Caliber Partners, Ltd. v. Affeld, 83 C 6968.

• Decision Date: 04 April 1984
• Docket Number: No. 83 C 6968.,83 C 6968.
• Parties: CALIBER PARTNERS, LTD. and Stratford Energy Investments-Ohio Shallow, Plaintiffs, v. Marvin E. AFFELD and Mary T. Affeld, individually and d/b/a Affeld Oil Company, Defendants.
• Court: U.S. District Court — Northern District of Illinois

583 F. Supp. 1308

CALIBER PARTNERS, LTD. and Stratford Energy Investments-Ohio Shallow, Plaintiffs, v. Marvin E. AFFELD and Mary T. Affeld, individually and d/b/a Affeld Oil Company, Defendants.

No. 83 C 6968.

United States District Court, N.D. Illinois, E.D.

April 4, 1984.

Barry Yavitz, Cushner & Yavitz, Chicago, Ill., for plaintiffs.

Bruce S. Sperling, Mitchell H. Macknin, Sperling, Slaten & Spitz, P.C., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Illinois limited partnerships Caliber Partners, Ltd. ("Caliber") and Stratford Energy Investments-Ohio Shallow ("Stratford") sue Marvin Affeld ("Affeld") and Mary Affeld individually and d/b/a Affeld Oil Company (collectively "Affelds") in a ten-count Complaint alleging:

1. federal statutory violations by Affelds involving:

(a) Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j ("Section 10(b)") and related SEC Rule 10b-5 (Count One);

(b) Securities Act of 1933 ("1933 Act") §§ 12(2) and 17(a), 15 U.S.C. §§ 77l and 77q ("Section 12(2)" and "Section 17(a)") (Count Two); and

(c) the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1964(c) (Count Three); and

2. state statutory and common law violations by Affelds involving:

(a) the Illinois Securities Law, Ill. Rev.Stat. ch. 121½, §§ 137.12, 137.13 (Count Four);

(b) Ohio Securities Act §§ 1707.41, 1707.44 (Count Five);

(c) the Illinois Consumer Fraud and Deceptive Business Practice Act, Ill. Rev.Stat. ch. 121½, § 262 (Count Ten);

(d) common law fraud (Count Six);

(e) negligence (Count Seven); and

(f) breach of contract (Counts Eight and Nine).

Affelds now move to dismiss under Fed.R. Civ.P. ("Rule") 12(b)(1) and 12(b)(6). For the reasons stated in this memorandum opinion and order, their motion is granted.

Facts¹

In the spring of 1981 Caliber (acting on behalf of itself and Stratford) conferred with Affeld to obtain information about investing in oil and gas leases on property located in Morrow County, Ohio. Affeld represented (1) he had many years' experience in oil drilling and exploration and (2) he was willing to sell shares in three oil and gas leases on which he was preparing to begin drilling operations. Affeld agreed to sell Caliber a 1/16 interest and Stratford a 6/16 interest in the three leases upon payment of $76,250 for the aggregate 7/16 interest in each lease. Contracts were signed by Caliber² and Affeld contemporaneously with Caliber's payment of those amounts, and upon completion of two of the wells (the third having been abandoned) Caliber paid the added completion costs of $52,500 for each as the contracts required. Caliber's total investment was $18,750, while Stratford's was $315,000.³

According to Complaint ¶ 18 Affeld knowingly made the following material misrepresentations or omissions:

(a) About spring 1981, and on several occasions thereafter, Affeld stated that he could contribute or had already contributed a share of the capital cost of drilling and completing each well which was roughly equivalent to the sum invested in each well by the investors;

(b) About spring 1981, and on several occasions thereafter, Affeld furnished the investors group, through Caliber, materially incomplete or false information concerning the wells, including, but noted sic limited to actual costs of drilling, completing and operating each well, costs of material used, reasons for additional costs, and delays in completion of each well;

(c) About spring 1981, and on several occasions thereafter, Affeld stated each well would produce substantial quantities of oil, the royalty payments for which would be far in excess of operating costs of each well, and that there was little risk of failure in these ventures. Affeld told Caliber he had been "saving these leases for my retirement" and that they were certain to produce significant quantities of oil;

(d) Affeld told Caliber, about spring 1981, and various times thereafter, that each well would be located above the Trempealeau formation, a geological structure which had a history of oil and gas deposits, and that each well was certain to tap oil and gas from this area, since highly successful wells previously had been drilled on certain of the lease-holds and on adjoining areas.

(e) About spring 1981, and numerous times thereafter, Affeld failed to disclose to the investors, through Caliber, material information on the general and specific risks incumbent in oil and gas investments, including, but not limited to, the limited marketability of oil and gas working interest investments, conflicts of interest and self dealing by Affeld in connection with drilling each well; the speculative nature of the investment; the risk that costs of operation would exceed income from each well; the risk of loss of equipment during drilling; the effect inclement weather created on drilling, completion and operation of each well; estimates on the amount of commercially marketable oil capable of being withdrawn from each well; and the amount of oil withdrawn from each well;

(f) About spring 1981, and numerous times thereafter, Affeld failed to disclose that significant amounts of money obtained from the plaintiffs were paid to him and his company for services and materials used in connection with drilling each well.

Plaintiffs relied on those representations in making the investments (Complaint ¶ 20).

Rule 9(b) Requirements

As to the federal securities fraud claims (under Sections 10(b) and 17(a)), Affelds say plaintiffs have not alleged fraud with the requisite particularity. Affelds attack plaintiffs' failure to particularize the time and place of the misrepresentations, why the statements were false and misleading or the facts underlying Affeld's knowledge those statements were false when he made them.

In those respects Affelds misconceive the purpose and effect of Rule 9(b):

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

To plead a cause of action for fraud, plaintiffs need not allege evidentiary details that will be used to support the claim at a later date. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974); 2A Moore, Moore's Federal Practice ¶ 9.03, at 9-28 to 9-30 and nn. 13-14. They need only set forth the basic outline of the scheme, who made what misrepresentations and the general time and place of such misrepresentations. Darling & Co. v. Klouman, 87 F.R.D. 756, 757-58 (N.D.Ill. 1980) and cases there cited. Here Affelds have been given sufficient notice of those matters, who made the representations and the general time period in which they were made.⁴

Affelds are also wrong in urging Rule 9(b) requires plaintiffs to allege facts showing Affeld knew he was misleading them. Instead Rule 9(b) specifically permits general allegations of knowledge and intent. To require a plaintiff to plead such matters, which are peculiarly within a defendant's knowledge, would impose an impermissible burden. 2A Moore ¶ 9.03, at 9-36 to 9-38 and nn. 25-28; compare the "clear weight of authority" as exemplified by McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir.1980) with the solitary viewpoint expressed in Ross v. A.H. Robins Co., 607 F.2d 545, 558 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980).

Affelds also contend plaintiffs cannot ground an action on promises contrary to the contract terms, in contravention of the contract integration clause. Katz v. Diabetes Association of Greater Chicago, 31 Ill.App.3d 240, 243, 333 N.E.2d 293, 295 (1st Dist.1975). That argument misses the mark as applied to the Complaint's fraud counts.⁵ Plaintiffs are there suing for fraud in the inducement of a contract, not to enforce the contract terms. Allegations of representations contrary to the contract terms are properly considered to determine whether Affeld fraudulently induced Caliber and Stratford to enter into these contracts.⁶ See Ainsworth Corp. v. Cenco, Inc., 107 Ill.App.3d 435, 439, 63 Ill.Dec. 168, 172, 437 N.E.2d 817, 821 (1st Dist. 1982).

Nonetheless Count One and the Section 17(a) claim in Count Two must be stricken. By their very nature a number of the alleged misrepresentations and material omissions recited in Complaint ¶ 18 plainly appear to have been post- rather than pre-contract-signing.⁷ As such they cannot underpin a fraud-in-the-inducement claim. Affelds cannot fairly be required to parse the Complaint to pick out the allegations that do and do not form part of the cause of action. They are entitled to a more craftsmanlike pleading to which they can prepare an informed answer.

Count Two

Affelds make two separate attacks on Count Two:

1. Plaintiffs have not affirmatively pleaded compliance with the one-year statute of limitations applied to Section 12(2) violations.

2. No private right of action exists under Section 17(a).

Their first onslaught is successful, and their second need not be confronted at this time.

As to the first point, Affelds are correct: Plaintiffs must affirmatively allege compliance with the one-year statute of limitations contained in 1933 Act § 13, 15 U.S.C. § 77n:

No action shall be maintained to enforce any liability created under section 77k or 77l(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 77l(1) of this title, unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under section 77k or 77l(1) of this title more than three years after the security was bona fide offered to the public, or under section 77l (2) of this title more than

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