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Polansky v. Anderson

July 19, 2006

MICHAEL E. POLANSKY, PLAINTIFF,
v.
JOSEPH ANDERSON, ANDERSON RACING DEFENDANTS.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM ORDER AND OPINION

Plaintiff, Michael E. Polansky, asserts claims against defendants Joseph Anderson and Anderson Racing, Inc. for fraud, breach of fiduciary duty, conspiracy, and accounting in regards to three racehorse sales transactions. Presently before us is defendants' motion to dismiss the complaint pursuant to Rules 12(b)(6), 8(a), and 9(b). Defendants Joseph Anderson and Anderson Racing, Inc. claim that Polansky failed to state a claim upon which relief can be granted because he did not comply with the heightened pleading requirements for fraud and he neglected to sufficiently allege the existence of a fiduciary relationship. In addition, defendants argue that plaintiff failed to state a claim for accounting or conspiracy. After reviewing the pleadings, and for the reasons set forth below, we grant the motion in part and deny the motion in part.

BACKGROUND

Polansky entered the standardbred horse racing industry sometime in 2001 when he purchased racehorses. (Compl. ¶ 11.) During the summer of 2002, Monte Gelrod, a veteran horse trainer, began pursuing a business relationship with Polansky.*fn1 (Id. ¶¶ 12-15.)

Plaintiff owned a horse named Piratesofpanzance which was initially trained by Mark Franzen. (Id. ¶ 16.) Gelrod informed Polansky that Franzen "was an incompetent trainer ... [and] that he would have much greater racing success if he were to transfer [training duties] ... to Joseph Anderson." (Id. ¶17.) Plaintiff took Gelrod's advice around November 16, 2000. (Id.)

In April 2003, Gelrod advised Polansky to purchase three Illinois-bred horses, Only Choice, Incredible Moe, and Definitely Maybe. (Id. ¶ 19.) Robert Waxman owned the horses, which were being trained in Illinois by Erwin Miller. (Id. at ¶ 20.) According to Polansky, "Anderson, acting on Plaintiff's behalf, examined the horses to ascertain their condition and quality ... and represented to Plaintiff [along with Gelrod] that these were three of the top Illinois-bred racehorses. Each of them had been successful as a 2-year old and they were ... training superbly for their debuts as 3-year olds." (Id. ¶ 22.) Anderson reported on the horses in a telephone conversation with Polansky around April 1. (Id. ¶¶ 22-23.) According to Polansky, Anderson knowingly misrepresented the horses' accomplishments. (Id. ¶¶ 25, 30(a), 31.)

In reliance on Anderson's and Gelrod's representations, Polansky decided to buy the horses. (Id. ¶ 33.) Gelrod communicated the terms of the transaction to plaintiff, directing him to wire $350,000.00 to Anderson and then "Anderson would use the funds to pay off some of Mr. Waxman's obligations with any balance going to Mr. Wa[x]man." (Id. ¶ 21.) Polansky wired the funds to Anderson Racing, Inc. on April 9 after speaking with Janet Anderson, who assured him that she would disburse the funds on his behalf. (Id. ¶ 24.) Polansky alleges that Anderson and Anderson Racing, Inc., among others, kept a portion of the proceeds "for themselves and others who were not entitled to share in those monies." (Id. ¶ 47.)

STANDARD OF REVIEW

"The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990) (quotation omitted). A complaint is not required to allege all, or any, of the facts entailed by the claim. Lekas v. Briley, 405 F.3d 602, 606 (7th Cir. 2005); see also McCormick v. City of Chicago, 230 F.3d 319, 324-25 (7th Cir. 2000) (holding that plaintiff can plead conclusions if they put defendant on notice of claims). However, a plaintiff can plead himself out of court by pleading facts that undermine the allegations set forth in the complaint. Lekas, 405 F.3d at 613-614.

In considering a motion to dismiss, we must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cody v. Harris, 409 F.3d 853, 857 (7th Cir. 2005). Although, "we are not required to accept legal conclusions either alleged or inferred from the pleaded facts." Nelson v. Monroe Reg'l Med. Ctr., 925 F.2d 1555, 1559 (7th Cir. 1991); see also Tamari v. Bache & Co., 565 F.2d 1194, 1199 (7th Cir. 1977) ("[M]ere unsupported conclusions of fact or mixed fact and law are not admitted."). In sum, a complaint should not be dismissed "unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957).

ANALYSIS

A. Fraud

Anderson argues that the allegations of fraud in Count I of plaintiff's complaint fail to satisfy Federal Rule of Civil Procedure ("Rule") 9(b)'s particularity requirement. A complaint is required to provide only a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(e)(2), unless the pleading avers fraud or mistake, in which case, the complaint must state the circumstances constituting the fraud or mistake with particularity.*fn2 Fed. R. Civ. P. 9(b).

In describing the fraud, a plaintiff must describe the "identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir. 1992) (quotation omitted). The absence of any necessary detail renders the pleading deficient. Moreover, mere conclusory language which asserts fraud, without a description of fraudulent conduct, does not satisfy Rule 9(b). Lincoln Nat. Bank v. Lampe, 414 F. Supp. 1270, 1279 (N.D. Ill. 1976). Finally, where the allegations of a fraudulent scheme include multiple defendants, the complaint must "inform each defendant of the specific fraudulent acts" which constitute the basis of the ...


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