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Knowles v. Hopson

June 12, 2008

ROBERT KNOWLES, PLAINTIFF,
v.
ANGELA HOPSON, RENEWABLE RESOURCES, LLC, AND SAFETY SOLUTIONS, INC., DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

On October 30, 2007, Plaintiff Robert Knowles filed a four-count complaint against Defendants Angelia Hopson, Renewable Resources, LLC, and Safety Solutions, Inc. alleging (1) a violation of federal securities law, (2) a violation of Illinois securities law, (3) common law fraud, and (4) unjust enrichment. Defendants have filed two motions targeting the sufficiency of the complaint: a motion to dismiss [10] all four counts, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), and, in the alternative, a motion for a more definite statement [13] as to Counts I and II, brought pursuant to Rule 12(e). For the following reasons, the Court denies both motions.

I. Background

According to the allegations in Plaintiff's complaint, in October 2006, Plaintiff Knowles and Defendant Hopson were introduced. Hopson, who is the owner of a majority interest in both Renewable Resources and Safety Solutions, solicited from Knowles an investment in Renewable Resources. Hopson told Knowles that Renewable was pursuing a tire recycling project in the Memphis, Tennessee area. At the end of October 2006, Hopson and Knowles met in San Diego, California, at which time they discussed the project in more detail. According to the complaint, Hopson asked Knowles to sign a non-disclosure agreement, and Hopson told Knowles that (i) she had invested more than $500,000 of her own money in Renewable and (ii) Knowles's investment would be used to further fund the project. Knowles further alleges that at the time Hopson solicited his investment, she did not intend to use the funds that Knowles would provide to further the tire recycling project; rather, Knowles alleges that Hopson needed the money to pay debts associated with Safety Solutions.

Additional discussions led to the signing, by both Hopson and Knowles, of a letter, dated December 7, 2006, which recognized that Knowles would make a $250,000 investment into Renewable in exchange for a five percent ownership interest in Renewable and that the formal documents concerning the investment would be completed by January 31, 2007. On December 10, Knowles paid Renewable a check in the amount of $50,000. On or about December 29, he sent a wire transfer in the amount of $200,000. According to the complaint, Hopson withdrew nearly all of Knowles' investment by writing checks to Safety Solutions. The complaint further alleges that at the time he made his original $50,000 payment to Renewable, contrary to the representations by Hopson, Renewable did not have any cash at the time. Knowles also alleges that Hopson never provided him with the "formal" documents (due to be completed by January 2007), a registration statement, a prospectus, a K-1 form for 2006, and additional investment documents. According to the complaint, "[u]pon information and belief, Renewable has not registered its offering of securities."

Although Hopson had not provided the necessary documentation to Knowles by January 2007, Knowles signed another non-disclosure agreement in July 2007. Finally, in September 2007, Defendants provided a few documents to Knowles. According to the complaint, those documents showed that Hopson had made misrepresentations and kept materially important information from Knowles. Those documents also allegedly contradict Hopson's claim that she put $500,000 into Renewable; rather, Knowles claims that the documents demonstrate that Hopson used funds from Renewable's account to make purchases at a GNC drug store, to buy gas, and to make ATM withdrawals.

II. Analysis

A. Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When ruling on a motion to dismiss under Rule 12(b)(6) for failure to state a claim, a judge "must accept as true all of the factual allegations contained in the complaint." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Plaintiff's claim for unjust enrichment (Count IV) is governed by the liberal notice pleading standard of Federal Rule of Civil Procedure 8, pursuant to which Plaintiff "need only 'give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.' " Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam) (quoting Bell Atlantic, 127 S.Ct. at 1964); see also Willer v. Civil Contractors & Engineers Inc., 2007 WL 3232493, *2 (N.D. Ill. 2007). To survive a 12(b)(6) motion to dismiss, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965, 1973 n.14 (2007)). Plaintiff's other claims (Counts I, II, and III) for violation of federal and state securities laws and common law fraud are subject to the particularized pleading requirements of Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. § 78u-4(b). The Court will address those requirements where relevant.

1. Count I -- Violations of Federal Securities Law

In Count I, Plaintiff alleges that he is entitled to a refund of his investment in Renewable Resources because "Defendants' conduct constitutes multiple violations of the securities laws of the United States, 15 U.S.C. § 77(a), et. seq." Plaintiff does not specify which sections of the Securities Act of 1933 have been violated, and Defendant moves to dismiss Count I of Plaintiff's complaint on the ground that Plaintiff did not plead with sufficient particularity so as to satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act of 1995 ("PSLRA" or "the Reform Act"), 15 U.S.C. § 78u-4(b).

Generally, a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. See Fed.R.Civ.P. 8(a)(2). In this regard, a party must simply provide the "defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (internal quotation marks and citation omitted). However, Rule 9(b) of the Federal Rules of Civil Procedure creates exceptions to the federal regime of notice pleading and specifies that, for "all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b); see also Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007). "Read together, Rule 9(b) and Rule 8 require that the complaint include the time, place and contents of the alleged fraud, but the complainant need not plead evidence." Amakua Development LLC v. Warner, 411 F. Supp. 2d 941, 947 (N.D. Ill. 2006) (citing Nissan Motor Acceptance Corp. v. Schaumburg Nissan, Inc., 1993 WL 360426, at *3 (N.D. Ill. Sept. 15, 1993)). In other words, the complaint must allege the "the who, what, when, where, and how: the first paragraph of a newspaper story." Borsellino, 477 F.3d at 507 (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)).

The PSLRA requires that "in any private action arising under [the Exchange Act] in which the plaintiff alleges that the defendant made an untrue statement of a material fact * * * the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed." 15 U.S.C. ยง 78u-4(b)(1). Further, the Reform Act requires particularized pleading of scienter: "the complaint shall, with respect to each act or ...


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