Opinion
Civil No. 2:02-CV-904 BSJ.
August 17, 2005
ORDER OF DISMISSAL (Fed.R.Civ.P. 9(b))
Defendant Envirocare of Utah ("Envirocare") filed three motions to dismiss the relators' First Amended Complaint: (1) a motion to dismiss for failure to plead fraud with the requisite particularity under Fed.R.Civ.P. 9(b); (2) a Fed.R.Civ.P. 12(b)(6) motion to dismiss the claims of relator Roger Lemmon on the ground that those claims abated upon Mr. Lemmon's death in 2002; and (3) a Fed.R.Civ.P. 12(b)(6) motion to dismiss the relators' "reverse false claim" allegations on the ground that potential environmental fines or penalties were not specific legal "obligation to pay or transmit money" to the United States at the time that the alleged false records or statements were made.
The motions were heard on May 27, 2005, at which time the court took the motions under advisement. Having heard argument, and having reviewed and considered the motions and memoranda submitted by counsel, the court now rules as follows:
Rule 9(b) Motion to Dismiss
Envirocare's motion to dismiss pursuant to Fed.R.Civ.P. 9(b) appears to be well taken, and should be granted, subject to specific qualifications: (1) the plaintiff relators should be granted leave to file an amended pleading within sixty (60) days of the entry of this order, and in so doing, the relators shall comply with the requirements of Fed.R.Civ.P 9(b), setting forth in specific terms the "who" and "when" pertaining to the alleged false records or statements alleged in the amended complaint; and (2) the plaintiff relators should be granted leave to conduct limited discovery to the extent necessary to identify the factual particulars that Envirocare contends are lacking in the existing pleading, viz., the identity of the individual(s) who are alleged to have made false representations and the dates when such false statements were allegedly made, including but not limited to the deposition by oral examination of Envirocare pursuant to Fed.R.Civ.P. 30(b)(6), and appropriate document discovery from the United States.
Pending the filing of an amended pleading in compliance with the requirements of Rule 9(b), this court need not decide whether the existing pleading states a claim upon which relief may be granted within the meaning of Fed.R.Civ.P. 12(b)(6), and Envirocare's Rule 12(b)(6) motions should therefore be denied at this time, subject to renewal should appropriate circumstances arise.
Good cause appearing therefor,
IT IS ORDERED that the amended complaint in the above-captioned action shall be and hereby is DISMISSED for failure to plead fraud with particularity as required by Fed.R.Civ.P. 9(b);
IT IS FURTHER ORDERED that plaintiffs are granted leave to file an amended complaint with sixty (60) days of the entry of this order;
IT IS FURTHER ORDERED that plaintiffs are granted leave to conduct limited discovery in aid of preparation of an amended pleading; and IT IS FURTHER ORDERED that defendant Envirocare's motions to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) (dkt. nos. 76, 78) are DENIED at this time.