Class 4 Notes

Review of Rule 8
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FRCP requires more than just a short an plain notice pleading in Rule 9(b) (pleadings of items of special damage)

You cannot require hightened pleading based on Rule 8

Some state & federal statutes may also require specificity in pleading
I.E. Securities Fraud
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Stradford V. Zurich Insurance Co. 

ISSUE:  Must a party identify specific alleged misrepresentations when accusing a party of fraud?

Yes. FRCP 9(b) provides that all allegations of fraud shall be stated with particularity, and that allegations of intent may be set forth generally. Defendants' counterclaims properly allege that Plaintiff had fraudulent intent by pointing out the timing and size of his insurance claim; however, Rule 9(b) requires that the time, place, and nature of the alleged misrepresentations be disclosed to the party accused of fraud. Because Defendants' counterclaims fail to identify any alleged misrepresentation, it is unclear whether Plaintiff has indeed made any misrepresentations. The primary purpose of Rule 9(b) is to afford a litigant accused of fraud fair notice of the claim and the factual ground upon which it is based. Defendants' counterclaims fail to provide Plaintiff with any such notice, and therefore must be dismissed under Rule 9(b). Defendants, however, are granted leave to amend their counterclaims to more clearly allege that Plaintiff misrepresented the date of the loss in order to bring that date within the coverage period. Additionally, Defendants are granted permission to move for summary judgment.

Basic Rule:

Where a party is accused of fraud, FRCP 9(b) requires the time, place, and nature of the alleged misrepresentations to be disclosed to the party accused of fraud.

At the close of the pleading if they are insufficeint you may
1. file a 12(c)
2. a motion to strike
3. 12 (e) if filing for cases like fraud where more detail is required
4. 12 (b) 6 motion

See Slide Show on this class.
Meritless claim file Rule 11
If need more info - then file Rule 12(e)

Under Rule (b)
Mistake, Special Damages, must be files with greater detail specified in Rule 9 (b)
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