text: United States District Court, S.D. Illinois
  MEMORANDUM AND ORDER
  R. Herndon, United States District Judge
  before the Court is Counter-Defendant Alan Johnson's
  Motion to Dismiss Counts IV-VIII of
  Defendant/Counter-Claimant's Second Amended Complaint
  pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc.
  Defendant/Counter-Claimant, Brady McCasland, Inc.
  (hereinafter “BMI”), opposes the motion on
  grounds that the pleading requirements of 12(b)(6) are
  satisfied and Counter-Defendant has adequate notice of
  Defendant/Counter-Claimant's claims (Doc. 70). For the
  reasons explained below, the Court DENIES
  Counter-Defendant's Motion to Dismiss (Doc. 58).
  8, 2015, BMI removed this case from the Circuit Court of St.
  Clair County, Illinois, based on diversity jurisdiction under
  28 U.S.C. §§ 1332 and 1341 (Doc. 1). Upon removal,
  defendants filed a motion to dismiss Plaintiff's
  complaint for failure to state a claim (Doc. 7). Thereafter,
  Plaintiff sought leave to file her First Amended Complaint
  (Doc. 9). The Court granted the request, and on July 16,
  2015, Womack d/b/a PJW Enterprises, filed a three count
  amended complaint (Doc. 13). On August 13, 2015, BMI filed a
  Motion to Dismiss the First Amended Complaint (Doc. 21). On
  March 22, 2016, this Court entered an Order denying BMI's
  Motion to Dismiss (Doc. 34). BMI then filed its Answer,
  Affirmative Defenses, and Counterclaim (Doc. 35).
  1, 2016, BMI filed a Motion for Leave to File a Second
  Amended Counterclaim and Motion for Joinder of a Third Party
  (Doc. 46). On July 21, 2016, BMI filed a nine (9) count
  Second Amended Complaint against Counter-Defendants James
  Womack, Jordan Womack, and Alan Johnson (hereinafter referred
  to as Johnson) (Doc. 48). Counts IV, V, VI, VII, and VIII are
  directed at Johnson and allege the following under Illinois
  law: fraud (Count IV), conspiracy to commit fraud (Count V),
  aiding and abetting fraud (Count VI), breach of fiduciary
  duty (VII) and conspiracy to breach fiduciary duty (VIII).
  Motion to Dismiss
  motion to dismiss under Federal Rule of Civil Procedure
  12(b)(6) challenges the sufficiency of the complaint for
  failure to state a claim upon which relief may be granted.
  Gen. Hallinan v. Fraternal Order of Police Chicago Lodge
  No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme
  Court explained in Bell Atlantic Corp. v. Twombly,
  550 U.S. 544, 570 (2007), that in order to withstand Rule
  12(b)(6) dismissal, a complaint “does not need detailed
  factual allegations, ” but must contain “enough
  facts to state a claim for relief that is plausible on its
  face.” 550 U.S. at 570.
  and Ashcroft v. Iqbal, 556 U.S. 662 (2009) retooled
  federal pleading standards, but notice pleading remains all
  that is required in a complaint. “A plaintiff still
  must provide only ‘enough detail to give the defendant
  fair notice of what the claim is and the grounds upon which
  it rests and, through his allegations, show that it is
  plausible, rather than merely speculative, that he is
  entitled to relief.'” Tamayo v.
  Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
  (citation omitted). In making this assessment, the district
  court accepts as true all well-pleaded factual allegations
  and draws all reasonable inferences in the plaintiff's
  favor. See Rujawitz v. Martin, 561 F.3d 685, 688
  (7th Cir. 2009); St. John's United Church of Christ
  v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007).
  the established standard discussed above, Federal Rule of
  Civil Procedure 9(b) articulates the following heightened
  standard for fraud or mistake and conditions of mind:
  “In alleging fraud or mistake, a party must state with
  particularity the circumstances constituting fraud or
  mistake. Malice, intent, knowledge, and other conditions of a
  person's mind may be alleged generally.”
  Fed.R.Civ.P. 9(b). The Seventh Circuit has held that in order
  to survive dismissal on a Rule 12(b)(6) motion, the complaint
  “must plead the ‘who, what, when, where, and
  how' of the alleged fraud.” DiLeo v. Ernst
  & Young, 901 F.2d 624, 627 (7th Cir. 1990);
  Lachmund v. ADM Investor Services, Inc., 191 F.3d
  777, 782 (7th Cir. 1999) (quoting Uni* Quality, Inc. v.
  Infotronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992));
  Rao v. BP Products North America, Inc., 589 F.3d
  389, 401 (7th Cir. 2009) (citing DiLeo, 901 F.2d at
  627). As such, “circumstances of fraud or
  mistake” include “the identity of the person who
  made the misrepresentation, the time, place and content of
  the misrepresentation, and the method by which the
  misrepresentation was communicated to the plaintiff.”
  Windy City Metal Fabricators & Supply, Inc. v. CIT
  Technology¸536 F.3d 663, 668 (7th Cir. 2008)
  (quoting Gen. Elec. Capital Corp. v. Lease Resolution
  Corp., 128 F.3d 1074, 1078 (7th Cir. 1997)).
  claims that are not by definition claims of fraud, but which
  “sound in fraud, ” i.e. are “premised
  upon a course of fraudulent conduct, ” still warrant
  the Rule 9(b) heightened pleading standard. Borsellino v.
  Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir.
  2007) (citing Rombach v. Chang¸355 F.3d 164,
  170-71 (2d Cir. 2004)); See also Sears v.
  Likens, 912 F.2d 889, 893 (7th Cir. 1990). Whether the
  rule applies will depend on the plaintiffs' factual
  allegations. Id. (citing In re Daou Sys.,
  Inc., 411 F.3d 1006, 1027-28 (9th Cir. 2005) and
  Cal. Pub. Employees' Ret. Sys. v. Chubb Corp.,
  394 F.3d 126, 160-61 (3d Cir. 2004)). Each of the challenged
  claims at issue here are based upon the same alleged acts of
  fraud. Therefore, Rule 9(b) applies to Count IV, as well as
  Counts V-VIII. The pleadings must be specific enough to put
  fraud defendants on notice of the conduct alleged.
  Freedom Mortg. Corp v. Burnham Mortg., Inc., 720
  F.Supp.2d 978, 989 (N.D. Ill. 2010). With this heightened
  standard in mind, the Court turns to Counts IV-VIII of
  BMI's Second Amended Complaint, as applied to
  Counter-Defendant Alan Johnson.
  Count IV: Fraud
  Johnson argues that Count IV of BMI's counterclaim is
  “comprised of legal conclusions and conclusory
  statements” and is not pled with “the specificity
  required under the law” because of the following: (1)
  the specific date of when the under loading occurred is not
  stated; (2) only Johnson's length of employment at BMI is
  claimed to give rise to “special confidence”; (3)
  concerted action is claimed without any “details [of]
  how they acted in concert”; and (4) there is nothing
  demonstrating how BMI determined the cars were under loaded,
  what benefit Johnson realized, or what actions were taken to
  conceal the “Scheme.” Doc. 59, Pg. 4-5.
  Furthermore, Johnson identifies as conclusory BMI's
  allegations that Johnson “knowingly and voluntarily
  encourage[d], facilitated, and participated in the Scheme in
  concert with the Womacks, concealed the scheme from the
  Womacks and realized a ...
explanation: The provided text is a legal memorandum and order from a United States District Court case. It discusses a motion to dismiss filed by Counter-Defendant Alan Johnson against several counts in a Second Amended Complaint filed by Defendant/Counter-Claimant Brady McCasland, Inc. (BMI). The text does not contain any math questions or answers.
distilabel_metadata.content: Evaluate the user given text extract and determine if it contains a math question and optionally and answer to this question.
  
  Output rules:
  
  1. Briefly describe the document and mention if it contains a question or a question and answer.
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distilabel_metadata.role: system
distilabel_metadata.content: United States District Court, S.D. Illinois
  MEMORANDUM AND ORDER
  R. Herndon, United States District Judge
  before the Court is Counter-Defendant Alan Johnson's
  Motion to Dismiss Counts IV-VIII of
  Defendant/Counter-Claimant's Second Amended Complaint
  pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc.
  Defendant/Counter-Claimant, Brady McCasland, Inc.
  (hereinafter “BMI”), opposes the motion on
  grounds that the pleading requirements of 12(b)(6) are
  satisfied and Counter-Defendant has adequate notice of
  Defendant/Counter-Claimant's claims (Doc. 70). For the
  reasons explained below, the Court DENIES
  Counter-Defendant's Motion to Dismiss (Doc. 58).
  8, 2015, BMI removed this case from the Circuit Court of St.
  Clair County, Illinois, based on diversity jurisdiction under
  28 U.S.C. §§ 1332 and 1341 (Doc. 1). Upon removal,
  defendants filed a motion to dismiss Plaintiff's
  complaint for failure to state a claim (Doc. 7). Thereafter,
  Plaintiff sought leave to file her First Amended Complaint
  (Doc. 9). The Court granted the request, and on July 16,
  2015, Womack d/b/a PJW Enterprises, filed a three count
  amended complaint (Doc. 13). On August 13, 2015, BMI filed a
  Motion to Dismiss the First Amended Complaint (Doc. 21). On
  March 22, 2016, this Court entered an Order denying BMI's
  Motion to Dismiss (Doc. 34). BMI then filed its Answer,
  Affirmative Defenses, and Counterclaim (Doc. 35).
  1, 2016, BMI filed a Motion for Leave to File a Second
  Amended Counterclaim and Motion for Joinder of a Third Party
  (Doc. 46). On July 21, 2016, BMI filed a nine (9) count
  Second Amended Complaint against Counter-Defendants James
  Womack, Jordan Womack, and Alan Johnson (hereinafter referred
  to as Johnson) (Doc. 48). Counts IV, V, VI, VII, and VIII are
  directed at Johnson and allege the following under Illinois
  law: fraud (Count IV), conspiracy to commit fraud (Count V),
  aiding and abetting fraud (Count VI), breach of fiduciary
  duty (VII) and conspiracy to breach fiduciary duty (VIII).
  Motion to Dismiss
  motion to dismiss under Federal Rule of Civil Procedure
  12(b)(6) challenges the sufficiency of the complaint for
  failure to state a claim upon which relief may be granted.
  Gen. Hallinan v. Fraternal Order of Police Chicago Lodge
  No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme
  Court explained in Bell Atlantic Corp. v. Twombly,
  550 U.S. 544, 570 (2007), that in order to withstand Rule
  12(b)(6) dismissal, a complaint “does not need detailed
  factual allegations, ” but must contain “enough
  facts to state a claim for relief that is plausible on its
  face.” 550 U.S. at 570.
  and Ashcroft v. Iqbal, 556 U.S. 662 (2009) retooled
  federal pleading standards, but notice pleading remains all
  that is required in a complaint. “A plaintiff still
  must provide only ‘enough detail to give the defendant
  fair notice of what the claim is and the grounds upon which
  it rests and, through his allegations, show that it is
  plausible, rather than merely speculative, that he is
  entitled to relief.'” Tamayo v.
  Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
  (citation omitted). In making this assessment, the district
  court accepts as true all well-pleaded factual allegations
  and draws all reasonable inferences in the plaintiff's
  favor. See Rujawitz v. Martin, 561 F.3d 685, 688
  (7th Cir. 2009); St. John's United Church of Christ
  v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007).
  the established standard discussed above, Federal Rule of
  Civil Procedure 9(b) articulates the following heightened
  standard for fraud or mistake and conditions of mind:
  “In alleging fraud or mistake, a party must state with
  particularity the circumstances constituting fraud or
  mistake. Malice, intent, knowledge, and other conditions of a
  person's mind may be alleged generally.”
  Fed.R.Civ.P. 9(b). The Seventh Circuit has held that in order
  to survive dismissal on a Rule 12(b)(6) motion, the complaint
  “must plead the ‘who, what, when, where, and
  how' of the alleged fraud.” DiLeo v. Ernst
  & Young, 901 F.2d 624, 627 (7th Cir. 1990);
  Lachmund v. ADM Investor Services, Inc., 191 F.3d
  777, 782 (7th Cir. 1999) (quoting Uni* Quality, Inc. v.
  Infotronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992));
  Rao v. BP Products North America, Inc., 589 F.3d
  389, 401 (7th Cir. 2009) (citing DiLeo, 901 F.2d at
  627). As such, “circumstances of fraud or
  mistake” include “the identity of the person who
  made the misrepresentation, the time, place and content of
  the misrepresentation, and the method by which the
  misrepresentation was communicated to the plaintiff.”
  Windy City Metal Fabricators & Supply, Inc. v. CIT
  Technology¸536 F.3d 663, 668 (7th Cir. 2008)
  (quoting Gen. Elec. Capital Corp. v. Lease Resolution
  Corp., 128 F.3d 1074, 1078 (7th Cir. 1997)).
  claims that are not by definition claims of fraud, but which
  “sound in fraud, ” i.e. are “premised
  upon a course of fraudulent conduct, ” still warrant
  the Rule 9(b) heightened pleading standard. Borsellino v.
  Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir.
  2007) (citing Rombach v. Chang¸355 F.3d 164,
  170-71 (2d Cir. 2004)); See also Sears v.
  Likens, 912 F.2d 889, 893 (7th Cir. 1990). Whether the
  rule applies will depend on the plaintiffs' factual
  allegations. Id. (citing In re Daou Sys.,
  Inc., 411 F.3d 1006, 1027-28 (9th Cir. 2005) and
  Cal. Pub. Employees' Ret. Sys. v. Chubb Corp.,
  394 F.3d 126, 160-61 (3d Cir. 2004)). Each of the challenged
  claims at issue here are based upon the same alleged acts of
  fraud. Therefore, Rule 9(b) applies to Count IV, as well as
  Counts V-VIII. The pleadings must be specific enough to put
  fraud defendants on notice of the conduct alleged.
  Freedom Mortg. Corp v. Burnham Mortg., Inc., 720
  F.Supp.2d 978, 989 (N.D. Ill. 2010). With this heightened
  standard in mind, the Court turns to Counts IV-VIII of
  BMI's Second Amended Complaint, as applied to
  Counter-Defendant Alan Johnson.
  Count IV: Fraud
  Johnson argues that Count IV of BMI's counterclaim is
  “comprised of legal conclusions and conclusory
  statements” and is not pled with “the specificity
  required under the law” because of the following: (1)
  the specific date of when the under loading occurred is not
  stated; (2) only Johnson's length of employment at BMI is
  claimed to give rise to “special confidence”; (3)
  concerted action is claimed without any “details [of]
  how they acted in concert”; and (4) there is nothing
  demonstrating how BMI determined the cars were under loaded,
  what benefit Johnson realized, or what actions were taken to
  conceal the “Scheme.” Doc. 59, Pg. 4-5.
  Furthermore, Johnson identifies as conclusory BMI's
  allegations that Johnson “knowingly and voluntarily
  encourage[d], facilitated, and participated in the Scheme in
  concert with the Womacks, concealed the scheme from the
  Womacks and realized a ...
distilabel_metadata.role: user
distilabel_metadata.raw_output_q_a_detector_0: The provided text is a legal memorandum and order from a United States District Court case. It discusses a motion to dismiss filed by Counter-Defendant Alan Johnson against several counts in a Second Amended Complaint filed by Defendant/Counter-Claimant Brady McCasland, Inc. (BMI). The text does not contain any math questions or answers.
  
  Label: no-question