Gottlieb v. Sandia American Corp. , 35 F.R.D. 223 ( 1964 )

BODY, District Judge.

This case, currently before the Court •on defendants’ motion for a more definite .statement under Rule 9(b) of the Federal Rules of Civil Procedure, involves a suit by the plaintiffs, all former shareholders of World Wide Bowling Enterprises, Inc. against Sandia American Corporation, a New Mexico corporation, .and the aforestated individual defendants. The complaint is founded on certain provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934. Plaintiffs allege that the defendants employed acts, practices or courses •of conduct which operated as a fraud upon them thereby inducing the plaintiffs to exchange their stock for the stock of the defendants’ corporation. They seek, among other relief, the re-transfer of shares of stock and debentures of World Wide and an accounting.

Defendants contend the fraud and the allegations with regard to the fraud are not so specifically pleaded so as to designate which parties practiced, committed or participated in the fraudulent conspiracy.

Rule 9(b) provides as follows:

“ * * * In 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.”

The rule does not require that the allegations state all the evidence of fraud but requires merely that plaintiffs set forth facts with sufficient particularity to apprise defendants of charges against them. Union Mutual Life Insurance Company v. Simon, D.C.Pa., 22 F.R.D. 186.

The authorities evince that the elements of fraud which must be pleaded with sufficient particularity are:

(1) A false representation of a material fact;

(2) Knowledge of its falsity by the person making it;

(3) Ignorance of its falsity by the person to whom it is made;

(4) The intent that it should be acted upon;

(5) That it was acted upon by. plaintiff to his damage.

See la Barron and Holtzoff, Federal Practice and Procedure, § 302, p. 216 (1960).

In my opinion plaintiffs have pleaded the averments of fraud with sufficient particularity and the defendants are able to prepare an adequate answer from these allegations. Furthermore, defendants may utilize the procedure of discovery to assist them in their defense, should they desire.

Therefore, the motion will be denied.