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September 15, 1998


The opinion of the court was delivered by: GETTLEMAN


 Plaintiff Continental Assurance Co. ("Continental") filed an interpleader action with this court pursuant to 28 U.S.C. § 1335 to determine the rights of defendants David Combes ("Combes") and Linda Davis ("Davis") to the proceeds of a Continental life insurance policy held by Brenda Combes ("Brenda") and to discharge Continental from any further obligations arising from Brenda's death. Continental deposited a check for its admitted, full and total liability plus interest in the amount of $ 50,460.27 with the Clerk of this Court. This court approved the deposit and certified Continental's admitted liability.

 After answering Continental's complaint, Combes filed a cross-claim against Davis pursuant to Rule 13(g), asking this court to: (1) declare that he is the rightful owner of the insurance proceeds; (2) enjoin Continental from paying out the proceeds to Davis; (3) impose a constructive trust on the proceeds in favor of himself; (4) direct Continental to pay him the proceeds; (5) assess damages, both actual and punitive, caused by Davis' actions and (6) grant such other relief as deemed fit, necessary, and proper. Having established original jurisdiction over Continental's interpleader action under 28 U.S.C. § 1335, this court has supplemental jurisdiction over Combes' 13(g) cross-claim pursuant to 28 U.S.C. § 1367. Combes' complaint involves the same case or controversy as Continental's interpleader action.

 Now, Davis moves to dismiss Combes' cross-claim under Rule 12(b)(6) for failure to state a claim, and for judgment on the pleadings under Rule 12(c) for Continental's interpleader complaint. For the following reasons, Davis' motion to dismiss and the motion for judgment on the pleadings are denied.


 A court may grant a motion to dismiss pursuant to Rule 12(b)(6) if it appears beyond a doubt from the pleadings that the plaintiff is unable to prove any set of facts that would entitle him to relief. Moss v. HealthCare Compare Corp., 75 F.3d 276, 279 (7th Cir. 1996); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The court must accept as true all well-pleaded allegations and draw all reasonable inferences in favor of the plaintiff. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996). The complaint need not specify the correct legal theory nor point to the right statute to survive a 12(b)(6) motion, provided that "relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992).

 In addition, Rule 9(b) provides that: "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b). The Seventh Circuit has defined the requisite particularity as including "the identity of the person who made the misrepresentation, the time, place and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994); DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990) (Rule 9(b) particularity "means the who, what, when, where, and how; the first paragraph of any newspaper story").

 A motion for judgment on the pleadings under Rule 12(c) is evaluated under the same standard as a 12(b)(6) motion. Republic Steel Corp. v. Pennsylvania Engineering Corp., 785 F.2d 174, 182 (7th Cir. 1986).


 Combes' complaint alleges the following: David Combes married Brenda Davis Combes ("Brenda") on February 12, 1994. At the time, Brenda suffered from high blood pressure and mitral valve prolapse. Combes was aware of his wife's medical condition and "worried that his wife would not live long enough to help him raise" their two children. Soon after their marriage, Combes and Brenda reviewed their finances and made arrangements in the event either one of them would pass away unexpectedly. They agreed to change their life insurance beneficiary designations to name each other and to share the costs of the premiums. Each intended to insure that the surviving spouse would be able financially to take care of their children. In March of 1995, Combes and Brenda applied for life insurance policies with Continental and agreed to name each other as beneficiary to the proceeds. Each policy had a face value of $ 50,000. After securing her life insurance policy, Brenda told Combes that she had named him as sole beneficiary. Brenda continued to represent to Combes that he was the named beneficiary until her death.

 However, in August 1996, unbeknownst to Combes, Brenda executed a change of beneficiary form, naming her sister, Davis, as the sole beneficiary of the Continental insurance policy. Davis was aware of Brenda's change in beneficiary designation at the time. In addition, Davis knew that Combes believed he was the beneficiary and was relying on the fact that he would be able to provide for the children if something should happen to his wife.

 On December 27, 1997, Brenda died of heart failure due to dilated cardiomyopathy. Soon thereafter Combes submitted a claim to Continental for the proceeds of his wife's life insurance policy, believing himself to be the named beneficiary. Only after filing a claim for the proceeds from his late wife's policy did Combes come to learn that Brenda had changed her life insurance policy to name Davis as her beneficiary.


 Davis argues that as a matter of law, Combes is not an irrevocable beneficiary and therefore is not entitled to Brenda's life insurance proceeds. Davis' argument would be persuasive if Combes was asserting that he is an irrevocable beneficiary. *fn1" Combes, however, does not contest Davis' legal status as the named beneficiary for Brenda's policy. Instead, Combes asserts that for purely equitable reasons ...

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