Abatemarco et al v. Legasus of North Carolina, LLC et al

Filing 57

ORDER denying 24 Defendant's Motion for More Definite Statement. Signed by Magistrate Judge Dennis Howell on 10/3/2011. (Pro se litigant served by US Mail.)(thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv23
GERALD ABATEMARCO, et al.,
Plaintiffs,
v.
LEGASUS OF NORTH CAROLINA,
LLC, et al.,
Defendants.
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ORDER

Pending before the Court is Defendants’ Motion for More Definite
Statement [# 24]. Plaintiffs brought this action against Defendants asserting
numerous claims arising out of a failed real estate development in North Carolina
called River Rock. Plaintiffs all purchased lots in River Rock. Defendants now
move for a more definite statement pursuant to Rule 12(e) of the Federal Rules of
Civil Procedure. The Court DENIES Defendants’ motion [# 24].
I.

Analysis

Rule 8 of the Federal Rules of Civil Procedure provides that a complaint
must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). If a complaint alleges fraud or
mistake, the complaint “must state with particularity the circumstances constituting
fraud or mistake . . . .” Fed. R. Civ. P. 9(b). Rule 12(e), in turn, provides that a

party may move for a more definite statement of the claims asserted in a complaint
where the complaint is “so vague or ambiguous that the party cannot reasonably
prepare a response.” Fed. R. Civ. P. 12(e); see also Doe v. Bayer Corp., 367 F.
Supp. 2d 904, 917 (M.D.N.C. 2005) . As a leading commentator has explained:
[t]he class of pleadings that are appropriate subjects for a motion under
Rule 12(e) is quite small. As the cases make clear, the pleading must be
sufficiently intelligible for the district court to be able to make out one
or more potentially viable legal theories on which the claimant might
proceed; in other words the pleading must be sufficient to survive a Rule
12(b)(6) motion to dismiss. At the same time, the pleading also must be
so vague or ambiguous that the opposing party cannot respond to it, even
with a simple denial as permitted by Rule 8(b), with a pleading that can
be interposed in good faith or without prejudice to himself.
5C Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus,
Federal Practice and Procedure § 1376 (3d ed. 2004). If the Court grants a motion
for a more definite statement and the party does not provide a more definite
statement within the specified time period, then the Court may strike the complaint
or issue “any other appropriate order.” Fed. R. Civ. P. 12(e).
Plaintiffs’ Complaint is not so vague or ambiguous that Defendants cannot
reasonably prepare a response. See Fed. R. Civ. P. 12(e); Static Control
Components, Inc. v. Darkprint Imaging, Inc., 135 F. Supp. 2d 722, 733 (M.D.N.C.
2001). The Complaint sets forth specific claims in separate paragraphs and
provides Defendants with the general factual basis of those claims. Moreover, the

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Complaint sets forth which Plaintiffs are asserting which claims against which
Defendants. Defendants are well aware of the claims Plaintiffs are asserting and
the basis of those claims. See e.g., Simaan, Inc. v. BP Prods. N. Am., Inc., 395 F.
Supp. 2d 271, 280-81 (M.D.N.C. 2005) (denying Rule 12(e) motion where the
allegations were sufficient to allow defendant to respond to the complaint). Under
such circumstances, Rule 12(e) is not the proper mechanism for challenging a
complaint. Accordingly, the Court DENIES Defendants’ Motion for More Definite
Statement [# 24].
II.

Conclusion

The Court DENIES Defendants’ Motion for More Definite Statement [#
24].
Signed: October 3, 2011

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