Kerch et al v. Kowalski

Filing 27

MEMORANDUM OPINION AND ORDER - Defendant's motion is GRANTED andPlaintiffs' fraud claims (Counts Two and Three) are DISMISSED WITHOUT PREJUDICE. Plaintiffs may refile within twenty days from the date of this Order. Plaintiffs are advised th at failure to plead fraud with particularity in any amended complaint will result in dismissal with prejudice. This matter remains before the Court on Count One, Plaintiffs' conversion andmisappropriation claim. Signed by District Judge Liam O'Grady on 07/25/2018. (dvanm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

HELEN KIRCH,et al.,

Plainliffs,
Civil No. l:I8-cv-213

Hon. Liam O'Grady

V.

STEPHANIE RUSSO KOWALSKI,

Defendant.

MEMORANDUM OPINION & ORDER

This matter comes before the Court on Defendant Stephanie Russo Kowalski's Second
Motion to Dismiss(Dkt. 21). Having reviewed the pleadings and the record, the Court finds that
oral argument would not assist its resolution of this matter.

The Court previously granted a Motion to Dismiss by Defendant, finding that Plaintiffs

had failed to state a claim for fraud. See Dkt. 19. Defendant filed the instant motion in response
to Plaintiffs' Amended Complaint, seeking dismissal of Plaintiffs' claims for fraud (Count Two)

and constructive fraud (Count Three). Sec Dkt. 21; Dkt. 22 at 6. For the reasons explained below.
Defendant's motion is GRANTED and Plaintiffs' fraud claims(Counts Two and Three) are
DISMISSED WITHOUT PREJUDICE.
I.

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint
must contain sufficient factual information to "state a claim to relief that is plausible on its face."

Bell All. Corp. v. Twombly, 550 U.S. 544, 550(2007). A motion to dismiss pursuant to Rule
12(b)(6) must be considered in combination with Rule 8(a)(2) which requires "a short and plain