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“by reason of [a] mistake of fact.” (Countercl. ¶ 61.) Moreover, the mistake of fact itself is

directly connected to the counterclaim-defendants’ alleged fraudulent misrepresentations. (Id.

59 (incorporating previous fifty-eight averments including fraud claims); see also id. ¶ 60.)

Because Count III relies on “mistake of fact” and is premised generally on State Farm’s fraud

allegations, I find that Rule 9(b) is applicable to State Farm’s unjust enrichment claim.

Pursuant to the reasoning set forth in the previous sections, I find that State Farm has

satisfied Rule 9(b)’s pleading requirement with respect to the reimbursement requests outlined in

paragraphs nineteen or twenty-five or both. Though Count III does include a few unique

averments (Id. ¶¶ 59-61), these averments do not insert the degree of particularity necessary to

satisfy Rule 9(b) for any additional reimbursement requests. Thus, I will deny counterclaim-

defendants’ motion with respect to the reimbursement requests in paragraphs nineteen or twenty-

five or both, and will grant the motion to the extent that State Farm seeks relief based on

reimbursement requests no so enumerated.


Affirmative Defenses


Nos. 2 and 6: Fraud and Misrepresentation

State Farm’s second affirmative defense, fraud, contains averments similar to its

counterclaim. (Answer at 17-22.) State Farm’s sixth affirmative defense states in full: “Allied

made material misrepresentations regarding the treatment given to certain Allied Medical

Associates’ present and former patients whose bills were submitted to State Farm for payment.”


10 State Farm does not specify in its answer whether its sixth affirmative defense raises intentional or negligent misrepresentation. In response to counterclaim-defendants’ motion, however, State Farm argues that this affirmative defense is “part and parcel” of the “same fraudulent scheme pled in detail throughout the Answer.” (Countercl.-pl.’s Mem. L. Opp’n Countercl.-defs.’ Mot. Dis. at 3.) Because State Farm concedes that this affirmative defense


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