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January 20, 2004.


The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge


Duane J. Rowe, administrator of the estate of Shirley Rowe, deceased, has filed a Complaint against Metabolife International, Inc. ("Metabolife") and The Chemins Company, Inc. ("Chemins"), alleging a variety of claims involving the wrongful death of Shirley Rowe due to her ingestion of Metabolife, an ephedra product manufactured and sold by Defendants. Plaintiff filed his Complaint on July 25, 2003. Defendant Chemins filed a Motion to Dismiss on September 29, 2003 and briefing was completed on October 29, 2003. Presently before this Court is Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Defendant's Motion to Dismiss will be granted without prejudice and Plaintiff will be given leave to amend.

II. Legal Standard

  When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule Page 2 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

  This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because this action involves individuals who are citizens of different states and because the amount in controversy exceeds $75,000. Venue is proper in this district pursuant to 28 U.S.C. § 1391 because the decedent lived in this district and the circumstances alleged occurred in this district.

 II. Discussion

  Although Plaintiff's Complaint specifically lists only two counts for relief, titled "Wrongful Death" and "Survival Action," a reading of the Complaint reveals that Plaintiff is actually making a number of allegations. These allegations include fraudulent deception (Complaint ¶¶ 65, 68, 70), negligence (Complaint ¶ 65), negligence per se (Complaint ¶ 72-75), failure to warn of a defective product (Complaint ¶¶ 55, 60-62), and manufacturing and design defects (Complaint ¶¶ 58-60, 63-64), all stemming from Defendants' design, manufacture, marketing, and sale of the ephedra product named Metabolife.

  Defendant Chemins has brought a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) based on a failure to properly allege fraud according to Fed.R.Civ.P. 9(b). Rule 9(b) provides: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." This requires a plaintiff to plead the elements of fraud, which are: (1) a specific false representation of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damage. Christidis v. First Page 3 Pennsylvania Mortgage Trust, 717 F.2d 96, 99 (3d Cir. 1983).

  Despite these stringent requirements, the courts should be "sensitive" to the fact that application of the Rule prior to discovery "may permit sophisticated defrauders to successfully conceal the details of their fraud." They should also respect the "general simplicity and flexibility" of the Federal Rules of Civil Procedure. Shapiro v. UJB Fin. Corp., 964 F.2d 272, 284 (3d Cir. 1992). However, even under a more relaxed application of the rule, plaintiffs must accompany such an allegation with a statement of facts upon which their allegation is based. In re Craftmatic Sec. Litig., 890 F.2d 628, 645 (3d Cir. 1990). See Wright & Miller, Federal Practice and Procedure: Civil 2d § 1297-98 (1990).

  Defendant argues that Plaintiff has only raised conclusory allegations of fraud and has failed to distinguish between the two Defendants to this action in the allegations of fraud. Taking the liberal pleading requirements of the Federal Rules of Civil Procedure into account, Plaintiff has properly pled the elements of fraud in the Complaint, in general. Plaintiff has alleged facts that address the elements of knowledge (Complaint ¶¶ 23-43), false representation (Complaint ¶¶ 65, 68), intent to rely (Complaint ¶¶ 65-66), and reliance resulting in injury (Complaint ¶¶ 52-53, 77, 80).

  Plaintiff's Complaint, however, is deficient in regard to the allegations of fraud against each Defendant. "When the acts of multiple defendants are alleged to constitute fraud, plaintiffs must separately plead the allegedly fraudulent acts of each defendant to comply with Rule 9(b)." In re Home Health Corp. of Am. Sec. Litig., Fed. Sec. L. Rep. (CCH) P90, 1999 U.S. Dist. LEXIS 1230, at *60 (E.D. Pa. January 29, 1999), citing Rosenbaum & Co. v. H.J. Myers & Co., 1997 U.S. Dist. LEXIS 15720, 1997 WL 689288 (E.D. Pa. Oct. 9, 1997) (holding that complaint Page 4 should clearly enunciate the facts on which plaintiffs base their claims against each defendant). Although the liberal pleading requirements of the Federal Rules of Civil Procedure are to be considered here, Plaintiff's Complaint simply does not make allegations that are specific to either Defendant.

  The Complaint's section describing the parties indicates that Plaintiff recognizes that Defendant Chemins and Defendant Metabolife had different roles in the production and sale of the product in question. The Complaint indicates that Metabolife "was in the business of promoting, marketing, distributing, manufacturing, and selling its dietary supplement containing ephedra, marketed under the trade name Metabolife." (Complaint ¶ 9). However, the Complaint states that Chemins "supplies ephedra and/or materials containing ephedrine alkaloids" and is "in the business of assembling ingredients per supplied specifications for a product marketed under the name Metabolife." (Complaint ¶ 10-11). This description of the parties clearly indicates that Defendant Chemins was a manufacturer of the product, while Defendant Metabolife manufactured, marketed, and distributed the product. However, the remainder of the Complaint does not distinguish between the Defendants. The Complaint makes allegations including failure to warn, improper testing, deceptive marketing, defective product design and manufacture, and fraudulent representation of the product to consumers and the FDA, but addresses all of the allegations to the Defendants, generally. As the pleading requirements of Rule 9(b) require the Plaintiff to plead fraud with particularity and Plaintiff has, in no way, indicated which allegations of fraud apply to each Defendant, the requirements of Rule 9(b) have not been met.

 III. Conclusion

  For the reasons stated above, the Motion to Dismiss by Defendant Chemins will be Page 5 granted, and Plaintiff will be given leave to amend the ...

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