Kingvision v. Vergas

Kingvision v . Vergas                  CV-00-407-JD     03/26/01
               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE


Kingvision Pay-Per-View, Ltd.

     v.                                    No. 0
                                     Opinion N o . 

Theresa Vergas, et a l .

                              O R D E R

     The plaintiff filed suit against numerous defendants
allegedly involved in an unauthorized televised showing of a pay-per-view boxing match.     Four defendants remain in the case:     On
The Rocks, Inc., John Rocca, Donna Nassoura, and William Kelley.
The individual defendants moved for a more definite statement
pursuant to Federal Rule of Civil Procedure 12(e), and the
magistrate judge granted the motion.      The plaintiff submitted a
more definite statement as an addendum to the complaint.      Rocca,
Nassoura, and Kelley move to dismiss the complaint against them
(document n o . 1 6 ) , claiming that the plaintiff failed to comply
with the court’s order to the extent that it did not provide
specific factual allegations concerning them.     The plaintiff
objects.

     “While defendants may prefer highly detailed factual
allegations, a generalized statement of facts is adequate so long
as it gives the defendant sufficient notice to file a responsive
pleading.”   Langadinos v . Am. Airlines, Inc., 

 8 , 72-73
(1st Cir. 2000).   It is only if the complaint “‘is so vague or
ambiguous that a party cannot reasonably be required to frame a
responsive pleading,’” that a more definite statement is needed.

 at 74 n.6 (quoting Fed. R. Civ. P. 12(e)).   Once the court
has granted a motion for a more definite statement, the
plaintiff’s failure to amend the complaint as ordered by the
court may result in dismissal. See Fed. R. Civ. P. 12(e).

      Kingvision alleges in its complaint that upon information
and belief, Rocca, Nassoura, and Kelley are “officers, directors,
shareholders and/or principals” of On The Rocks, Inc.   Compl. ¶
11.   The complaint is brought against them individually and in
their official capacities as officers, directors, shareholders,
and/or principals of On The Rocks, Inc.   Kingvision alleges that
the boxing match was broadcast at the business premises of On The
Rocks, Inc., and that On The Rocks, Inc. did not purchase the
right to broadcast the match.   Kingvision alleges, in the
alternative, that the defendants broadcasted the match by one of
several methods. It does not allege actions by the individual
defendants other than through their affiliation with On The
Rocks, Inc.

      In their motion, the individually named defendants argue
that they are not specifically mentioned in the more definite
statement submitted by Kingvision, and that Kingvision has not


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provided information to substantiate their involvement with the
broadcast.   The defendants do not adequately explain why they
cannot reasonably respond to Kingvision’s allegations that they
were involved in facilitating the broadcast.     Furthermore, the
plaintiff need not provide evidence of each defendant’s
involvement in its initial pleadings. If the defendants wish to
challenge the sufficiency of the complaint in stating a claim
against each defendant, they may do so in a motion to dismiss for
failure to state a claim.   See Fed. R. Civ. P. 12(b)(6); Charles
A . Wright & Arthur R. Miller, 5A Federal Practice and Procedure §
1376 (1990) (discussing relationship between Rule 12(e) and Rule
12(b)(6) motions).

     With respect to its fraud claim, however, Kingvision has
failed to add allegations in its more definite statement that
satisfy the heightened pleading requirement of Rule 9 ( b ) .   See
Fed. R. Civ. P. 9 ( b ) . Rule 9(b) requires, in most instances,
that claims of fraud be pled with particularity as to each
defendant.   See DiVittorio v . Equidyne Extractive Indus., Inc.,

, 1247 (2d Cir. 1987) (“Where multiple defendants
are asked to respond to allegations of fraud, the complaint
should inform each defendant of the nature of his alleged
participation in the fraud.”).    Because Kingvision failed to
correct this defect after the defendants addressed it in their


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motion for a more definite statement, the court dismisses the
fraud claim against the individual defendants without prejudice.
      Instead of filing an amended complaint in response to the
court’s order granting the defendants’ motion for a more definite
statement, Kingvision filed a more definite statement as an
addendum to the complaint.   See L.R. 15.1(b).     The court orders
Kingvision to file an amended complaint within ten days of notice
of this order.



                             Conclusion

      The defendants’ motion to dismiss (document n o . 16) is
granted as to Count VI (Fraud), but is otherwise denied.       The
plaintiff is ordered to file an amended complaint within ten days
of notice of this order.

      SO ORDERED.




                                      Joseph A . DiClerico, J r .
                                      District Judge
March 2 6 , 2001
cc:   Julie Cohen Lonstein, Esquire
      Gregory W . Swope, Esquire
      Roy W . Tilsley Jr., Esquire




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