The opinion of the court was delivered by: GREENE
This matter comes before the Court on defendant Michael Nussbaum's motion to dismiss Counts One, Two and Five of the plaintiffs' Amended Complaint and motion for summary judgment on Counts One through Seven of the Amended Complaint. The Court will deny both motions. It is clear that all of the Counts of plaintiffs' Amended Complaint raise genuine issues of material fact and thus summary judgment or dismissal is inappropriate at this time.
As previously summarized in the Court's July 23, 1997 Opinion, this case arises out of the dissolution of the Washington, D.C. law firm of Nussbaum & Wald. Plaintiffs Jeffrey D. Robinson, Eric L. Lewis, Michael B. Waitzkin, Martin R. Baach, and James P. Davenport and defendant Michael Nussbaum all were general partners at Nussbaum & Wald. Plaintiffs filed a two count complaint on September 30, 1996. Initially, plaintiffs sought only declaratory relief. They did not demand a jury trial at that time. The defendant filed a counterclaim, which he amended on October 21, 1996. Plaintiffs subsequently amended their complaint as well. The Amended Complaint included actions for money damages for fraud, misrepresentation, breach of contract, wrongful dissolution, and breach of fiduciary duty.
With respect to Counts One, Two, and Five, defendant has filed a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6). He argues that plaintiffs have not alleged facts that support their claim for declaratory relief in Count One and failed to allege with the requisite particularity the facts material to their fraud claims asserted in Counts Two and Five.
Count One of the Amended Complaint requests a declaration that plaintiff Jeffrey Robinson was an equity partner in Nussbaum & Wald "no later than January 1, 1995." Count Two claims that Nussbaum induced Robinson to rejoin the firm in September of 1994 by promising him equity partner status. Finally, Count Five purports to state a claim for misrepresentation, alleging that defendant repeatedly represented to plaintiffs that he would cooperate in the adoption of a written partnership agreement.
The Court finds no reason to dismiss these Counts of the Amended Complaint. Nussbaum first argues that Count One fails to state a claim upon which relief can be granted because Robinson left the firm to enter government service in January of 1992 and the Amended Complaint contains no allegation that this offer of partnership remained open after his departure. The Court disagrees. Count One alleges that the partners of Nussbaum & Wald agreed that Jeffrey Robinson would rejoin the firm as an equity partner. It is clear that the factual allegations in the Amended Complaint provided the defendant with notice of plaintiffs' claim. This is sufficient to give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Maljack Productions, Inc. v. Motion Picture Ass'n. of America, 311 U.S. App. D.C. 224, 52 F.3d 373, 375 (D.C. Cir. 1995)(citation and quotation omitted).
Defendant goes on to state that Count Two fails to make out a claim for fraud because it is internally inconsistent and lacks the requisite allegation of injury and damages. He attacks Count Five for the same reason, arguing that plaintiffs fail to particularize their allegations of fraud.
The Court concludes that plaintiffs have met their burden to plead fraud with the particularity required by FED. R. CIV. P. 9(b). Plaintiffs have alleged sufficient facts from which the Court may infer fraud. For instance, they allege that Nussbaum misrepresented to Robinson that he was an equity partner, that Nussbaum made these misrepresentations of a material fact with an intention to deceive, and that Robinson relied on these statements to his detriment. Thus, the Court is unable to say that there are no set of facts plaintiffs can prove which would entitle them to relief. See In re Swine Flu Immunization Products Liability Litigation, 279 U.S. App. D.C. 366, 880 F.2d 1439, 1442 (D.C. Cir. 1989). That, of course, is enough to defeat a motion to dismiss.