United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey Chief United States District Judge
the Court is Defendant's Partial Motion to Dismiss. (ECF
No. 11). Plaintiff has filed a response. (ECF No. 15).
Defendant has filed a reply. (ECF No. 19). The Court finds
this matter ripe for consideration.
action concerns the Arthrex iBalance knee system-an
artificial knee replacement device manufactured by Defendant.
Plaintiff alleges that she underwent a total knee replacement
and was implanted with one of Defendant's iBalance
devices. Plaintiff claims that she experienced complications
after her knee replacement that eventually required revision
surgery to remove the iBalance device. Following her revision
surgery, Plaintiff was allegedly informed that one of the
iBalance' devices components was “loose” in
her knee. Plaintiff was also informed that the
“loose” component had been recalled by Defendant.
Plaintiff filed her Complaint on February 25, 2019, bringing
claims for products liability, negligence, breach of implied
warranty, breach of express warranty, and intentional
misrepresentation/fraud stemming from the alleged
complications with the iBalance device. (ECF No. 1).
3, 2019, Defendant filed the instant motion, arguing that
Plaintiff's fraud claim should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(6) because it does not
meet the heightened pleading standard set out in Federal Rule
of Civil Procedure 9(b). (ECF No. 11). Plaintiff opposes the
motion, arguing that her allegations of fraud have satisfied
Rule 9(b). In the alternative, Plaintiff asks for leave to
amend her Complaint. (ECF No. 15).
to survive a motion to dismiss under Rule 12(b)(6), a
pleading must provide “a short and plain statement of
the claim that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, where a Plaintiff alleges a
claim for fraud, the heighted pleading standard of Rule 9(b)
9(b), requires plaintiffs to plead “the circumstances
constituting fraud . . . with particularity.”
Fed.R.Civ.P. 9(b). Under Rule 9(b), a plaintiff must plead
“such matters as the time, place and contents of false
representations, as well as the identity of the person making
the misrepresentation and what was obtained or given up
thereby.” Abels v. Farmers Commodities Corp.,
259 F.3d 910, 920 (8th Cir. 2001) (internal citation and
quotation omitted). In other words, the party must specify
the “who, what, where, when, and how” of the
alleged fraud. United States ex rel. Costner v. URS
Consultants, Inc., 317 F.3d 883, 888 (8th Cir. 2003).
“Conclusory allegations that a defendant's conduct
was fraudulent and deceptive are not sufficient to satisfy
the rule.” Commercial Prop. Invs. Inc. v. Quality
Inns Int'l Inc., 61 F.3d 639, 644 (8th Cir. 1995).
Court will first address whether Plaintiff has satisfied Rule
(9)b. If the Court finds that Plaintiff has failed to satisfy
Rule 9(b), the Court will address whether Plaintiff should be
given leave to amend her Complaint.
Whether Plaintiff has Satisfied Rule 9(b)
argues that her Complaint satisfies Rule 9(b) on its face
because it sets forth the particulars of Defendant's
alleged fraud. In support of this position, Plaintiff points
to three cases in the United States District Court for the
Middle District of Pennsylvania involving Defendant's
iBalance device. Plaintiff contends that her allegations
satisfy Rule 9(b) because the Pennsylvania cases contain
substantially similar allegations of fraud which survived
Rule 9(b) challenges.
argues that Plaintiff has failed to satisfy Rule 9(b) because
her Complaint does not allege (1) the identity of the
individual who made the fraudulent representations, (2) the
dates or locations where the fraudulent representations were
made, or (3) any specific content of the fraudulent
representations at issue. Defendant also notes that the
interpretation of Rule 9(b) in the Third Circuit- where the
Middle District of Pennsylvania is located-is less stringent
than that used by courts in the Eighth Circuit.
consideration, the Court finds that Plaintiff has failed to
meet the pleading standard set out in Rule 9(b). Although the
Third Circuit may employ a more flexible approach, the Eighth
Circuit requires plaintiffs to plead the “who, what,
where, when, and how” of the alleged fraud. United
States ex rel. Costner, 317 F.3d at 888. The Court has
reviewed Plaintiff's Complaint in its entirety and cannot
find any allegations concerning who made the allegedly
fraudulent statements, when or where the statements were
made, or facts pertaining to the content of the statements.
Plaintiff's allegations essentially amount to a
recitation of the elements of fraud which is insufficient ...