STEWART DALZELL, District Judge
AND NOW, this 20th day of September, 2004, upon consideration of defendant Eileen Means's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (docket entry # 24), the motion to dismiss of defendants All-Care Chiropractic ("All-Care") and Richard Walinsky (docket entry # 25), and plaintiffs' response to the motions to dismiss, and the Court finding that:
The Court may grant a motion to dismiss under Rule 12(b)(6) "only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In other words, we will not grant such a motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000) (permitting dismissal "only if it appears that the [plaintiffs] could prove no set of facts that would entitle [them] to relief"). "The complaint will be deemed to have alleged sufficient facts if it adequately put the defendants on notice of the essential elements of the plaintiffs' cause of action." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
Even if the allegations are insufficient by themselves, we will still deny a motion to dismiss so long as the allegations "in addition to inferences drawn from those allegations, provide a basis for recovery." Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 124-125 (3d Cir. 1998); see also Scheuer, 416 U.S. at 236 ("[T]he allegations of the complaint should be construed favorably to the pleader."); Emerson v. Thiel College, 296 F.3d 184, 188 (3d Cir. 2002) ("A complaint will withstand an attack under Federal Rule of Civil Procedure 12(b)(6) if the material facts as alleged, in addition to inferences drawn from those allegations, provide a basis for recovery.").
(a) After twice rejecting plaintiffs' attempts to file pleadings in conformity with Fed.R.Civ.P. 9(b), we provided them with "one final opportunity to plead their case with the requisite precision," see Order of July 20, 2004 ¶ (i) (docket entry # 21); see also Order of May 6, 2004 (docket entry # 9);
(b) In response, plaintiffs filed a second amended complaint ("Compl.") that includes the following counts: (1) negligent misrepresentation; (2) intentional misrepresentation; and (3) statutory insurance fraud;
(c) Dr. Means suggests that the second amended complaint, like its predecessors, fails to comply with Rule 9(b) because it fails to answer many questions about the alleged fraud, see Means Br. at 3-4 and because it does not identify her "specific involvement in the alleged fraud," id. at 5;
(d) The second amended complaint identifies nine of defendants' former patients, cites specific information on each of these patients' claim forms that plaintiffs believe to be untrue, see Compl. ¶¶ 7-38, and suggests that these specifics are part of a larger "scheme to defraud," see Compl. ¶¶ 41-46;
(e) Although the second amended complaint does not single out Dr. Means's precise contributions to the alleged scheme, it clearly alleges that she participated in a sufficiently particularized scheme;
(f) Thus, the allegations of fraud in the second amended complaint comply with Rule 9(b), and we shall deny Dr. Means's motion to dismiss;
(g) In addition to their similarly unavailing Rule 9(b) argument, All-Care and Dr. Walinsky contend that we should dismiss the negligent misrepresentation claim because most of the allegations in the second amended complaint involve intentional misconduct, All-Care Br. at 6-7;
(h) They fail to address, however, the parts of the second amended complaint that make out a prima facie case of negligent misrepresentation, see Compl. ¶¶ 52-58; see also Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994) (enumerating the elements of a negligent misrepresentation claim); Fed.R.Civ.P. 8(a) (permitting pleading of alternative theories);
(i) Finally, All-Care and Dr. Walinsky assert that we lack jurisdiction over this matter because plaintiffs paid less than $21,000.00 for the claims of the nine former patients alluded to above, so (according to All-Care and Walinsky) plaintiffs have failed to satisfy the $75,000.00 amount-incontroversy requirement necessary to invoke our diversity jurisdiction, All-Care Br. at 7-9; see also 28 U.S.C. § 1332(a) (2004);
(j) This argument again fails to recognize that the nine former patients were merely examples of the many others involved in the alleged scheme to defraud and that plaintiffs clearly allege that the entire scheme defrauded them of $346,663.90, Compl. ¶ 51, well in excess of the $75,000.00 threshold; and
(k) We shall, therefore, deny All-Care and Dr. Walinsky's motion to dismiss;
It is hereby ORDERED that:
1. Dr. Means' motion to dismiss is DENIED;
2. The motion to dismiss of All-Care Chiropractic and Dr. Walinsky is DENIED;
3. Defendants shall FILE their answers to the second amended complaint by October 1, 2004;
4. If defendants intend to request a stay of this civil action pending resolution of the criminal charges against them, see Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980) (Pollak, J.), they shall FILE a motion for a stay by October 8, 2004; and
5. Plaintiffs shall FILE their response to any request for a stay by October 15, 2004.