Opinion
CIVIL ACTION NO. 94-3090, SECTION "L" (4)
January 16, 2004
ORDER REASONS
Before the Court is Defendant Orkin Exterminating Co.'s motion to dismiss Plaintiff Berk-Cohen Associates's fraud and unfair trade practices act claims. For the following reasons, that motion is DENIED.
I. BACKGROUND
Plaintiff Berk-Cohen Associates filed suit against Defendant Orkin Exterminating Co. on February 24, 2003, setting forth claims for breach of contract, fraud, and violations of the Louisiana Unfair Trade Practices Act. LA.REV.STAT. ANN. § 51:1401, et seq. (West 2003). The Plaintiffs Complaint provides factual background summarizing the extermination services contract at issue in this litigation, the renewal clause of that contract, and alleges that Orkin had a standard policy to send multiple renewal notices before attempting to cancel a contract for nonpayment. (Compl. ¶ 7-11.) The Complaint further alleges that no renewal notices were sent in 2002 and that Orkin then cancelled the contract for nonpayment. (Compl. ¶¶ 14-15.)
The Complaint expressly states that "Orkin's conduct in repudiating its contractual obligations to Berk-Cohen constitutes a violation of Louisiana's Unfair Trade Practices Act" and that "Orkin's repudiation of its contractual obligations to Berk-Cohen constitutes fraud." (Compl. ¶¶ 16d-e.)
On April 7, 2003, Defendant Orkin filed an answer to the Plaintiffs complaint. In that answer, the Defendant denies that its conduct constitutes fraud or that it violated the Louisiana Unfair Trade Practices Act. On July 18, 2003, Orkin filed a counterclaim asserting that the Plaintiffs claim under the Louisiana Trade Practice Act was groundless and brought in bad faith for purposes of harassment. (Rec. Doc. No. 59.) The counterclaim does not question the sufficiency of the Plaintiffs pleadings; instead it quotes from the Plaintiffs complaint reiterating Orkin's position that the unfair trade practices claim is baseless.
More than eight months after it answered the Plaintiffs complaint and five months after filing its counterclaim, Defendant Orkin now files a motion under Rule 12(b)(6) seeking to dismiss Plaintiff's fraud and unfair trade practices claims. The Defendant contends that the assertions in the Complaint fail to state claims upon which relief can be granted based upon the Plaintiffs failure to satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b).
II. ANALYSIS
A Rule 12(b) motion must be filed before responsive pleadings. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). "A motion making any [of the rule 12(b) defenses] shall be made before pleading if a further pleading is permitted." Fed.R.Civ.P. 12(b) (emphasis added).
The Defendant's answer predated the current motion to dismiss by more than seven months. The Defendant never informed the Court that it considered the pleadings insufficient under Rule 9(b). The current motion marks the Defendant's first challenge to the sufficiency of the Plaintiffs pleadings, and the Rule 12(b)(6) motion thus is untimely.
The Court recognizes that the Fifth Circuit has held that Rule 9(b) does not exist "solely to enable the defendant to prepare a responsive pleading." Shushany v. Allwaste, Inc., 992 F.2d 517, 520 n. 4 (5th Cir. 1993). In limited circumstances, not present here, the Fifth Circuit has considered rule 9(b) challenges to the sufficiency of the pleadings even though an answer had been filed.
In Shushany, the Fifth Circuit refused to require that all 9(b) objections be made prior to responsive pleadings where the defendant "repeatedly and consistently contended that the complaint failed to comply with the rule" but chose to pursue discovery "rather than initiating time-consuming and costly motions to dismiss a deficient complaint." Id. In the present case, the Defendant never challenged the pleadings until it filed the instant motion.
The Court acknowledges its discretion to treat an untimely 12(b)(6) motion as a motion for judgment on the pleadings under rule 12(c). Jones, 188 F.3d at 324; Jambon Family Markets, Inc v. Affiliated Foods Southwest. Inc., No. Civ.A.02-3361, 2003 WL 22299382, at *1 (E.D. La. Oct. 6, 2003). The Court declines to construe the Defendant's motion as one for judgment on the pleadings for two reasons. First, even if the Court were to consider the merits of the motion and find in favor of the Defendant, the Court would not dismiss the Plaintiffs complaint without first permitting an opportunity to amend and cure any deficiencies. The Fifth Circuit has held that a district court should not dismiss a claim pursuant to Rule 9(b) "without granting leave to amend, unless the defect is simply incurable or the plaintiff has failed to plead with particularity after being afforded repeated opportunities to do so." Hart v. Buyer Corp., 199 F.3d 239, 248 n. 6 (5th Cir. 2000).
Second, the present suit constitutes the second legal battle in a nearly decade-old controversy over a two-decade-old contract to provide termite extermination services for a New Orleans apartment complex. The litigation rivals only the termites in terms of its longevity, and both parties are intimately familiar with the details of the contract and its termination. It is disingenuous for Orkin now to argue that the Plaintiffs complaint failed to provide it with "fair notice" of the fraud-based claims.
III. CONCLUSION
For the foregoing reasons, the Defendant's Motion to Dismiss is DENIED.