Watkins et al v. Soprema, Inc. et al

Filing 47

ORDER granting Deft Elastikote, LLC's 42 Motion to Dismiss Count Six of Pltfs' Complaint, and Pltfs' claim of fraud against Elastikote is DISMISSED. Signed by District Judge Martin Reidinger on 4/25/13. (ejb) Modified text on 4/29/2013 (ejb).

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12-cv-00318-MR-DLH

DAVID WATKINS and
MAUREEN WATKINS,
Plaintiffs,
vs.

SOPREMA, INC. and
ELASTIKOTE, LLC,
Defendants.
_________________________

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ORDER

THIS MATTER is before the Court on Defendant Elastikote, LLC’s
Motion to Dismiss Count Six of Plaintiffs’ Complaint [Doc. 42].
Previously in this matter, Defendant Soprema, Inc. (“Soprema”)
moved to dismiss Counts Five and Six of the Plaintiffs’ Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted and for failure to plead with particularity as
required under Federal Rule of Civil Procedure 9(b). [Doc. 8]. On March
27,

2013,

the

Magistrate

Judge

issued

a

Memorandum

and

Recommendation recommending that Soprema’s Motion be granted as to

Count Six. [Doc. 41]. No objections were filed to this Memorandum and
Recommendation. On April 19, 2013, the Court accepted the Magistrate
Judge’s Recommendation and dismissed the claim of fraud against
Soprema as stated in Count Six of the Plaintiffs’ Complaint. [Doc. 46].
Following the entry of the Memorandum and Recommendation,
Defendant Elastikote, LLC (“Elastikote”) filed its own motion seeking
dismissal of the fraud claim asserted against it in Count Six of the
Complaint on the same grounds asserted by Soprema. [Doc. 42]. The
time for responding to this motion has passed, and the Plaintiffs have not
filed any opposition to Elastikote’s motion.
For the reasons stated in the Magistrate Judge’s Memorandum and
Recommendation, as previously accepted by this Court in its Order of April
19, 2013, the Court concludes that Elastikote’s Motion to Dismiss Count Six
of the Plaintiffs’ Complaint also should be granted.

As the Magistrate

Judge correctly noted [Doc. 41 at 10-11], although the Complaint contains
various other general allegations of written and oral representations by the
Defendants’ alleged agent, John Frye, the Complaint fails to set forth
specific factual allegations to support each element of a fraud claim as to
these representations and fails to plead the circumstances of the alleged
fraud with any particularity. For example, while the Complaint contains an
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allegation that Plaintiffs relied on the Defendants’ written promotional
materials and the “direct advice of Mr. Frye” in deciding to purchase the
roofing system [Complaint, Doc. 1-1 at ¶12], the Plaintiffs fail to offer any
factual allegations that these representations were false or that they were
offered with the intent to deceive the Plaintiffs. Moreover, none of these
general allegations are pled with the specificity required by Rule 9(b).
In short, these conclusory and general allegations were not sufficient
to state a fraud claim against Soprema, and they are equally insufficient as
to Elastikote. Accordingly, the fraud claim asserted against Elastikote in
Count Six of the Complaint will be dismissed.
IT IS, THEREFORE, ORDERED that Defendant Elastikote, LLC’s
Motion to Dismiss Count Six of Plaintiffs’ Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure [Doc. 42] is GRANTED,
and the Plaintiffs’ claim of fraud against Elastikote as stated in Count Six of
the Complaint is hereby DISMISSED.
IT IS SO ORDERED.

Signed: April 25, 2013

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