Bruce v. Gore et al

Filing 66

Memorandum Opinion and Order denying 60 Motion to Dismiss for Failure to State a Claim (Ordered by Senior Judge A. Joe Fish on 3/7/2014) (jrr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

TOM BRUCE,
Plaintiff,
VS.
BARRY GORE, ET AL.,
Defendants.

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CIVIL ACTION NO.
3:10-CV-2173-G

MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendants Chris Stark (“Stark”) and EGuide Services, Inc. (“E-Guide”) to dismiss the second amended complaint of the
plaintiff Tom Bruce (“Bruce”) (docket entry 60). For the reasons stated below, the
motion is denied.
I. BACKGROUND
On March 22, 2012, this court granted the motions of third-party defendants
Justin L. Godsey and J. Russell Ormesher for more definite statement, and granted in
part and denied in part the motion to dismiss of the defendants Chris Stark, E-Guide
Services, Inc., and FYI Television, Inc. (“the Stark defendants”) to dismiss Bruce’s

first amended complaint (docket entry 46). The court gave Bruce ten days from the
date of that order to replead his fraud claims under Exchange Act § 10(b) and
Exchange Act Rule 10b-5 with greater particularity against the Stark defendants in
accordance with Rule 9(b), F.R. CIV. P., and also to adequately demonstrate that he
had standing to bring these claims against these defendants. On March 30, 2012,
Bruce filed his amended complaints (docket entries 47-49). Stark and E-Guide then
filed the instant motion.
II. ANALYSIS
FED. R. CIV. P. 12(b)(6) authorizes dismissal of a complaint “for failure to state
a claim upon which relief can be granted.” A motion under Rule 12(b)(6) should be
granted only if it appears beyond doubt that the plaintiff could prove no set of facts
in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir.
1994) (citations omitted).
The motion to dismiss for failure to state a claim is viewed with disfavor and is
rarely granted. Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677
F.2d 1045, 1050 (5th Cir. 1982) (quoting WRIGHT & MILLER, FEDERAL PRACTICE
AND PROCEDURE

§ 1357), cert. denied, 459 U.S. 1105 (1983). Granting such a

motion “is a ‘precarious disposition with a high mortality rate.’” Id. (quoting Barber v.
Motor Vessel “Blue Cat,” 372 F.2d 626, 627 (5th Cir. 1967)).

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Before dismissal is granted, the court must accept all well-pleaded facts as true
and view them in the light most favorable to the non-movant. Capital Parks, Inc. v.
Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994)
(citation omitted); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994)
(citations omitted); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925
F.2d 844, 846 (5th Cir. 1991).
Under Federal Rule of Civil Procedure 9(b), a plaintiff must state with
particularity the circumstances establishing a claim of fraud.* FED. R. CIV. P. 9(b).
What constitutes particularity will “necessarily differ with the facts of each case.”
Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir. 1992). At a minimum, courts
require the plaintiff to specifically state the time, place, and contents of the alleged
false representation, as well as the identity of the person making the alleged
misrepresentation and what that person obtained thereby. See Williams v. WMX
Technologies, Inc., 112 F.3d 175, 177 (5th Cir.) (citing Tuchman v. DSC Communications
Corporation, 14 F.3d 1061, 1068 (5th Cir. 1994)), cert. denied, 522 U.S. 966 (1997);
United States ex rel. Doe v. Dow Chemical Company, 343 F.3d 325, 328 (5th Cir. 2003)
(“At a minimum, Rule 9(b) requires that a plaintiff set forth the ‘who, what, when,
where, and how’ of the alleged fraud.”) (citation omitted). “Anything less fails to
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Rule 9(b) provides that “[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity. Malice,
intent, knowledge, and other condition of mind of a person may be averred
generally.” Id.
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provide defendants with adequate notice of the nature and grounds of the claim.”
Hart v. Bayer Corporation, 199 F.3d 239, 247 n.6 (5th Cir. 2000) (citing Tuchman, 14
F.3d at 1067). Dismissal of a fraud claim for failure to plead the claim with
particularity under Rule 9(b) is treated as a dismissal for failure to state a claim under
Rule 12(b)(6). See Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir.
1996).
The thrust of the motion to dismiss is that Bruce has failed to state claims
upon which this court could grant him relief. The court concludes, however, that
Bruce sufficiently pleaded standing and his fraud claims with greater particularity,
and that Stark and E-Guide have failed to show that Bruce could prove no set of facts
in support of his claims that would entitle him to relief.
III. CONCLUSION
For the reasons stated above, the motion to dismiss is DENIED.
SO ORDERED.
March 7, 2014.

___________________________________
A. JOE FISH
Senior United States District Judge

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