1

 We note that Defendant indicates by way of footnote that although the complaint refers

to it as “Lightnin, Inc.,” it is a division of SPX Corporation, a Delaware corporation. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MIXING AND MASS TRANSFER : Case No.: 4:05cv1519

TECHNOLOGIES, LLC., :

:

Plaintiff : Judge Jones

:

v :

:

LIGHTNIN, INC, :

:

Defendant :

MEMORANDUM AND ORDER

January 18, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss Plaintiff’s Fraud Claim

pursuant to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 12(b)(6) (“the

Motion”) (doc. 15) filed by Defendant Lightnin, Inc. (“Defendant” or “Lightnin”)1

on November 14, 2005. For the reasons that follow, the Motion will denied.

FACTUAL BACKGROUND/PROCEDURAL HISTORY:

On June 27, 2005, Mixing and Mass Transfer Technologies, LLC

(“Plaintiff” or “m2

t”) commenced this action by filing a Praecipe for Writ of

Summons in the Court of Common Pleas of Centre County, Pennsylvania. 

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 1 of 10
2

 As Plaintiff has incorporated the factual history provided by Defendant in its supporting

brief, we will refer to such factual history in this narrative. 

2

Lightnin filed a Notice of Removal on July 29, 2005 and, upon the parties’

agreement regarding the removal, Plaintiff withdrew its objection to removal and

filed its complaint with this Court on October 24, 2005. In its complaint, Plaintiff

alleges five causes of action: (1) breach of contract, (2) intentional interference

with prospective contractual relations, (3) misappropriation of trade secrets, (4)

fraudulent misrepresentation, and (5) conversion. 

The parties are competitors in the impeller development and manufacturing

industry.2

 Impellers are the rotating component of pumps which are often similar

in appearance to propellers. They are generally used to mix fluids or slurry in large

agitation tanks, such as treating wastewater. Plaintiff has represented to Defendant

in the past that it does not have sufficient resources or facilities to perform certain

tests on impeller technology so Plaintiff has sought access to and use of Lightnin’s

testing resources. This action arises from Plaintiff’s allegations that Defendant

violated two confidentiality agreements the parties executed when Lightnin

allowed Plaintiff use of its impeller-testing facility in the summer of 2002. 

Plaintiff alleges that it and Lightnin entered into an agreement to protect

Plaintiff’s confidential proprietary information before Plaintiff commenced testing

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 2 of 10
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its surface aerator in Lightnin’s aeration tank and that the confidentiality agreement

imposes non-use and non-disclosure obligations on Lightnin. (Compl. ¶¶ 25-26). 

Plaintiff asserts that Lightnin represented to it that Lightnin intended to abide by its

contractual obligations to protect Plaintiff’s proprietary rights and trade secrets,

that the facts Lightnin misrepresented were material, that Plaintiff believes

Lightnin submitted a proposal to Detroit that was based on Plaintiff’s proprietary

technology, that Lightnin knew its representations were false and knew that

Plaintiff would justifiably and reasonably rely on such representations, that

Lightnin induced Plaintiff to rely on its representations, and that Plaintiff suffered

money damages as a direct and proximate result of its reliance on Lightnin’s

misrepresentations. Id. at ¶¶ 38, 71-73, 74-75. Such allegations are offered by

Plaintiff as support for its fraudulent misrepresentation claim. 

STANDARD OF REVIEW:

In considering a motion to dismiss, a court must accept the veracity of a

plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also

White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d

63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in

considering a motion to dismiss based on a failure to state a claim argument, a

court should "not inquire whether the plaintiffs will ultimately prevail, only

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 3 of 10
4

whether they are entitled to offer evidence to support their claims." Furthermore,

"a complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986). 

DISCUSSION:

In the Motion, Defendant argues that the Court should dismiss Plaintiff’s

claim for fraudulent misrepresentation pursuant to Fed.R.Civ.P. 12(b)(6) because

Plaintiff failed to plead the claim with the particularity required under applicable

rules and precedent. Specifically, Defendant contends that Plaintiff fails to specify

what its alleged misrepresentations were, when the alleged misrepresentations were

made, who made the alleged misrepresentations, and how Plaintiff relied upon

such misrepresentations. Finally, Defendant asserts that Plaintiff’s allegations are

insufficient if it is attempting to claim that Defendant’s alleged failure to comply

with contractual obligations was itself a fraudulent representation. 

In response, Plaintiff argues that its complaint puts Defendant on fair notice

of the factual basis for its fraudulent inducement claim by alleging the specific

contracts at issue and the timeframes those contracts were negotiated and entered

into. Plaintiff maintains that Defendant is able to prepare a defense to the fraud

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 4 of 10
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allegations set forth by it. Moreover, Plaintiff asserts that in the event the Court

determines that further specificity is required as to any element, Plaintiff requests

that the Court construe Defendant’s Motion as a Rule 12(e) motion for a more

definite statement, as opposed to a Rule 12(b)(6) motion to dismiss. 

We initially note that Plaintiff has brought a fraudulent misrepresentation

claim in Count IV of its complaint. Under Pennsylvania law, a plaintiff must plead

the following elements to state a claim for fraudulent misrepresentation:

(1) a representation; (2) which is material to the transaction at hand;

(3) made falsely, with knowledge of its falsity or recklessness as to

whether it is true or false; (4) with the intent of misleading another

into relying on it; (5) justifiable reliable on the misrepresentation; and

(6) the resulting injury was proximately caused by the reliance. 

Gilmour v. Bohmueller, 2005 U.S. Dist. LEXIS 1611 at *9 (E.D. Pa. Jan. 27, 2005)

(quotations omitted); Manning v. Temple Univ., 2004 U.S. Dist. LEXIS 26129 at

*29-30 (E.D. Pa. Dec. 30, 2004). 

As accurately submitted by Defendant, Federal Rule 9(b) requires fraud to

be pleaded with particularity. Federal Rule 9(b) provides as follows:

Fraud, Mistake, Condition of the Mind. In all averments of fraud or

mistake, the circumstances constituting fraud or mistake shall be

stated with particularity. 

Fed.R.Civ.P. 9(b). “This particularity requirement is intended ‘to provide

defendants with notice of the precise misconduct with which they are charged, and

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 5 of 10
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to safeguard defendants against spurious charges of immoral and fraudulent

behavior.’” United Prods. Corp. v. Admiral Tool & Mfg. Co., 122 F. Supp. 2d 560,

565 (E.D. Pa. 2000) (quoting Seville Indus. Mach. Corp. v. Southmost Mach.

Corp., 742 F.2d 786, 791 (3d Cir. 1984)). In assessing fraud claims under Federal

Rule 9(b), the Third Circuit Court of Appeals has held that plaintiffs need not plead

the “date, place or time” of the fraud, so long as they use an “alternative means of

injecting precision and some measure of substantiation into their allegations of

fraud.” Jairett v. First Montauk Sec. Corp., 203 F.R.D. 181, 186 (E.D. Pa. 2001)

(citing Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 659 (3d Cir.

1998)). Moreover, the Third Circuit has instructed that in applying Rule 9(b),

focusing exclusively on its “particularity” language is too narrow an approach and

fails to take account of the general simplicity and flexibility contemplated by the

rules. Seville, 742 F.2d at 791. Accordingly, while allegations of date, place or

time fulfill these functions, nothing in the rule requires them. Id. It is enough that

the claim “pleads with particularity the ‘circumstances’ of the alleged fraud in

order to place the defendants on notice of the precise misconduct with which they

are charged.” Jairett, 203 F.R.D. at 186 (quoting Seville, 742 F.2d at 791). 

Finally, a claim satisfies the requirements of Rule 9(b) if it adequately delineates

the acts and transactions constituting the fraud to apprise defendants fairly of the

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claim, and its allegations are sufficiently clear to enable defendants to answer. 

Jairett, 203 F.R.D. at 186; see also Republic Envtl. Sys., (PA), Inc. v. Reichhold

Chems., 154 F.R.D. 130, 131-32 (E.D. Pa. 1994). 

In the complaint, Plaintiff has pled that on or about December 2002, it

received a contract from the City of Detroit to resolve an emergency situation the

City had with its wastewater treatment facility. (Compl. ¶ 19). In addition, the

complaint provides Defendant with information concerning which of its employees

negotiated and/or executed the Confidentiality Agreement, the Facilities Lease

Agreement, and the Purchase Order at issue. 

After having reviewed Plaintiff’s eighteen page complaint, we find that it is

replete with allegations regarding the course of dealings between the parties and

their contractual relationship; however, only broad and conclusory statements are

made regarding the circumstances of the alleged fraud. Consider, for instance, that

Plaintiff’s fraudulent misrepresentation claim indicates that Defendant “failed to

exercise reasonable care in conducting business with The City of Detroit, and in

performing work under a contract therewith, in that it allowed Plaintiff’s

proprietary information to be used during the course thereof, for the benefit of

Defendant.” (Compl. ¶ 70). The only additional information provided regarding

Defendant’s alleged failure to exercise reasonable care is Defendant’s alleged

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 7 of 10
8

unfair representation to Plaintiff that it “intended to abide by its contractual

obligations to protect Plaintiff’s proprietary rights and trade secrets.” Id. at ¶ 71. 

A fair reading of the complaint does not accordingly plead with particularity the

“circumstances” of the alleged fraud in order to place Defendant on notice of the

precise misconduct with which it is charged. See Jairett, 203 F.R.D. at 186

(quoting Seville, 742 F.2d at 791). 

We will therefore consider construe Defendant’s Motion as a Rule 12(e)

motion for a more definite statement, as opposed to a Rule 12(b)(6) motion to

dismiss. Seligson v. Plum Tree, Inc., 361 F. Supp. 748, 756 (E.D. Pa. 1973). We

will deny Defendant’s Motion to Dismiss Plaintiff’s Fraud Claim. We will order

Plaintiff to file an Amended Complaint that will include a more definite statement

of its fraud claim, pursuant to Rule 12(e), within twenty (20) days of the date of

this Order. Plaintiff’s Amended Complaint shall provide further factual specificity

including, but not limited to details regarding the exact times of the negotiations

between the parties, specific alleged misrepresentation(s) made by specific

individual(s), how Plaintiff relied upon any alleged misrepresentation(s), and

which of Plaintiff’s employees were involved in negotiating and executing the

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 8 of 10
3

 Although Plaintiff’s submission makes reference to “pre-complaint” discovery as

provided for under Pennsylvania law regarding potential claims it may have had, no such precomplaint discovery is available under the Federal Rules of Civil Procedure. Despite the fact

that Plaintiff allegedly informed Defendant after filing suit in state court that it “wished to

conduct certain discovery in order to more fully set forth the factual basis for its causes of

action,” the parties agreed to removal of the case sub judice to this Court where no such precomplaint discovery is available.

9

contracts at issue.3 

NOW, THEREFORE, IT IS ORDERED THAT:

1. We will construe Defendant’s Motion to Dismiss Plaintiff’s Fraud

Claim (doc. 15) as a Federal Rule 12(e) Motion for a More Definite

Statement. 

2. Defendant’s Motion to Dismiss Plaintiff’s Fraud Claim (doc. 15) is

DENIED.

3. Plaintiff shall file an Amended Complaint which will include a more

definite statement of Plaintiff’s fraud claim, pursuant to Federal Rule

12(e), within twenty (20) days of the date of this Order. Plaintiff’s

Amended Complaint shall provide further factual specificity

including, but not limited to details regarding the exact times of the

negotiations between the parties, specific alleged misrepresentation(s)

made by specific individual(s), how Plaintiff relied upon any alleged

misrepresentation(s), and which of Plaintiff’s employees were

Case 4:05-cv-01519-JEJ Document 26 Filed 01/18/06 Page 9 of 10
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involved in negotiating and executing the contracts at issue. 

4. Defendant shall answer or otherwise respond to Plaintiff’s Amended

Complaint in accordance with the Federal Rules of Civil Procedure.

s/ John E. Jones III

John E. Jones III

United States District Judge

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