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Louisiana 9(b)–Look Where We Have Come

U.S. ex rel. Brinlee v. AECOM Government Services, Inc., Civil Action No. 2:04-cv-310 (W.D. La. Apr. 25, 2007).  The district court required a repleading to meet Rule 9(b) standards.  Plaintiff attached two documents to the SAC and the court dismissed under Rule 9(b) because “[t]hese exhibits do not prove that the first inventory was never conducted or that the government was billed therefore.”  (emphasis added).  We are now proving things or, as in this case, not disproving the affirmative defense that the defendant alluded to in its Rule 9(b) brief (innocent mistake or negligence rather than fraud), but which was probably never pled because no answer was filed.
In my view, taking all inferences in the light most favorable to dismissal, intent does not have to be pled with specificity and is inherently a jury issue.  Look where we have come.