Friday, December 01, 2006

Fifth Circuit Affirms Dismissal of Fraud Claim Based on Insufficient Particularity

Per Carroll v. Fort James Corp., --- F.3d ----, 2006 WL 3399286 (5th Cir. Nov. 27, 2006):

Rule 9(b) requires that plaintiffs plead enough facts to illustrate "the 'who, what, when, where, and how' of the alleged fraud." Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450, 453 (5th Cir.2005) (quoting United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir.1997)). "In cases concerning fraudulent misrepresentation and omission of facts, Rule 9(b) typically requires the claimant to plead the type of facts omitted, the place in which the omissions should have appeared, and the way in which the omitted facts made the representations misleading." United States ex rel. Riley v. St. Luke's Episcopal Hospital, 355 F.3d 370, 381 (5th Cir.2004) (citing 2 JAMES W. MOORE, ET AL., MOORE'S FEDERAL PRACTICE ยง 9.03[1][b] at 9-18 through 9-19 (3d ed.2003)). The appellants' two complaints clearly fail to indicate "the place in which the omissions should have appeared." Riley, 355 F.3d at 381. They allege no facts showing when, if ever, it was incumbent upon Fort James, which never had any dealings with these appellants, to disclose any information to them at all, nor how Fort James should have done so. Therefore, we are satisfied that the appellants failed to make out a fraud claim that could satisfy Rules 12(b)(6) and 9(b), and we AFFIRM the district court's dismissal of that claim.


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