United States District Court, N.D. California
ORDER GRANTING ROBERT HOWER'S MOTION TO DISMISS
FIRST AMENDED COMPLAINT RE: DKT. NO. 72
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
Court has had significant exposure to the factual and
procedural background of this case, which it will not repeat
here. This is the second round of briefing on a motion
brought by defendant Robert Hower regarding the complaint
filed by plaintiff GemCap Lending I, LLC.
summary, on May 20, 2019, the Court entered an order granting
in part and denying in part Hower's special motion to
strike, which addressed numerous alleged statements by Hower.
(Dkt. No. 62.) Plaintiff filed a first amended complaint on
June 10, 2019, alleging causes of action against Hower and
defendant Unity Bank Minnesota for intentional
misrepresentation, negligent misrepresentation, concealment,
false promise, and aiding and abetting to commit fraud. (Dkt.
No. 65 (“FAC”) ¶¶ 31-68.) Unity Bank
answered on July 1, 2019. (Dkt. No. 70.) Thereafter, Hower
filed the instant motion, seeking dismissal of
plaintiff's claims pursuant to Federal Rule of Civil
Procedure 9(b), on the ground that plaintiff failed to allege
with sufficient particularity the “who, what, when,
where, and how of the misconduct charged.” (Dkt. No. 72
(“Motion”) at 11, quoting Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1102 (9th Cir.
carefully considered the pleadings in this action and the
papers submitted, the Court Grants the
motion With Leave To Amend.
parties agree that that Rule 9(b) governs and therefore a
heightened standard of Rule 9(b). (See Motion at
10-11; Dkt. No. 81 at 4, n.2.)
the history of this case, the Court finds that, at a minimum,
plaintiff must amend the complaint to provide a
representative sample of the specific representations made by
Hower as opposed to the summary reflected in paragraph 24 of
the FAC, which spans between March and October 2016. In
general, under Rule 9(b), a plaintiff must “state
with particularity” the “circumstances
constituting the fraud, ” including a statement of
“the time, place, and specific content of the false
representations as well as the identities of the parties to
the misrepresentation.” Schreiber Distributing Co.
v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1400-01
(9th Cir. 1986); see also Semegen v. Weidner, 780
F.2d 727, 731 (9th Cir. 1985) (“[T]he absence of
specification of any times, dates, places or other details of
that alleged fraudulent involvement is contrary to the
fundamental purposes of Rule 9(b).”).
while the Court and parties are quite aware of the
circumstances giving rise to the dispute, having granted a
motion to strike, the FAC lacks any reference to any other
specific representations made by Hower. The generalities pled
are not sufficient to provide notice of the “particular
misconduct which is alleged to constitute the fraud
charged.” Semegen, 780 F.2d at 731; see
also T&M Solar & Air Conditioning, Inc. v. Lennox
Int'l Inc., No. 14-CV-05318-JSC, 2015 WL 3638555, at
*3 (N.D. Cal. June 11, 2015) (“[T]he Court found the
‘how' wanting in the FAC because . . . [it] [was]
devoid of facts indicating whether the statements were made
in person, in writing, on the telephone, in email, or in some
other manner. . . . The SAC does not cure this
defect[.]”); Safran, 2017 WL 235197, at *11
(finding failure to satisfy Rule 9(b) where plaintiff did not
allege “in what documents or context the alleged
misrepresentations were made” or “whether the
misrepresentations were integrated into the contract for
sale, were made separately by letter or by email, or were
made as part of conversations among representations of the
parties.”) While the FAC need not recite every single
interaction, sufficient specific allegations must be pled to
state a claim.
foregoing reasons, the Court Grants
Hower's motion to dismiss plaintiff's claims for
failure to satisfy Rule 9(b) but affords plaintiff
Leave To Amend. Any amended complaint must
be filed no later than September 17, 2019.
Any response thereto must be filed no later than
fourteen (14) days thereafter. The case
management conference scheduled for this action is continued
to October 21, 2019.
Order terminates Docket Number 72.
IS SO ORDERED.
 Pursuant to Federal Rule of Civil
Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds
the motion appropriate for decision ...