United States District Court, D. New Jersey
SALAS UNITED STATES DISTRICT JUDGE.
the Court is Defendants Tracfone Wireless, Inc., Megatel
Wireless, Inc., Mohammed Elzaza, and Nasser Abdelmeguid's
(collectively, “Defendants”) motion to dismiss
Plaintiff Megatel Mobile, LLC's Amended Complaint. (D.E.
No. 57). The Court has considered the parties'
submissions and decides the matter without oral argument
under Federal Rule of Civil Procedure 78(b). For the
following reasons, the Court GRANTS Defendants' motion.
Counts One, Two, Three, Six, Seven, Eleven, and Thirteen are
DISMISSED without prejudice. Counts Four, Five,
Eight, Nine, Ten, and Twelve are DISMISSED with
survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This requires more than the
“sheer possibility” that the defendant acted
unlawfully. Id. A plaintiff must plead
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Rule of Civil Procedure 8(a)(2) requires only a short and
plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Twombly, 550 U.S. at 545 (internal
citations and quotation omitted). In evaluating plausibility,
a court proceeds in three steps. Connelly v. Lane Constr.
Corp., 809 F.3d 780, 787 (3d Cir. 2016) (applying
Iqbal). First, it “take[s] note of the
elements the plaintiff must plead to state a claim.”
Id. (quoting Iqbal, 556 U.S. at 675).
Second, it identifies allegations that are simply conclusory
and therefore not entitled to a presumption of truth.
Id. Third, the court assumes that well-pleaded
factual allegations are true, and gives the plaintiff
“the benefit of every favorable inference to be drawn
therefrom.” Malleus v. George, 641 F.3d 560,
563 (3d Cir. 2011) (citation omitted).
Rule of Civil Procedure 9(b) imposes a heightened pleading
requirement for allegations of fraud or mistake. See
Giercyk v. Nat'l Union Fire Ins. Co. of Pittsburgh,
No. 13-6272, 2015 WL 7871165, at *2-3 (D.N.J. Dec. 4, 2015).
“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b). A plaintiff may satisfy
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 v. Bank of Am., 361 F.3d 217, 224
(3d Cir. 2004) (citation omitted); see also United States
v. Eastwick Coll., 657 Fed.Appx. 89, 93 (3d Cir. 2016)
(“In order to satisfy Rule 9(b), a complaint must
provide all of the essential factual background that would
accompany the first paragraph of any newspaper story-that is,
the who, what, when, where and how of the events at
issue.”) (citations and internal quotation marks
Court will grant Defendants' motion to dismiss and allow
Plaintiff to amend most of its claims. “Courts in this
district have held that pleadings that fail to explain who
has committed what actions are impermissibly vague and fail
to comport with the pleading standards set out by the Supreme
Court in Twombly.” Transp. Ins. Co. v. Am.
Harvest Baking Co., No. 15-0663, 2015 WL 9049273, at *8
(D.N.J. Dec. 16, 2015) (collecting cases). As a court in this
District explained regarding certain instances of group
pleading, “[a]lleging that ‘Defendants'
undertook certain illegal acts-without more-injects an
inherently speculative nature into the pleadings, forcing
both the Defendants and the Court to guess who did what to
whom when.” Japhet v. Francis E. Parker Mem'l
Home, Inc., No. 14-1206, 2014 WL 3809173, at *2 (D.N.J.
July 31, 2014). And “[s]uch speculation is anathema to
contemporary pleading standards.” Id.
Defendants persuasively argue (see D.E. No. 57-1 at
7-8; D.E. No. 64 at 2-3), Plaintiff's Amended Complaint
(D.E. No. 52 (“Am. Compl.”)) falls short of
satisfying Rule 8(a) because it lacks “meaningful facts
which establish each individual Defendant's liability for
the misconduct alleged, ” see Galicki v. New
Jersey, No. 14-0169, 2015 WL 3970297, at *2 (D.N.J. June
29, 2015). Plaintiff's group pleading here is especially
problematic because each Defendant appears to have had
distinct roles in the alleged misconduct. And “[i]t is
not the Court's job to laboriously search the Complaint
for factual assertions that could, in theory, be used to
support one legal claim or another.” K.J. v.
Greater Egg Harbor Reg'l High Sch. Bd. of Educ., No.
14-0145, 2015 WL 5039460, at *6 (D.N.J. Aug. 26, 2015)
(citation omitted). Plaintiff's Amended Complaint is
therefore dismissed, and Plaintiff may amend its pleading.
But because amendment for some of Plaintiff's claims
would be futile, the Court will dismiss those claims with
prejudice, as set forth below.
Four (Justifiable Reliance) must be dismissed because
justifiable reliance is an element of common-law fraud and
not an independent cause of action. See Clark v.
Prudential Ins. Co. of Am., 289 F.R.D. 144, 184 (D.N.J.
2013). Indeed, Plaintiff recognizes this in its opposition
brief. (See, e.g., D.E. No. 61 at 27)
(“[J]ustifiable reliance is a key element in fraud
allegations.”). Count Five (Refusal to Mitigate
Damages) also must be dismissed because “[u]nder New
Jersey law, the failure to mitigate damages is considered an
affirmative defense.” Natreon, Inc. v. Ixoreal
Biomed, Inc., No. 16-4735, 2017 WL 3131975, at *7
(D.N.J. July 21, 2017).
(Conversion) must be dismissed because it is not directed to
tangible property. A claim for conversion requires (i) the
existence of property; (ii) the right to immediate possession
thereof belonging to a person; (iii) and the wrongful
interference with that right by a different person.
Corestar Int'l PTE. Ltd. v. LPB Commc'ns,
Inc., 513 F.Supp.2d 107, 127 (D.N.J. 2007).
“Importantly, the tort of conversion relates to
interference with tangible rather than intangible
property.” Hampden Eng'g Corp. v. Shear Tech.
LLC, No. 15-7424, 2016 WL 8677215, at *6 (D.N.J. Aug.
26, 2016) (internal quotation marks and citations omitted).
Plaintiff alleges that Defendants: “converted
plaintiff's employee as a spy and stole him from
Plaintiff”; “converted plaintiff's clients to
their own, including the conversion of all of their
business”; and “stole and converted
plaintiff's ENTIRE business to his own ownership by
shutting down the system and taking all of plaintiff's
business, customers, deals, contracts, profits and the like,
completely shutting them out, all to their detriment and in
violation of the terms of the agreement between the
parties.” (Am. Compl. ¶ 179) (emphasis in
original). These allegations cannot state a claim for
conversion. Count 9 (Theft) must be dismissed for the same
reasons. See Fainsbert v. Cuthbert, No. 06-2014,
2006 WL 2096057, at *4 (D.N.J. July 27, 2006) (analyzing
civil theft and conversion claims together).
10 (Specific Performance) must be dismissed because
“[s]pecific performance may not stand as a claim,
independent from a breach of contract claim.” See
Cotter v. Newark Hous. Auth., No. 09-2347, 2010 WL
1049930, at *5 (D.N.J. Mar. 17, 2010), aff'd,
422 Fed.Appx. 95 (3d Cir. 2011). “Instead, specific
performance is an equitable remedy that may be granted by a
court of equity in its discretion, if there is no adequate
remedy at law.” Id. Count 12 (Duress) also
must be dismissed because courts “do not yet recognize
economic duress as an affirmative tort action in New
Jersey.” Am. Rubber & Metal Hose Co., Inc. v.
Strahman Valves, Inc., No. 11-1279, 2011 WL 3022243, at
*7 (D.N.J. July 22, 2011). And Plaintiff has not cited,
“nor has the Court found, any more recent authority
that contradicts this case law.” See id.