MEMORANDUM
Plaintiff Asteria Vives (“Asteria”) sues defendants Frank (“Frank”) and Miguelina (“Miguelina”) Rodriguez,
Miguelina filed what she styled a “motion for summary judgment” last year, as to which Asteria filed a response in opposition and Frank filed a memorandum in support.
Notwithstanding the manner in which it is styled, we will construe Miguelina’s submission as a motion to dismiss predicated on plaintiffs failure to state a claim and this Court’s lack of subject matter jurisdiction, and will evaluate it pursuant to Fed. R.Civ.P. 12(b)(1) and (6). For the reasons enunciated below, we will grant this mo
I. Factual Background
In ruling on a motion to dismiss under Rule 12(b)(6),
According to Asteria, she is a resident of Historic LaMott, Pennsylvania, while Frank and Miguelina reside in Orlando, Florida. Pl.’s Compl. ¶¶ 4-5. Asteria entered into an agreement with Frank and Miguelina on June 1, 2006, in which Frank and Miguelina agreed to serve as the straw purchasers of 7322 Butcher Street, LaMott, Pennsylvania (the “property”) on Asteria’s behalf. The agreement provided that: (1) Asteria would provide all funds for purchasing the property and pay for all rehabilitation costs and tax and insurance obligations arising out of the transaction; (2) Frank and Miguelina would pay the net proceeds to Asteria after the property’s eventual re-sale; and (3) Asteria would pay Frank and Miguelina a fee of $500.00 upon this sale. Id. ¶¶ 9-10. Frank purchased the property on June 14, 2006 for $55,000, with funds Asteria provided. Id. ¶¶ 11-12. On August 7, 2006, Frank and Miguelina agreed to act as straw sellers of the property for Asteria, and sold the property on August 10, 2006 for $95,000.00. Id. ¶¶ 13-14.
Asteria alleges that between October 26, 2006 and May 27, 2007, she repeatedly demanded — by telephone, e-mail, and mail — that Frank and Miguelina “tender the remaining balance from the sale.” Id. ¶ 15. Frank and Miguelina responded with a series of excuses for their inability to turn over this balance, finally stating on May 20, 2007 that they would issue a secured payment of $35,000.00 to Asteria if she would provide them with an affidavit stating that she was no longer “using Defendant Frank Rodriguez’s power of attorney.” Id. ¶¶ 17-18. On May 22, 2007, Asteria provided Frank with an affidavit stating that his “power of attorney [had been] terminated”. Nonetheless, Frank and Miguelina continued to ignore Asteria’s demands for payment and have not tendered the net balance from the sale of the property, which Asteria contends amounts to $37,159.60. Id. ¶¶ 19-21.
Asteria claims that shortly after Frank and Miguelina received payment for the August 10, 2006 sale of the property, they satisfied the mortgage on their Florida home in large part using the net proceeds from the sale. Id. ¶ 27. According to Asteria, “Frank and Miguelina Rodriguez’s promise to immediately and promptly turn over the balance of the sale of 7322 Butcher Street, Historic LaMott, Pennsylvania 19027 to Plaintiff was a material misrepresentation, with scienter, that was part and parcel of a fraudulent scheme to unlawfully
Asteria seeks compensatory damages of $37,159.60 on her claims for breach of contract, unjust enrichment, conversion, and fraud. Id. at 4-6. She also seeks punitive damages of $371,000.00 under Count IV for fraud, and punitive damages of $250,000.00 and compensatory damages of $250,000.00 under Count V for intentional infliction of emotional distress. Id. at 7.
II. Analysis
Section 1332(a)(1) provides that “[tjhe district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States,” and Rule 12(b)(1) states that “a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction.” Our Court of Appeals has explained that when a challenge is made to diversity jurisdiction based on failure to satisfy § 1332’s amount-in-controversy requirement,
The [party claiming jurisdiction] bears the burden of showing that the case is properly before the federal court. Where the parties dispute the underlying facts concerning the jurisdictional amount requirement, the [party claiming jurisdiction] must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Thereafter, or if the underlying jurisdictional facts are not in dispute, a federal court must decide whether it appears to a “legal certainty” that the plaintiff is not entitled to recover an amount exceeding the jurisdictional requirement.
Chrin v. Ibrix, Inc.,
When a court considers a motion to dismiss pursuant to Rule 12(b)(6), on the other hand, the test “ ‘is whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.’ ” Kundratic v. Thomas,
Miguelina advances six arguments in her motion, to wit: (1) once Asteria’s legally insufficient claims are removed from consideration, we lack subject matter jurisdiction over this action; (2) there is no cause of action against her; (3) the gist of the action doctrine bars Asteria’s fraud and intentional infliction of emotional distress claims; (4) the fraud and intentional infliction of emotional distress claims against Miguelina are insufficiently stated; (5) Asteria has not stated a claim for punitive damages; and (6) this Court should abstain from exercising jurisdiction over this matter under the Colorado River doctrine. We will consider each argument in turn.
Miguelina suggests that “[t]his Court lacks subject-matter jurisdiction over this case because, when Vives’ legally-deficient claims for fraud, intentional infliction of emotional distress, and punitive damages are removed from consideration, the amount in controversy does not exceed the amount required by 28 U.S.C. § 1332.” Miguelina’s Mem. in Supp. of Mot. (“Miguelina Mem.”) at 3. Asteria responds that “each of Plaintiffs substantive claims are meritorious and greatly exceed the $75,000.00 minimum amount necessary to satisfy the requirements of 28 U.S.C. Section 1332.” Pl.’s Resp. at 5.
As noted above, where the “underlying jurisdictional facts are not in dispute,” a court generally resolves a challenge to diversity jurisdiction by determining “whether it appears to a ‘legal certainty’ that the plaintiff is not entitled to recover an amount exceeding the jurisdictional requirement.” Chrin,
As Judge Joyner some time ago explained,
When determining whether the amount in controversy has been satisfied ... federal courts examine plaintiffs damage claims at the time that the action is commenced and the amount in controversy for jurisdictional purposes must be ascertained by the requests in the pleadings without consideration of success on the merits. Once that determination is made and the federal court is seized of jurisdiction, the court’s power is not conditional on a later award of at least that amount.
McNulty v. Travel Park,
To be sure, our Court of Appeals has also observed that “[i]n an action originated in federal court, the court must strike a difficult balance where unliquidated damages are involved: a plaintiffs frivolous claim cannot be decisive to establish the jurisdiction of the court, yet jurisdiction cannot be made to depend on the final outcome of the case.” Albright v. R.J. Reynolds Tobacco Co.,
Based on this jurisprudence, we conclude that a plaintiff may fail to satisfy the amount in controversy requirement of § 1332 despite claiming damages in excess of the minimum amount either because (1) she has asserted claims that are so legally insufficient as to be frivolous, or (2) some of her claims for damages are frivolous under the applicable law. Here, while we ultimately conclude that Asteria has fallen far short of stating a claim for intentional infliction of emotional distress, we will dismiss her claim for fraud based on a close reading of conflicting case law regarding the gist of the action doctrine and, secondarily, due to her failure to plead a requisite element of fraud. Under these circumstances, her fraud claim is not so weak as to descend to the level of frivolity.
For us to conclude that we lack subject matter jurisdiction over this case, we would have to find that Asteria’s claim for punitive damages based upon her fraud claim is frivolous, so that — after removing from consideration her frivolous IIED claim and frivolous claim for punitive damages based upon fraud — she would be left with only a valid claim for compensatory damages in the amount of $37,159.60. We cannot find such frivolity, though Miguelina argues that “Vives’ claim for punitive damages is not sufficiently stated.” Miguelina Mem. at 10 (capitalization omitted).
The Pennsylvania Superior Court has explained that “[t]he rule of punitive damages set forth in the Restatement (Second) of Torts § 908 has been adopted in Pennsylvania,” Moran ex rel. Moran v. G & W.H. Corson, Inc.,
In this case, Asteria alleges that Frank and Miguelina entered into their agreement with her as “part and parcel of a fraudulent scheme to unlawfully secure capitalization for the satisfaction of their Florida mortgage.” Pl.’s Compl. ¶ 28. Though we ultimately find that Asteria has failed to state a claim for fraud, and that it would be futile to permit her to amend the complaint in light of the operation of the gist of the action doctrine, we cannot conclude that her claim for punitive damages based upon Frank and Miguelina’s alleged intentional fraud is so frivolous that it should not be aggregated with her other damages claims to determine the amount in controversy. Thus, when Asteria’s non-frivolous claims are summed, we are left with an amount in controversy of $408,-159.60 — leaving us with subject matter jurisdiction over this case under § 1332.
B. The Sufficiency of the Claims Against Miguelina
Turning to Miguelina’s attacks on Asteria’s claims, she first argues that “Plaintiffs Complaint on its face does not state a cause of action against Miguelina Rodriguez,” Miguelina Mem. at 19, and that “[ojther than bare allegations of alleged
We will consider Asteria’s fraud, conversion, and intentional infliction of emotional distress claims against Miguelina in greater detail below, and will now examine only her claims for breach of contract and unjust enrichment. Miguelina’s challenge to these claims has a hybrid character, as she asserts not only that Asteria has failed to state these claims, but that she has adduced no evidence in support of these claims. As we have already noted, the parties have not yet engaged in discovery in this matter, so we will not rule on Miguelina’s challenge to the sufficiency of the evidence supporting Asteria’s claims.
With respect to whether Asteria has stated these claims, we note that to make a breach of contract claim under Pennsylvania law a plaintiff must allege “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Omicron Systems, Inc. v. Weiner,
As for the unjust enrichment claim,
C. The Gist of the Action Doctrine
Miguelina next asserts that “Vives’ claims for fraud and intentional infliction of emotional distress are barred by the gist-of-the-action doctrine because the conduct from which the alleged liability arises really stems from a breach of contractual duties,” Miguelina Mem. at 5 (emphasis in original), and that “[f|or all the reasons stated herein, the gist-of-the-action doctrine also bars Vives’ conversion claim.” Id. at n. 4. Asteria responds that “the gravamen of Plaintiffs fraud calim [sic] involves Defendants’ Miguelina and Frank Rodriguez’s fraudulent inducemnt [sic ] of Plaintiff into the [sic ] agreement, wherein they misrepresented their intention to be straw purchasers and sellers, not the contract itself.” Pl.’s Resp. at 13. She adds that with respect to her conversion and IIED claims, “Defendants’ egregious misconduct in violating the sacred trust of family and outright stealing funds that he [sic ] was entrusted are breaches of social policy and fundamental morality which are separate and apart from the terms of his [sic ] agreement with Plaintiff, and therefore collateral to his [sic] breach of contract.” Id. at 16-17.
As Judge McVerry noted last year, “[t]he Pennsylvania Supreme Court has not expressly adopted the gist of the action doctrine,” though “both the United States Court of Appeals for the Third Circuit and the Pennsylvania Superior Court have predicted it would do so.” PPG Indus., Inc. v. Generon IGS, Inc.,
Since Asteria’s conversion claim is predicated exclusively upon Frank and Miguelina’s failure to restore to Asteria “the balance of the sale of the property” under the alleged agreement, Pl.’s Compl. ¶ 25, we will grant Miguelina’s request to dismiss Count III of the complaint. As for Asteria’s IIED claim, the rationale underlying the gist of the action doctrine (to which we turn in a moment) suggests that it might act to bar this claim — but we have found little case law from either Pennsylvania or Third Circuit courts on this point. See, e.g., Legion Ins. Co. v. Doeff,
We thus come to the essential (and thorny) question we must confront in applying the gist of the action doctrine to the facts of this case: whether (and when) the gist of the action doctrine applies to bar fraudulent inducement claims. The Pennsylvania Supreme Court has not discussed this issue, and state intermediate courts and courts from within this Circuit have not spoken on it with one voice.
In the seminal case applying the gist of the action doctrine to fraud claims in Pennsylvania courts, the Superior Court of Pennsylvania drew on precedent from both the Superior Court and federal courts within this Circuit to explain that
[Although mere non-performance of a contract does not constitute a fraud, it is possible that a breach of contract also gives rise to an actionable tort. To beconstrued as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral. The important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus. In other words, a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.
eToll, Inc. v. Elias/Savion Adver., Inc.,
Not long after eToll, our Court of Appeals similarly concluded that “[although the Pennsylvania Supreme Court has not expressly adopted this doctrine, we predict that the state supreme court would adopt the doctrine as set out in the Superior Court’s cases,” Williams v. Hilton Group PLC,
In the years since Williams, a number of district courts in this Circuit have concluded that the gist of the action doctrine may apply to bar not only claims relating to the fraudulent performance of a contract, but fraudulent inducement to enter into such a contract where the false representation concerned duties later enshrined in the contract — which would necessarily include representations as to the defendant’s intent to perform. See, e.g., Integrated Waste Solutions, Inc. v. Goverdhanam,
In 2004, however — almost a year after our Court of Appeals decided Williams, and two years after eToll — the Pennsylvania Superior Court concluded that “the law appears to permit fraud in the inducement claims in disputes involving contractual obligations, notwithstanding that the gist of the action doctrine would bar claims of fraudulent (non)performance.” The Brick-man Grp., Ltd. v. CGU Ins. Co.,
A few months later, the Superior Court examined fraudulent inducement claims once again, in a context where “Appellant alleged that Appellee fraudulently and/or negligently agreed to perform obligations that it never intended to perform in order to induce Appellant to agree to the proposed changes to his compensation package and to forgo an immediate resignation.” Sullivan v. Chartwell Inv. Partners, LP,
And just two years ago the Superior Court confronted a case in which “the facts demonstrated] that [the defendant] never intended to perform the duties he agreed to.” Mirizio v. Joseph,
In light of Sullivan, Judge Lenihan has revisited our Court of Appeals’s ruling in Williams, concluding that
[T]he Williams Court did not have the benefit of the Superior Court’s subsequent decision in Sullivan, which permitted a claim for fraud in the inducement predicated upon the same promises that it found to be sufficient to make out a contract claim.... This conclusion undercuts the majority holding in Williams, and supports the dissent’s view that under the Pennsylvania eases, where there is “fraudulent intent, i.e. a subjective and undisclosed intent not to perform, a fraud claim is stated.”
Digital Encoding Factory, LLC v. Iron Mountain Info.,
Those findings, however, do not resolve the gist of the action issue. That test, as its name suggests, requires the court to focus on the substance of the dispute, or, more colloquially, to ask the question, ‘What’s this case really about?’ The doctrine deals less with specific enumerated ‘duties’ than with the parties’ conduct as it relates to the contract and the tort alleged. There remains for consideration, then, whether the fraud in the inducement was collateral to Contract One and, moreover, whether the parties ever incorporated the misrepresentation into the terms of either contract.
Pediatrix Screening, Inc. v. TeleChem Int’l, Inc.,
We are thus left in a quandary. Courts of this Circuit, including our Court of Appeals, have predicted that the Pennsylvania Supreme Court would apply the gist of the action doctrine to bar fraudulent inducement claims where the misrepresentations in question concern duties later incorporated into a contract. Furthermore, these courts have warned against relying on the distinction between fraudulent inducement and fraudulent performance claims to determine whether to apply the doctrine. The foundational Pennsylvania Superior Court case on the subject— eToll — held only that “the gist of the action doctrine should apply to claims for fraud in the performance of a contract,”
We ultimately side with the authority from our Circuit, and predict that the Pennsylvania Supreme Court would find fraudulent inducement claims predicated upon misrepresentations as to a party’s intent to perform under a contract to be barred by the gist of the action doctrine. To begin, language from eToll— which, since it was decided, has served as the Urtext in both federal and state court for essentially all cases applying the gist of the action doctrine under Pennsylvania law — explains that application of the doctrine should “turn on the question of whether the fraud concerned the performance of contractual duties,” whereupon “the alleged fraud is generally held to be
eToll further suggests that the gist of the action doctrine bars claims “arising solely from a contract between the parties” where “the liability stems from a contract” or “the tort claim essentially duplicates a breach of contract claim.” Id. (internal quotation marks omitted). As the Pennsylvania Superior Court has explained, “[t]he elements of fraudulent misrepresentation are as follows: (1) A representation (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and, (6) the resulting injury was proximately caused by the reliance.” Ira G. Steffy & Son, Inc. v. Citizens Bank of Pa.,
This conclusion is consonant with decisions from this Circuit explaining that misrepresentations as to duties later enshrined in a contract are barred by the doctrine. While it is true that these decisions conflict with recent Superior Court rulings holding that fraudulent inducement claims may be predicated upon a party’s intent not to perform, those rulings appear to be based on a blanket exemption of all fraudulent inducement claims from the scope of the gist of the action doctrine. This categorical exception does not accord well with the measured tones of eToll— which, as the Sullivan court itself noted, merely “observed that the gist-of-the-ac
We thus conclude that the Pennsylvania Supreme Court would likely hold that fraudulent inducement claims based upon a party’s alleged misrepresentation as to its intent to perform under a contract are barred by the gist of the action doctrine. As a result, we will grant Miguelina’s motion insofar as it seeks dismissal of Count IV of Asteria’s complaint.
D. Asteria’s Claims for Fraud, 1IED and Punitive Damages
Miguelina argues that “[e]ven if Vives’ fraud and intentional-infliction-of-emotional-distress claims are not barred by the gist-of-action doctrine, they are still legally deficient because they are not sufficiently stated.” Miguelina Mem. at 8. Asteria responds that her “fraud claim meets the particularity requirement of Rule 9(b),” since her “Complaint states the dates upon which Co-Defendant Frank Rodriguez, under false pretenses, agreed to act as straw buyer and seller, thereby specifying the time, speaker and content of the alleged misrepresentations.” Pl.’s Resp. at 11. Asteria suggests, regarding her IIED claim, that “Miguelina and Frank Rodriguez, who swindled Plaintiff out of the proceeds of the sale of 7322 Butcher Street, LaMott, Pennsylvania are Plaintiffs brother-in-law [sic] and brother, respectively. Certainly, to exploit the inherent trust arising out of a sibling relationship for pecuniary gain is atrocious and utterly intolerable in a civilized society.” Id. at 15.
We have already explained that the gist of the action doctrine bars Asteria’s fraud claim, and thus have dismissed Count IV of the complaint. As Miguelina correctly notes, however, we could alternatively dismiss this count due to Asteria’s failure to state a claim. Asteria claims that she has concretely alleged the time, content, and speaker of the misrepresentations that allegedly give rise to her fraud claim, but with respect to the third element of such a claim — that a misrepresentation was “made falsely, with knowledge of its falsity or recklessness as to whether it is true or false,” Ira G. Steffy,
While Fed.R.Civ.P. 9(b) provides only that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally,” the Supreme Court explained in Iqbal,
“[G]enerally” is a relative term. In the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid — “though still operative” — strictures of Rule 8.
Asteria’s bald allegation that Frank and Miguelina’s promise to perform was “a
As for Asteria’s IIED claim, a plaintiff may recover for such a claim only if a defendant’s conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.’ ” Cox v. Keystone Carbon Co.,
We are therefore left only with Asteria’s breach of contract and unjust enrichment claims against Frank and Miguelina. Asteria makes no claim for punitive damages under these counts, but in the interests of thoroughness we stress that under Pennsylvania law “punitive damages ... are not available for breach of contract claims and quantum meruit claims.” Sunburst Paper, LLC v. Keating Fibre Int’l, Inc.,
E. Abstention Under the Colorado River Doctrine
Miguelina urges that “in light of the almost-identical State Action that is currently pending in the Montgomery County
In Colorado River Water Conservation Dist. v. United States,
As our Court of Appeals has explained, “[w]hether abstention is appropriate [under Colorado River ] is a two-part inquiry.” Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc.,
While neither party has bothered to supply us with the complaint in the state action involving these parties,
Under this second prong, courts “look to a multi-factor test to determine whether ‘extraordinary circumstances’ meriting abstention are present”: “ ‘(1) [in an in rem case,] which court first
Miguelina argues that this test favors abstention, explaining that “[t]he first three factors are neutral,” Miguelina Mem. at 17, and that “[t]he remaining three factors ... weigh in favor of abstention.” Id. at 18. While it is true that (1) Asteria initiated the state action at issue before this federal action, (2) state law controls, and (3) we have no doubt that the Pennsylvania state court will adequately protect the parties’ interests, this by itself does not suggest that abstention is warranted under Colorado River. As the Supreme Court explained in Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
As for the factors that Miguelina points to as favoring abstention, our Court of Appeals has emphasized that “abstention cannot be justified merely because a case arises entirely under state law,” id. at 199, and that “the mere fact that the state forum is adequate does not counsel in favor of abstention.” Id. at 200. With respect to the fourth Colorado River factor, “when a judgment sought is strictly in personam, both state and federal courts with concurrent jurisdiction may proceed until judgment is obtained in one of them,” Marshall v. Lauriault,
We will thus decline to abstain from exercising jurisdiction over this case pursuant to Colorado River.
And now, this 31st day of January, 2012, upon consideration of plaintiff Asteria Vives’s complaint (docket entry # 10), defendant Miguelina Rodriguez’s motion for summary judgment (docket entry #32), plaintiffs response in opposition thereto and exhibits in support thereof (docket entries # 37, 38, and 39), and defendant Frank Rodriguez’s response to Miguelina Rodriguez’s motion and memorandum in support thereof (docket entry #43), and upon the analysis set forth in the accompanying Memorandum, it is hereby ORDERED that:
1. Defendant Miguelina Rodriguez’s motion for summary judgment (docket entry # 32) is GRANTED IN PART;
2. Counts III, IV, and V of plaintiffs complaint (docket entry # 10) are DISMISSED WITH PREJUDICE; and
3. The parties shall CONVENE in Chambers (Room 15613) on February 14, 2012 at 11:00 a.m. for a Rule 16 Conference.
Notes
. On June 7, 2010,
. According to his memorandum, Frank "joins in the Memorandum of Law filed in support of the Motion for Summary Judgment on behalf of defendant, Miguelina Rodriguez, and accepts same as his own.” Frank's Mem. at 1.
. We will consider, in the next section, Miguelina’s argument that we lack subject matter jurisdiction and will canvass the Rule 12(b)(1) standard at that time.
. Asteria has supplied affidavits from witnesses who were allegedly privy to conversations in which "Frank & Miguelina agreed to become Asteria’s signees for the 7322 Butcher Street property,” Ex. D to Pl.'s Resp. (Aff. of Stewart Price), and "talkfed] about an agreement and power-of-attorney they would both sign,” Id. (Aff. of Carmen Santiago) — though both affidavits only state that Frank ultimately signed the agreement. See id.
. In any event, Miguelina has not explained why the existence of a written agreement between Asteria and Frank would negate any independent agreement between Asteria and Miguelina.
. While the Pennsylvania Supreme Court has “found the quasi-contractual doctrine of unjust enrichment inapplicable when the relationship between parties is founded on a written agreement or express contract,” Schott v. Westinghouse Elec. Corp.,
. Indeed, Judge Sloviter has ruefully noted the perils of her Court's "Erie guesses”. See Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L.Rev. 1671, 1679-81 n. 53 (1992), where Judge Sloviter discusses the difficulty of making "Erie guesses” and cites specific cases in which federal predictions of state supreme courts' rulings proved incorrect.
. The concluding of a contract. — the first element of a contract claim — between a plaintiff and a defendant who intended not to perform would by itself prove the first five elements of a fraud claim as it would necessarily (1) involve a representation that the defendant intended to perform that (2) was certainly material and (3) false, and there could be little doubt that (4) the plaintiff relied on this representation in entering the contract, and (5) the defendant intended the plaintiff so to rely. Proof of the second and third elements of a contract claim — a breach leading to damages-would demonstrate resultant injury, or the sixth element of a fraud claim.
. This situation would not equally obtain when a misrepresentation pertains to terms not incorporated into a contract, since such a misrepresentation would be actionable even if no contract breach occurred.
. In her response to Miguelina's motion, Asteria asserts that “Raymond Cintron was informed by Milagros Rodriguez that Defendants posed as straw purchasers and sellers for the explicit purpose of embezzling from the proceeds of the sale of 7322 Butcher Street to pay off their Florida Mortgage.” Pl.’s Resp. at 5 (citing Exhibit E to Pl.’s Resp.). However, Asteria’s assertion misrepresents the contents of Cintron’s affidavit, which states only, in relevant part, that "Milagros admitted that she and her husband Domingo had knowledge of Frank & Miguelina's act in September of 2006.... Milagros agreed that using Asteria's money was unlawful.” Ex. E to Pl.'s Resp.
. Though Asteria might succeed in alleging the requisite elements of fraud were she to amend her complaint, given our dismissal of these claim pursuant to the gist of the action doctrine such an amendment would be futile.
. Miguelina cites to the Amended Complaint in the State Action, identifying it as Exhibit C to her motion, but the docket reveals no exhibits in support of this motion.