Opinion
01 Civ. 7515 (LAK).
February 11, 2002.
ORDER
This diversity case involving alleged oppression of a minority shareholder is before the Court on the motion of defendants SportsLine.com, Inc. ("SportsLine") and its wholly owned subsidiary, Commissioner.com, Inc. ("Commissioner"), to dismiss the complaint as to them for failure to state a claim upon which relief may be granted.
The Court has reviewed the second amended complaint with care. While the factual outlines of plaintiff's grievance are reasonably plain, it is very difficult to see just which alleged actions are complained of on exactly what theory. For example, the first claim for relief purports to combine claims for fraud and conversion. But it is not clear what is alleged to have been converted, when, and by whom. Nor is it clear exactly just what the fraud of which plaintiff complains is said to have been. As well as the Court can make it out, it is the failure of the individual defendants to adhere to the alleged agreement that plaintiff's ownership would remain at one half the level of the other individuals, but it is hard to see how that alleged breach of an agreement was fraudulent. And this sort of confusion and combination of different legal theories permeates the complaint.
Fed.R.Civ.P. 8(a) requires that a complaint "contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . ." Rule 9(b) requires that all averments of fraud be made with particularity, a requirement that is the subject of a vast body of case law to which it appears that the pleader has paid no heed. Rule 10(b) demands that "[e]ach claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth."
In view of the foregoing, the Court on its own motion dismisses the second amended complaint without prejudice to the filing of a third amended complaint, no later than 21 days after the date of this order. Any third amended complaint shall comply fully with Rules 8, 9 and 10. In the event Daedalus has ceased to exist by reason of a merger or other corporate transaction, it can not be named as a defendant, although of course the entity that has succeeded to its interests may be. In addition, each legal theory relied upon shall be the subject of a separate claim for relief setting forth the facts that are relied upon in support of that theory. The motion of defendants SportsLine and Commissioner to dismiss the amended complaint, which by consent is deemed to apply to the second amended complaint, is denied as moot.
SO ORDERED.