Redha v. Zare et al, No. 1:2017cv01351 - Document 52 (D. Or. 2018)

Court Description: Opinion and Order. This matter comes before the Court on DefendantMs. Zare' s second motion to make more definite, and alternatively to dismiss 41 , as well as Mr. Zare and the Corporation's motion to make more definite 42 ). For the rea sons stated in this Opinion and Order, Ms. Zare's motion to make more definite, and alternatively to dismiss is DENIED, and Mr. Zare and the Corporation's motion to make more definite is DENIED. Please access entire text by document number hyperlink. Ordered and Signed on 06/12/2018 by Magistrate Judge Mark D. Clarke. (rsm)

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Redha v. Zare et al Doc. 52 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION ABDUL JALEEL M. REDHA. aka A.J. REDHA, Case No. 1:17-cv-01351-CL Plaintiff, OPINION & ORDER v. BENJAMIN B. ZARE, as an individual and as Trustee of the Zare Loving Trust dated Oct. 14, 1996, LINDA M. ZARE as an individual and as Trustee of the Zare Loving Trust dated Oct. 14, 1996, and REDHA CORPORATION, an Oregon Corporation Defendants. CLARKE. Magistrate Judge. Plaintiff Abdul Jaleel iv1. Redha ("Redha"') brings claims of fraud, conversion. breach of fiduciary duty, unjust enrichment, constructive trust, breach of contract, accounting, inspection of records, and derivative action by shareholder against defendants Benjamin B. Zare ("Mr. Dockets.Justia.com Zare"), Linda M. Zare (Ms. Zare) (together, "the Zares"), and Redha Corporation (the ·'Corporation") (collectively. "Defendants"). This matter comes before the Court on Defendant Ms. Zare' s second motion to make more definite, and alternatively to dismiss (#41 ), as well as Mr. Zare and the Corporation's motion to make more definite (#42). For the reasons stated below, Ms. Zare's motion to make more definite, and alternatively to dismiss is DENIED, and Mr. Zare and the Corporation's motion to make more definite is DENlED. BACKGROUND This action arises out of a failed business venture between Plaintiff Abdul Jaleel M. Redha ("Redha") and the Zares. See First Am. Com pl. ("F AC"). In 1993, Redha, who knew the Zares because his brother was married to Mr. Zare's sister, agreed with the Zares to form the Corporation for the purpose of buying, developing, and selling properties. FAC at 7, 8. They agreed that Redha would be the sole shareholder and receive 75% of the net profit, while Mr. Zare would manage the Corporation and receive 25% of the net profit. F AC 8. Redha lived in Kuwait and relied on the Zares to run the Corporation in Redha's "best interests.'' FAC at 11, 12. Redha alleges that Mr. Zare repeatedly told him that the Corporation was not profitable. FAC 13. The Corporation ultimately failed, but in 2016, a business associate of Redha's visited Jackson County and allegedly discovered evidence that the Corporation had actually been profitable. FAC at 16. As a result of this discovery, Redha alleges that the Zares fraudulently misrepresented the profitability of the Corporation and improperly retained funds and proceeds received in the management of the Corporation. See FAC. II I II I LEGAL STANDARD Fraud claims must meet a heightened pleading standard under Federal Rule of Civil Procedure 9(b ), which requires a party to "state with particularity the circumstances constituting fraud.'' The plaintiff must plead with particularity ''the who, what, when, where, and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003) (internal quotation marks omitted). "Rule 9(b) demands that, when averments of fraud are made, the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct so that they can defend against the charge and not just deny that they have done anything wrong." Id. at 1108. Pursuant to Rule l 2(b )( 6), a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief may be granted. In order to state a claim for relief, a pleading must contain ''a short and plain statement of the claim showing that the pleader is entitled tl1 relief" Fed. R. Civ. P. 8(a)(2). "A motion to dismiss under Federal Rule of Civil Procedure I 2(b )( 6) for failure to state a claim upon which relief can be granted 'tests the legal sufficiency of a claim."' Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting ,Vavarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). Dismissal under Rule l 2(b )( 6) is proper "if there is a 'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."' Id. (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) "a complaint must contain sufficient factual matter, accepted as true. to 'state a claim to relief that is plausible on its face."' Ashcroji 1'. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)): Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 486 F .3d 541, 545 (9th Cir. 2007) (internal citations omitted). DISCUSSION I. Ms. Motion to Dismiss Ms. Zare argues that allegations of fraud in the FAC do not meet the heightened pleading standard of Rule 9(b ). and must be made more definite and certain to comply. More precisely. Ms. Zare argues that the allegations do not specify a "when, where, or how" sufficient to allege fraud, nor does the F AC include information that explains why the allegations against her would constitute fraud. The Court disagrees with Ms. Zare that the FAC does not adequately allege fraud with the requisite specificity demanded under Rule 9(b ). While Redha's allegations against Ms. Zare may not be the model for pleading fraud, they are sufficient in this case. Redha has made a good faith effort in the FAC to more specifically allege facts that constitute fraud against Ms. Zare. The FAC includes allegations that Ms. Zare took various actions with Mr. Zare to usurp control of the Corporation and retain the benefits, contrary to the parties' agreement. See FAC at 31. Redha also alleges, though rather indirectly, that these fraudulent actions took place at least by "early 1998"' in Jackson County. where Redha's business associate discovered evidence that the Corporation may have been profitable. See FAC at 17, 31. These allegations help to establish the "when, where, or how'" necessary to plead fraud. Additionally, "[w]here fraud consists of omissions on the part of the defendants, the plaintiff may find alternative ways to plead the particular circumstances of the fraud. For example, a plaintiff cannot plead either the specific time of the omission or the place, as he is not alleging an act, but a failure to act." Washington v. Baenziger, 673 F.Supp. 1478, 1482 (N.D. Cal.1987) (international citations and quotations omitted). The FAC alleges that Ms. Zare was aware that the Corporation was profitable, but helped to conceal that fact from Redha. FAC at 31. Taken together, the allegations against Ms. Zare are sufficient to allege fraud and to allov. Ms. Zare to properly prepare an answer. Mr. Zare and the Corporation's Motion to Make More Definite and Certain ''A pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations." Neubronner v. Milken, 6 F.3d 666, 671-72 (9th Cir. 1993) (quotations omitted) (citing Gottreich v. San Francisco Investment Corp.. 552 F.2d 866, 866 (9th Cir. 1977). Mr. Zare and the Corporation previously filed an answer (#18) to the original complaint (#1). The FAC added more specificity and detail. Therefore, as it pertains to Mr. Zare and the Corporation. it is clear that the F AC is not so indefinite that they cannot prepare an adequate answer. As a result, their motion to make more definite and certain is denied. CONCLUSION For the reasons state above, Ms. Zare's motion to make more definite, and alternatively to dismiss is DENIED, and Mr. Zare and the Corporation's motion to make more definite is DENIED. M United States Magistrate Judge

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