The opinion of the court was delivered by: KELLY
Presently before this court is defendant Hopkins' motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) and in the alternative, because the complaint is vague, defendant seeks a more definite statement pursuant to Fed. R. Civ. P. 12(e) and 9(b). Defendant has also requested in his motion, attorney's fees, since he claims the plaintiffs brought the instant motion with vexatious intent. In an attempt to remedy certain vagueness of their complaint, plaintiffs have motioned this court for leave to amend their pleadings.
I turn first to plaintiffs' motion for leave to amend their complaint. Rule 15 of the Federal Rules of Civil Procedure states in pertinent part, "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served. . .". Because a motion to dismiss is not a responsive pleading, the plaintiffs may amend their pleading once as a matter of course. Bates v. Western Electric, 420 F. Supp. 521 (E.D. Pa. 1976); Simmons Co. v. Cantor, 3 F.R.D. 197 (W.D. Pa. 1943). Therefore, I do not need to rule upon plaintiffs' motion.
Because defendant Hopkins has motioned this court to dismiss for failure to state a claim, the plaintiffs' complaint will be viewed most favorably to them, the nonmoving parties. Based upon the pleadings,
the alleged facts are as follows.
In the late spring of 1982, plaintiff Markovich met with and was requested to assist Vasad
by helping defendant Priljeva, an officer and 50% owner of Vasad, place a substantial medical equipment order for three hospitals in Africa. Plaintiff Markovich was to be compensated on a commission basis. Subsequently defendant Priljeva, after Markovich secured suppliers, was unable to confirm the orders. In the summer of 1982, defendant Hopkins, an officer of Vasad, and defendant Priljeva assured plaintiff Markovich that certain buyers had been secured in Iraq. To process these prospective orders, defendants Hopkins and Priljeva informed plaintiff Markovich that defendant Vasad needed an inventory data processing system to enable it to process the prospective orders. At this time plaintiff Markovich contacted plaintiff Jones and introduced him to defendants Hopkins and Priljeva. Subsequently, defendant Vasad entered into a contract with Jones to design a data processing system. Jones was paid $2,250 initially, with $12,750 to be paid at a later date. The system was completed by plaintiff Jones by November, 1982; plaintiff demanded the remaining $12,750, but defendant Vasad failed to make payment.
Markovich and Jones, relying upon defendants' representations, tendered $17,500 each for a total of $35,000. Because of the exigency for the funds, written agreements evidencing the investments were not drawn up at the time the plaintiffs tendered their money, but rather were postponed for a later time. Subsequently, plaintiffs demanded either written memorandum of their investments or the return of their money, but neither was provided.
In January, 1983, defendants Hopkins and Priljeva requested that plaintiff Markovich, acting as an agent for defendant Vasad, accompany Priljeva on a trip to Yugoslavia to solicit an order for Vasad. Furthermore, Markovich was assured that he would be reimbursed for his travel expenses. Although the trip resulted in a letter of intent to purchase, plaintiff has not been reimbursed for his travel expenses.
Count I of plaintiffs' complaint alleges securities fraud. Plaintiffs assert a cause of action upon the authority of Title 15 U.S.C. §§ 77l(2), 77o and 77q(a).
Plaintiffs filed the instant action in July of 1984. Because paragraph 21 may be read to infer that plaintiffs had knowledge of the alleged fraud over one year prior to instituting the instant action, defendant Hopkins asserts that the one year statute of limitations has expired. The applicable statute of limitations are:
15 U.S.C. § 77m Limitation of actions
No action shall be maintained to enforce any liability created under section 77k or 77 l (2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 77 l (1) of this title, unless brought within one year after the violation upon which it is based. In no event shall any such action by brought to enforce a liability created under section 77k or 77 l (1) of this title more ...