This section contains the nature of the case and procedural background.

P filed a complaint against for three counts. The third alleged that D fraudulently induced P to continue to provide labor and material when D actually intended to terminate the subcontract without cause and without making payment for amounts already due, at a time when P's work was essentially complete. D filed a motion to dismiss the third count for failure to allege fraud with particularity. P responded by filing an amended pleading on 3 January 1986. The amended complaint set forth essentially the same allegations. P alleged that during the 'spring or summer of 1985,' Ds through their 'agents and employees' represented that P would be paid for all of its work under the subcontract. The amended pleading described for the first-time Ds as having previously 'secretly determined' to wrongfully terminate the subcontract, whereas the original complaint referred to a prior 'scheme or device' to effect such wrongful termination.

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