Recently, we successfully won summary judgment, dismissing two fraud claims after the opposing party attempted to change their fraud theory at summary judgment.[1] The basis for our win was Rule 9(b), which requires any claims constituting fraud or mistake must be “state[d] with particularity.”[2] Parties are responsible for pleading, at a minimum, the “who, what, when, where, and how of the events at issue.” After doing so, they cannot present an entirely different “who, what, when, where, and how at summary judgment after they failed to find evidence for their original fraud claims.”[3]
To understand why a party cannot suddenly change its fraud claim on summary judgment, one need only consider the reasoning behind the heightened pleading standard. First, requiring parties to provide clear details of their allegations provides defendants with proper notice in order to defend against such allegations.[4] Heightened pleading standards also help protect against the unique reputational damage of fraud claims.[5] Also, due to the nature of fraud claims often being brought against wealthy organizations and individuals, heightened pleading standards help prevent frivolous litigation “brought to extract settlements.”[6]
So, if that’s the standard before a case even starts, why would the courts allow changing the fraud theory for the first time after the close of evidence? Put simply, without a motion for leave to amend, they don’t. “Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit.”[7] Parties are not allowed to change their theories of liability in an opposition to a motion for summary judgment,, not even from one fraud claim to another type of unpled fraud claim.[8] To allow a party to proceed on new, unpled theories after the close of discovery would entirely counteract the objectives of the heightened pleading standards a court cannot “examine facts supporting theories [a party] failed to plead.”[9] It would allow plaintiffs to introduce new, damaging fraud claims without providing the defendant with proper notice to defend them. Thus, the basis for any claims must be raised in the complaint and cannot be raised for the first time in opposition to a motion for summary judgment.[10]
Fraud claims require heightened pleadings and sophisticated counsel to survive the pleading stages. But all too often, parties fail to develop their actual theories in discovery. Instead of seeking to amend their pleadings, they try a new theory on summary judgment. Courts are clear that this strategy will fail.
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[1] Research and drafting assistance provided by Lindsey Broda and Keaton M. Wenz, former law clerks at Eckland & Blando LLP.
[2] Fed. R. Civ. Pro. 9(b).
[3] In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 217 (3d Cir. 2002) (internal quotations omitted).
[4] Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997)).
[5] Id.
[6] Id.
[7] Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (internal quotations omitted).
[8] See, e.g., Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 76 (1st Cir. 2016); Calvi v. Knox Cnty., 470 F.3d 422, 431 (1st Cir. 2006) (stating that a party is “not entitled to raise new and unadvertised theories of liability for the first time in opposition to a motion for summary judgment”); Martinez v. Petrenko, 792 F.3d 173, 178 (1st Cir. 2015) (same).
[9] Fed. R. Civ. Pro. 9(b); see In re WB Bridge Hotel, 671 B.R. 887, 903 (Bankr. S.D.N.Y. 2025) (“‘[G]eneral allegations are insufficient’ to plead fraud….” (quoting In re Eight-115 Assocs., LLC, 650 B.R. 43 (Bankr. S.D.N.Y. 2023))); Davis v. Deutsche Bank Nat’l Tr. Co., No. CV 12-11738-JCB, 2015 WL 12778369, at *3 n.26 (D. Mass. Aug. 4, 2015.
[10] Aja v. Ocwen Loan Servicing, LLC, No. CV 16-10007-FDS, 2017 WL 5900961, at *7 (D. Mass. Nov. 30, 2017), aff’d, 754 F. App’x 13 (1st Cir. 2019) (citing Clegg v. Butler, 424 Mass. 413, 423 (1997) and quoting Calvi v. Knox County, 470 F.3d 422, 431 (1st Cir. 2006)).