O'Rear v. American Family Life Assurance Co.

139 F.R.D. 418, 1991 U.S. Dist. LEXIS 15686, 1991 WL 224250
CourtDistrict Court, M.D. Florida
DecidedOctober 18, 1991
DocketNo. 91-148-CIV-T-17C
StatusPublished
Cited by7 cases

This text of 139 F.R.D. 418 (O'Rear v. American Family Life Assurance Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Rear v. American Family Life Assurance Co., 139 F.R.D. 418, 1991 U.S. Dist. LEXIS 15686, 1991 WL 224250 (M.D. Fla. 1991).

Opinion

ORDER MOTIONS

KOVACHEVICH, District Judge.

This cause came before the Court on Defendants’ Motion to Dismiss Plaintiff's [420]*420Second Amended Complaint; and Plaintiff’s response which contained his request to amend his Second Amended Complaint, the former being served September 18, 1991, and the latter response being served September 3, 1991.

The Court finds that Defendants’ motion to dismiss, excluding Count III which Plaintiff is given leave to amend, should be granted. However, Plaintiff’s request to amend its Second Amended Complaint also should be granted. Plaintiff’s allegations require further clarity and if not made Plaintiff will be subject to sanctions, i.e. Defendants being awarded past attorney’s fees and other costs of defending this case.

HISTORY

Plaintiff’s first Complaint was filed on February 5, 1991, with Defendants’ prompt response to dismiss the complaint on March 4, 1991. On April 8, 1991 Defendants’ motion was granted, with Plaintiff being given his first opportunity to file an amended complaint to remedy the original defects. Subsequently, the Amended Complaint was filed on April 19, 1991, but Defendants believed the original defects were still present. As a result, Defendants moved to dismiss the Amended Complaint. While the motion to dismiss was before the Court, Plaintiff took the issue out of the Court’s hands by conceding to the deficiencies in the Amended Complaint. Without leave of the Court, the Second Amended Complaint was filed, totalling three opportunities to plead properly. Defendants filed a motion to dismiss the Second Amended Complaint, while Plaintiff subsequently conceding that Defendant was correct in its motion to dismiss, and thus Plaintiff again requesting leave to amend. From here, the Court is faced with two questions.

First, since Plaintiff concedes Counts I, II, IV, V, VI, VII, VIII, and IX of the Seconded Amended Complaint are insufficiently plead, thereby implicitly voluntarily dismissing, should another opportunity to amend Plaintiff’s complaint be granted? Secondly, should Count III, the only count not voluntarily dismissed, remain in its present form? The Court will address the second question first, addressing the most important question last.

COUNT III

In examining the Count III fraud claim, the Court applies Rule 9(b), Fed.R.Civ. P.Rule 9(b) specifies that in all averments of fraud, the circumstances constituting fraud shall be stated with particularity. While it is true that Plaintiff includes specific instances in Count III, the count still lacks the specificity required under the rule. Count III should explicitly state the circumstances constituting the fraud.

Plaintiff should specifically identify the individuals who made the alleged misrepresentations, the time of the alleged fraud and the place of the alleged fraud. Todd v. Oppenheimer & Co., Inc., 78 F.R.D. 415 (S.D.N.Y.1978). Plaintiff fails in Count III to name the individuals who allegedly planned to remove Plaintiff from American Family Life Assurance’s (AF-LAC) employment. While the Second Amended Complaint identifies one individual in paragraph 55, the specific statements related to organizing, orchestrating, and commencing the alleged plan are lacking. Statements by individuals should allegedly be in concert with Defendant AFLAC’s plan to force Plaintiff from his employment with the corporation.

Fortunately, Plaintiff is on the right track by naming an individual in the Second Amended Complaint, but more work needs to be done. For instance, in paragraph 55 it is alleged that AFLAC “indicated” that if Plaintiff built his region, his business would not be interfered with. Instead, Plaintiff should quote or paraphrase the words by individuals who made those “indications” on behalf of AFLAC. Thus, dates, times, and names should be used to allege paraphrased or quoted statements by Defendants, and these statements must have been made in organizing, orchestrating, and commencing the plan to remove Plaintiff from AFLAC’s employment. The reason for requiring greater specificity in fraud cases is because there is a higher chance of causing injury to a party’s reputation. In the spirit of Rule 9(b), the Court [421]*421directs Plaintiff to re-allege Count III with the requisite specificity, excluding vague claims in paragraphs 52-61 of the Second Amended Complaint and including more precise words in forming a proper fraud claim.

ALL OTHER COUNTS

By Plaintiffs own admission, Counts I, II, IV, V, VI, VII, VIII, and IX of the Second Amended Complaint are inadequately plead. As a result, Plaintiff again seeks leave to amend these counts. Plaintiff bases its inadequate pleading on “oversight and inadvertence.” With this statement there is no dispute that all counts are inadequate. Therefore, the Court is presented with the difficult question of whether to allow another amended complaint to be submitted.

Leave to amend should be freely given “when justice so requires.” Rule 15(a) Fed.R.Civ.P. Deciding when to grant a leave to amend is within the Court’s discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). This Court recognizes that its discretion is “particularly broad” when denying a leave to amend a complaint where the Plaintiff had earlier opportunities to amend. Fidelity Fin. Corp. v. Federal Home Loan Bank, 792 F.2d 1432, 1438 (9th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 949, 93 L.Ed.2d 998 (1987). It further recognizes that by Plaintiff O’Rear’s own admission there have been “repeated failure(s) to cure deficiencies by amendments previously allowed.” Foman, 371 U.S. at 182, 83 S.Ct. at 230. The Fifth Circuit Court of Appeals has upheld a denial for a third amended complaint when past complaints still contained basic deficiencies. Smith, 845 F.2d at 1366. Taking the above law into account, the Court still believes that the fundamentals of federal pleading is to give the opposing party notice. Albeit, the notice must be in proper form. Thus, the Court will give the Plaintiff one last opportunity to plead properly.

However, Plaintiff’s “oversight and inadvertence” has resulted in the expenditure of considerable time and effort by the Defendants in the research, preparation and filing of its three motions to dismiss. Plaintiff’s have lacked diligence by failing to remedy basic flaws,1 which were in three previous complaints. As a result, when the Third Amended Complaint is submitted, Plaintiff’s counsel shall pay costs and attorney’s fees for unreasonably multiplying the proceedings in this case.2 28 U.S.C. § 1927 (1982). These costs shall include the attorney’s expenditures for preparing and filing the past three motions to dismiss. Furthermore, if a motion to dismiss is upheld in whole or in part against the Third Amended Complaint, Plaintiff’s attorney’s will compensate Defendant for any further costs and fees which have resulted in preparing their response to the Third Amended Complaint.

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Cite This Page — Counsel Stack

Bluebook (online)
139 F.R.D. 418, 1991 U.S. Dist. LEXIS 15686, 1991 WL 224250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orear-v-american-family-life-assurance-co-flmd-1991.