Omni USA Inc v. Parker-Hannifin Corporation
OPINION AND ORDER OF PARTIAL DISMISSAL granting 19 Motion to Dismiss The claims for fraud, fraudulent inducement, negligent misrepresentaitoin and violations of DTPA against Parker are DISMISSED without prejudice. Pltf's claims for breach of contract and breach of implied and express warranties remain pending.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
OMNI USA, INC.,
CIVIL ACTION H-10-4728
OPINION AND ORDER OF PARTIAL DISMISSAL
Pending before the Court in the above referenced action,
alleging that Defendant Parker-Hannifin Corporation (“Parker”)
improperly designed, manufactured, marketed, and serviced defective
industrial oil seals sold to Plaintiff Omni USA, Inc. (“Omni”)
specifically for use in its gearboxes as part of agricultural
irrigation systems sold to a third party, is Parker’s second motion
to dismiss (instrument #19).1
The motion argues that (1) the First Amended Complaint, like
the Original Petition, fails to satisfy requirements of Federal
Rules of Civil Procedure 8(a), 9(b), and 12(b)(6), and (2) the
alleged misrepresentation underlying Omni’s claims for violations
of the Texas Deceptive Trade Practices-Consumer Protection Act
In its order of June 28, 2011 the Court granted Parker’s
motion for more definite statement and mooted its first motion to
dismiss. Instrument # 15. The Court ruled that Omni’s Original
Petition failed to satisfy federal pleading standards and granted
Omni leave to amend. Omni filed its First Amended Complaint (#16;
copy also filed as Exhibit B to #19) on July 13, 2011.
(“DTPA”), Tex. Bus. & Com. Code § 17.46(a), fraudulent inducement,
negligent misrepresentation, and fraud2 is not a misrepresentation
of material fact and is not actionable as a matter of law.
has not responded to Parker’s second motion to dismiss.
Standards of Review
Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading
that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
All well pleaded facts must be viewed as true, “in the
light most favorable to the plaintiff.
Lindquist v. City of
Pasadena, Texas, 525 F.3d 383, 386 (5th Cir. 2008).
must allege “enough facts to state a claim to relief that is
plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
“Factual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
allegations in the complaint are true (even if doubtful in fact).”
Id. at 555.
“[A] plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”
“Without some factual allegation in
Parker’s motion does not address Omni’s claims for breach of
contract to provide non-defective seals in exchange for payment as
defined under Tex. Bus. & Com. Code §§ 2.201(c) et seq., .204, and
.206; breach of express warranties, as defined under § 2.313 of the
Tex. Bus. & Com. Code; and breach of implied warranty of
merchantability under § 2.314 of the Tex. Bus. & Com. Code.
the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of
the claim, but also the ‘grounds’ on which the claim rests.”
at 555, n.3. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal,
, 129 S. Ct. 1937, 1949 (2009),
citing Twombly, 550 U.S. at 556.
standard set out in Federal Rule of Civil Procedure 9(b): “In
particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person’s mind
may be alleged generally.”
The Fifth Circuit strictly construes
the Rule and requires the plaintiff pleading fraud in federal court
“‘to specify the statements contended to be fraudulent, identify
the speaker, state when and where the statements were made, and
explain why the statements were fraudulent.’”
Flaherty & Crumrine
Preferred Income Fund, Inc,. v. TXU Corp., 565 F.3d 200. 206-07 (5th
Cir. 2009)(quoting Williams v. WMX Techs., Inc., 112 F.3d 175, 177
(5th Cir. 1997), cert. denied, 130 S. Ct. 199 (2009)).
for failure to plead with particularity as required by this rule is
treated the same as a Rule 12(b)(6) dismissal for failure to state
Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017
(5th Cir. 1996).
representations, the court must [identify and] look to ‘the state
of mind of the corporate official or officials who make or issue
It follow that ‘[a] corporation can
be held to
have a particular state of mind [e.g., fraudulent intent] when that
state of mind is possessed by a single individual.’” 7-Eleven Inc.
v. Puerto Rico-7 Inc.,
Civ. A. No. 3:08-CV-00140-B, 2008 WL
4951502, *2 (N.D. Tex. Nov. 19, 2008), quoting Southland Sec. Corp.
v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 366-67 (5th Cir.
nondisclosure requires the plaintiff to allege that the defendant
concealed or failed to disclose a material fact that the defendant
knew the plaintiff was ignorant of or did not have the opportunity
to discover, the defendant intended to induce the plaintiff to take
some action by concealing or failing to disclose the material fact,
and the plaintiff suffered as a result of acting on the defendant’s
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333,
341 (5th Cir. 2008), citing Bradford v. Vento, 48 S.W. 3d 749, 75455 (Tex. 2001).
In a case alleging fraudulent misrepresentation
and omission of facts, Rule 9(b) requires the plaintiff to plead
the type of facts omitted, the place in which the omissions should
have appeared, and how the omitted facts made the misrepresentation
Carroll v. Fort James Corp., 470 F.3d 1171, 1174 (5th
Cir. 2006), citing United States ex rel. Thompson v. Columbia/HCA
Healthcare Corp., 125 F.3d 370, 381 (5th Cir. 2004); Timberlake v.
Synthes Spine Co., LP, Civ. A. No. V-08-4, 2009 WL 926990, *3 (S.D.
Tex. Mar. 31, 2009).
Furthermore, “‘one who fails to disclose
material information prior to the consummation of a transaction
commits fraud only when he is under a duty to do so.’”
quoting Chiarella v. United States, 445 U.S. 222, 227-28 (1980).
Thus under Rule 9(b) the plaintiff must allege with particularity
facts that, if true, would give rise to a duty of disclosure.
Carroll, 470 F.3d at 1174.
Because “Rule 9(b) applies by its plain language to all
averments of fraud, whether they are part of a claim of fraud or
not,” it applies to statutory claims based on allegations of fraud.
Lone Star Ladies Inv. Club v. Schlotzky’s, Inc., 238 F.3d 363, 368
(5th Cir. 2001); Melder v. Morris, 27 F.3d 1097, 1100 n.6 (5th Cir.
1994). “Claims alleging violations of the Texas Insurance Code and
the Deceptive Trade Practices Act . . . are subject to the
requirements of Rule 9(b).”
Frith v. Guardian Life Ins. Co. of
America, 9 F. Supp. 2d 734, 742-43 (S.D. Tex. 1998).
e.g., Berry v. Indianapolis Life Ins. Co., 608 F. Supp. 2d 785, 800
(N.D. Tex. 2009); Patel v. Holiday Hospitality Franchising, Inc.,
172 F. Supp. 2d 821, 824-25 (N.D. Tex. 2001)(and cases cited
therein)(“[C]laims alleging violations of the DTPA are subject to
the requirements of Rule 9(b).”); Flowserve Corp. V. Hallmark Pump
Co., 2010 WL 2232285, *6 (S.D. Tex. Feb. 3, 2010)(same).
Insurance Code, or common law fraud must satisfy Rule 9(b), which
reaches “all cases where the gravamen of the claim is fraud even
though the theory supporting the claim is not technically termed
Frith, 9 F. Supp. 2d at 742, citing Berry, 608 F. Supp. 2d
at 789, 800; Hernandez v. Ciba-Geigy Corp., USA, 200 F.R.D. 285,
290-91 (S.D. Tex. 2001).
The same is true of claims for negligent
misrepresentation where the factual allegations underlying it and
a fraud claim are the same.
Benchmark Elecs. v. J.M. Huber Corp.,
343 F.3d 719, 723 (5th Cir. 2003)(“Although Rule 9(b) by its terms
does not apply to negligent misrepresentation claims, this court
has applied the heightened pleading requirements when the parties
have not urged a separate focus on the negligent misrepresentation
claims. . . . That is the case here, as Benchmark’s fraud and
negligent misrepresentation claims are based on the same set of
alleged facts.”), citing Williams v. WMX Techs., Inc., 112 F.3d
175, 177 (5th Cir. 1997); Berry v. Indianapolis Life Ins. Co.
(“Berry II”), No. 3:08-CV-0248-B, 2010 WL 3422873, *16 (N.D. Tex.
aug. 26, 2010), citing Benchmark and Biliouris v. Sundance Res.,
negligent misrepresentation claim based on the same operative facts
as an insufficient fraud claim).
Even if a plaintiff fails to file a response to a motion to
dismiss despite a local rule’s mandate that a failure to respond is
a representation of nonopposition, the Fifth Circuit has rejected
the automatic granting of dispositive motions without responses
without the court’s considering the substance of the motion.
Watson v. United States, 285 Fed. Appx. 140, 143 (5th Cir. 2008),
citing Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006), and
Johnson v. Louisiana, 757 F.2d 698, 708-09 (5th Cir. 1985).
mere failure to respond to a motion is not sufficient to justify a
dismissal with prejudice.”
Instead there should be a clear
record of delay or contumacious conduct and a finding that lesser
sanctions would not serve the system of justice.
Id., citing Luna
v. Int’l Ass’n of Machinists & Aerospace Workers Local #36, 614
F.2d 529, 531 (5TH Cir. 1980).
To plead fraud under Texas law, a plaintiff must allege (1)
the defendant made a representation to the plaintiff; (2) the
representation was material; (3) the representation was false; (4)
when the defendant made the representation the defendant knew it
knowledge of its truth; (5) the defendant made the representation
with the intent that the plaintiff act upon it; (6) the plaintiff
relied upon the representation; and (7) the representation caused
the plaintiff injury.
Shandong Yinguang Chemical Industries Joint
Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).
“‘Failing to disclose information is equivalent to a false
representation only when particular circumstances impose a duty on
a party to speak, and the party deliberately remains silent.’”
Allen v. Devon Energy Holdings, LLC,
, No. 01-09-
00643-CV, 2011 WL 3208234, *14 (Tex. App.--Houston [1st Dist.] July
The elements of fraud by nondisclosure are “(1) the
defendant failed to disclose facts to the plaintiff; (2) the
defendant had a duty to disclose such facts; (3) the facts were
material; (4) the defendant knew that the plaintiff was ignorant of
the facts and did not have an equal opportunity to discover the
truth; (5) the defendant was deliberately silent and failed to
disclose the facts with the intent to induce the plaintiffs to take
some action; (6) the plaintiff acted in reliance on the omission or
concealment; and (7) the plaintiff suffered injury as a result of
acting without knowledge of the undisclosed facts.”
Horizon Shipbuilding, Inc. v. BLyn II Holding, LLC, 324 S.W. 3d
840, 850 (Tex. App.-Houston [14th Dist.] 2010, no pet.].
actionable, the defendant must have a duty to disclose.
citing In re Enron Corp. Sec., Derivative & “ERISA” Litig., 388 F.
Supp. 2d 780, 788 (S.D. Tex. 2005).
A duty to disclose may arise
in four situations:
(1) where there is a special or fiduciary
relations; (2) where one voluntarily discloses partial information
but fails to disclose the whole truth; (3) where one makes a
representation and fails to disclose new information that makes the
earlier representation misleading or untrue; and (4) where one
makes a partial disclosure and conveys a false impression.
Enron, 388 F. Supp. 2d at 788.
“Fraudulent inducement ‘is a particular species of fraud’ that
existence of a contract between the parties.”
Energy Holdings, LLC,
Allen v. Devon
, No. 01-09-00643-CV, 2011 WL
3208234, *6 (Tex. App.--Houston [1st Dist.] July 28, 2011).
establish a claim of fraudulent inducement under Texas law, a
plaintiff must show that a contractual promise was made by the
defendant with no intention of performing.
L.P. v. Chapa, 212 S.W. 299, 304 (Tex. 2006).
Tony Gullo Motors I,
A promise of future
performance made by the defendant with no intention of performing
at the time he made it can give rise to a cause of action for
Contractors, Inc., 960 S.W. 2d 41, 48 (Tex. 1998).
Under Texas law the elements of negligent misrepresentation
are (1) the representation was made by the defendant in the course
of his business or in a transaction in which he had a pecuniary
interest; (2) the defendant supplied “false information” for the
guidance of others in their business; (3) the defendant did not
communicating the information; and (4) the plaintiff suffered
pecuniary loss by justifiably relying on the representation.
Land Bank Ass’n of Tyler v. Sloane, 825 S.W. 2d 439, 442 (Tex.
1991)(adopting Restatement (Second) of Torts § 552 (1977)); Coburn
Supply Co. v. Kohler Co., 342 F.3d 372, 377 (5th Cir. 2003)(applying
To recover under the DTPA, a plaintiff must prove that (1) he
is a consumer; (2) the defendant can be sued under the DTPA; (3)
the defendant violated a specific provision of the DTPA; and (4)
the defendant’s violation is a producing cause of the plaintiff’s
Tex. Bus. & Com. Code Ann. §§ 17.41-17.63; Amstadt v.
U.S. Brass Corp., 919 S.W. 2d 644, 649 (Tex. 1996).
To qualify as
a consumer, a plaintiff must (1) seek or acquire goods or services
and (2) the goods or services purchased or leased must form the
basis of the complaint. Sherman Simon Enters., Inc. v. Lorac Serv.
Corp., 724 S.W. 13, 14 (Tex. 1987).
Omni alleges that Parker’s
“representations regarding the characteristics, uses, standard, and
style of the seals; its then-current capabilities and resources to
design and manufacture a functional and operative cartridge seal;
and  its intention to provide an adequate and fair remedy to
replace the defective seals were false misleading, and deceptive
[sic]” and were the producing cause of Plaintiff’s damages when
Plaintiff relied upon them.
First Amended Complaint (#16) ¶ 29.
Omni charges that Parker’s representations violated § 1746(b)(3),
Subsection (3) focuses on “causing confusion
or misunderstanding as to affiliation, connection, or association
with, or certification by, another.”
Subsection (5) deals with
“representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which
they do not have or that a person has a sponsorship, approval,
status, affiliation, or connection which he does not.”
(7) concerns “represent[ing] that goods or services are of a
particular standard, quality, or grade, or that goods are of a
particular style or model, if they are of another.”
(24) addresses “failing to disclose information concerning goods or
services which was known at the time of the transaction if such
failure to disclose such information was intended to induce the
consumer into a transaction into which the consumer would not have
entered had the information been disclosed.”
Parker’s Second Motion to Dismiss (#19)
The alleged material misrepresentation, underlying Omni’s
claims for violations of the DTPA, fraudulent inducement, negligent
misrepresentation, and fraud,3 is, “Defendant, by and through its
“A false representation is material if a reasonable person
would attach importance to and be induced to act on the
information.” Shandong Yinguang Chemical Industries Joint Stock
Co., Ltd. v. Potter, 607 F.3d 1029, 1033 (5th Cir. 2010), citing
Citizens Nat’l Bank v. Allen Rae Invs., 142 S.W. 3e 459, 478-79
representatives, Ronnie Lovett and Paul Yager, further represented
that it would be able to design and manufacture a cartridge seal
for Plaintiff’s gearbox that would enable Plaintiff’s gearbox to
successfully operate and function in an agricultural system.”
(fraudulent inducement), 38, and 41.
Omni also asserts in its
claim for fraudulent inducement that Parker “promised it would
create and register a patent for its seal design.”
Id., ¶ 36.
Parker insists this statement is not the basis for the fraudulent
“Defendant knew that Plaintiff was basing its decision to enter
into the performance contract with Defendant on the representations
of Defendant’s representatives that Defendant’s cartridge seal
function in an agricultural irrigation system.” Thus the patent is
irrelevant to Omni’s charge that the seals were defective.
Parker insists that the alleged misrepresentation fails to
cure Omni’s pleading defects because it is substantively identical
to the allegation of misrepresentation in the Original Petition,
i.e., that a Parker representative stated that Parker could design
a seal for Omni’s gearboxes that would meet or exceed the seal
quality of Omni’s competitors.
The new, vague, general allegation
does not identify the requisite “who, what, when, where and how”
(Tex. App.--Fort Worth 2004, no pet.).
and to whom for pleading fraud nor specify how the representation
is fraudulent, all necessary to induce a reasonable person to
attach importance to the statement.
Thus Omni’s claims under the
DTPA and for fraudulent inducement, negligent misrepresentation and
fraud should be dismissed.
Lone Star Ladies Inv. Club, 238 F.3d at
368; Shandong Yinguang Chemical Industries Joint Stock Co., Ltd. v.
Potter, 607 F.3d 1029, 1032-32 (5th Cir. 2010)(defendant represented
that it was in “sound financial condition” when it was unprofitable
and unable to obtain a line of credit; Fifth Circuit dismissed
claim of fraudulent inducement because plaintiff did not “present
support the statement that might entice a reasonable person to
“inherently vague and ambiguous”).
misrepresentation was not even a misrepresentation, because Omni
concedes that the seals were used for years (2005-07) before Omni
received any complaints from customers that the gearboxes were
leaking and then knew they were defective. First Amended Complaint
(#16) ¶¶ 8-9.
Parker contends that Omni’s claim, at most, is one
for breach of warranty or breach of contract related to the
Parker further maintains that Omni has not
provided fair notice of its claims based on fraud because it fails
to plead facts that are plausible and rise above mere speculation.
In addition, argues Parker, the statement is not actionable as
a misrepresentation as a matter of law under both Ohio4 and Texas
law because the alleged misrepresentation is an opinion or mere
“puffing,” and not a statement of material fact. A pure expression
of opinion will not support a claim for fraud.
Ratcliff, 646 S.W. 2d 927, 930 (Tex. 1983). “Generally, statements
that compare one product to another and claim superiority are not
Autohaus, Inc. v. Aguilar, 794
S.W. 2d 459, 464 (Tex. App.--Dallas 1990, writ denied)(holding that
representation that Mercedes was the best engineered car in the
world was not actionable).
See also Chandler v. Gene Messer Ford,
Inc., 81 S.W. 3d 493, 499-501 (Tex. App.--Eastland 2002, pet.
denied)(salesperson’s representations that a certain automobile was
misrepresentations of material fact nor false or misleading under
the DTPA, but only mere “sales talk” or “puffing”); Cleveland Mack
Sales, Inc. v. Foshee, No. 13-00-00059-CV, 2001 WL 1013393, at *4-6
denied)(statement that plaintiff would receive a new problem-free
tractor, delivered to plaintiff’s specifications, amounted to mere
The Standard Terms of Sale in dispute provides that Ohio law
puffing and not actionable under the DTPA)(“three factors courts
consider in determining whether a statement is actionable or mere
misrepresentation, (2) the comparative knowledge between the buyer
and seller, and (3) whether the representation concerns past or
present conditions, or future conditions”)5; Heard v. Monsanto Co.,
07-06-04020CV, 2008 WL 1777989, *3 (Tex. App.--Amarillo Apr. 18,
2008, no pet.)(defendant’s statements that “no other herbicide can
control more weeds than Roundup UltraMAX” and “[w]ith Roundup
UltraMAX you are assured the best all-around herbicide performance
you can buy” were not specific enough to support a cause of action
under the DTPA).
Ohio law, too, holds that subjective remarks cannot constitute
misrepresentations of material fact.
Cliff v. Loudenslager, No.
CA2006-01-002, 2006 WL 3186541, *3-4 (Ohio Ct. App. Nov. 6,
2006)(real estate seller’s agent’s statement that buyers were
misrepresentation); Akers v. Classic Props., Inc., No. CA2003-03035,
“Misrepresentations concerning future conditions
performance of a good are actionable under the DTPA. . .
Imprecise or vague statements are generally considered puffing
, and are not actionable under the DTPA, while statements
material fact are actionable.” Cleveland Mack, 2001 WL 1013393,
*4, citing Douglas v. Delp, 987 S.W. 2d 879, 886 (Tex. 1999).
“biking and walking trails” were not misrepresentations of material
fact nor a warranty, but mere puffing along with the other brochure
misrepresentations); Dent v. Ford Motor Co., 614 N.E.2d 1074, 1077
(Ohio Ct. App. 1992)(holding there was no evidence of fraudulent
misrepresentations or express warranties in Ford’s advertising
slogans, “Built Fun Tough” and “best in America”).
In sum, argues Parker, Omni fails to specify how the alleged
different from those of its competitors, and to show that Parker’s
sales representatives knew the representations to be false at the
time he made them.
At most the alleged misrepresentation is a
statement of opinion and puffing, not actionable as a matter of
Thus Parker asks the Court to dismiss Omni’s claims for
misrepresentation, and fraud.
First the Court would point out that there is more than one
alleged misrepresentation in the First Amended Complaint and that
Omni, in footnote two, asserts, “Throughout Plaintiff’s First
limited to Ronnie Lovett and Paul Yager.”
Nevertheless, as noted
supra, in the Fifth Circuit, inter alia identification of the
speaker is necessary for
In addition to the alleged misrepresentation cited by Parker
in paragraph 7,6 in paragraph 6 Omni states that in a 2004 meeting,
Parker’s Houston representative Ronnie Lovett
verbally represented that Parker would be fully capable
of designing and manufacturing cartridge seals . . . for
Plaintiff’s gear boxes . . ., which Plaintiff would then
sell to T-L Irrigation Company . . . for use in T&L’s
agricultural irrigation systems. Based on Defendant’s
representations, Plaintiff agreed to allow Defendant to
design and manufacture such seals, and Plaintiff and
Defendant agreed that Defendant was to ultimately have
final design control over the design and manufacture of
As Parker pointed out, before Omni received complaints in 2008
about the leaking gear boxes, there are no allegations that Omni
knew this statement was false.
Thus Omni has not pleaded facts
necessary to state a claim for fraud.
In paragraph 11, the complaint asserts, “ . . . Defendant
represents that it is ‘world’s leading diversified manufacturer of
Paragraph 7 also states, “At the time of Defendant’s
representations, Plaintiff further contends that Defendant did not
actually possess the knowledge, skills, technology, or other
capabilities or resources that Defendant represented to Plaintiff
that Defendant possessed; Defendant did not provide details
regarding its lack of capabilities and resources to Plaintiff; and
Defendant was uncertain whether it could actually design and
manufacture a functional cartridge seal design as requested by
Plaintiff within the time frame of Plaintiff’s request.”
precision-engineered solutions for a wide variety of mobile and
industrial aerospace markets.’”
The Court agrees with Parker that
this statement is an opinion or mere puffing.
Omni has failed to provide the requisite circumstantial facts
for its alleged misstatements. Plotkin v. IP Axess, Inc., 407 F.3d
“specificity as to the statements (or omissions) considered to be
fraudulent, the speaker, when and why the statements were made, and
an explanation of why they were fraudulent.”).
It has also failed
to allege facts showing that Parker’s representatives knew these
representations recklessly and without knowledge of their truth.
Nor has Omni established that Omni had a duty to disclose any
disclose. Nor for its fraudulent inducement claim has Omni pleaded
facts showing that a contractual promise was made by the defendant
misrepresentation claim is not supported by facts showing that at
the time the challenged statements were made, Parker supplied
“false information” for the guidance of Omni in its business. Nor
does Omni assert any facts to explain, no less support, the DTPA
sections it claims Parker violated: § 1746(b)(3)(“causing confusion
or misunderstanding as to affiliation, connection, or association
with, or certification by, another”), (5)(“representing that goods
ingredients, uses, benefits, or quantities which they do not have
or that a person has a sponsorship, approval, status, affiliation,
or connection which he does not”), (7)(“represent[ing] that goods
or services are of a particular standard, quality, or grade, or
that goods are of a particular style or model, if they are of
another”), and (24)(“failing to disclose information concerning
goods or services which was known at the time of the transaction if
such failure to disclose such information was intended to induce
the consumer into a transaction into which the consumer would not
have entered had the information been disclosed”).
Accordingly the Court agrees with Parker that Omni’s First
Amended Complaint has failed to state claims for fraud, fraudulent
inducement, negligent misrepresentation, and violations of the DTPA
under Rules 9(b) and 12(b)(6).
Thus the Court
ORDERS that Parker’s motion to dismiss is GRANTED and that the
misrepresentation, and violations of the DTPA against Parker are
DISMISSED without prejudice for failure to meet the standards of
Federal Rules of Civil Procedure 9(b) and 12(b)6).
for breach of contract and breach of implied and express warranties
SIGNED at Houston, Texas, this
March , 2012.
UNITED STATES DISTRICT JUDGE
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