concluding that where district court determined that plaintiff was unlikely to prevail on merits and equities favored cancellation, district court had jurisdiction to cancel lis pendens once complaint dismissed, despite plaintiffs appeal
How later courts described this case
- concluding that where district court determined that plaintiff was unlikely to prevail on merits and equities favored cancellation, district court had jurisdiction to cancel lis pendens once complaint dismissed, despite plaintiffs appeal
- holding that “a complainant must make a strong and unequivocal showing of relitigation of the same issue in order to overcome the federal courts’ proper disinclination to intermeddle in state court proceedings”
- upholding a district court’s refusal to enjoin state court proceedings when the district court’s dismissal of the lawsuit was on appeal
- noting that a district court retains jurisdiction after a notice of appeal has been filed to cancel a notice of lis pendens as part of its inherent power to enforce its judgments
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
concurring in part and dissenting in part.
While I concur in almost all of the court’s opinion in this case, I must dissent from section III, which overturns the district court’s dismissal of ATCA’s claim for fraud and misrepresentation based on ATCA’s failure to plead fraud with particularity, as required by Fed.R.Civ.P. 9(b). Here the court rests its approval of the complaint on the fact that the complaint does include ten paragraphs of factual allegations (paragraphs 10-19). However, not one of these paragraphs indicates what facts, if any, constituted fraud or misrepresentation. Many of the factual allegations are items on which there seems to be little dispute (paragraph 12, “Mr. Dick sent Bryan Ka-minski another letter....”; paragraph 15, “Mr. Dick spoke with Mr. Kaminski-”). Paragraphs 46 and 47, as the court so aptly notes, “only parrot the requirements of fraud under Michigan law_” In so parroting, they state only that “numerous misstatements were made,” without giving any indication as to which of the previous statements were such. In addition, nowhere, either in these paragraphs or elsewhere, is there the allegation that such statements were made “knowingly or recklessly.” The defendant is apparently left *113 with the responsibility of making a broadside defense of each and every statement of fact in the complaint. This is precisely what Rule 9(b) is meant to prevent.
The court’s opinion relies on Michaels Building Company, where the “particular fraud count specifie[d] the parties and the participants to the alleged fraud, the representations made, the nature in which the statements [were] alleged to be misleading or false, the time, place and content of the representations, the fraudulent scheme, the fraudulent intent of the defendants, reliance on the fraud, and the injury resulting from the fraud.” 848 F.2d at 679 (footnote omitted). The Michaels Building Company court noted that “Rule [9(b)] requires that the circumstances of the fraud be pled with enough specificity to put defendants on notice as to the nature of the claim.” Id. at 680. We warned that “there must be a reasonable basis for a plaintiffs complaint” and that attorneys must not be allowed to abuse “the liberal pleading provisions of Rule 8.” Ibid. My objection is not that the allegations in the complaint are “short, concise statements” but that they do not present a “reasonable basis” for the fraud claim. They fail to reveal wherein lay the misrepresentation and which statements were made with the necessary mental state of “knowing or reckless.” These elements are crucial, since “the purpose undergirding the particularity requirement of Rule 9(b) is to provide a defendant fair notice of the substance of a. plaintiffs claim_” Id. at 679.
I therefore respectfully dissent with regard to the reversal of the district judge’s dismissal of the fraud claim.