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MARKARIAN v. ZAKAR GAROOGIAN

September 12, 1991

MARK MARKARIAN, Plaintiff,
v.
ZAKAR GAROOGIAN, DR. JACK WILKINSON and DONALD ALLOIAN, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 All three defendants in this case have moved to dismiss plaintiff's first amended complaint. On June 17, 1991, this court denied the motion to dismiss filed by defendant Donald Alloian. The court now considers the motion to dismiss of defendants Zakar Garoogian and Dr. Jack Wilkinson.

 The facts of the case are set forth in the court's June 17 memorandum order (767 F. Supp. 173); therefore, they shall not be recounted in this opinion.

 DISCUSSION

 In support of their motion to dismiss, Garoogian and Wilkinson raise many of the same arguments that were raised in Alloian's motion to dismiss. First, defendants contend that the court lacks personal jurisdiction over them. Second, they argue that Count I of the complaint (which sounds in common law fraud) should be dismissed because plaintiff Mark Markarian has failed to state a claim. Finally, defendants assert that Markarian's breach-of-contract claim in Count II should be dismissed as unenforceable under the Statute of Frauds.

 I. Lack of Personal Jurisdiction

 This court's previous order disposes of defendants' jurisdictional challenge. In rejecting a similar argument advanced by defendant Alloian, the court found that Markarian's allegations were sufficient to establish a prima facie case of personal jurisdiction under the conspiracy theory of jurisdiction. Memorandum Order, 767 F. Supp. 173, 176-179. Since Markarian has alleged that defendants were part of an actionable conspiracy, and that one of the co-conspirators (i.e., Garoogian) committed jurisdictional acts within Illinois in furtherance of the conspiracy, the court may exercise personal jurisdiction over all of the alleged co-conspirators. Id. at 178.

 II. Failure to State a Claim (Count I)

 Next, defendants argue that Count I of the first amended complaint fails to state a claim for fraud. Defendants do not deny that the complaint identifies several misrepresentations made by both Wilkinson and Garoogian. Instead, they assert that Markarian has failed to indicate which statements were made by Wilkinson and which statements were made by Garoogian.

 For purposes of withstanding defendants' motion to dismiss, Markarian's allegations are sufficient. It is true that Markarian attributes the fraudulent misrepresentations to both of the defendants. But that does not mean that there is any problem with notice or the form of the pleading; defendants can simply admit or deny making each alleged misrepresentation. Considering Markarian's detailed allegations, specifying the time frame and place of the fraud, defendants cannot persuasively argue that they have not been apprised of the nature of the claims against them.

 Wilkinson argues that Markarian's allegations are defective as to him because Markarian "has failed to allege that Wilkinson knew or believed the statements he made were untrue." Motion to Dismiss, 767 F. Supp. at 175. This argument is untenable. In paragraph 34 of the complaint, Markarian specifically alleges that the misrepresentations were made "with knowledge of their falsity."

 Wilkinson has overlooked the fact that even if he did not personally utter a misrepresentation, he is nonetheless liable for the conduct of his co-conspirators. Each defendant may be held responsible for a co-conspirator's fraudulent statements or conduct that furthered the conspiracy. Memorandum Order, at 14-15. And, as this court previously ruled, Markarian has adequately alleged that all of the defendants participated in an actionable ...


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