United States District Court, E.D. Missouri, Eastern Division
GARY L. HOTZ, d/b/a CADD DESIGN CONCEPTS, Plaintiff,
FIFTH THIRD BANK, Defendants.
MEMORANDUM AND ORDER
A. ROSS United states district judge.
matter is before the Court on Defendant Fifth Third
Bank’s Motion to Dismiss pursuant to Rule 9(b) and
12(b)(6). (Doc. No. 10) Plaintiff filed a response in
opposition to the motion on July 18, 2016. (Doc. No. 14)
Defendant did not file a reply. The motion is therefore fully
briefed and ready for disposition.
Gary L. Hotz, d/b/a CADD Design Concept
(“Plaintiff”) filed his Petition for Fraud and
Fraudulent Misrepresentation (Complaint
(“Compl.”), Doc. No. 4) in state court seeking to
recover damages from Defendant Fifth Third Bank
(“Bank”) based on a credit card Bank allegedly
allowed Plaintiff’s former business partner to open in
Plaintiff’s name for their jointly owned business, SJS,
LLC (“SJS”) or in SJS’s name. The action
was timely removed to this Court. (Doc. No. 1)
alleges that in mid-2012, his former business partner and
manager of SJS, Steven Scaglione, applied for and obtained a
credit card loan and credit card account “solely in the
name of Gary L. Hotz for SJS” (Compl. at ¶ 7)
“or in the name of SJS” (id. at ¶
9). Plaintiff “was not present or did not sign
off” on the account, and only learned of the account
after it was opened. (Id. at ¶¶ 7-9).
Plaintiff further alleges Bank “made false and
fraudulent misrepresentations to Plaintiff at or prior to the
time of issuing the credit card” by “asserting
that it was acquiring information for the purpose of opening
a loan on behalf of SJS, LLC.” (Id. at ¶
11.B) In addition, Bank failed to “advise or represent
to Plaintiff that Plaintiff would be a guarantor and would be
liable on any account or credit card in the name of
SJS” prior to opening the account. (Id.)
Plaintiff alleges he suffered unspecified actual damages, as
well as damage to his credit and reputation, in excess of
$75, 000.00 as a result of Bank’s conduct.
contends that Plaintiff has failed to satisfy the pleading
requirements of Rule 9(b) and should be dismissed for failure
to state a claim upon which relief may be granted. Although
Bank frames its motion as a motion to dismiss, the Court
construes it as a motion for more definite statement under
Fed.R.Civ.P. 12(e), “[a] party may move for a more
definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that
the party cannot reasonably prepare a response.” When a
“pleading fails to specify the allegations in a manner
that provides sufficient notice, a defendant can move for a
more definite under Rule 12(e) before responding.”
Love v. Career Educ. Corp., No. 4:11CV1585 JAR, 2012
WL 10614, at *1 (E.D. Mo. Jan. 3, 2012) (quoting McCoy v.
St. Louis Pub. Schs, No. 4:11CV918 CDP, 2011 WL 4857931
(E.D. Mo. Oct. 13, 2011)). A motion for more definite
statement is proper when a party is unable to determine
issues he must meet, or where there is a major ambiguity or
omission in the complaint that renders it unanswerable.
Id. (citing Tinder v. Lewis County Nursing Home
Dist., 207 F.Supp.2d 951, 959 (E.D. Mo. 2001)).
Civ. P. 9(b) requires plaintiffs to “state with
particularity the circumstances constituting fraud or
mistake.” To satisfy this requirement, the pleader must
generally set forth the “who, what, when, where, and
how of the misconduct charged.” BJC Health Sys. v.
Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007)
(internal quotation marks and quoted cases omitted). Although
a plaintiff need not state each element of the fraud claim
with particularity to satisfy this requirement, he
“must state enough so that [his] pleadings are not
merely conclusory.” Roberts v. Francis, 128
F.3d 647, 651 (8th Cir. 1997).
Court has carefully reviewed Plaintiff’s complaint and
concludes that he has not satisfied Rule 9(b)’s
particularity requirements. Plaintiff does not allege any of
the “who, what, when, where, and how” with
particularity: (i) the who: Plaintiff refers generally to
“Defendant Bank” (Compl. at ¶ 11.B) but
fails to allege the identity of the person making the
misrepresentation; (ii) the what: Plaintiff alleges that the
Bank asserted it was acquiring information for the purpose of
opening a loan on behalf of SJS, LLC (Compl. at ¶ 11.B),
but fails to allege the contents of the false
representations; (iii) the when: Plaintiff alleges the Bank
“made false and fraudulent misrepresentations to
Plaintiff at or prior to the time of issuing the credit
card” (Compl. at ¶ 11.B), but does not identify
the exact dates and times, or reasonably approximate dates,
of the alleged misstatements; and (iv) the where and how:
Plaintiff does not allege whether the alleged
misrepresentations took place over the phone, at a branch, or
perhaps in writing. “[C]onclusory allegations that a
defendant’s conduct was fraudulent and deceptive are
not sufficient to satisfy [Rule 9(b)].” Schaller
Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 746
(8th Cir. 2002).
the Court will grant the Bank’s motion for more
definite statement and give Plaintiff twenty days to file an
amended complaint to bring his fraud claims into conformity
with the heightened pleading requirements of Rule 9(b).
IT IS HEREBY ORDERED that Defendant Fifth Third Bank’s
Motion to Dismiss , construed as a motion for more
definite statement, is GRANTED.
FURTHER ORDERED that Plaintiff is granted twenty (20) days,
until September 6, 2016, to amend his petition for
fraud and fraudulent misrepresentation in accordance with ...