The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
MEMORANDUM OPINION and ORDER
This case stems from an alleged "guarantee", among other fraudulent allegations, made by Defendant to the Plaintiffs assuring them that their respective investments would garner upwards of ten million dollars. More specifically, Plaintiffs' claims arise from the purchase of mutual funds from Defendant. Plaintiffs contend that they suffered investment losses as a result of Defendant's fraudulent misrepresentations, including but not limited to (1) a "guarantee" of success on their investments, supra, (see Docket No. 8, ¶¶13, 17); (2) Defendant's continual refusal to assign a "personal investment adviser" to Plaintiffs' accounts "on the basis that the Plaintiffs did not have enough money invested with the Defendant", (see Docket No. 8, ¶¶20); (3) Defendant's refusal to heed Plaintiffs' request "to be sold out of all Janus funds", (see Docket No. 8, ¶¶25), which, in turn, "caused the vast majority of the losses complained of" in Plaintiffs' Complaint, (see Docket No. 8, ¶¶26); (4) Defendant's failure to move Plaintiffs' assets upon demand into "safer investment vehicles" and instead continuing "to invest in a risky portfolio of its funds", (see Docket No. 8, ¶¶40); and (5) Defendant's refusal to liquidate Plaintiffs' fund holdings upon sell orders, (see Docket No. 8, ¶¶41).*fn1 Based on that, Plaintiffs filed the instant action alleging violations of state law as well as common law fraud and breach of contract. For the following reasons, Defendant's Motion to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) [DE 12] is granted.
On January 30, 2007, Plaintiffs filed their Complaint, alleging common law fraud and deceit, violations of the Pennsylvania Unfair Trade Practice / Consumer Protection Law ("UTP/CPL"), 73 Pa. C.S.A. 201-1, et seq., and breach of contract, all stemming from Plaintiffs' investments with Defendant. On April 10, 2007, before Defendant filed a responsive pleading, Plaintiffs filed an Unopposed Motion for Leave to Amend Complaint, which the Court granted the next day. Subsequently, on May 3, 2007, Plaintiffs filed their Amended Complaint, to which they attached copies of applications allegedly entered into between Plaintiffs and Defendant.
On June 6, 2007, Defendant filed the instant motion. After an extension granted by the Court, on July 16, 2007, Plaintiffs filed Plaintiffs' Opposition to the Defendant's Motion to Dismiss. On August 3, 2007, after the Court granted it leave to do so, Defendant filed its Reply Memorandum of Law in Further Support of Motion to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6).
In the instant motion, Defendant argues that Plaintiffs' Amended Complaint fails to state their claims with the sufficient particularity required under Rule 9(b). In addition, Defendant asserts that Plaintiffs have failed to plead sufficient facts to establish that their claims are timely.
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted". Fed.R.Civ.P. 12(b)(6). A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, --- U.S. ---, ---, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).*fn2 "In determining the sufficiency of the complaint the court must accept all plaintiffs' well-pled material allegations as true and draw all reasonable inferences therefrom in favor of plaintiffs." McCliment v. Easton Area School Dist., Civil Action No. 07-0472, 2007 WL 2319768, at *1 (E.D. Pa. Aug. 10, 2007) (citing Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997)); see also Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). "The issue is not whether a [Plaintiff] will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1420 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, (1974)). Under this standard, a complaint will be deemed to have alleged sufficient facts if it adequately puts the plaintiff on notice of the essential elements of defendant's claims. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). However, a court will not accept bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir.2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir.1997). Overall, "courts have an obligation ... to view the complaint as a whole and to base rulings not upon the presence of mere words, but rather, upon the presence of a factual situation which is or is not justiciable. We do draw on the allegations of the complaint, but in a realistic, rather than a slavish, manner." Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d 173, 184 (3d Cir. 2000) (quoting City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998)).
While a court's review of a motion to dismiss is ordinarily limited to the contents of the complaint, including any attached exhibits, a court may consider some evidence beyond a complaint on a motion to dismiss "including public records ..., documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case." Core Const. & Remediation, Inc. v. Village of Spring Valley, NY, No. Civ.A. 06-CV-1346, 2007 WL 2844870, at *2 (E.D. Pa. Sept. 27, 2007) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1380 n.1 and n.2 (3d Cir. 1995)) (internal citation omitted).
Finally, the defendant bears the burden to demonstrate that the complaint fails to state a claim. Gould Electronics, Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).
As a preliminary matter, the Court notes that jurisdiction in this case rests on the diversity of the parties. 28 U.S.C. § 1332(a)(1). A federal court sitting in diversity must apply the substantive law of the state in which it sits, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), including its choice of law rules, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). However here, there does not appear to be any dispute that Pennsylvania law applies to this case and thus the Court declines to engage in a choice of law analysis. Rochez Bros., Inc. v. North American Salt Co., Inc., Civ. A. No. 94-1131, 1994 WL 735932, at *6 n.8 (W.D. Pa. 1994) (citing Schiavone Construction Co. v. Time, Inc., 735 F.2d 94, 96 (3d Cir. 1984)) ("Because the parties appear to implicitly agree on the applicable choice of law, this Court will not challenge their decision").*fn3
Federal Rule of Civil Procedure 9 governs pleading of special matters and, of particular relevance here, Rule 9(b) mandates that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). The purpose of Rule 9(b) is "to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior." Seville Industrial Machinery Corporation v. Southmost Machinery Corporation, 742 F.2d 786, 791 (3d Cir. 1984); see also In re Burlington Coat Factory, 114 F.3d at 1418 ("Rule 9(b)'s heightened pleading standard gives defendants ...