de Atucha v. Hunt

128 F.R.D. 187, 1989 U.S. Dist. LEXIS 13895, 1989 WL 141557
CourtDistrict Court, S.D. New York
DecidedNovember 21, 1989
DocketNo. 82 Civ. 6546(MEL)
StatusPublished
Cited by14 cases

This text of 128 F.R.D. 187 (de Atucha v. Hunt) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
de Atucha v. Hunt, 128 F.R.D. 187, 1989 U.S. Dist. LEXIS 13895, 1989 WL 141557 (S.D.N.Y. 1989).

Opinion

LASKER, District Judge.

Nelson Bunker Hunt, William Herbert Hunt and Lamar Hunt (collectively “the Hunts”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”), ContiCommodity Services, Inc., Norton Waltuch, Melvin Schnell, Prudential-Bache Securities Inc.,1 Bache Group Inc., ContiCapital Management, Inc; and ContiCapital Ltd. (collectively “defendants”) move pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b) to dismiss the sixth claim — conspiracy to defraud — of plaintiff Jorge M.C.C. de Atucha’s (“de Atucha”) amended complaint (“Amended Complaint”) for failure to plead with the specificity required by this court’s order of July 28, 1986 and for failure to state a claim upon which relief may be granted.2 For the reasons discussed below the motion is granted.

I.

De Atucha originally filed a complaint on October 1, 1982, alleging that defendants’ conspiracy to raise the price of silver to artificially high levels caused a loss of more than $1,000,000 on his long position in silver futures contracts purchased on the London Metals Exchange (“LME”) in January, 1980. The complaint was dismissed on the grounds that de Atucha, a citizen and resident of Argentina, lacked standing under the Commodity Exchange Act (“CEA”) and the Clayton Act. See de Atucha v. Commodity Exchange, Inc., 608 F.Supp. 510 (S.D.N.Y.1985). De Atucha moved to reargue and amend his complaint. By memorandum opinion dated July 28, 1986 the motion to reargue was denied and it was determined that de Atucha’s claims for common law fraud and conspiracy — contained in his proposed amended complaint — failed to meet the requirements of Fed.R.Civ.P. 9(b) and were otherwise legally insufficient. However, de Atucha was granted 30 days in which to file an amended complaint “to cure the deficiencies in the claims against Merrill Lynch and to allege conspiratorial intent as to the remaining defendants if de Atucha can do so in good faith and in accordance with Fed.R.Civ.P. 11.” No. 82-6456, slip. op. at 2-3 (S.D.N.Y. July 28, 1986). The opinion stated:

de Atucha is instructed that the complaint should clearly set forth what the [189]*189goal of the alleged conspiracy was, what the “agreement” consisted of, who agreed with whom to do what, what acts each defendant actually did in furtherance of the conspiracy, how the conspiracy was directed toward harming de Atucha or people in de Atucha’s position, and the manner in which de Atucha was harmed by the conspiracy. Moreover, the complaint should not make conclusory statements without setting forth the evidence upon which the allegations are based or inferences are drawn.

Id. at 2-3.

On October 1, 1986 de Atucha filed his Amended Complaint, including a sixth claim for relief against all defendants, captioned: “Conspiracy to Defraud.”3 The Amended Complaint is based upon information and belief, except as to de Atucha’s own actions.4 Defendants contend that the Amended Complaint 1) fails to specify the goal of the alleged conspiracy or what the agreement consisted of, 2) does not sufficiently allege any connection between the alleged fraudulent behavior of Merrill Lynch and the alleged conspiracy to raise the price of silver by other defendants, 3) lacks any allegation that defendants’ conduct was directed at de Atucha or others in his position, and 4) alleges the same theory upon which de Atucha’s antitrust claims were previously dismissed. See de Atucha v. Commodity Exchange, Inc., 608 F.Supp. 510 (S.D.N.Y.1985). De Atucha responds that the Amended Complaint 1) states the goal of the conspiracy and the nature of the agreement, 2) connects all defendants to the conspiracy to defraud, 3) sets forth the way in which the conspiracy was intended to and did harm him.

II.

“[I]n actions alleging conspiracy to defraud or conceal, the particularity requirements of Rule 9(b) must be met.” Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir.1985) (citing Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972)). Federal Rule of Civil Procedure 9(b) states:

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

The dual purpose of the rule is to give sufficient information to the defendant to permit a reasoned answer and to attempt .to protect defendants from the serious harm to reputation that can result from merely having to defend against bare accusations of fraud. See Ross v. A.H. Robins Co., 607 F.2d 545, 557 (2d Cir.1979), cert. denied 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972). “Pleadings of fraud must thus specify the time, place, speaker, and sometimes even the content of the alleged misrepresentation____ Where there are multiple defendants, the complaint must disclose the specific nature of each defendant’s participation in the alleged fraud.” O’Brien v. National Property Analysts Partners, 719 F.Supp. 222, 225-26 (S.D.N.Y.1989) (citations omitted).

Allegations of fraud cannot ordinarily be based “upon information and belief,” except as to “matters peculiarly within the opposing party’s knowledge.” Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, [95 S.Ct. 1976, 44 L.Ed.2d 467] (1975). To satisfy Rule 9(b) in the latter instance, the allegations must be accompanied by a statement of the facts upon which the belief is founded. Segal v. Gordon, [467 F.2d at 608.]

Luce v. Edelstein, 802 F.2d 49, 54 n. 1 (2d Cir.1986).

The goal of the conspiracy, according to the Amended Complaint, was to “cause the prices paid by purchasers of silver bullion and silver futures and forward contracts to be artificially high ... from about September 1979 to about March [190]*1901980.” Amended Complaint at If 271. However, the Amended Complaint fails to specify what the “agreement” was and what each defendant agreed to do to further the conspiracy. De Atucha alleges that what the agreement consisted of is described at ¶ 34 of the Amended Complaint, which states:

[Defendants ...

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Bluebook (online)
128 F.R.D. 187, 1989 U.S. Dist. LEXIS 13895, 1989 WL 141557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-atucha-v-hunt-nysd-1989.