in § 536. Comment a to the latter Section states:
'In the situation dealt with in this Section the controlling factor is the purpose of the legislature and not that of the person making the report. * * *'
Defendants complain that the complaint 'states no specific fact and circumstances indicating specific intent to deceive.' Aside from the fact that § 536 contains no such requirement, Rule 9(b) provides:
'In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.'
The allegation in Paragraph 49 that defendants' conduct 'constituted intentional fraud upon plaintiffs' is clearly sufficient to satisfy the requirement of the Rule. Cf. Consumers Time Credit, Inc. v. Remark Corp., at al., 227 F.Supp. 263 (E.D.Pa., 1964).
Defendants argue further that the complaint fails to show that the plaintiffs were actually deceived. The whole burden of the complaint here is that they were deceived, and that that is the whole reason for the suit. There may be strong factual arguments that can be made to a fact-finder to induce a contrary conclusion, but a motion to dismiss under Rule 12 is not the place to make them. Finally, defendants argue that the claims of Harry Kirschenbaum, Louis Kirschenbaum and Anne Hiller lack jurisdictional amount. Count I is, of course, based upon a federal question, i.e., a cause of action arising out of the violation of a federal statute, while Count II is based upon the assertion of a common law right. The former is not plainly unsubstantial, and the latter may remain here on the doctrine of pendent jurisdiction even though it lacks jurisdictional amount.
In Taussig v. Wellington Fund, Inc., 313 F.2d 472 (C.A.3, 1963), the court said, at page 475:
'* * * The leading cases on pendent jurisdiction hold that an actual right to relief under some federal statute need not be established to justify adjudication of the merits of a coupled common-law claim. Hurn v. Oursler, 1933, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 1938, 305 U.S. 315, 59 S. Ct. 191, 83 L. Ed. 195. The common-law claim must be dismissed only if the coupled federal contention is 'plainly unsubstantial either because obviously without merit, or 'because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Levering & Garrigues Co. v. Morrin, 1933, 289 U.S. 103, 105-106, 53 S. Ct. 549, 550, 77 L. Ed. 1062. See also Bell v. Hood, 1946, 327 U.S. 678, 681-683, 66 S. Ct. 773, 90 L. Ed. 939. * * *'
For the foregoing reasons, the motion to dismiss Count II will be denied.
Defendants' motion to have plaintiffs join all defendants named in Count I as co-defendants under Count II, and to require plaintiffs to file and serve an amended complaint adding said defendants under Count II is denied.
If the unnamed defendants are liable under Count II, their liability is joint and several. They would not be necessary parties and plaintiffs cannot be compelled to amend their complaint. Rumig v. Ripley Mfg. Corp., 9 F.R.D. 467 (E.D.Pa., 1949). See 3 Moore's Federal Practice P 19.07 (1963 ed.). Cf. Humphrey v. Stanolind Oil & Gas Co., 232 F.2d 925 (C.A.5, 1956).
And now, April 16, 1964, it is ordered as follows:
1. The motions of Bargain City, U.S.C., Inc., William H. Sylk, Harry S. Sylk, Lawrence G. Horowitz, Michael Criss, Mary T. Kehan and Leon Blauner to strike the complaint and for a more specific complaint are denied.
2. The motions of all defendants to dismiss the complaint under Rule 12(b) for failure to state a cause of action are denied.
3. The motion of defendants to dismiss as to plaintiffs Harry Kirschenbaum, Louis Kirschenbaum and Anne Hiller for lack of jurisdiction is denied.
4. The motion of defendants Bargain City, U.S.A., et al., to compel plaintiffs to join all defendants named in Count I as co-defendants under Count II is denied.