SJS’s name. The action was timely removed to
this Court. (Doc. No. 1)
Plaintiff alleges that in mid-2012, his former business partner and manager of SJS,
Steven Scaglione, applied for and obtained a credit card loan and credit card account “solely in
the name of Gary L. Hotz for SJS” (Compl. at ¶ 7) “or in the name of SJS” (id. at ¶ 9). Plaintiff

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“was not present or did not sign off” on the account, and only learned of the account after it was
opened. (Id. at ¶¶ 7-9). Plaintiff further alleges Bank “made false and fraudulent
misrepresentations to Plaintiff at or prior to the time of issuing the credit card” by “asserting that
it was acquiring information for the purpose of opening a loan on behalf of SJS, LLC.” (Id. at ¶
11.B) In addition, Bank failed to “advise or represent to Plaintiff that Plaintiff would be a
guarantor and would be liable on any account or credit card in the name of SJS” prior to opening
the account. (Id.) Plaintiff alleges he suffered unspecified actual damages, as well as damage to
his credit and reputation, in excess of $75,000.00 as a result of Bank’s conduct.
Bank contends that Plaintiff has failed to satisfy the pleading requirements of Rule 9(b)
and should be dismissed for failure to state a claim upon which relief may be granted. Although
Bank frames its motion as a motion to dismiss, the Court construes it as a motion for more
definite statement under Fed. R. Civ. P. 12(e).
Legal standard
Under Fed. R. Civ. P. 12(e), “[a] party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response.” When a “pleading fails to specify the allegations in
a manner that provides sufficient notice, a defendant can move for a more definite under Rule
12(e) before responding.” Love v. Career Educ. Corp., No. 4:11CV1585 JAR, 2012 WL 10614,
at *1 (E.D. Mo. Jan. 3, 2012) (quoting McCoy v. St. Louis Pub. Schs, No. 4:11CV918 CDP,
2011 WL 4857931 (E.D. Mo. Oct. 13, 2011)). A motion for more definite statement is proper
when a party is unable to determine issues he must meet, or where there is a major ambiguity or
omission in the complaint that renders it unanswerable. Id. (citing Tinder v. Lewis County
Nursing Home Dist., 207 F.Supp.2d 951, 959 (E.D. Mo. 2001)).

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Discussion
Fed. R. Civ. P. 9(b) requires plaintiffs to “state with particularity the circumstances
constituting fraud or mistake.” To satisfy this requirement, the pleader must generally set forth
the “who, what, when, where, and how of the misconduct charged.” BJC Health Sys. v.
Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007) (internal quotation marks and quoted
cases omitted). Although a plaintiff need not state each element of the fraud claim with
particularity to satisfy this requirement, he “must state enough so that [his] pleadings are not
merely conclusory.” Roberts v. Francis, 128 F.3d 647, 651 (8th Cir. 1997).
The Court has carefully reviewed Plaintiff’s complaint and concludes that he has not
satisfied Rule 9(b)’s particularity requirements. Plaintiff does not allege any of the “who, what,
when, where, and how” with particularity: (i) the who: Plaintiff refers generally to “Defendant
Bank” (Compl. at ¶ 11.B) but fails to allege the identity of the person making the
misrepresentation; (ii) the what: Plaintiff alleges that the Bank asserted it was acquiring
information for the purpose of opening a loan on behalf of SJS, LLC (Compl. at ¶ 11.B), but
fails to allege the contents of the false representations; (iii) the when: Plaintiff alleges the Bank
“made false and fraudulent misrepresentations to Plaintiff at or prior to the time of issuing the
credit card” (Compl. at ¶ 11.B), but does not identify the exact dates and times, or reasonably
approximate dates, of the alleged misstatements; and (iv) the where and how: Plaintiff does not
allege whether the alleged misrepresentations took place over the phone, at a branch, or perhaps
in writing. “[C]onclusory allegations that a defendant’s conduct was fraudulent and deceptive are
not sufficient to satisfy [Rule 9(b)].” Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736,
746 (8th Cir. 2002).

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Accordingly, the Court will grant the Bank’s motion for more definite statement and give
Plaintiff twenty days to file an amended complaint to bring his fraud claims into conformity with
the heightened pleading requirements of Rule 9(b).
Accordingly,
IT IS HEREBY ORDERED that Defendant Fifth Third Bank’s Motion to Dismiss [10],
construed as a motion for more definite statement, is GRANTED.
IT IS FURTHER ORDERED that Plaintiff is granted twenty (20) days, until
September 6, 2016, to amend his petition for fraud and fraudulent misrepresentation in
accordance with the foregoing.
Dated this 17th day of August, 2016.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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