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Dennis A. Drazin v. Michael Chavones

September 28, 2012


The opinion of the court was delivered by: Stengel, J.


This case involves an allegedly fraudulent transaction between Plaintiff and his veterinarian over a horse. This case was originally transferred from the United States District of New Jersey on April 20, 2010, based upon the Defendant's residency in Pennsylvania. After the case was transferred, Defendant Chovanes filed a motion to dismiss on the basis that Plaintiff has failed to state a claim of fraud, misrepresentation, and/or professional negligence. (Doc. No. 17). For the reasons stated below, I will deny Defendant's motion to dismiss.


Plaintiff, Dennis A. Drazin, brings this action against Defendant, Michael Chovanes, a veterinarian living in Pennsylvania, as well as an unknown Defendant, Jane Doe, doing business as "Classic Bloodstock" and "XYZ Thoroughbreds," who is a citizen of Maryland. (Compl. at ¶¶ 1-4).

Plaintiff owned a thoroughbred racehorse named Two Punch-Morning Tease, which he consigned to Fasig-Tipton Yearling Sale. (Compl. at ¶¶ 5-6). Defendant Chovanes acted as Plaintiff's veterinarian and provided services to Plaintiff and his consigner. (Compl. at ¶ 7). Defendant Chovanes informed the Plaintiff that his horse failed a throat examination, which meant that Plaintiff could not sell the horse and that the animal could never be accepted at a two-year old in-training sale. (Compl. at ¶ 8). Specifically, the horse had an abnormality discovered during the endoscopy. (Compl. at Third Count ¶ 5). Plaintiff alleges that based on this examination, Defendant Chovanes said that there was no doubt in his mind that Plaintiff should sell the horse for whatever price he could get because the animal would not pass the throat examination at a two-year old sale. (Compl. at ¶ 10).

Defendant Chovanes then arranged for his girlfriend, Defendant Jane Doe, to purchase the horse for $25,000.00. (Compl. at ¶¶ 10-11). A year later, the Complaint alleges that Defendant Doe sold the same horse for $250,000.00 and the Defendant Chovanes cleared the horse on the throat examination. (Compl. at ¶ 12). Based upon these facts, Plaintiff alleges that Defendant Chovanes fraudulently told the Plaintiff that the horse would not pass the throat inspection in an effort to induce the Plaintiff to sell the horse at a lesser price and then subsequently resell the animal for a substantial profit. (Compl. at ¶¶ 13-14).*fn1 Plaintiff also alleges that, if not fraudulently, Defendant Chovanes negligently examined Plaintiff's horse, thereby deviating from the accepted standard of veterinary care. (Compl. at Second Count ¶¶ 1-5). This professional negligence prompted Defendant Chovanes to give negligent advice to sell the horse, upon which Plaintiff relied and subsequently sold the animal. (Compl. at Second Count ¶¶ 6-8).


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).

However, allegations of fraud require a higher pleading standard. Fed. R. Civ. P. 9(b).*fn2 When bringing such a claim in federal court, pleading rules require that a party "state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). Rule 9(b) requires a party to "state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the 'precise misconduct with which [it is] charged.'" Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (alteration in original) (quoting Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir.2004)). A plaintiff is therefore required to state "the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation." Frederico, 507 F.3d at 200.

While "allegations of 'date, place or time' fulfill these functions, . . . nothing in the rule requires them. Plaintiffs are free to use alternative means of injecting precision and some measure of substantiation into their allegations of fraud." Id. (emphasis added). In the alternative, a plaintiff may satisfy the stringent pleading restrictions of Fed. R. Civ. P. 9(b) by pleading with a degree of precision or some measure of substantiation into the fraud allegation. Frederico, 507 F.3d at 200. The Court of Appeals for the Third Circuit further recognizes that Fed. R. Civ. P. 9(b) may be relaxed when the relevant 'factual information is peculiarly within the defendant's knowledge or control." See EP Medsystems, Inc. v. EchoCath, Inc., 235 F.3d 865, 882 (3d Cir. 2000). Importantly, the heightened specificity requirements in Fed. R. Civ. P. 9(b) are intended to "give defendants notice of the claims against them, provide an increased measure of protection for their reputations and reduce [] the number of frivolous suits brought solely to extract settlements." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1418 (3d Cir. 1997).


Defendant Chovanes requests that the court dismiss the Plaintiff's Complaint because the Complaint fails to state a cause of action for all of Plaintiff's claims. Specifically, Defendant argues that Plaintiff has failed to plead the requisite particularity as to his claims of Fraud because he does not allege the "when, where, and how" of the circumstances of the alleged fraud. Additionally, Defendant Chovanes argues that Plaintiff has not pled a claim for professional negligence because he has not alleged that Defendant Chovanes owed Plaintiff a duty. Finally, Defendant Chovanes argues that the Plaintiff fails to ...

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