Damage is a necessary element of both counts -- breach of warranty and common law fraud. Regarding the first count, the court in its July 8, 1986 opinion stated, "The amended complaint as it now stands does not allege sufficient facts to support a finding of a breach of warranty." Count one of the second amended complaint does not add any new facts to correct the deficiency and must therefore be dismissed with prejudice.
The second count, for common law fraud, is also deficient in that it merely contains general conclusory allegations. Plaintiff states that GM "represented" that Cadillacs are "luxury cars" and have a "predicted life expectancy under normal conditions well in excess of 100,000 miles." Plaintiff asserts that he relied on these representations and has suffered damage in that the Cadillacs with HT4100 engines lost a substantial portion of their value in the used car market. (Second Amended Complaint, Second Count para. 6).
Because fraud is a conclusion of law, it may not be charged in general terms. A plaintiff must "inject precision and some measure of substantiation into [his] allegations of fraud." Seville Indus. Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir.1984); cert. denied, 469 U.S. 1211, 105 S. Ct. 1179, 84 L. Ed. 2d 327 (1985). The pleadings must state -- with particularity -- facts showing the fraud, reliance and facts showing damage. Hyland v. Kirkman, 157 N.J.Super. 565, 584, 385 A.2d 284, 294 (Ch.Div.1978). Plaintiff fails to allege that the statements made by GM were in fact false. In addition, plaintiff fails to plead facts to show that he relied to his detriment on any such representations. Plaintiff has not apparently attempted to sell his car in the used car market and simply asserts the bald conclusion that its value in that market has decreased.
Plaintiff simply does not allege the requisite elements of fraud, let alone with the particularity required of Fed.R.Civ.P. 9(b). Plaintiff's First Amended Complaint was found to be "insufficient to permit the inference of mail fraud and satisfy the particularity requirement of Fed.R.Civ.P. 9(b)." Opinion at 5. The second count of his Second Amended likewise fails to plead common law fraud with sufficient particularity.
The court will thus grant defendant GM's motion and dismiss both counts with prejudice.
AMENDED ORDER (November 24, 1986)
This matter having been brought before the court on defendant's motion to dismiss plaintiff's second amended complaint and plaintiff's motion to remand; and,
This court having reviewed the submissions and arguments of the parties; and,
The court having entered an order and opinion filed November 3, 1986,
It is ordered that the court order filed November 3, 1986, is hereby vacated; and,
For the reasons set forth in this court's opinion filed November 3, 1986,
IT IS on this 21st day of November, 1986, hereby ORDERED that:
1. The motion of defendant General Motors Corporation to dismiss the second amended complaint of plaintiff Robert W. Yost is hereby GRANTED with prejudice.
2. The motion of plaintiff Robert W. Yost to remand is hereby DENIED.
3. No costs.
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