(Id. at 22.) Counterclaim-defendants argue that neither affirmative defense satisfies Rule 9(b).
Pursuant to Rule 9(b), parties must plead with particularity whenever alleging
fraud—including allegations of fraud contained in an affirmative defense. Fed. R. Civ. Pro. 9(b);
see, e.g., Precimed S.A. v. Orthogenesis, No. 04-1842, 2005 WL 991277, at *1 (E.D. Pa. Apr. 25,
2005). Here, both affirmative defenses fail to incorporate the counterclaim’s averments and both
fail to independently plead fraud or intentional misrepresentation with the requisite particularity.
Specifically, although the second affirmative defense is similar to State Farm’s counterclaim, it
does not contain the same degree of precision. For example, as in its counterclaim, the second
affirmative defense lists seventeen reimbursement requests. (Answer at 18, ¶ 6.) However,
unlike the counterclaim wherein State Farm asserted that the requests contained charges for
medical procedures that were not performed, the affirmative defense states more broadly that the
requests sought reimbursement for procedures that “[were] not provided, not provided for the
medical necessity and/or benefit to the patient, misrepresented, not reimbursable under applicable
law, and/or not provided pursuant to applicable law . . . .” As I discussed above, this language is
too imprecise to satisfy Rule 9(b). Likewise, in its sixth affirmative defense, State Farm merely
asserts that Allied made misrepresentations regarding treatment. This assertion does not describe
the “general content of the misrepresentation” and therefore does not satisfy the particularity
requirements of Rule 9(b). Lum, 361 F.3d at 224.
Nonetheless, when viewing State Farm’s pleading liberally, because State Farm
relies on fraud and intentional misrepresentations, I must apply Rule 9(b). See McCracken v. Ford Motor Co., 588 F. Supp. 2d 635, 644 (E.D. Pa. 2008) (“Rule 9(b) requires a plaintiff to use specificity in pleading intentional misrepresentation in order to give defendants sufficient notice of the claims against them.”).