1Dear [FIRSTNAME], I hope everyone had a Happy New Year.

The topic of the newsletter this week is a brief discussion of some of the issues involved for a party that wants to file a motion to dismiss an adversary complaint for fraud filed against them in United States Bankruptcy Court on the grounds that the adversary complaint fails to state a claim. This type of motion is often called a 12(b)(6) motion as it is based on Federal Rule of Civil Procedure 12(b)(6) (FRCP), or Federal Rule of Bankruptcy Procedure 7012(b)(6) (FRBP. A party may also request in the alternative, that the party be required to provide a more definite statement under FRCP 12(e) or FRBP 7012(e). FRCP and FRBP 12 (e) states in pertinent part that, A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. The motion for a more definite statement may be joined with the motion to dismiss pursuant to FRCP and FRBP 12(g). Many adversary complaints filed in bankruptcy courts are made under 11 U.S.C. 523(a)(2) on the grounds of fraudulent representations. Note that FRCP 9(b) states in pertinent part that, In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. This is a federally imposed requirement. although the Court will examine state law to determine if the elements of fraud have been sufficiently alleged. It is established law, in this circuit and elsewhere, that Rule 9(b)'s particularity requirement applies to state-law causes of action. "While a federal court will examine state law to determine whether the elements of fraud have been pled sufficiently to state a cause of action, the Rule 9(b) requirement that the circumstances of the fraud must be stated with particularity is a federally imposed rule." Vess v. Ciba-Geigy Corp. 317 F. 3d 1097, 1103 (9th Cir. 2003) (internal citations omitted). The reason for the particularity requirement is due to the fact that fraud is a serious charge against another party. As the author works on cases from California, the great majority of the cases he works on are in the Central District of California and any fraud claims would most likely be a California cause of action. California law requires that four (4) elements be specifically pleaded in any cause of action for fraud. A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the

plaintiff; and (4) resulting damages. Every element must be specifically pleaded. Service by Medallion, Inc. v. Clorox Co. 44 Cal.App.4th 1807, 1816 (1996). Whatever form it takes, injury or damage from fraud must not only be distinctly alleged but its causal connection with reliance on representations must be shown.... In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the detriment proximately caused by the defendant's tortious conduct. Deception without resulting loss is not actionable fraud. Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown. Service by Medallion, Inc., 44 Cal.App.4th 1807, supra at 1818. And in California, pursuant to Code of Civil Procedure 338(d) there is a three-year statute of limitations for an action for relief on the ground of fraud or mistake. The cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. An action based on fraud may be brought more than three years after the fraud occurred if the plaintiff shows not only that he did not discover the facts but he could not with reasonable diligence have discovered them within that time. The complaint must set forth specifically (1) the facts of the time and manner of discovery; and (2) the circumstances which excuse the failure to have made an earlier discovery. Olson v. County of Sacramento 274 Cal.App 2d 316, 327 (1969) (internal citations omitted). While leave to amend is usually granted if a motion to dismiss is successful, the Ninth Circuit has ruled that leave to amend does not need to be granted where amending the complaint would be futile, and that any discretion to deny leave to amend is particularly broad where plaintiff has previously amended their complaint. Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility," and "the district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint." Ascon Properties v. Mobil Oil Co. 866 F.2d 1149, 1160 (9th Cir. 1989). A motion to dismiss and/or a motion for a more definite statement are very useful when used in the right situation as many adversary complaints for fraud are filed but fail to allege the fraud with particularity, or they are so vague and ambiguous that the defendant cannot reasonably prepare a proper response. In the authors experience filing a motion to dismiss can be particularly useful when it is obvious that plaintiff has a weak case. This will force plaintiff to seek leave to amend. Once plaintiff has previously amended their adversary complaint some judges will deny leave to amend where the moving party can show that amendment would be futile as plaintiff cannot state a cause of action for fraud. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link:

http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. THE AUTHOR NOW SELLS COLLECTIONS OF SAMPLE LEGAL DOCUMENTS AT A HUGE DISCOUNT! VISIT THE WEBSITE BELOW FOR MORE INFORMATION. http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.