Opinion
Action against surety, to recover alleged losses due to dishonesty of plaintiff's employees, wherein it appeared that extent of surety's liability depended on number of employees involved and on whether dishonest employees could be identified. Defendant moved that complaint be made more definite and certain. The District Court, Knight, Chief Judge, ordered that complaint be amended either to designate employees or to state inability to do so.
Order in accordance with opinion.
McMahon & Crotty, Buffalo, N.Y., Thomas P. McMahon, Buffalo, N.Y., of counsel, for plaintiff.
Brown, Kelly, Turner & Symons, Buffalo, N.Y., Mark N. Turner, Buffalo, N.Y., of counsel, for defendant.
KNIGHT, Chief Judge.
Defendant has moved under Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for an order requiring plaintiff to make its complaint more definite and certain.
The notice bringing on the motion states that the complaint is so vague and ambiguous that defendant cannot reasonably be required to frame its answer for the reasons that the terms of the bond, copy of which is attached to and made a part of the complaint, have not been performed by plaintiff; that plaintiff without designating the persons, whose names were struck from paragraph 12 of the complaint prior to its filing, has alleged in paragraph 17 demand for $120,000 loss; that the limits of coverage under the bond as to any one designated employee of plaintiff is $100,000, and, if loss is caused by unidentified employees, the limit of liability in the aggregate shall not exceed $100,000; that in the complaint damages are alleged in the amount of $120,000.
The complaint does not designate its employees who, by fraud or dishonesty, have caused plaintiff's loss. It would appear that more than one employee was involved in view of the amount of damages sought being in excess of the coverage of $100,000 specified in the bond for one employee.
The test here is not that the information may be obtained by defendant through other sources such as a bill of particulars, discovery or deposition indicated by plaintiff. Rather the inconsistencies in the complaint with respect to the ultimate facts should be clarified. Hartman Electrical Mfg. Co. v. Prime Mfg. Co., D.C., 9 F.R.D. 510; Cox v. Doherty, D.C., 1 F.R.D. 564. While plaintiff may feel that defendant's position is unduly technical, yet the amendment of the complaint will further the purpose and effectiveness of the Rules if the issues are created by the pleadings. Maryland Casualty Co. v. Kelly, D.C., 3 F.R.D. 28. Defendant has shown the necessity for particularization in order to invoke the exercise of the Court's discretion. Montgomery v. Kingsland, 83 U.S.App.D.C. 66, 166 F.2d 953. If the complaint is amended, defendant will be able to determine the content of its answer or otherwise proceed in this litigation. Automatic Washer Co. v. Easy Washing Machine Corp., D.C., 9 F.R.D. 335.
The motion is sustained insofar as it relates to the restoration in the complaint of the deleted names of the employees alleged to be dishonest or, in the alternative, that plaintiff state its inability to designate the names of its employees claimed to have caused plaintiff's loss through dishonest or fraudulent acts. Plaintiff is granted leave to file an amended complaint. In all other respects defendant's motion is denied.
Present order in accordance herewith.