United States District Court, N.D. Illinois, Eastern Division
Jeffrey Cole Magistrate Judge.
plaintiff is a car repair business in New Hampshire, and the
defendants are in equipment supply in Illinois. The plaintiff
leased some automobile alignment equipment from defendants
and claims the equipment proved to be defective. The
plaintiff has brought a seven-count Complaint against the
defendants, alleging breach of contract, breach of warranty,
and fraud. The defendants have moved to dismiss the fraud and
breach of warranty claims. As always, when considering a
motion to dismiss, the court accepts the allegations in the
Complaint as true. Manhattan Cmty. Access Corp. v.
Halleck, __U.S.__, 139 S.Ct. 1921, 1927 (2019).
to the Complaint, the parties entered into an equipment lease
agreement on April 25, 2018. Under the contract, plaintiff
leased a vehicle lift and alignment rack for a term of 60
months at $1046.30 a month. In short, plaintiff complains
that the equipment doesn't work: the safety locks on the
lift do not function properly and the alignment rack does not
work as it should, in that it takes several attempts before
the equipment aligns vehicles properly, and sometimes that
does not even get the job done. Plaintiff claims it has
contacted defendant several times to replace or repair the
allegedly defective equipment, to no avail. And so, plaintiff
has filed s seven count Complaint against defendant,
charging: Breach of Contract; Breach of Representations,
Warranties, and Covenants; Breach of Implied Warranty of
Fitness for a Particular Purpose; Violation of the Illinois
Consumer Fraud and Deceptive Trade Practices Act
(“ICFA”); Common Law Fraud; promissory estoppel;
and common law fraudulent misrepresentation. The defendant
has moved to dismiss all but the breach of contract and
promissory estoppel claims.
survive a motion to dismiss the Complaint must “state a
claim for relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). A plaintiff must plead particularized factual
content, not conclusory allegations that allow the court to
plausibly infer the defendant is liable for the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The court may consider documents attached to the
pleadings so long as the documents are referred to in the
Complaint and are central to the plaintiff's claims.
Doe v. Columbia Coll. Chicago, 933 F.3d 849, 853
(7th Cir. 2019). Here, plaintiff attached a copy of the lease
to its Complaint, and the defendants attached a copy of the
executed lease to their motion to dismiss. See Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002)(court may
consider document “even if the document had merely been
referred to in the complaint, provided it was a concededly
authentic document central to the plaintiff's complaint
(the usual example is a contract, in a suit for breach of
The Fraud Claims
main, defendants contend that the fraud claims - Counts IV,
V, and VII - are not plead with particularity as required by
Fed.R.Civ.P. 9(b). Under Rule 9(b), a plaintiff
“alleging fraud or mistake ... must state with
particularity the circumstances constituting fraud or
mistake.” As the Seventh Circuit has put it,
“[t]he plaintiff must describe the ‘who, what,
when, where, and how' of the fraud-‘the first
paragraph of any newspaper story.'” United
States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849,
853 (7th Cir. 2009). See also United States ex rel.
Berkowitz v. Automation Aids, Inc., 896 F.3d 834, 839-40
(7th Cir. 2018).
the plaintiff contends that allegations of fraud are not
subject to a heightened pleading standard, [Dkt. # 24, at 4],
the claim is inaccurate, as Rule 9(b) and case after case
make plain. See, e.g., Greyer v. Illinois Dep't of
Corr., 933 F.3d 871, 881 (7th Cir. 2019)(“Fraud
allegations also trigger a more demanding pleading standard,
see Fed.R.Civ.P. 9(b).”); Cornielsen v. Infinium
Capital Mgmt., LLC, 916 F.3d 589, 598 (7th Cir.
2019)(“Heightened pleading requirements apply to
complaints alleging fraud.”); NewSpin Sports, LLC
v. Arrow Elecs., Inc., 910 F.3d 293, 299 (7th Cir.
2018)(“For fraud claims, a heightened pleading standard
applies . . . .”); Greenberger v. GEICO Gen. Ins.
Co., 631 F.3d 392, 399 (7th Cir. 2011)(“Claims for
violation of the Consumer Fraud Act are subject to the same
heightened pleading standards as other fraud claims; as such,
they must satisfy the particularity requirement of Rule 9(b)
of the Federal Rules of Civil Procedure.”). We are not
at liberty to ignore the comments of the Congress and the
states that “[t]hroughout [its] complaint, Plaintiff
identifies numerous occasions where the alleged fraud and or
deception occurred.” [Dkt. #24, at 4]. But,
“saying so does not make it so....” United
States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d
504, 510 (7th Cir.2010), and tellingly, plaintiff does not
cite any of those paragraphs that supposedly satisfy Rule
9(b). Plaintiff's only arguable allegations of fraud are
found at paragraphs 37-39 of its Complaint and are repeated
at paragraphs 50-52, and 56-58:
Defendant represented to Plaintiff that the equipment was new
prior to Plaintiff's leasing the equipment.
Defendants knew or should have to know that their statements
were false or were made with reckless disregard for their
truth or falsity, and/or that their concealment of certain
fact was material to Plaintiff.
Defendants intended for Plaintiff to rely on the false
statements of material fact and/or concealment of material
[Dkt. #2, at Pars. 37-39, 50-52, 56-58].
best, the plaintiff's conclusory allegations are sketchy,
yet, under Rule 9(b), sketchy is not good enough. Plaintiff
“fails to provide the specific names, dates, times, or
content of the misrepresentations or omissions that give rise
to the alleged fraud.” Rocha v. Rudd, 826 F.3d
905, 911 (7th Cir. 2016); see also Cornielsen, 916
F.3d at 598 (heightened pleading standard for fraud
“generally means describing the ‘who, what, when,
where, and how' of the fraud.”). The Complaint is
not even clear on whether a “defendant” or
“defendants” made representations, moving from
the singular to plural in its allegations. But, in a case
involving multiple defendants, “‘the complaint
should inform each defendant of the nature of his alleged
participation in the fraud.'” Rocha, 826
F.3d at 911.
the plaintiff complains that it should have an opportunity to
conduct discovery, [Dkt. #24 at 4-5], that puts the
proverbial cart before the horse and ignores the teaching of
Bell Atlantic. See also Frank H. Easterbrook,
“Discovery as Abuse, ” 69 B.U.L.Rev.
635, 639 (1989). [See Dkt. # 24, at 4-5]. Indeed, as the
Supreme Court emphasized in Bell Atl. Corp.,
“[i]t is no answer to say that a claim just shy of a
plausible entitlement to relief can, if groundless, be weeded
out early in the discovery process through ‘careful
case management, ” given the common lament that the
success of judicial supervision in checking discovery abuse
has been on the modest side.” 550 U.S. at 559. See
also Fidelity Nat'l Title Ins. Co. of N.Y. v. Intercounty
Nat'l Title Ins. Co., 412 F.3d 745, ...