(Document no. 9). 1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Clearview Software

International, Inc. and

Blue Ivy Solutions, Inc.

v. Civil No. 07-CV-405-JL

Christopher E. Ware

SUMMARY ORDER

In this business tort action asserting various claims, the

defendant, Christopher Ware, has moved to dismiss the Amended

Complaint for failing to state a claim upon which relief can be 1

granted. See Fed. R. Civ. P. 12(b)(6). Ware argues that the

plaintiffs cannot succeed on any of their four counts because

their complaint fails to meet the heightened pleading standards

applicable to claims rooted in fraud or mistake. See Fed. R.

Civ. P. 9(b). The court has subject-matter jurisdiction under 28

U.S.C. § 1332(a)(1) (diversity). After oral argument, and for

the following reasons, the motion to dismiss is granted, but the

plaintiffs are granted leave to file a second amended complaint

subject to the court’s sua sponte review for sufficiency under

Rules 8(a), 9(b), and 12(b)(6). 

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I. Applicable legal standard

A motion to dismiss for failure to state a claim upon which

relief can be granted, see Fed. R. Civ. P. 12(b)(6), requires the

court to conduct a limited inquiry, focusing not on “whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

Davis v. Scherer, 468 U.S. 183 (1984). To avoid a dismissal, 

“a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal

quotation marks omitted). The court, however, needs “more than

labels and conclusions, and a formulaic recitation of the cause

of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 545 (2007). 

II. Analysis 

Generally, a complaint need only contain “a short and plain

statement of the claim” being asserted. Fed. R. Civ. P. 8(a)(2). 

“That proposition, however, is not universally applicable,” Rodi

v. S. New Eng. Sch. of Law, 389 F.3d 5, 15 (1st Cir. 2004), and

claims sounding in fraud or mistake are subject to heightened

pleading standards. See N. Am. Catholic Educ. Prog. Found., Inc.

v. Cardinale, 567 F.3d 8, 15 (1st Cir. 2009). Under Rule 9(b):

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The heightened pleading standards “extend[] only to the 2

particulars of the allegedly misleading statement [and] . . . the

other elements of fraud, such as intent and knowledge, may be

averred in general terms.” Rodi, 389 F.3d at 15; see also Fed.

R. Civ. P. 9(b) (“Malice, intent, knowledge, and other conditions

of a person’s mind may be alleged generally.”). 

Rule 9(b)’s “reference to ‘circumstances constituting 3

fraud’ usually requires the claimant to allege at a minimum the

identity of the person who made the fraudulent statement, the

time, place, and content of the misrepresentation, the resulting

injury, and the method by which the misrepresentation was

communicated.” 2 James Wm. Moore et al., Moore’s Federal

Practice and Procedure § 9.11(2)(b)(i), at 9-36 (2007).

3

In alleging fraud or mistake, a party must

state with particularity the circumstances

constituting fraud or mistake. 

Fed. R. Civ. P. 9(b). This means that a complaint rooted in 2

fraud must specify the “who, what, where, and when of the

allegedly false or fraudulent representations.” Rodi, 389 F.3d

at 15; see also Cardinale, 567 F.3d at 15 (noting that claims of 3

fraud have been interpreted “expansively to cover associated

claims where the core allegations effectively charge fraud”). 

Further, “Rule 9(b) requires not only specifying the false

statements and by whom they were made but also identifying the

basis for inferring scienter.” Rodi. 389 F.3d at 13. If the

plaintiffs cannot do so, they “cannot proceed merely on the hope

that [they] will find more.” Universal Commc’n Sys., Inc. v.

Lycos, Inc., 478 F.3d 413, 427 (1st Cir. 2007). 

At oral argument, the plaintiffs initially maintained that

their claims were not rooted in fraud, but conceded that, if they

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Before switching arguments, the plaintiffs argued that the 4

factual allegations against Ware are just as consistent with

negligent conduct (which would only be subject to notice

pleading) as they are with intentional conduct (which would be

tantamount to fraud). Had the plaintiffs not forsaken this

argument, the court could have rejected it solely on the basis of

Count 4; the civil conspiracy claim alleges that Ware and others

“agreed to pursue the[] unlawful objectives” contained in the

earlier counts. (Am. Compl. ¶66) (emphasis added). Counsel for

the plaintiffs, who first filed his appearance a month prior to

the hearing, authored neither the complaint nor the amended

complaint. 

(Document no. 5). 5

4

were, the factual allegations in their complaint would lack the

specificity required under Rule 9(b). Under questioning by the

court, they eventually acknowledged that the claims against Ware

sound in fraud, but asked the court for leave to re-plead their

complaint with additional facts, if any exist, based on discovery

materials that counsel had not had an opportunity to review since

his recent appearance on behalf of the plaintiffs.4

 

III. Conclusion

The motion to dismiss is granted. The plaintiffs concede 5

that their claims are rooted in fraud, but do not survive the

rigorous pleading standard applicable to such claims under Rule

9(b). See Fed. R. Civ. P. 9(b). Because the plaintiffs have

already amended their complaint since Ware filed his motion to

dismiss, there is little reason to believe that allowing an

additional amendment will cure its deficiencies. Nonetheless,

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the case will temporarily remain open. In the interim, the

plaintiffs are granted leave until August 13, 2009 to amend their

complaint with factual allegations that support the causes of

action set forth in the amended complaint (as opposed to new

causes of action) and that satisfy the requirements of Rules 8

and 9(b), and the attendant case law. If a second amended

complaint is filed, Ware need not move to dismiss or answer it

until ordered to do so. The court will review the second amended

complaint sua sponte to determine whether it satisfies Rules 8

and 9(b). A hearing will be held only if requested by Ware. 

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: July 15, 2009

cc: Steven M. Latici, Esq.

Daniel E. Will, Esq.

Jonathan M. Shirley, Esq.

Leigh S. Willey, Esq.

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