Opinion
No. 03 C 8815
December 10, 2003
MEMORANDUM ORDER
IFC Credit Corporation ("IFC") has just filed a multicount Complaint against B. Braun Medical, Inc. ("Braun"), properly invoking federal jurisdiction on diversity of citizenship grounds. This memorandum order is issued sua sponte because of one obvious pleading flaw in the Complaint that needs correction.
It is of course true that notice pleading is generally required in federal litigation (see Fed.R.Civ.P. ("Rule") 8(a), adhered to by the uniform caselaw in that respect). But there is one exception to that general rule: the particularity requirement embodied in Rule 9(b), most specifically relating to "the circumstances constituting fraud."
In this instance Complaint ¶ 21 describes some alleged intentional misrepresentations by Braun, as well as its alleged provision of false, altered or misleading information — things that are typical components of a fraud claim. And even though Count I is advanced as sounding in breach of contract, while
Count II charges negligent misrepresentation, Count III is framed in terms of consumer fraud.
Despite that negligence label, Complaint ¶ 28 alleges in part that Braun's activities were "deliberately misleading." That too would appear to implicate asserted fraud.
Accordingly it would seem that IFC's counsel must provide more chapter-and-verse information than the Complaint now contains about the assertedly fraudulent activity on Braun's part. Because this Court has contemporaneously issued an order setting the initial status hearing date in this action for 9 a.m. January 26, 2004, IFC's counsel are expected to provide that information well in advance of that date by a filing in this Court's chambers (with a copy of course being transmitted contemporaneously to Braun or to its counsel, if known).