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(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.”).


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