represented in the Kassover litigation.
Second, there is insufficient evidence to support a finding
that Kassover was "vested with the authority of
representation." Defendant attempts to adduce certain similar
features of the litigations as evidence of vested authority.
Plaintiffs Kassover and Phillips share a common attorney,
Samuel Sporn. Also, the complaints in the two actions bear a
striking resemblance to each other, both naming Kidder as a
defendant and asserting similar legal theories arising from
the same sequence of events. Finally, Sporn's local counsel,
Charles Zimmerman, wrote a letter on Phillips' behalf to the
Minnesota court urging it not to dismiss Kassover's claims
against Kidder with prejudice. That letter expressed the fear
that such a dismissal would influence the instant action.
These three facts are insufficient to support a finding that
Phillips authorized Kassover to represent his interests. As to
the first and second points, other federal courts have held
that a commonality of attorneys and pleadings alone does not
allow a prior judgment to have preclusive effect on
nonparties, where the party and nonparty did not bear the
requisite legal relationship. See, e.g., Freeman v. Lester
Coggins Trucking, Inc., 771 F.2d 860, 864-65 (5th Cir. 1985)
(citations omitted).*fn5 In Freeman, plaintiff family members
were involved in an accident with a truck operated by
defendant. The Fifth Circuit held that a finding of no
negligence in the prior personal injury claim prosecuted by the
father against the defendant had no preclusive effect on the
subsequent wrongful death suits by the mother and children on
behalf of the deceased sibling. This finding was despite the
identity of attorneys and similar allegations of negligence.
The facts of the present case are similar. There is no
evidence of a legal relationship between Kassover and
Phillips, or of any duty of representation flowing from one to
the other. This point was underscored by the Minnesota court's
refusal to certify a plaintiff class.
As to defendant's third point, while Zimmerman's letter to
Judge Alsop indicates that there was some representation of
Phillips' interests in the prior litigation, it is not
sufficient to trigger a finding of authority to represent. The
letter was not written until after the Minnesota court had
granted a motion to dismiss Kassover's claims and denied a
motion to certify Kassover as a plaintiff class
representative. Defendant does not allege that Phillips'
interests were represented while the court was considering the
merits of Kassover's claim, and by its terms the Minnesota
court's dismissal of Kassover's claims against Kidder did not
contemplate the viability of any other party's claims. Prior
Second Circuit cases in which a nonparty has been precluded
from subsequent litigation all involve a much closer
relationship than can be found here. Expert Electric, supra,
554 F.2d at 1233-34; Amalgamated Sugar, supra, 825 F.2d at 640;
Alpert's Newspaper, supra, 876 F.2d at 270. The sort of
representation found in the instant case does not suffice to
support claim preclusion.
Since Kassover's interests, as they concerned the claims at
issue in the instant litigation, were demonstrably different
from those of plaintiff, and since Kassover had no duty or
authority to represent the interests of plaintiff in the prior
litigation, Kassover did not adequately represent plaintiff
and the judgment entered in the Kassover litigation cannot
function as a bar to litigation by plaintiff here. Because the
Court finds that there is insufficient evidence to establish
the first element, identity of parties, the Court need not
address the second element, identity of claims between the two
litigations. Defendant's motion to dismiss under Fed.R.Civ.P.
12(c), or in the alternative under Fed.R.Civ.P. 56
on grounds of claim preclusion is therefore denied.
2. Pleading Fraud with Particularity
Fraud claims must be pleaded with particularity as required
by the Federal Rules of Civil Procedure 9(b). See, Zucker v.
Katz, 708 F. Supp. 525, 531 (S.D.N.Y. 1989) (Kram, J.);
Construction Technology v. Lockformer Co., Inc., 704 F. Supp. 1212,
1230-31 (S.D.N.Y. 1989); Anitora Travel, Inc. v. Lapian,
677 F. Supp. 209, 214 (S.D. N.Y. 1988).
Allegations based on information and belief which fail to
specify the time, place, speaker and content of the alleged
misrepresentations lack the "particulars" required by Rule
9(b). Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986); see
Denny v. Barber, 576 F.2d 465, 469 (2d Cir. 1978); Zerman v.
Ball, 735 F.2d 15, 22 (2d Cir. 1984); Segal v. Gordon,
467 F.2d 602, 608 (2d Cir. 1972). Failure to connect allegations of
fraudulent representation to particular defendants and to
allege specific facts to support the claims of fraud is
sufficient grounds for dismissal. Luce, supra, 802 F.2d at 54.
To satisfy the Rule 9(b) requirements in the Second Circuit,
plaintiffs must specify:
1) precisely what statements were made in what
documents or oral misrepresentations or what
omissions were made, 2) the time and place of
each such statement and the person responsible
for making (or, in the case of omissions, not
making) the same, 3) the context of such
statements and the manner in which they misled
the plaintiffs, and 4) what defendants obtained
as a consequence of the fraud.
Beres v. Thomson McKinnon, No. 85-6674 (S.D.N.Y. September 1,
1989) (Kram, J.), slip op. at 18 (WESTLAW, Allfeds library,
Dist. file, 1989 WL 105967) (citing Barr v. McGraw-Hill, Inc.,
[Current Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶¶ 94,382 at
92,498, 710 F. Supp. 95 (S.D.N.Y. 1989); and quoting Todd v.
Oppenheimer & Co., Inc., 78 F.R.D. 415, 420-21 (S.D.N Y