LEAHY, District Judge.
This is a class action by plaintiffs, former minority holders of Class A and Class B stock of Axton-Fisher Tobacco Company, against defendant, a majority stockholder of Axton-Fisher. Plaintiffs seek to recover damages resulting from their sale to defendant in November, 1942, of 2350 shares of Class A stock and 1235 shares of Class B stock, pursuant to a written offer which defendant made at that time to all holders of Class A and Class B stock. Plaintiffs seek damages for the difference between the true liquidating value of the stock which they sold to defendant and the amount which they received from defendant for their shares. Plaintiffs ask recovery, not only in their own right, but also on behalf of all other former holders of Class A and Class B stock of Axton-Fisher who were fraudulently induced to sell their shares to the defendant subsequent to November 12, 1942, for an inadequate price.1
[58]*58The complaint purports to state two causes of action: the first is a common law action of deceit; and the second is based upon an alleged violation of Rule X-10B-S of the SEC2 (promulgated pursuant to Section 10(b) of the Securities Exchange Act of 1934, IS U.S.C.A. § 78j). Since Paragraph 3 of the second cause of action embodies by reference all the allegations of the first cause of action, it is clear that the transactions which plaintiff relies upon to establish a violation of Rule X-10B-5 are almost entirely identical with the transactions which plaintiffs allege as a basis for their common law action of deceit. Hence, the complaint will be treated as though but one cause of action were alleged.
The main facts giving rise to this suit are detailed in the opinion in Zahn v. Transamerica Corporation, D. C., 63 F.Supp. 243, and Geller v. Transamerica Corporation, D.C.Del., 53 F.Supp. 625. The complaint in this case, however, contains other broad allegations of fraudulent conduct. It is charged, in general, that defendant, either itself or through its control, made false representations in certain press releases, letters to stockholders, and before the SEC. Representative avermentsof the complaint are set forth in the margin.3 In the view which I take of the case, the numerous acts of misrepresentation and concealment referred to in the complaint need not be specifically discussed at this stage of the proceeding.
The matter comes before the court [59]*59upon motions of defendant, consolidated under Rule 12(g), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss the complaint; or, failing that, for a more definite statement or for a bill of particulars; and to state the several claims asserted in separate counts.4 The motion specifically raises the following questions: (1) Should the complaint be dismissed upon the ground that although it purports to allege a class action, the nature of the case does not bring it within the purview of Rule 23; (2) in an action sounding in fraud and deceit, is defendant entitled to have plaintiff specify the particular fraudulent and misleading statements and omissions of material facts by which each of the plaintiffs was misled into selling shares of stock to defendant; (3) will a clear presentation of the matters set forth in the complaint be facilitated by requiring plaintiffs to allege in a separate count each claim which is founded upon a separate transaction or occurrence?
1. The motion to dismiss the complaint should be granted. It is clear from the complaint that plaintiffs purport to state a class action. But it is equally clear that appropriate class allegations in a complaint will not give it a class status unless the inherent and intrinsic character of the action is such as to warrant plaintiffs bringing it in a representative capacity. Oppenheimer et al. v. F. J. Young & Co., Inc., et al., D.C., 3 F.R.D. 220, 224. There the court said: “* * * So also the plaintiffs label their suit as ‘representative*; but, as was said in Pacific Fire Ins. Co. v. Reiner, D.C., 45 F.Supp. 703, heretofore cited, at page 708, so (with respect to the present case), I may say: ‘A suit is not truly a “representative suit” merely because the plaintiff, as here, so designates it; whether it is depends upon the attending facts.’ ” This action is brought by plaintiffs and the other persons on behalf of whom plaintiffs purport to sue to recover damages because they were “fraudulently induced to sell their shares to defendant, subsequent to November 12, 1942, for an inadequate price, as hereinafter set forth.”, and is based on a large number of false [60]*60and fraudulent statements. Now the question is whether plaintiffs have brought themselves within the requirements of Rule 23(a) (3).5 I think they have failed to meet the necessary requirements for several reasons. The persons comprising the class are numerous and some purchases antedated and others followed the issuance of many of the alleged fraudulent statements. Moreover, some of the stockholders who saw the statements complained of probably placed no reliance upon them, but in purchasing or selling their stock acted upon independent advice received from persons who may or may not have relied upon the alleged misrepresentations or acts of concealment attributed to defendant. It is evident, then, that although the situation of some of the stockholders, may have been the same, the circumstances under which many of them acquired and sold their stock varied greatly in each individual instance. The suit at bar fails by a wide margin to come within the cases holding that class relief was appropriate; Everglades Drainage League v. Napolean B. Broward Drainage Dist., D.C.Fla., 253 F. 246; Gramling v. Maxwell, D.C.N.C., 52 F.2d 256; Skinner v. Mitchell, 108 Kan. 861, 197 P. 569; Duke of Bedford v. Ellis (1901) A.C. 1. Not only have plaintiffs failed to bring themselves within the rule of these particular authorities but other authorities make it perfectly clear that the present suit cannot be maintained as a class action. In Willcox v. Harriman Securities Corporation, D.C., 10 F.Supp. 532, 534, plaintiffs attempted to bring a class suit for rescission and exchange of stock allegedly induced by fraud. In holding that such an action could not be maintained, the court said: “As to the exchange of stock the plaintiffs’ rights are personal to them alone. They cannot maintain a suit in behalf of others said to have been similarly defrauded. In such a case there may be enough similarity in the -issues to warrant several plaintiffs joining in one suit for rescission (see Akely v. Kirinicutt, 238 N.Y. 466, 144 N.E. 682), but the' maintenance of a class suit is quite a different thing. The issues are not identical, and even if they were there is no. common subject-matter. Each, defrauded person is interested in his own stock,, not in that of any other victim. On the authorities it is settled that a representative suit by one of numerous defrauded persons in behalf of himself and others will not lie.” In Railway Express Agency v. Jones, 7 Cir., 106 F.2d 341, the court said: “A class suit may not be maintained where each claimant of the class asserted a separate claim based on individual and separate fraudulent representations.” See also Michelsen v. Penney, D.C., 10 F.Supp. 537; Cherry v. Howell, D.C., 4 F.Supp. 597; Bickford’s v. Federal Reserve Bank of New York, D.C., 5 F.Supp. 875; Johnson v.
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LEAHY, District Judge.
This is a class action by plaintiffs, former minority holders of Class A and Class B stock of Axton-Fisher Tobacco Company, against defendant, a majority stockholder of Axton-Fisher. Plaintiffs seek to recover damages resulting from their sale to defendant in November, 1942, of 2350 shares of Class A stock and 1235 shares of Class B stock, pursuant to a written offer which defendant made at that time to all holders of Class A and Class B stock. Plaintiffs seek damages for the difference between the true liquidating value of the stock which they sold to defendant and the amount which they received from defendant for their shares. Plaintiffs ask recovery, not only in their own right, but also on behalf of all other former holders of Class A and Class B stock of Axton-Fisher who were fraudulently induced to sell their shares to the defendant subsequent to November 12, 1942, for an inadequate price.1
[58]*58The complaint purports to state two causes of action: the first is a common law action of deceit; and the second is based upon an alleged violation of Rule X-10B-S of the SEC2 (promulgated pursuant to Section 10(b) of the Securities Exchange Act of 1934, IS U.S.C.A. § 78j). Since Paragraph 3 of the second cause of action embodies by reference all the allegations of the first cause of action, it is clear that the transactions which plaintiff relies upon to establish a violation of Rule X-10B-5 are almost entirely identical with the transactions which plaintiffs allege as a basis for their common law action of deceit. Hence, the complaint will be treated as though but one cause of action were alleged.
The main facts giving rise to this suit are detailed in the opinion in Zahn v. Transamerica Corporation, D. C., 63 F.Supp. 243, and Geller v. Transamerica Corporation, D.C.Del., 53 F.Supp. 625. The complaint in this case, however, contains other broad allegations of fraudulent conduct. It is charged, in general, that defendant, either itself or through its control, made false representations in certain press releases, letters to stockholders, and before the SEC. Representative avermentsof the complaint are set forth in the margin.3 In the view which I take of the case, the numerous acts of misrepresentation and concealment referred to in the complaint need not be specifically discussed at this stage of the proceeding.
The matter comes before the court [59]*59upon motions of defendant, consolidated under Rule 12(g), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss the complaint; or, failing that, for a more definite statement or for a bill of particulars; and to state the several claims asserted in separate counts.4 The motion specifically raises the following questions: (1) Should the complaint be dismissed upon the ground that although it purports to allege a class action, the nature of the case does not bring it within the purview of Rule 23; (2) in an action sounding in fraud and deceit, is defendant entitled to have plaintiff specify the particular fraudulent and misleading statements and omissions of material facts by which each of the plaintiffs was misled into selling shares of stock to defendant; (3) will a clear presentation of the matters set forth in the complaint be facilitated by requiring plaintiffs to allege in a separate count each claim which is founded upon a separate transaction or occurrence?
1. The motion to dismiss the complaint should be granted. It is clear from the complaint that plaintiffs purport to state a class action. But it is equally clear that appropriate class allegations in a complaint will not give it a class status unless the inherent and intrinsic character of the action is such as to warrant plaintiffs bringing it in a representative capacity. Oppenheimer et al. v. F. J. Young & Co., Inc., et al., D.C., 3 F.R.D. 220, 224. There the court said: “* * * So also the plaintiffs label their suit as ‘representative*; but, as was said in Pacific Fire Ins. Co. v. Reiner, D.C., 45 F.Supp. 703, heretofore cited, at page 708, so (with respect to the present case), I may say: ‘A suit is not truly a “representative suit” merely because the plaintiff, as here, so designates it; whether it is depends upon the attending facts.’ ” This action is brought by plaintiffs and the other persons on behalf of whom plaintiffs purport to sue to recover damages because they were “fraudulently induced to sell their shares to defendant, subsequent to November 12, 1942, for an inadequate price, as hereinafter set forth.”, and is based on a large number of false [60]*60and fraudulent statements. Now the question is whether plaintiffs have brought themselves within the requirements of Rule 23(a) (3).5 I think they have failed to meet the necessary requirements for several reasons. The persons comprising the class are numerous and some purchases antedated and others followed the issuance of many of the alleged fraudulent statements. Moreover, some of the stockholders who saw the statements complained of probably placed no reliance upon them, but in purchasing or selling their stock acted upon independent advice received from persons who may or may not have relied upon the alleged misrepresentations or acts of concealment attributed to defendant. It is evident, then, that although the situation of some of the stockholders, may have been the same, the circumstances under which many of them acquired and sold their stock varied greatly in each individual instance. The suit at bar fails by a wide margin to come within the cases holding that class relief was appropriate; Everglades Drainage League v. Napolean B. Broward Drainage Dist., D.C.Fla., 253 F. 246; Gramling v. Maxwell, D.C.N.C., 52 F.2d 256; Skinner v. Mitchell, 108 Kan. 861, 197 P. 569; Duke of Bedford v. Ellis (1901) A.C. 1. Not only have plaintiffs failed to bring themselves within the rule of these particular authorities but other authorities make it perfectly clear that the present suit cannot be maintained as a class action. In Willcox v. Harriman Securities Corporation, D.C., 10 F.Supp. 532, 534, plaintiffs attempted to bring a class suit for rescission and exchange of stock allegedly induced by fraud. In holding that such an action could not be maintained, the court said: “As to the exchange of stock the plaintiffs’ rights are personal to them alone. They cannot maintain a suit in behalf of others said to have been similarly defrauded. In such a case there may be enough similarity in the -issues to warrant several plaintiffs joining in one suit for rescission (see Akely v. Kirinicutt, 238 N.Y. 466, 144 N.E. 682), but the' maintenance of a class suit is quite a different thing. The issues are not identical, and even if they were there is no. common subject-matter. Each, defrauded person is interested in his own stock,, not in that of any other victim. On the authorities it is settled that a representative suit by one of numerous defrauded persons in behalf of himself and others will not lie.” In Railway Express Agency v. Jones, 7 Cir., 106 F.2d 341, the court said: “A class suit may not be maintained where each claimant of the class asserted a separate claim based on individual and separate fraudulent representations.” See also Michelsen v. Penney, D.C., 10 F.Supp. 537; Cherry v. Howell, D.C., 4 F.Supp. 597; Bickford’s v. Federal Reserve Bank of New York, D.C., 5 F.Supp. 875; Johnson v. Beneficial Loan Society, D.C.Del.1940, 34 F.Supp. 392. Cases allowing the action in similar situations, illustrated by Independence Shares Corporation v. Deckert, 3 Cir., 108 F.2d 51, are distinguishable in that in those cases the misrepresentations were specifically alleged to be common to all members of the class. Such a situation is obviously not present here.
Although this is not a proper class action, this does not necessarily mean that defendant is entitled to have the whole complaint dismissed. Where a plaintiff in a suit states a good cause of action on his own behalf and a defective class action, a number of courts have granted defendants’ motions to dismiss with leave to the plaintiff to amend the complaint so as to allege merely an individual action on his own behalf. Bickford’s v. Federal Reserve Bank of New York, supra, 5 F.Supp. 875; Cherry v. Howell, supra, 4 F.Supp. 597; Oppenheimer et al. v. F. J. Young & Co., Inc., et al., supra, 3 F.R.D. 220. The remaining question is whether each plaintiff has, in fact, stated a good cause of action on his own behalf.
2. Defendant’s motion for a more definite statement or for a bill of particulars as to the matters alleged. It is obvious from the above recited allegations of the complaint that they are far too indefinite. In paragraph 53 of the complaint, for example, , it is alleged that “Plaintiffs were deceived by the various fraudulent and misleading statements and the omission of ma[61]*61terial facts in statements which- defendant caused to be sent out * * This very clearly fails to meet the particularization required by Rule 8(e). Plaintiffs must apprise defendant of the precise statements by which each plaintiff was deceived. This rule is supported in principle because non constat a particular defendant did not know of the alleged fraudulent statement or if he did know of it, he may not have relied on it. This rule is likewise supported by authority; Velthuysen v. Hoboken Land & Improvement Co., 9 A.2d 634, 17 N.J.Misc.376; Zimmern v. Blount, 5 Cir., 238 F. 740.,
I accordingly conclude that each plaintiff has failed to state specifically which of the statements referred to were relied on by him.
3. The motions to dismiss the complaint should be granted because plaintiffs have not- stated a class action and they have not alleged their individual actions with the particularity required by Rule 8(e). Thus,, it is unnecessary to pass on defendant’s motion to require plaintiffs to state their several claims in separate courts. Leave is,, however, granted to plaintiffs to serve an amended complaint, within ten days after the service of the order to be entered hereon, on the attorney for defendant; otherwise, the complaint will be dismissed.