Five of Six Claims Against Findlaw Dismissed

     MINNEAPOLIS (CN) - A federal judge last week granted FindLaw's motion to dismiss five of six claims from the Ogletree, Abbott, Clay & Reed Law Firm, saying the law firm failed to plead them with particularity.
     Ogletree sued Findlaw, West Publishing Corp., and Thomson Reuters Holdings in February, claiming that its business "plummeted" after it hired FindLaw to redesign its websites and search engine.
     In that complaint, Ogletree asserted claims for fraud, misrepresentation, deceptive trade practices, negligence, breach of warranties, and breach of contract.
     Findlaw moved to dismiss all but the breach of contract claim.
     In a 10-page order, U.S. District Judge Richard H. Kyle wrote that Ogletree alleged that FindLaw misrepresented its services, leading it to believe FindLaw would increase its websites' search engine optimization and, in turn, increase its volume of business.
     Kyle wrote that "Findlaw made several meritorious arguments for why these claims should be dismissed, but the Court need address only one: Ogletree failed to plead them with particularity."
     Kyle wrote: "'[I]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.' Fed. R. Civ. P. 9(b). 'Conclusory allegations that a defendant's conduct was fraudulent and deceptive are not sufficient.' Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 746 (8th Cir. 2002) (quotation omitted). Instead, a plaintiff must plead the 'who, what, where, when, and how' of the alleged fraud in order 'to enable the defendant to respond specifically and quickly to the potentially damaging allegations.' Drobnak v. Anderson Corp., 561 F.3d 778, 783 (8th Cir. 2009). This heightened pleading standard applies to fraud claims as well as claims involving misrepresentation. Thus, Ogletree must plead with specificity its claims for fraud, misrepresentation, and deceptive trade practices."
     Kyle says Ogletree has failed to meet this standard with respect to all three claims.
     "Ogletree's complaint alleges very specific misrepresentations. Instead, Ogletree makes vague and conclusory allegations, such as 'FindLaw has represented its goods or services have characteristics or benefits, which they do not have, represented that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law[,] and failed to disclose information concerning goods or services which was known at the time of the transaction."
     These allegations do not pass muster under Rule 9(b).
     "Even Ogletree's most specific allegations fall far short of the requisite particularity. Ogletree alleges FindLaw promised it 'more clients and more money' and 'better results and more business' and told it that FindLaw '"produces results'" with 'custom content' developed by 'expert copy writers' and a 'dedicated team of attorney SEO experts.' This is a step in the right direction, as Ogletree has at least put FindLaw on notice of the content of the alleged misrepresentations. Nevertheless, Ogletree provides no information about their circumstances. While a plaintiff may not need to plead all of the circumstances surrounding the fraud, it must plead at least a few. Here, Ogletree has not alleged who communicated these alleged misrepresentations, to whom, when, where, or how. Accordingly, Ogletree's three fraud-related claims will be dismissed for failure to plead with particularity."
     As for Ogletree's breach of warranty claim, Kyle says, Ogletree failed to identify any express warranty pleaded in its complaint, and pleaded only implied warranties. But he says this implied warranties claim fails as well because implied warranties arise in contracts for the sale of goods, not services.
     Under Minnesota law, a negligence claim cannot be based on a breach of duty that is indistinguishable from the breach of contract, the judge found.
     In its complaint, Ogletree alleged FindLaw breached its "duty of reasonable care by its words and actions against [Ogletree]." However, Ogletree provided no further elaboration of or authority for this alleged duty, Kyle found.
     Except for the breach of contract claim, Kyle dismissed Ogletree's claims without prejudice.