this forum, LBK consented to this court's jurisdiction over it.
Therefore, even though it appears that Defendant had sufficient contacts with New York to subject it to suit in this forum, I need not rely on those contacts as a basis for this court's jurisdiction over LBK. Compare Scottish Air Int'l 152 F.R.D. at 24 (quoting Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974)). By making an appearance, Defendant has waived any claim of lack of jurisdiction.
B. Rule 9(b)
To state a claim for fraud under New York common law, the complaint must allege that the defendant knowingly made a false statement of material fact with the intent to induce the plaintiff's reliance, and also that the plaintiff did in fact rely on that false statement to its detriment. Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 599 (2d Cir. 1991) (citations omitted); Cramer v. Devon Group, Inc., 774 F. Supp. 176, 181 (S.D.N.Y. 1991). The Federal Rules of Civil Procedure further require that fraud be pleaded with particularity. Fed. R. Civ. P. 9(b). However, Rule 9(b) does not require plaintiffs to set forth their evidence in the complaint. Lazzarro v. Manber, 701 F. Supp. 353, 372, 373 (E.D.N.Y. 1988) (finding general circumstances, content, and perpetrator of each fraudulent representation sufficient pleading). To satisfy the requirements of Rule 9(b), the complaint need only give particulars regarding the fraudulent content of the speech, the time and place at which the statements were made, and the identity of individuals making the fraudulent statements. See Goldman v. Belden, 754 F.2d 1059, 1069-70 (2d Cir. 1985). Rule 9(b) expressly states that scienter may be pleaded in general terms. Id. at 1070.
Plaintiff's second cause of action is inartfully drafted, combining a claim for breach of contract with a claim of fraud.
In so much as it constitutes a claim for fraud, the cause of action must be dismissed for failure to satisfy the requirements of Rule 9(b).
Plaintiff alleges that Defendant fraudulently misrepresented its intent and ability to provide the "Mrs. Albee" figurines to Avon. (Compl. PP 9-10, 13), which is sufficient to identify the content of the allegedly fraudulent speech. The complaint also adequately states the location where the allegedly fraudulent statements were made, specifically New York City. (Compl. P 7).
In addition, the complaint generally pleads Defendant's scienter, and also asserts that Plaintiff was damaged as a result of the misrepresentations. (Compl. P13).
However, the complaint fails to plead the time and speaker with sufficient particularity. According to paragraph 10, the fraudulent misrepresentations may have been made at any date prior to and/or including September 1, 1993. The time of the alleged statements is made no more clear by paragraph 7 of the complaint, which states that meetings between Defendant's and Avon's representatives were held "on numerous occasions including November 1992, April 1993, May 1993, and August 1993." This vague reference to a period of several months does not sufficiently apprise Defendant of when the allegedly fraudulent speech was made, and in turn fails to satisfy Rule 9(b).
Finally, Plaintiff fails to provide the identity of the individual(s) who made the allegedly fraudulent statements. Allegedly fraudulent statements must be linked to individual speakers; vague references to "defendants" as the speakers are insufficient. Mills v. Polar Molecular Corporation, 12 F.3d 1170, 1175 (2d Cir. 1993). Attributing statements to a corporate entity does not suffice to link those statements to any individuals, be they directors or otherwise. See id.
LAI's complaint speaks only in terms of "defendant," (see compl. PP 9, 10, 13), and "Representatives of defendant." (See compl. P 7). At no point does the complaint provide the name, title, or some other means of identifying any individual who made the misrepresentations. Thus, the complaint is not sufficiently particular with regard to the identity of the alleged speaker.
Because Plaintiff has failed to plead with sufficient particularity the time and place where the alleged fraudulent misrepresentations were made, as well as the identity of the individuals making those misrepresentations, the cause of action for fraud is dismissed pursuant to Rule 9(b).
Defendant's motion to dismiss the complaint in its entirety for lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2), is denied.
Defendant's motion to dismiss the second cause of action for failure to plead fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure, and for failure to state a claim upon which relief may be granted, Fed. R. Civ. P. 12(b)(6), is hereby granted, without prejudice. Plaintiff is directed to file and serve an appropriate amended complaint within twenty days of the date hereof.
DATED: New York, New York
January 26, 1995
KEVIN THOMAS DUFFY, U.S.D.J.