Opinion
BK No. 01-12418, Chapter 7, A.P. No. 01-1117
February 22, 2002
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
Heard on the Defendant's Motion to Dismiss the above captioned adversary proceeding. The Defendant seeks dismissal of Count I of Plaintiff's Complaint for failure to plead fraud with particularity, see Fed.R.Civ.P. 9(b), and he seeks dismissal of Count II of the Complaint for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Upon consideration of the pleadings, memoranda, and arguments of counsel, and for the reasons argued by the Defendant which are adopted and incorporated herein by reference, I conclude that Count I of the Complaint fails to plead fraud with sufficient particularity, and the Motion to Dismiss as to Count I is GRANTED. The Plaintiff has fifteen (15) days to file an amended complaint satisfying the pleading requirements of Rule 9(b). The Defendant's Motion to Dismiss Count II is DENIED, as Count II states a claim based on the principles of collateral estoppel.
Rule 9(b) of the Federal Rules of Civil Procedure is incorporated into bankruptcy by F.R.Bankr.P. 7009.
Rule 12(b)(6) of the Federal Rules of Civil Procedure is incorporated into bankruptcy by F.R.Bankr.P. 7012(b).