United States District Court, D. New Mexico
JOHN J. WILSON, Plaintiff,
COMCAST, a.k.a. XFINITY, Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on pro se
Plaintiff's Amended Complaint, Doc. 9, filed June 9,
2017. For the reasons stated below, the Court will
DISMISS this case without
prejudice, In his original Complaint, Plaintiff, a
customer of Defendant Comcast, alleged Defendant
“through fraud, unlawfully gained monetarily for
services provided” and “used deceit and
fraudulent tactics . . . to systematically increase the
payment for their services, ” and that “fraud by
wire is applicable to Defendant Comcast.” Complaint at
1-3, Doc. 1, filed February 6, 2017.
Court reminded Plaintiff that Federal Rule of Civil Procedure
9(b) states: “In alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake.” “At a minimum, Rule 9(b)
requires that a plaintiff set forth the ‘who, what,
when, where and how' of the alleged fraud, . . . and must
set forth the time [and date], place, and contents of the
false representation, the identity of the party making the
false statements and the consequences thereof.”
United States ex rel. Sikkenga v. Regence Bluecross
Blueshield of Utah, 472 F.3d 702, 726-727 (10th Cir.
allegations the original Complaint were vague and conclusory.
The Court informed Plaintiff that he did not set forth the
time, place, and content of the fraudulent representations or
the specific consequences of the fraudulent statements.
See George v. Urban Settlement Servs., 833 F.3d
1242, 1254 (10th Cir. 2016) (“because Fed.R.Civ.P. 9(b)
requires a plaintiff to plead mail and wire fraud with
particularity, the plaintiffs must set forth the time, place
and contents of the false representation, the identity of the
party making the false statements and the consequences
To establish the predicate act of mail fraud, [plaintiffs]
must allege “(1) the existence of a scheme or artifice
to defraud or obtain money or property by false pretenses,
representations or promises, and (2) use of the United States
mails for the purpose of executing the scheme.”
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 892 (10th Cir.1991). See United States v.
Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995). “The
elements of wire fraud are very similar, but require that the
defendant use interstate wire, radio or television
communications in furtherance of the scheme to
defraud.” BancOklahoma Mortgage Corp., 194
F.3d at 1102 (internal quotation omitted).
[T]he common thread among ... these crimes is the concept of
“fraud.” Actionable fraud consists of (1) a
representation; (2) that is false; (3) that is material; (4)
the speaker's knowledge of its falsity or ignorance of
its truth; (5) the speaker's intent it be acted on; (6)
the hearer's ignorance of the falsity of the
representation; (7) the hearer's reliance; (8) the
hearer's right to rely on it; and (9) injury.
Id. at 1103. Failure to adequately allege any one of
the nine elements is fatal to the fraud claim.
Tal v. Hogan, 453 F.3d 1244, 1264 (10th Cir. 2006).
Court dismissed Plaintiff's Complaint without prejudice
for failure to plead his claims of fraud and conspiracy with
sufficient particularity and granted Plaintiff leave to file
an amended complaint. See Doc. 8 at 3-4, filed May
Amended Complaint similarly fails to plead his claims of
fraud and conspiracy with sufficient particularity. Most of
the allegations are vague and conclusory, for example,
“A pattern of deceitful and fraudulent assurances and
representations made knowingly or recklessly and verbal
contracts broken by those employed by Comcast, ”
“Comcast used deceit and fraudulent tactics by and
through their employees or agents, to systematically increase
the payment for their services by unlawful means, ” and
“Comcast's employee's, agent's deceitful
acts, misrepresentations, assurances and assertions, were
unlawful, and fictions as were verbal contracts that were
meant to deceive and defraud.” Complaint at 2, 3 and 5.
Plaintiff does not describe the rate changes, the allegedly
reckless representations and fraudulent tactics, the
“deceitful acts, misrepresentations, assurances and
assertions, ” or the verbal contracts.
closest Plaintiff comes to stating a claim with particularity
is when he discusses one “wire
Plaintiff alleges that the named Defendant Comcast has for a
prolonged period, behaved unprofessionally through deceit.
This done by employees or agents of Comcast through
“wire” misrepresentations of fact that harmed
Plaintiff on numerous occasions. The latest, on or about
February of 2016. A “wire” communication from a
Comcast employee or agent. Deceitful and fraudulent
representations were made to Plaintiff by a Comcast employee,
by “wire” that a change in his existing
communication plan would be beneficial. A two 2 year
guaranteed rate of one hundred and twenty two dollars and
five cents; $122.05 was represented. And in good faith
Plaintiff agreed. The rates duration, one (1) month.
Plaintiff has never sought or solicited any accommodations
from the Defendant. Response to questions about the breaches
Complaint at 2-3 (bold in original).
states he “is unsure of the exact time, date or name of
the perpetrator(s) . . . [and] expects the discovery process
will satisfy Fed. Rule Civ. Pro 9 requirements as the
information is yet unavailable to pro se Plaintiff.”
Amended Complaint at 3. “[I]in determining whether a
plaintiff has satisfied Rule 9(b), courts may consider
whether any pleading deficiencies resulted from the
plaintiff's inability to obtain information in the
defendant's exclusive control.” Georgev. Urban Settlement Services, 833 F.3d 1242, 1255
(10th Cir. 2016). However, when a plaintiff asserts the facts
in question are within the opposing party's control, the
complaint must set forth the factual basis for the
plaintiff's belief that defendant has committed fraud.
See Scheidt v. Klein, 956 F.2d 963, 967 (10th Cir.
1992) (“Allegations ...