The debtor-defendants filed a chapter 7 bankruptcy on April 17, 1990. The initial date for filing objections to discharge was July 23, 1990. On two occasions the debtors and the F.D.I.C. stipulated to extension of time for the filing of dischargeability complaints. The F.D.I.C. filed a dischargeability complaint on August 17, 1990, the last day of the extensions.

       The F.D.I.C.'s complaint contains a general recital setting forth a number of debts owed by the defendants to the F.D.I.C.'s predecessors. It then contains four separate " causes of action." Each cause simply reiterates portions of the statutory language of 11 U.S.C. § 727. Cause one reiterates § 727(a)(2); cause two reiterates § 727(a) (3); cause three reiterates §         1 ABR 227  727(a)(4); cause four reiterates § 727 (a) (5) . Other than a listing of the debts set forth in the introductory pleading, the F.D.I.C.'s complaint is devoid of any specific factual allegations. The " causes of action" are conclusory allegations which simply mirror the statute.

       The defendants have moved to dismiss the complaint upon the grounds that the complaint fails to state a claim upon which relief can be granted in accordance with Bankruptcy Rule 7008, and Rule 8(c)(2) of the Federal Rules of Civil Procedure. Additionally, defendants allege that the complaint fails to allege fraud with the specificity required of Bankruptcy Rule 7009 and Rule 9(b) of the Federal Rules.

       Causes two (§ 727(a)(3)--failure to keep records) and four (§ 727(a) (5)--failure to explain loss of assets) state claims for relief. Retaha v. Apartment, Motel, Hotel and El. Op. U., Loc. No. 14, 453 F.2d 1018 (9th cir. 1972).

        The obstacles to affirmance of a dismissal on this ground are formidable." [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L. Ed.2d 80 (1957). Dismissal for insufficiency as a pleading is proper only when the complaint affirmatively discloses " some insuperable bar to relief." Wright, Federal Courts 286 (1963). See Harmon v. Valley National Bank, 339 F.2d 564 (gth Cir. 1964), and authorities there cited. Mere vagueness or lack of detail will not justify dismissal. Id. at 567.

        1 ABR 228 

        In Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L. Ed.2d 21 (1970), the Supreme Court sustained a complaint that alleged violation of the duty of fair representation only in general and conclusory terms.^(7.) The Court said (27, 90 S.Ct. 772):

        "Although the complaint was not as specific with regard to union discrimination as might have been desirable, we deem the complaint against the union sufficient to survive a motion to dismiss. As the Court of Appeals indicated, ' where the courts are called upon to fulfill their role as the primary guardians of the duty of fair representation,' complaints should be construed to avoid dismissals and the plaintiff at the very least 'should be given the opportunity to file supplemental pleadings unless it appears " beyond doubt" that he cannot state a good cause of action.'"

        Measured by these generous standards, the allegations of the present complaint relating to breach of the union's duty of fair representation were adequate to withstand a motion to dismiss.

       The fraud causes (cause one and cause three) are insufficient and subject to dismissal. They fail to contain the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. Conclusory allegations of fraud are insufficient without statements of the time, place and nature of the alleged fraudulent activities. Moone v. Kayport Package Exp.. In G., 885 F.2d 531 (9th Cir. 1989).

        The defendants seek to have the complaint dismissed without leave to refile. The statute of limitations would then intervene and the defendants could avoid a fraud trial altogether. Such a harsh result is not warranted by the facts of this case, nor are the leading decisions on " relation back" under Federal Rule 15(c) in accord with the defendants' position. Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574 (1945); Eichman v. Fotomat Corp., 880 F.2d 149 (9th Cir. 1989); Santana v. Holiday Inns, Inc., 686 F.2d 736 (9th Cir. 1982); Stewart v. United States, 620 F.2d 740 (9th Cir. 1980); Rural Fire Protection Company v. Hepp, 366 F.2d 355 (9th Cir. 1966); In re Gunn, 111 B.R. 291 (Bankr. 9th Cir. 1990); In re Enalander, 92 B.R. 425 (Bankr. 9th Cir. 1988).

        The cases of In re Dean, 11 B.R. 542 (9th Cir. 1981) and In re Mufti, 61 B.R. 514 (Bankr. C.D. Cal. 1986) cited by the         1 ABR 230  debtors are not persuasive. In both instances, the creditor Sought to substantially change the nature of the original complaint and the court denied such amendment. That is not the case here. In accordance with In re Potter, 88 B.R. 843 (Bankr. N.D. Ill. 1988) and Matter of Schwartzman, 63 B.R. 348 (Bankr. S.D. Ohio 1986), I will treat the motion to dismiss as a motion for more definite statement as to the whole of the complaint and grant the defendants' motion to dismiss as to causes two and four unless the plaintiff files an amended complaint upon all four causes of action containing specific factual allegations, within ten (10) days.

       DATED:    November 20, 1990.

DONALD MacDONALD IV
United States Bankruptcy Judge

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