Perhaps the closest the federal rules gets to the old code
pleading standards is the 9(b) requirement that fraud be plead with
particularity. This is a balancing act between "notice pleading" which requires
a "short and plain statement" (CR 8(e)) and the code pleading requirement of
"ultimate facts." Haberman v WPPSS, 109 Wn.2d 107, 166, 744 P.2d 1032
(1987) described Washington law on CR 9(b):
CR 9(b) requires dismissal when a complaint fails to
plead fraud with particularity. CR 9(b), like its federal counterpart, Fed.
R. Civ. P. 9(b), ensures that plaintiffs seek redress for a wrong rather
than use lawsuits as pretexts to discover unknown wrongs, protects
defendants from unnecessary harm to their reputation, and gives defendants
sufficient notice to enable them to prepare a defense. See D & G Enters.
v. Continental Ill. Nat’l Bank & Trust Co., 574 F. Supp. 263, 266-67
(N.D. Ill. 1983); Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.
1985). The complaining party must plead both the elements and circumstances
of fraudulent conduct. 3A L. Orland, Wash. Prac. 129 (3d ed. 1980). Applying
CR 9(b) in light of CR 8(a), which requires a “short and plain statement of
the claim showing that the pleader is entitled to relief”, a complaint must
allege specific fraudulent acts, but need not plead evidentiary matters. See
D & G Enterprises, at 267; Trak Microcomputer Corp. v. Wearne
Bros., 628 F. Supp. 1089, 1092 (N.D. Ill. 1985); Somerville v. Major
Exploration, Inc., 576 F. Supp. 902, 909 (S.D.N.Y. 1983).
To determine whether allegations of fraud satisfy CR
9(b), the court will consider only the complaint, and not additional
allegations made in the briefs. See Beck v. Cantor, Fitzgerald & Co.,
621 F. Supp. 1547, 1552 (N.D. Ill. 1985). A complaint adequately alleges
fraud if it informs the defendant of who did what, and describes the
fraudulent conduct and mechanisms. Beck, at 1552 n.3; Lewis v.
Berry, 101 F.R.D. 706, 708-09 (W.D. Wash. 1984). If a complaint provides
this information, then group conduct may be pleaded generally because the
defendants have sufficient information to answer the allegations. In re
Equity Funding Corp. of Am. Sec. Litig., 416 F. Supp. 161, 181 (C.D.
Cal. 1976). “[W]hen a plaintiff sues individual group members on the basis
of the collective product of the group, specific allegations about the role
of each defendant are unnecessary.” In re Consumers Power Co. Sec. Litig.,
105 F.R.D. 583, 593 (E.D. Mich. 1985).
