Posner v. Minnesota Mining & Manufacturing Co.

697 F. Supp. 122, 1988 U.S. Dist. LEXIS 11925, 1988 WL 113188
CourtDistrict Court, E.D. New York
DecidedSeptember 16, 1988
DocketNo. 87 CV 4067
StatusPublished
Cited by2 cases

This text of 697 F. Supp. 122 (Posner v. Minnesota Mining & Manufacturing Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Posner v. Minnesota Mining & Manufacturing Co., 697 F. Supp. 122, 1988 U.S. Dist. LEXIS 11925, 1988 WL 113188 (E.D.N.Y. 1988).

Opinion

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

In this action based on diversity of citizenship, 28 U.S.C. § 1332(a), defendant moves to dismiss the complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and for failure to plead fraud with particularity, Fed.R.Civ.P. 9(b). Defendant also moves for sanctions under Fed.R.Civ.P. 11.

FACTS

I. The Complaint

Taking all allegations in the Complaint as true, the facts are as follows. For purposes of diversity jurisdiction, plaintiffs, Frances and Sari Posner, are New York citizens and defendant, Minnesota Mining and Manufacturing Co. (“3M”), is a Minnesota citizen. The amount in controversy exceeds $10,000. The plaintiffs appear pro se.

Defendant entered into contracts with Plastronics, Inc. (“Plastronics”), a corporation owned by Richard Posner, the father of Sari Posner and then-husband of Frances Posner. Plastronics agreed to import [123]*123intercoms for distribution by 3M. The defendant, through its representative Donald Conlin, met and spoke on the telephone with plaintiffs on several unspecified occasions. The defendant attempted to get both plaintiffs to fund Plastronics, which was a new corporation.

On an unspecified date, Mr. Conlin told both plaintiffs that funding for Plastronics from 3M would occur if there was a demonstrated need for it. On various unspecified occasions, Mr. Conlin promised plaintiffs that he would see to it that 3M would always order sufficient merchandise to keep Plastronics operating successfully. He also assured plaintiffs that if funding ever became a problem, 3M would take reasonable measures to ensure the success of Plastronics. He also stated to plaintiffs that any financial assistance they rendered to Plastronics would not be at risk. All of Mr. Conlin’s and 3M’s statements were untrue.

As a result of those statements, each plaintiff lent Plastronics $10,000. Mr. Pos-ner worked for Plastronics, foregoing other employment and income during 1982, 1983, and 1984.

Plastronics eventually became insolvent and ceased doing business. The loans from plaintiffs were not repaid. As a result of Plastronics’ failure, Richard and plaintiff Frances Posner were divorced. In addition, at an unspecified time, Mr. Posner suffered two heart attacks, causing pain and suffering as well as emotional distress to both plaintiffs.

The Complaint alleges fraud by 3M. Count I demands $20,000 in damages, representing the loans made by plaintiffs. Count II demands $150,000, representing Richard Posner’s lost income for the 1982-84 period. Count III demands $1 million in damages stemming from the Posners’ divorce and Mr. Posner’s heart attack. Finally, Count IV demands $1 million for the emotional distress stemming from defendant’s conduct and its consequences.

II. The Motion

In 1986, Mr. Posner sued 3M for fraud. The case was settled in February 1987 for $32,500. In December 1987, plaintiffs filed the instant Complaint.

Defendant moves to dismiss the Complaint on two grounds. First, it argues, the Complaint fails to set forth facts that satisfy the elements of common-law fraud; second, it fails to plead fraud with particularity. Defendant also moves for sanctions under Fed.R.Civ.P. 11, asserting that this action is frivolous and was brought solely to harass it.

DISCUSSION

I. Stating a Claim

Under New York law, which the parties apparently agree applies to this case, one element of a fraud claim is injury. See Channel Master Corp. v. Aluminum Ltd. Sales, Inc., 4 N.Y.2d 403, 407, 151 N.E.2d 833, 835, 176 N.Y.S.2d 259, 262 (1958). The injury must be the “direct, immediate, and proximate result of the fraudulent misrepresentation.” Goldberg v. Mallinckrodt, Inc., 792 F.2d 305, 307 (2d Cir.1986); see Bennett v. United States Trust Co. of New York, 770 F.2d 308, 315 (2d Cir.1985), cert, denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986).

Defendant argues that plaintiffs’ claims for emotional distress must be dismissed because they cannot, as a matter of law, be attributed to fraudulent conduct. I agree.

The claim for emotional distress arising from Mr. Posner’s heart attacks is not cognizable because, inter alia, there existed no “zone of danger” to bystanders when the heart attacks occurred. See Goldberg, 792 F.2d at 310. In addition, this emotional distress claim, as well as that stemming from the fact that defendant committed a fraud, must be dismissed because this species of injury is not redressable under a business fraud theory of liability. See Stick v. Oakdale Dental Center, P. C, 120 A.D.2d 794, 795, 501 N.Y.S.2d 529, 531 (3d Dep’t 1986) (actual pecuniary loss is the sole compensable form of damages in a fraud action). Accordingly, Counts III and IV of the Complaint must be dismissed.

[124]*124Defendant does not contest the legal sufficiency of the injuries alleged in Counts I and II. It contends, however, that the Complaint fails to establish other elements of a fraud claim. Defendant’s first argument is that the statements attributed to it cannot be misrepresentations because they were mere promises or prophecies regarding future events.

Obviously, a statement of mere speculation or hope cannot constitute a representation of fact and, thus, is not actionable. See Tutak v. Tutak, 123 A.D.2d 758, 760, 507 N.Y.S.2d 232, 233 (2d Dep’t 1986). Similarly, an action for fraud will not lie where the defendant has made a promise with the intention of keeping it. See Channel Master Corp., 4 N.Y.2d at 408, 151 N.E.2d at 836,176 N.Y.S.2d at 263. In this case, the Complaint alleges that defendant’s agent promised plaintiffs on several occasions that defendant would ensure Plastronics’ financial viability. It does not assert, however, that defendant intended not to keep those promises at the time of their making. In addition, none of the motion papers submitted by plaintiffs indicates that plaintiffs intend to make such an allegation. Thus, while I am satisfied that the Complaint alleges that defendant’s agent made various representations of fact, I conclude that it does not allege scienter.

I also conclude that the Complaint fails to plead reasonable reliance by plaintiffs on statements made by 3M. See Harris v. Camilleri, 77 A.D.2d 861, 862-63, 431 N.Y. S.2d 65, 68 (2d Dep’t 1980). Plaintiffs’ motion papers, however, indicate that they would plead such reliance if they were granted leave to amend the Complaint. The failure of plaintiffs to plead facts sufficient to constitute a fraud claim will be further discussed below.

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Related

Posner v. Minnesota Mining & Manufacturing Co.
713 F. Supp. 562 (E.D. New York, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
697 F. Supp. 122, 1988 U.S. Dist. LEXIS 11925, 1988 WL 113188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/posner-v-minnesota-mining-manufacturing-co-nyed-1988.