Opinion
02 Civ. 7883 (LAK)
December 13, 2002
ORDER
Defendants move to dismiss Counts III and IV of the complaint.
Count III purports to allege a claim for an account stated. The defendants' alleged failure to object to an invoice for a payment due on September 30, 2002 between September 12, 2002, the date the invoice was received, and October 2, 2002, the date of the complaint, is too short to give rise to an inference that defendants' acquiesced in the invoice. While the Court recognizes that the question of reasonableness almost always is for the jury where the question is whether the alleged debtor retained a statement of account without objecting within a reasonable time, the key word is "almost." Where, as here, the facts will give rise to only one reasonable inference in respect of whether there was assent to the statement of account, the issue is one of law. E.g., Epstein v. Turecamo, 258 A.D.2d 502, 503, 684 N.Y.S.2d 621, 622 (2d Dept. 1999).
Count IV is an essentially wasteful attempt to convert a simple contract dispute into a fraud claim and to take advantage of the Massachusetts Deceptive Trade Practices Act to gain the leverage of the threat of treble damages and attorneys fees in attempting to negotiate the settlement that is the virtually inevitable outcome of this case. It does not comply with Fed.R.Civ.P. 9(b) in a number of respects, not least of them the failure adequately to plead scienter. See, e.g., First Capital Asset Management, Inc. v. Brickellbush, Inc., 219 F. Supp.2d 576, 581 (S.D.N.Y. 2002). In limiting its comments to this ground, the Court should not be understood as passing on defendants' other arguments for dismissal.
Accordingly, the motion to dismiss Counts III and IV is granted. As the dismissal of Count IV is based on pleading defects, it is without prejudice to the filing of an amended complaint should be mindful of whether any real purpose would be served by doing so.