District Court, Salt Lake Department The Honorable Andrew H.
Stone No. 130900740
H. Flanary Jr., John P. Mertens, and Adam L. Hoyt, Attorneys
Michael N. Zundel, John S. Chindlund, and Florence M.
Vincent, Attorneys for Appellees IBN Parties
Richard D. Burbidge, Jefferson W. Gross, and S. Ian Hiatt,
Attorneys for Appellee Von H. Whitby
Kate A. Toomey authored this Opinion, in which Judges Gregory
K. Orme and Stephen L. Roth concurred.
The Appellants seek reversal of the district court's
order denying them leave to amend their complaint and
determining that their complaint lacked particularity under
rule 9(c) of the Utah Rules of Civil Procedure. We affirm.
The Appellants are individuals and entities who allegedly
invested approximately two million dollars in various
In-Store Broadcasting Network entities. They claimed these
investments were induced by the misrepresentations of the
Appellees (collectively, IBN).
In their initial complaint and subsequent amended complaints,
the Appellants alleged several causes of action including
fraudulent misrepresentation, fraudulent inducement and
rescission, promissory estoppel, civil conspiracy, common law
fraud, constructive trust, fraudulent transfer, and violation
of the Utah Uniform Securities Act.
The Appellants filed their initial complaint in February
2013. In March 2013, before IBN had responded, the Appellants
filed a first amended complaint. They later sought leave of
court to file a second amended complaint, which the court
granted, and they filed it in September 2013. The parties
then stipulated to a scheduling order, which provided that
any "[a]mended pleadings shall be filed by July 3,
2014." The district court never approved this
stipulation, and in March and July 2014, the Appellants filed
third and fourth amended complaints without leave of court.
In October 2014, IBN filed a rule 12(b)(6) motion to dismiss
the Appellants' complaint for failure to state a claim
upon which relief could be granted. Instead of defending the
latest iteration of their complaint, the Appellants responded
by seeking leave to file a fifth amended complaint.
The district court denied the Appellants' motion to amend
because the motion was untimely, because granting it would
substantially prejudice IBN, and because the Appellants gave
no justification for this fifth attempt. The court also
determined that the fifth amended complaint "fail[ed] to
plead a fraud claim as to any specific plaintiff against any
specific defendant with the particularity required by Rule
9([c])." The district court determined there was no need
to decide whether the previous versions of the
Appellants' complaint met the requirements of rule 9(c),
because the Appellants acknowledged that their fifth amended
complaint "contain[ed] greater particularity than the
earlier versions, " and because the court had determined
that this more detailed version was still insufficient under
the rule. Stating that "[s]ix tries at pleading fraud
are enough, " the court granted IBN's motion to
dismiss. The Appellants appeal the district court's
AND STANDARDS OF REVIEW
The Appellants raise three issues on appeal. First, they
contend the district court erred when it refused to grant
them leave to amend their complaint for the fifth time. We
review a district court's ruling on a motion to amend a
complaint for abuse of discretion. Coroles v. Sabey,
2003 UT App 339, ¶ 16, 79 P.3d 974. Under this standard,
we will not reverse a district court's decision ...