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Idearc Media Corp. v. Advanced Directory Sales

June 25, 2009

IDEARC MEDIA CORP., PLAINTIFF,
v.
ADVANCED DIRECTORY SALES, INC., JAMES DIBEASE, JOHN DOE(S) 1-10, AND ABC OPINION COMPANY(S) A-Z, DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

HONORABLE JOSEPH E. IRENAS

Presently before the Court is the Motion by Defendants Advanced Directory Sales, Inc. ("ADS") and James DiBease to Dismiss Counts 5 and 6 of the Complaint or, alternatively, for a More Definite Statement. For the reasons that follow, the motion will be granted with respect to Count 5, and denied as to Count 6.*fn1

I.

A.

The factual recitation that follows accepts as true the facts as alleged in the Complaint. Plaintiff Idearc Media Corp. ("Idearc") is a media company, headquartered in Texas, that manages and delivers print, online, and wireless publishing and advertising services. (Compl. ¶¶ 1, 7) Defendant ADS is a New Jersey corporation owned, controlled, and/or operated by Defendant DiBease, and engaged in the business of marketing and selling advertising. (Compl. ¶¶ 8, 9, 15)

Pursuant to a contractual agreement,*fn2 Idearc placed advertisements in publications, including the Yellow Pages, at the request of ADS and DiBease. (Compl. ¶ 17) ADS and DiBease were contractually required to remit payment to Idearc in consideration for placing those advertisements, but failed to do so. (Compl. ¶¶ 17, 26) A sum of $716,216.73 is owed to Idearc for the advertisements. (Compl. ¶ 27)

ADS and DiBease created unknown entities of uncertain business form - identified in the Complaint as "John Doe(s) 1-10 and ABC Company(s) A-Z" - to engage in the business of marketing and selling advertising. (Compl. ¶¶ 10, 11) The unnamed defendants are owned, controlled, and/or operated by DiBease or his spouse, and were formed to avoid the obligation of ADS and DiBease to remit payment to Idearc for services rendered. (Compl. ¶¶ 12-14)

B.

Idearc initiated this action by filing a Complaint on March 5, 2009. The Complaint alleges six counts against Defendants, captioned as follows: (1) Book Account; (2) Breach of Contract; (3) Breach of Implied Contract; (4) Unjust Enrichment; (5) Fraudulent Misrepresentation; and (6) Piercing the Corporate Veil.

ADS and DiBease now move to dismiss Count 5 for failure to plead fraud with specificity as required under Fed. R. Civ. P. 9(b), and to dismiss Count 6 for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Alternatively, ADS and DiBease seek a more definite statement as to those counts, pursuant to Fed. R. Civ. P. 12(e).

II.

A party alleging fraud "must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). A plaintiff must "state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the 'precise misconduct with which [it is] charged.'" Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (quoting Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004)). Plaintiffs can satisfy the requirements of Rule 9(b) by "pleading the 'date, place or time' of the fraud, or through 'alternative means of injecting precision and some measure of substantiation into their allegations of fraud.'" Lum, 361 F.3d at 224 (quoting Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984)). A plaintiff must also "allege who made a representation to whom and the general content of the misrepresentation." Id.

Count 5 of the Complaint fails to plead fraud with the requisite specificity. Idearc's allegations do not indicate the date, time, or place of the purported fraudulent misrepresentations. Nor does Idearc employ an alternative means of injecting precision into its fraud allegations. Thus, the Motion to Dismiss will be granted as to Count ...


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