Full opinion text
OPINION AND ORDER MELINDA HARMON, District Judge. Pending before the Court in the above referenced cause, transferred to this Court from the Southern District of Ohio by the Judicial Panel on Multidistrict Litigation for coordinated or consolidated pretrial proceedings in MDL 1446, is the Outside Directors’ motion to dismiss with prejudice the Amended Complaint and conditional motion to reopen discovery (# 186). Counsel for the Outside Directors, Kathy Patrick, informed the Court by a letter dated April 23, 2007, that the motion is fully briefed and ready for a decision. The motion was also included in the Notice of Master List of Motions Not Affected By Fifth Circuit Ruling Regarding Section 10 Liability (# 5656), which was submitted by Gibbs & Bruns after conference with all parties, to indicate that the Court could address it at this time. As a threshold matter, there is-some uncertainty whether the amended complaint attached as an exhibit to Plaintiffs’ September 11, 2005 motion for leave to amend (Ex. A to # 56) or the Amended Complaint filed on August 17, 2006(# 97), after the Court certified a class in Newby and established a schedule for all other actions, is the governing pleading. Because the claims in both complaints are the same against the Outside Director Defendants, and because the Outside Directors have referenced the key allegations in both complaints simultaneously, there is no prejudice to them either way. Moreover, in view of efficiency and fairness, the Court concludes that the second, # 97, shall be deemed the controlling complaint; thus it will summarize the relevant facts and cite the relevant paragraphs for resolving the motion to dismiss. Plaintiffs Public Employees’ Retirement System of Ohio (“PERS”), State. Teachers’ Retirement System of Ohio (“STRS”), School Employees Retirement System of Ohio (“SERS”), Ohio State Highway Patrol Retirement System (“OHPRS”), Ohio Tuition Trust Authority (“OTTA”), and Cincinnati Retirement System (“Cincinnati”), collectively the “Ohio Retirement Systems,” have alleged three causes of action against the Outside Directors arising out of the collapse of Enron Corporation (“Enron”): (1) Count V for negligent misrepresentation; (2) Count VI for aiding and abetting common law fraud; and (3) Count IX for violations of Section 18 of the Securities Exchange Act of 1934, 15 U.S.C. § 78r. I. Standards of Review As stated in 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Civ.3d § 1204 at 104-05 (West 2004), The manner and details of pleading in the federal courts are governed by the Federal Rules of Civil Procedure regardless of the source of substantive law to be applied in the particular action.... It no longer can be doubted that the rules regarding the standard of specificity to be applied to federal pleadings, the pleadings allowed in the federal courts, the form of the pleadings, the special requirements for pleading certain matters, the allocation of the burden of pleading among the parties, and the signing of pleadings by an attorney of record or an unrepresented party, all are governed by the federal rules and not by the practice of the courts in the state in which the federal court happens to be sitting. See also In re Enron Corp. Sec., Derivative & “ERISA" Litig., 388 F.Supp.2d 780, 783-84 (S.D.Tex.2005) (and cases cited therein). A. Rule 9(b) Federal Rule of Civil Procedure 9(b) provides, In' all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person must be averred generally. “In every case based upon fraud, Rule 9(b) requires the plaintiff to allege as to each individual defendant ‘the nature of the fraud, some details, a brief sketch of how the fraudulent scheme operated, when and where it occurred, and the participants.’ ” Hernandez v. Ciba-Geigy Corp. USA 200 F.R.D. 285, 291 (S.D.Tex.2001). In a securities fraud suit, the plaintiff must plead with particularity the circumstances constituting the alleged fraud: Rule 9(b) requires the plaintiff to “ ‘specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.’ ” Southland Securities Corp. v. INSpire Ins. So lutions, Inc., 365 F.3d 353, 362 (5th Cir.2004), quoting Williams v. WMX Technologies, Inc., 112 F.3d 175, 177-78 (5th Cir.1997), cert. denied, 522 U.S. 966, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997). “ ‘In cases concerning fraudulent misrepresentation and omission of facts, Rule 9(b) typically requires the claimant to plead the type of facts omitted, the place in which the omissions should have appeared, and the way in which the omitted facts made the representations misleading.’” Carroll v. Fort James Corp., 470 F.3d 1171, 1174 (5th Cir.2006), quoting United States ex. rel. Riley v. St. Luke’s Hosp., 355 F.3d 370, 381 (5th Cir.2004). Although Rule 9(b) allows a plaintiff to plead intent to deceive or defraud generally, a mere conclusory statement that the defendant had the required intent is insufficient; the plaintiff must set forth specific facts that raise an inference of fraudulent intent, for example, facts that show the defendant’s motive. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1068 (5th Cir.1994) (“Although scienter may be averred generally, case law amply demonstrates that pleading scienter requires more than a simple allegation that a defendant had fraudulent intent. To plead scienter adequately, a plaintiff must set forth specific facts that support an inference of fraud.”); Melder v. Morris, 27 F.3d 1097, 1102 (5th Cir.1994). Intent to deceive or defraud usually must be proved by circumstantial evidence, but to establish a material fact, that evidence “ ‘must transcend mere suspicion.’ ” IKON Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 124 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Although a party’s intent to defraud is determined at the time the party made the misrepresentation, “it may be inferred from the party’s subsequent acts after the representation is made.” Id.; see also Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986). The court should not view each piece of circumstantial evidence separately, but should weigh the evidence as a. whole. IKON, 125 S.W.3d at 124. “Intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be given to their testimony.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d at 434. “[Wh]en agency is an element of a fraud claim, agency must be pleaded with particularity required under Rule 9(b).” Whitney National Bank v. Medical Plaza Surgical Center, L.L.P., No. H-06-1492, 2007 WL 400094, *3 (S.D.Tex.2007), citing Kolbeck v. LIT America, Inc., 923 F.Supp. 557, 570 (S.D.N.Y.1996), aff'd, 152 F.3d 918 (2d Cir.1998); American Credit v. HCG Financial Servs., Inc., No. 89 C 9583, 1990 WL 77992, *4 (N.D.Ill. June 1, 1990); Chou v. University of Chicago, 254 F.3d 1347, 1362 (Fed.Cir.2001); Abels v. Farmers Commodities Corp., 259 F.3d 910, 916 (8th Cir.2001); and Lachmund v. ADM Investor Servs., Inc., 191 F.3d 777, 783 (7th Cir.1999). The particularity requirement of Rule 9(b) also governs a conspiracy to commit fraud. Southwest Louisiana Healthcare System v. MBIA Ins. Corp., No. 05-1299, 2006 WL 1228903, *5 & n. 47 (W.D.La. May 6, 2006); Hernandez v. CIBA-GEIGY Corp. USA No. Civ. A. B-00-82, 2000 WL 33187524, *4 (S.D.Tex. Oct. 17, 2000) (“The weight of Fifth Circuit precedent holds that a civil conspiracy to commit a tort that sounds in fraud must be pleaded with particularity.”); In re Ford Motor Co. Vehicle Paint Litigation, No. MDL 1063, 1996 WL 426548, *34 (E.D.La. July 30, 1996); and Castillo v. First City Bancorporation of Texas, Inc., 43 F.3d 953, 961 (5th Cir.1994). The Fifth Circuit, although construing Rule 9(b) strictly, has recognized an exception and permits the requirements to be “relaxed” where facts relating to the fraud are “peculiarly within the perpetrator’s knowledge”; then the alleged fraud “may be pled on information and belief, provided the plaintiff sets forth the factual basis for his belief.” United States ex rel. Russell v. Epic Healthcare Management Group, 193 F.3d 304, 308 (5th Cir.1999), citing United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir.1997) (warning that the exception “must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.”). The relaxed standard is not applicable where the information is available from another source or where the plaintiff fails to allege a factual basis for his beliefs. Sealed Appellant I v. Sealed Appellee I, 156 Fed.Appx. 630, 634 (5th Cir.2005) (plaintiff must allege, sufficient factual basis for his belief defendant committed fraud, e.g., particular documents containing false statements, identified by number, date or otherwise, or explain how he tried, but failed to obtain the information, whom he contacted, etc.). In Benchmark Electronics, Inc. v. J.M. Huber Corp., 343 F.3d 719, 723, modified on denial of rehearing on other grounds, 355 F.3d 356 (5th Cir.2003), the Fifth Circuit commented, “Although Rule 9(b) by its terms does not apply to negligent misrepresentation claims, this court has applied the heightened pleading -requirements when the parties have not urged a separate- focus on the negligent misrepresentation claims. Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir.1977).” The panel continued, where a plaintiffs fraud and negligent misrepresentation claims in its complaint “are based on the same set of alleged facts,” the heightened pleading requirements of Rule 9(b) should apply to the negligent misrepresentation allegations. Id. Subsequently, in an unpublished opinion, the Fifth Circuit clarified its ruling in Benchmark Electronics. Judge Dennis, writing for a unanimous panel, recognized that “Rule 9(b) is an exception to the liberal federal court pleading requirements embodied in Rule 8(a)” and that its “stringent pleading requirements should not be extended to causes of actions not enumerated therein”; thus where plaintiffs clearly set out and distinguish separate claims for fraud and for negligent misrepresentation, the “negligent misrepresentation claims are only subject to the liberal pleading requirements of Rule 8.” American Realty Trust, Inc. v. Hamilton Lane Advisors, Inc., 115 Fed.Appx. 662, 668 (5th Cir.2004). See also General Electric Capital Corp., 415 F.3d 391, 396-97 (5th Cir.2005) (“Other than in the situations expressly enumerated in rule 9(b), e.g., allegations of actual fraud, plaintiffs must satisfy only the minimal requirements of rule 8(a).”). See also SMI-Owen Steel Co., Inc. v. St. Paul Fire & Marine Ins. Co., Nos. Civ. A.G 00 149, G 01 CV 627, 2006 WL 581266, *1 (S.D.Tex. Mar. 7, 2006) (Froeschner, Magistrate J.) (“In the opinion of this Court there has been no intervening change in controlling law.”) (discussing Benchmark and American Realty). Subsequently Judge Godbey of the Northern District of Texas issued an opinion construing Benchmark, Williams, Shushany, and other key Fifth Circuit cases. American Realty Trust, Inc. v. Travelers Cas. and Sur. Co. of America, 362 F.Supp.2d 744, 749-52 (N.D.Tex.2005). Rejecting the argument that under Fifth Circuit law in Benchmark, Rule 9(b) automatically applies when the claim for negligent misrepresentation is based on the same set of operative facts as fraud claims, Judge Godbey held that “Rule 9(b) operates to require dismissal of a negligent misrepresentation claim only when (1) a plaintiff waives arguments to the contrary or (2) the inadequate fraud claim is so intertwined with the negligent misrepresentation claims that it is not possible to describe a simple redaction that removes the fraud claim while leaving behind a viable negligent misrepresentation claim.” Id. at 749, 752. He pointed to Melder v. Morris, 27 F.3d 1097/ 1100 n. 6 (5th Cir.1994), holding that Rule 9(b) applies to claims under the Securities Act of 1933 when they are “ ‘grounded in fraud rather than negligence’” and “sometimes operates to require dismissal of a claim for which fraud is not an element, but that a plaintiff has chosen to base upon averments of fraud.” Id. at 750. Judge Godbey also cites Lone Star Ladies Investment Club v. Schlotzky’s Inc., 238 F.3d 363 (5th Cir.2001), which reversed a district court’s dismissal of claims under both the Securities Exchange Act of 1934 and the Securities Act of 1933 because they were based on the same facts and inadequately pled under Rule 9(b). The Fifth. Circuit determined that the complaint adequately stated a claim under the Securities Act of 1933 after the allegations of fraud were disregarded. 362 F.Supp.2d at 750-51, citing Lone Star, 238 F.3d at 368. According to Judge Godbey, Lone Star clarified that Rule 9(b) by its express terms applies not to claims per se, but to “averments” of fraud. If such an averment is inadequate, then the court disregards it when- determining whether a claim is stated. Id. In other words, the inadequate averment is “stripped from the claim.” When fraud is an element of the claim, inadequate averments necessarily result in dismissal. When fraud is not an element, as in the case of negligent misrepresentation, the inquiry is more complicated: One must first disregard inadequate averments of fraud. At that point, Rule 9(b) is no longer relevant. The remaining question is wheth- ' er a negligent misrepresentation claim is stated under the standard notice pleading principals applicable to such claims. Id. at 751. See also Nazareth International, Inc., No. Civ. A. 304CV1265M, 2005 WL 1704793, *3 (N.D.Tex. July 19, 2005) “[T]he rule has emerged that Plaintiffs claim must be dismissed if ‘the inadequate fraud averment is so intertwined with the negligent misrepresentation claim that it is not possible to describe a simple redaction that removes the inadequate fraud averment while leaving behind a viable negligent misrepresentation claim.’ ”, quoting Kougl v. Xspedius Management Co. of Dallas/Fort Worth. LLC, No. Civ. A. 3:04:2518-D, 2005 WL 1421446, *5-6 (N.D.Tex. June 1, 2005); Afshar v. Norwood, No. 3:05-CV-1625-G, ECF, 2005 U.S. Dist. LEXIS 33113, *9-13 (N.D.Tex. Dec. 14, 2005). A dismissal for failure to plead with particularity in accordance with Rule 9(b) is treated as a Rule 12(b)(6) dismissal for failure to state a claim. Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir.1996). If it appears that given an opportunity to amend the pleading, the plaintiff would be able to state a claim upon which relief could be granted, the court should grant leave to amend. People’s Choice Home Loan, Inc. v. Mora, No. 3:06-CV-1709-G, 2007 WL 708872, *4 (N.D.Tex. Mar. 7, 2007), citing Kennard v. Indianapolis Life Ins. Co., 420 F.Supp.2d 601, 608-09 (N.D.Tex.2006). B. Rule 12(b)(6) Dismissal under Rule 12(b)(6) is disfavored and a motion to dismiss under the rule is rarely granted. Lowrey v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir.1997). The court must construe the complaint liberally in favor of the plaintiff and all well pleaded facts must be taken as true and any doubts regarding the sufficiency of the claim must be resolved in favor of the plaintiff. Id.; Jones v. Alcoa, Inc., 339 F.3d 359, 362 (5th Cir.2003). Nevertheless conclusory allegations and unwarranted factual deductions will not suffice to avoid a motion to dismiss. United States ex rel. Willard v. Humana Health Plan of Texas, Inc., 336 F.3d 375, 379 (5th Cir.2003). Under Fed.R.Civ.P. 10(c), “a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Thus documents attached to a complaint are viewed as part of the plaintiffs pleadings. General Electric Capital Corp. v. Posey, 415 F.3d 391, 398 n. 8 (5th Cir.2005), citing inter alia 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1327, at 766 (1990) (“[A] plaintiff may plead himself out of court by attaching documents to the complaint that indicate that he or she is not entitled to judgment.”). Furthermore any documents attached by a defendant to its motion to dismiss that are referred to in the plaintiffs complaint are considered part of the pleadings. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004). Traditionally, dismissal was not proper “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Lowrey, 117 F.3d at 247, citing Conley v. Gibson, 355 U.S. 41, 45-16, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In a recent antitrust case, however, the Supreme Court appears to have modified the Conley rule by inserting a new “plausibility standard,” Bell Atlantic Corporation v. Twombly, — U.S. —, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (7-2), even though the Supreme Court claimed it had not (id. at 1973 n. 14). In Bell Atlantic, the Supreme Court pronounced that the Conley “ ‘no set of facts’ language” test “has earned its retirement” and “is best forgotten.” Bell Atlantic, 127 S.Ct. at 1969, opined that “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions and a formulaic recitation of the elements of a cause of action will not do .... ” 127 S.Ct. at 1964-65. “Factual allegations must be enough to raise a right to relief above the speculative level .... ” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed.2004). The Federal Rules “have not dispensed with the pleading of facts altogether,” but “for most types of cases ..'. [have] eliminated the cumbersome requirement that a claimant ‘set out in detail the facts upon which he bases his claim.’ ” Id. at 1965 n. 3, citing Conley, 355 U.S. at 47, 78 S.Ct. 99. Nevertheless “some factual allegation” is necessary to “satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id., citing 5 Wright & Miller § 1202 at 94, 95 (“Rule 8(a) ‘contemplate^] the statement of circumstances, occurrences, and events in support of the claim presented’ and does not authorize a pleader’s ‘bare averment that he wants relief and is entitled to it’ ”). In reviewing Conley, the Supreme Court concluded, [0]nce a claim has been stated adequately, it may be supported by any set of facts consistent with the allegations in the complaint. Conley, then, described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint’s survival. 127 S.Ct. at 1969. II. Applicable Substantive Law Negligent Misrepresentation Under Ohio common law, the elements of a claim for negligent misrepresentation are as follows: “ ‘One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.’ ” Delman v. City of Cleveland Heights, 41 Ohio St.3d 1, 4, 534 N.E.2d 835, 838 (Ohio 1989), citing inter alia 3 Restatement of Law (Second), Torts § 552(1) at 126-27 (1965). See also In re National Century Financial Enterprises, Inc., 504 F.Supp.2d 287, 295 (S.D.Ohio May 6, 2007) (“Under Ohio law, a person is liable for negligent misrepresentation when: (1) he supplies false information (2) for the guidance of others in their business transactions, (3) causing pecuniary loss to plaintiff, (4) who justifiably relies upon the information, (5) if he fails to exercise reasonable care or competence in obtaining or communicating the information.”); Hamilton v. Sysco Food Services of Cleveland, Inc., 170 Ohio App.3d 203, 208, 866 N.E.2d 559, 562-63 (Ohio App. 8 Dist. 2006) (“[T]he elements for negligent misrepresentation require (1) a defendant who is in the business of supplying information, and (2) a plaintiff who sought guidance with respect to his business transactions from the defendant.”). Thus an actor that fails to exercise reasonable care or competence in supplying the correct information may be liable for negligent misrepresentation under Ohio tort law. Ohio Bureau of Workers’ Compensation v. MDL Active Duration Fund, Ltd., 476 F.Supp.2d 809, 820 (S.D.Ohio 2007), citing Moffitt v. Auberle, 167 Ohio App.3d 120, 854 N.E.2d 222 (2006). Thus “[a] misrepresentation made with an honest belief in its truth may still be negligent because of a lack of reasonable care in ascertaining the facts, or in the manner or expression, or absence of skill and competence required by a particular business or profession.” Id., citing Martin v. Ohio State Univ. Foundation, 139 Ohio App.3d 89, 103-04, 742 N.E.2d 1198 (2000). A claim for negligent misrepresentation under Ohio law cannot be based on omissions or on a failure to do something; it must be based on affirmative statements or acts. Isaac v. Alabanza Corp., No. 05 JE 55, 2007 WL 901596, *7 (Ohio App. 7 Dist.2007), citing Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 149, 684 N.E.2d 1261. Nor can such a claim be based on representations of future action or conduct unless plaintiff can show that at the time the representation was made, the party had no intention of carrying it out. Id. The statute of limitations for a negligent misrepresentation claim in Ohio is four years. Ohio Revised Code (“R.C.”) 2305.09 (general 4-year limitations period for tort actions not expressly covered by other provisions in the Code). Because negligent misrepresentation is not listed as one of the causes of action to which the discovery rule applies under R.C. 2305.09, such a claim accrues when the misrepresentation is made. Orshoski v. Krieger, No. OT-01-009, 2001 WL 1388037, *6 (Ohio App. 6 Dist., Nov. 9, 2001) (“R.C. 2305.09 has not extended the ‘discovery rule’ to toll the statute of limitations in negligent misrepresentation cases.”); Chandler v. Schriml, No. 99AP-1006, 2000 WL 675123 (Ohio App. 10 Dist. May 25, 2000) (“R.C. 2305.09 has not extended the ‘discovery rule’ to toll the statute of limitations in negligent misrepresentation cases.”); Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179, 546 N.E.2d 206 (1989). Aiding and Abetting Common Law Fraud In In re Enron See., Derivative, and “Erisa” Litig., 465 F.Supp.2d 687, 726-28 (S.D.Tex.2006) (#161 in H-02-4788), in the face of conflicting lower court rulings in Ohio, this Court discussed the uncertainty as to whether the Ohio Supreme Court would recognize a cause of action for aiding and abetting fraud. The Court hereby incorporates that portion of its opinion here. The Court allowed the aiding and abetting common law fraud claim to go forward because “it cannot be said conclusively that Ohio law does not recognize such a claim.” Id. at 728. This Court relied in part on the fact that the Sixth Circuit Court of Appeals has concluded that the Supreme Court of Ohio would recognize such a claim. In Aetna Casualty and Surety Co. v. Leahey Construction Co., Inc., 219 F.3d 519, 532-33 (6th Cir.2000), the Sixth Circuit observed that the modern civil cause of action for aiding and abetting is traceable to the Restatement (Second) of Torts § 876(b) (1979) (“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so as to conduct himself____”). “[C]onclud[ing] that the Supreme Court of Ohio would recognize aiding and abetting liability if squarely faced with the issue,” the Sixth Circuit identified as the two elements of such a cause of action “(1) knowledge that the primary party’s conduct is a breach of duty and (2) substantial assistance or encouragement to the primary party in carrying out the tortious act.” Id. at 533. Subsequently in Pavlovich v. National City Bank, 435 F.3d 560, 570 (6th Cir.2006), the Sixth Circuit stated, “The first element requires a showing of ‘actual knowledge,’ or perhaps merely ‘general awareness,’ of the primary party’s wrongdoing.” Id.,citing Aetna Casualty, 219 F.3d at 533-34 (“we find that a person may be held as an aider and abettor only if-some other party has -committed a securities law violation, if the accused party had general awareness that his role was a part of an overall activity that is improper, and if the accused aider-abettor knowingly and substantially assisted the violation, [emphasis in original]”). See also In re National Century Financial Enterprises, Inc., No. 2:03-md-1565, 2007 WL 1362695, at *29. The statute of limitations for fraud in Ohio is four years. RC 2305.09(C). The discovery rule applies. R.C. 2305.09 (“If the action is for fraud, [the cause of action shall not accrue] until the fraud is discovered.”). “The ‘discovery rule’ generally provides that a cause of action accrues for purposes of the governing statute of limitations at the time when the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury.” Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179, 546 N.E.2d 206 (1989); Shover v. Cordis Corp., 61 Ohio St.3d 213, 574 N.E.2d 457 (1991); Bossey v. Al Castrucci, Inc., 105 Ohio App.3d 666, 669, 664 N.E.2d 1301, 1303 (Ct.App. 2 Dist.1995). “It is noteworthy that this standard does not require the victim of the alleged fraud to possess concrete and detailed knowledge, down to the exact penny of damages, of the alleged fraud; rather, the standard requires only facts sufficient to alert a reasonable person of the possibility of fraud.” Palm Beach Co. v. Dun & Bradstreet, Inc., 106 Ohio App.3d 167, 665 N.E.2d 718 (Ohio App. 1 Dist.1995); Investors REIT One, 46 Ohio Std.3d at 179, 546 N.E.2d at 209. Violation of Section 18 of the Securities Exchange Act of 1934 Section 18, 15 U.S.C. § 78r, provides an explicit private right of action to investors for damages arising from the purchase or sale of a security in actual reliance upon a false or misleading statement contained in any document or report filed with the SEC in compliance with the Exchange Act: Any person who shall make or cause to be made any statement in any application, report, or document filed pursuant to this chapter or any rule or regulation thereunder or any undertaking contained in a registration statement as provided in subsection (d) of section 78o of this title, which statement was at the time and in light of the circumstances under which it was made false or misleading with respect to any material fact, shall be liable to any person (not knowing that such statement was false or misleading) who, in reliance upon such statement, shall have purchased or sold a security at a price which was affected by such statement, for damages caused by such reliance, unless the person sued shall prove that he acted in good faith and had no knowledge that such statement was false or misleading. A person seeking to enforce such liability may sue at law or in equity in any court of competent jurisdiction, In any such suit the court may, in' its discretion, require an undertaking for the payment of the costs of such suit, and assess reasonable costs, including reasonable attorneys’ fees, against either party litigant. Thus to state a claim under § 18, the plaintiff must plead that (1) a document filed pursuant to the Exchange Act, or any rule or regulation promulgated under it, contained a false or misleading statement; (2) the defendant made or caused to be made the false or misleading statement; (3) the plaintiff actually relied on the false statement; and (4) that reliance caused loss to the plaintiff. In re Stone & Webster, Inc. Sec. Litig., 414 F.3d 187, 193 (1st Cir.2005); Deephaven Private Placement Trading, Ltd. v. Grant Thornton & Co., 454 F.3d 1168, 1171 (10th Cir.2006). There is no requirement of scienter. The statute imposes liability not only on the issuer or other person filing the document with the SEC, but also on “any person who shall make or cause to be made” any misstatement or omission in “any application, report or document filed”; thus liability many be imposed on the issuer’s officers and directors, in particular those who sign the filed documents. See, e.g., Kramer v. Scientific Control Corp., 452 F.Supp. 812, 817 (E.D.Pa.1978) (denying motion to dismiss § 18 claims against two persons who were directors on the effective date of misleading registration statement); F.N. Wolf & Co., Inc. v. Estate of James W. Neal, No. 89. Civ. 1223(CSH), 1991 WL 34186, *8-9 (S.D.N.Y. Feb. 25, 1991) (An inside or outside director who signs a document filed with the SEC “ ‘make[s] or causes to be made’ the statements contained therein” and is subject to liability under § 18), citing and quoting Kramer v. Scientific Control Corp., 452 F.Supp. 812, 817 (E.D.Pa.1978) (“By their own affidavits, Weatherford and Ellis admit they were directors of Scientific on October 31, 1968, the effective date of the registration statement. This fact alone, if proved, would subject each to liability based upon § 18.”). In Howard v. Everex Systems, Inc., 228 F.3d 1057, 1061 (9th Cir.2000), the Ninth Circuit followed the lead of the SEC, which had filed an amicus curiae brief in the case, in concluding that a corporate official ... who, acting with scienter, signs a SEC filing containing misrepresentations, ‘make[s]’ a statement so as to be liable as a primary violator under § 10(b). Section 18, unlike § 10(b), does not require a showing of scienter. Furthermore, the rationale of Howard supports imposition of liability under § 18 on directors who sign the corporation’s Forms 10-K. The panel, noting that Central Bank prohibited § 10(b) causes of action against aiders and abettors, found that “by placing responsibility in corporate officers to ensure the validity of corporate filings, investors are further protected from misleading information”; it thus opined, There is a significant difference, however, between mere participation in a scheme to misrepresent and those directly attesting to the truth of a statement by making (in the ordinary sense) that very statement. By standing behind a statement, the public assumes that they can trust the word of the maker of that statement.... Key corporate officers should not be allowed to make important false financial statements knowingly or recklessly, yet still shield themselves from liability to investors simply by failing to be involved in the preparation of those statements. Id. at 1061-62. See also In re Reliance Securities Litig., 135 F.Supp.2d 480, 503 (D.Del.2001) (following Howard and holding that two directors who “had adequate opportunity to review the allegedly misleading documents” and who signed SEC-filed documents for the corporation, “made statements under § 10(b)”); In re Enron Corp. Sec., Derivative & “ERISA” Litig., 258 F.Supp.2d 576, 587-88 (S.D.Tex.2003); RK Co. v. Harvard Scientific Corp., No. 99 C 4261, 2007 WL 924737, *16 (N.D.Ill. Mar. 23, 2007) (citing F.N. Wolf). While some courts have not decided whether Rule 9(b) applies to § 18 claims, most Circuit Courts of Appeals have concluded that the Private Securities Litigation Reform Act (“PSLRA”), 15 U.S.C. section 78u-4(b)(l), does apply to such claims. See, e.g., Deephaven Private Placement Trading Ltd., 454 F.3d 1168, 1172 (10th Cir.2006); Stone & Webster, 414 F.3d at 194; Teachers’ Retirement System of LA v. Hunter, 477 F.3d 162, 188 (4th Cir.2007). The Fifth Circuit not only applies the PSLRA, but has held that “the PSLRA’s pleading requirements incorporate Rule 9(b)’s fraud-pleading standard.” Financial Acquisition Partners, L.P. v. Black well, 440 F.3d 278, 287 (5th Cir.2006), citing ABC Arbitrage v. Tchuruk, 291 F.3d 336, 348, 350 (5th Cir.2002). In accord Stone & Webster, 414 F.3d at 195 (“The PSLRA’s elarity-and-basis requirement [that a complaint must allege facts that show exactly why the statements or omissions were misleading] is closely related to the requirement of Federal Rule of Civil Procedure 9(b) that in all ‘averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.’ We have observed that the PSLRA’s pleading standard is ‘congruent and consistent’ with pre-existing Rule 9(b) pleading standards in this Circuit.”). Thus while Section 18 requires a plaintiff to plead that “the defendant made a statement of material fact that was false at the time and in light of the circumstances under which it was made,” the PSLRA further requires that the complaint “specify (1) each statement alleged to have been misleading, (2) the reason why the statement is misleading, and (3) if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” Deephaven Private Placement, 454 F.3d at 1173, citing 78u-4 (b)(1) and Stone & Webster, 414 F.3d at 194, 214-15 (designating the standards as the “clarity-and-basis requirements”); Teachers’ Retirement System of LA v. Hunter, 477 F.3d 162, 188 (4th Cir.2007). Moreover, application of the heightened pleading standards of Rule 9(b) by courts in the Fifth Circuit, at least to averments that-sound in fraud, in other causes in which fraud is not a required element, persuades the Court that it would do so here. Melder, 27 F.3d at 1100 n. 6; Lone Star, 238 F.3d at 367-68; Benchmark, 343 F.3d at 723; Nazareth International, 2005 WL 1704793, *3; Afshar, 2005 U.S. Dist. LEXIS 33113, *9-13. See also In re Suprema, 438 F.3d at 270 (as with claims under Section 18, in pleading claims under Sections 11 and 12 of the 1933 Act, 15 U.S.C. §§ 77k(b)(3) and 771(a)(2) respectively, essentially strict liability statutes that do not require a showing of scienter and can be grounded in fraud or negligence, where the plaintiff grounds them in allegations of fraud the heightened requirements of Rule 9(b) apply; where the claims are not grounded in allegations of fraud, the liberal notice pleading requirements of Rule 8 apply); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1223 (1st Cir.1996); In re Tyco Internat’l, Ltd., NDL No. 02-md-1335-PB, Civ. No. 04-cv-1446-PB, 2007 WL 1687775, *7 (D.N.H. July 11, 2007). “Whether a Securities Act claim is subject to Rule 9(b) requires an assessment of the particular claim to determine whether acts of fraud on the part of the defendants form the basis for the claim against them.” In re Suprema, 438 F.3d at 270. A plaintiff bringing a claim under section 18 has a significantly lighter burden of proof than a plaintiff suing under § 10(b) of the Securities Exchange Act: in particular, as noted, he does not have to plead facts showing a strong inference of scien-ter. Stone & Webster, 414 F.3d at 193, 202 (the burden of pleading state of mind “is shifted. The defendant may rebut liability by proving that he or she ‘acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.’ ”) (citing 15 U.S.C. section 78t(a)); Deephaven Private Placement, 454 F.3d at 1172 (section 18 involves defendants who violated the securities laws with scienter, but plaintiff is not required to plead scienter; instead state of mind is a defense for the plaintiff to prove that he acted in good faith and did not know that the statement at issue was false or misleading), citing Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 296, 113 S.Ct. 2085, 124 L.Ed.2d 194 (1993); In re Stone & Webster, Inc. Sec. Litig., 414 F.3d 187, 193 (1st Cir.2005); Magna Investment Corp. v. John Does One Through Two Hundred, 931 F.2d 38, 39-40 (11th Cir.1991); McGann v. Ernst & Young, 102 F.3d 390, 395 (9th Cir.1996); Ross v. A.H. Robins Co., Inc., 607 F.2d 545, 555-56 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980). Nevertheless a plaintiff is required to plead, with particularity, actual reliance, as opposed to constructive or presumed reliance or reliance based on the fraud-on-the-market theory. See In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 283-84 (3d Cir.2006), citing Heit v. Weitzen, 402 F.2d 909, 916 (2d Cir.1968); Howard v. Everex Sys., 228 F.3d 1057, 1063 (9th Cir.2000); In re Redback Networks, Inc. Sec. Litig., No. C03-5642JF(HRL), 2007 WL 963958, *7 (N.D. Mar. 30, 2007); Witriol v. Conexant Systems, Inc., No. CIV. A 04-6219 SRC, 2006 WL 3511155, *7 (D.N.J. Dec. 4, 2006); In re Marsh & Mclennan Companies, Inc., 501 F.Supp.2d 452, 493 (S.D.N.Y.2006). The Fourth Circuit has rejected cursory pleading of the actual reliance element and has required that plaintiffs “plead facts probative of their actual rebanee on any specific false statements contained in those filings” and “allege a causal connection between the sale of a security and ‘reliance upon a false statement’ in a report filed with the SEC.” Id. at 284; in accord In re Suprema Specialties, 438 F.3d at 284. Section 78r(c) contains an express statute of limitations: “No action shall be maintained to enforce any liability created under this section unless brought within one year after the discovery of the facts constituting the cause of action and within three years after such cause of action accrued.” Because of this provision and because the statute does not require the pleading and proving of scienter and thus covers negligence and strict liability claims, this Court has held that the extended (2 year/5 year) statute of limitations in section 804 of the Sarbanes-Oxley Act of 2002, 28 U.S.C. § 1658(b), which only “ ‘applies to private rights of action involving claims of fraud, deceit, manipulation or contrivance,’ ” does not apply to § 18. In re Enron, 465 F.Supp.2d at 711-13 (# 161 at 50-51 in H-02-4788). Moreover, as this Court discussed in # 161 at 51-54 (465 F.Supp.2d at 713-14), In federal securities claims, the statute of limitations begins to run when the plaintiff has actual knowledge of the facts giving rise to his claims or has notice of facts that in the exercise of reasonable due diligence should have known of the alleged wrongdoing. In re Dynegy, Inc. Sec. Litig., 339 F.Supp.2d 804, 845 (S.D.Tex.2004), citing inter alia Jensen v. Snellings, 841 F.2d 600, 607 (5th Cir.1988). “Storm warnings” is a term used to denote circumstances which trigger a plaintiffs duty to inquire because they suggest to an investor of ordinary intelligence that he has been injured. Id. at 846; see also Margolies v. Deason, 464 F.3d at 553-54 (“whether the plaintiff ‘by exercise of reasonable diligence,’ should have learned of facts placing him on notice of his claim ... is commonly referred to as inquiry notice.”), citing Jensen v. Snellings, 841 F.2d 600, 607 (5th Cir.1988) (plaintiffs cannot ignore “storm warnings” that would alert a reasonable investor to the possibility of fraudulent statements or omissions in his securities transaction). Although there is disagreement among courts as to exactly what constitutes a storm warning or inquiry notice, “ ‘the facts relied upon to support inquiry notice must rise to a level of more than mere suspicion; they must instead be ‘sufficiently confirmed or substantiated’ to a point at which the victims are incited to investigate.’” Id., quoting Ritchey v. Horner, 244 F.3d 635, 640-41 (8th Cir.2001), in turn quoting Fujisawa Pharmaceutical Co., Ltd. v. Kapoor, 115 F.3d 1332, 1335 (7th Cir.1997). In addition, the information involved must “ ‘be such that it relates directly to the misrepresentations and omissions the [p]laintiffs later allege in their action against the defendants.” Id., citing Newman v. Warnaco Group, Inc., 335 F.3d 187, 193 (2d Cir.2003). Because a determination of when a plaintiff is on inquiry notice depends upon the facts and because courts may weigh such matters differently, such a decision is often inappropriate under Rule 12(b)(6) review. Dynegy, 339 F.Supp.2d at 846, citing Marks v. CDW Computer Centers, Inc., 122 F.3d 363, 367 (7th Cir.1997); see also Margolies v. Deason, 464 F.3d at 553-54 (“The fact-intensive inquiry is typically appropriate for consideration by a jury.”) (applying same analysis to Texas blue sky law claims as federal securities law claims), citing Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 740 (1944) (“Unless the evidence is such that reasonable minds may not differ as to its effect, the question as to whether a party has exercised diligence in discovering fraud is for the jury.”). There are, nevertheless, circumstances where á plaintiff is on inquiry notice as a matter of law: Where ... the facts needed for determination of when a reasonable investor of ordinary intelligence would have been aware of the existence of [wrongdoing] can be gleaned from the complaint and papers such as the- prospectuses and .disclosure forms that are integral to the complaint, resolution of the issue on a motion to dismiss is appropriate. Dynegy, 339 F.Supp.2d at 847, quoting Dodds v. Cigna Securities, Inc., 12 F.3d 346, 352 n. 3 (2d Cir.1993), cert. denied, 511 U.S. 1019, 114 S.Ct. 1401, 128 L.Ed.2d 74 (1994). The Dynegy court pointed out that the Second Circuit has determined the issue of notice in a large number of cases on a motion to dismiss. Id., citing In re WorldCom Inc. Sec. Litig., 294 F.Supp.2d.431, 445 (S.D.N.Y.2003). It is however a heavy burden for the plaintiff: “Inquiry notice exists only when uncontroverted evidence irrefutably demonstrates when plaintiff discovered or should have discovered the fraudulent conduct.” Id., quoting Nivram Corp. v. Harcourt Brace Jovanovich, Inc., 840 F.Supp. 243, 249 (S.D.N.Y.1993). Outside Directors’ Motion to Dismiss Outside Directors maintain that all three of Plaintiffs’ claims are grounded in fraud because, along with other defendants, they allegedly “participated in the massive fraudulent scheme that Enron perpetrated against the Ohio Retirement Systems and other public investors,” as evidenced by the incorporation of numerous allegations in the complaint into the three causes of action against the Outside Directors; for example Outside Directors purportedly drafted, approved, disseminated and/or ratified materially false and misleading information about Enron Corporation (“Enron”), including SEC filings, while being aware of or recklessly disregarding the falsity of these materials, knowingly or recklessly caused Enron not to consolidate the results of the LJM partnerships on Enron’s financial statements, were aware of the nature and purpose of prepay transactions that were being improperly accounted for to misstate Enron’s financial condition, and aided and abetted fraud by Enron. Amended Complaint (# 97) at ¶¶ 3, 66, 183, 207, 656. Outside Directors contend that because Plaintiffs have incorporated all of their fraud-based allegations into every count of their complaint (“Plaintiffs repeat and reallege the allegations contained in each of the foregoing paragraphs as if fully set forth herein” in Amended Complaint at ¶ 639 re Count V for negligent misrepresentation; at ¶ 654 re Count VI for aiding and abetting common fraud; and at ¶ 669 re Count IX for section 18 of the Exchange Act), Rule 9(b) applies to all of the complaint. Melder, 27 F.3d at 1100 n. 6 (“Plaintiffs maintain that their [non-fraud] claims were inappropriately subjected to the Rule 9(b) heightened pleading standard. This argument is untenable in light of the complaint’s wholesale adoption of the allegations under the securities fraud claims for pwrposes of the [non-fraud] claims. ”) [emphasis added by the Court], Outside Directors next argue that the complaint fails to plead specific facts to comply with Rule 9(b) because the complaint does not identify what alleged misrepresentations were made and when by the Outside Directors. Group-pleaded allegations against “Defendants” or “Individual Defendants,” generally, are not acceptable. Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 365 (5th Cir.2004) (“Consistent with our rejection of the ‘group pleading’ doctrine, we do not construe allegations contained in the Complaint against the ‘defendants’ as a group as properly imputable to any particular individual defendant unless the connection between the individual defendant and the allegedly fraudulent statement is specifically pleaded.”). Once the complaint is stripped of such impermissible group-pleaded statements, argue the Outside Directors, at most only Enron’s Form 10-K statements signed by the Outside Directors might be attributable to any of them. Even then, they object that the complaint fails to allege what the signature of each Outside Director on a Form 10-K actually “states,” no less addresses the contents of the false representations and what the speaker obtained by it, as required by Rule 9(b). Benchmark, 343 F.3d at 724. Because the pleading of none of the three causes of action satisfies the particularity requirements of Rule 9(b), Outside Directors maintain that all three should be dismissed with prejudice. Outside Directors contend that Plaintiffs fail to, and cannot, identify a single misrepresentation by an Outside Director, no less to provide the requisite information about who made the statement, what the statement was, when it was made, why it was misleading or how the Outside Director allegedly knew the statement was misleading when made because the representations were made by Enron’s management or by Enron. Moreover, Enron incorporated into these reports the audit and internal control opinions of Arthur Andersen that also demonstrate that the financial statements were the responsibility of Enron’s management. With respect to the aiding and abetting claim, Outside Directors again point out Plaintiffs’ failure to identify even one fraudulent statement by the Outside Directors or any other Defendants, no less plead with the specificity required by Rule 9(b). Nor have they alleged actual knowledge by any Outside Director of any false or misleading speaker’s role in the fraud. Restatement § 876(b); Aetna Casualty & Surety Co. v. Leahey Const. Co., 219 F.3d at 536. Outside Directors maintain that this Court has already ruled that Plaintiffs are not entitled to an opportunity to amend to cure defects in their pleadings: “Because cases establishing pleading standards for Plaintiffs’ various causes of action were issued long before they filed their motion for leave to amend and proposed amended complaint, and because this Court has issued numerous orders in Newby and the coordinated and consolidated cases addressing pleading requirements, the Court sees no reason to permit Plaintiffs to amend again.” In re Enron, 465 F.Supp.2d at 732 (instrument # 161 in H-02-4788). Furthermore they argue that the pleading is deficient not for lack of resources or information, but because there is no basis for Plaintiffs’ claims. Rosenzweig v. Azurix Corp., 332 F.3d 854, 865 (5th Cir.2003) (affirming denial of leave to amend where “Plaintiffs concede they have not raised any facts which were not available previous to the district court’s opinion.”). Outside Directors also contend that at least some of the claims are time-barred. The § 18 claims are subject to a one-year limitations period and a three-year period of repose. 15 U.S.C. § 78r(c) (“No action shall be maintained to enforce any liability created under this section unless brought within one year after the discovery of the facts constituting the cause of action and within three years after such cause of action accrued.”). This Court has opined, “In federal securities claims, the statute of limitations begins to run when the plaintiff has actual knowledge of the facts giving rise to his claims or has notice of facts that in the exercise of reasonable due diligence should have known of the alleged wrongdoing.” # 161 at 51-52. With respect to such “storm warnings,” “[w]here ... the facts needed for determination of when a reasonable investor of ordinary intelligence would have been aware of the existence of [wrongdoing] can be gleaned from the complaint and papers such as prospectuses and disclosure forms that are integral to the complaint, resolution of the issue on a motion to dismiss is appropriate.” Id. at 53. Outside Directors observe that it is impossible to identify from the complaint what alleged misrepresentations were made and when by them. Id. at 91. They insist that any breach of duty would have to have been based on Enron’s restated financial results, so the facts in the complaint establish that Plaintiffs were on inquiry notice of that restatement no later than November 8, 2001. Amended Complaint at ¶ 417 (“Enron shocked the market when it filed with the SEC a Form 8-K ... revealing that the Company was restating its reported financial results for 1997, 1998, 1999, 2000, and the first two quarters of 2001.”). They highlight Plaintiffs’ allegation that the announced restatements “constitute admission that the representations made in the original financial statements and other financial information contained in the Company’s SEC filings ... were materially false and misleading when made.” Id. at ¶ 418. Thus by Plaintiffs’ own allegations in H-02-4788, they were on inquiry notice by November 8, 2001, and the statute of limitations for the § 18 claims expired no later than November 8, 2002, well before July 11, 2003, the date which this Court found in its July 11, 2003 order (# 1561 in Newby), as amended on July 11, 2006 (# 4848 in Newby), was the earliest any tolling began to apply. # 165 at 80-81. Thus, conclude Outside Directors, Plaintiffs’ § 18 claims against Outside Directors are time-barred by the one-year statute of limitations as a matter of law. Outside Directors additionally claim that the state law claims (negligent misrepresentation and aiding and abetting common law fraud), based on alleged purchases or representations before July 11, 1999, are also time barred if tolling began with the Court’s July 11, 2003 order on that date. See # 161 at 91. Moreover, negligent misrepresentation claims of newly added Plaintiffs OTTA and Cincinnati should be dismissed where they are based on alleged representations made more than four years before their constructive filing date. Because these two Plaintiffs were not subject to the July 11, 2003 order, their claims cannot be deemed filed until they' filed their motion to join this action on September 15, 2005; therefore all of OTTA’s and Cincinnati’s negligent misrepresentation claims based on purchases or representations prior to September 15, 2001 should be dismissed as time-barred. Should the Court not dismiss all of Plaintiffs’ cláims against Outside Directors; Outside Directors request the Court to reopen discovery since they have been unable to take any discovery against Plaintiffs. Plaintiffs’ Response Plaintiffs object to Outside Directors’ attempt to insert Rule 9(b)’s heightened pleading standard to claims Plaintiffs insist are not covered by it, specifically negligent misrepresentation and violation of § 18. They rely on American Realty, 115 Fed.Appx. 662 ‘(see discussion supra), and maintain that they have pled independent claims of fraud and negligent misrepresentation. Even if Rule 9(b) is applicable, Plaintiffs claim that they have satisfied its standard because they have identified each of the Outside Directors who signed specified annual reports filed with the SEC between 1998 and 2001, and have identified which statements were false and misleading, when they were made, and why they were false and misleading. Moreover, Enron’s November 8, 2001 announcement that it would restate its financial statements for 1997, 1998, 1999, 2000, and the first two quarters of 2001 constitutes an admission that the financial figures in these reports were false. ¶¶ 417-18, 421. The Court will not repeat all the allegations summarized by Plaintiffs #264 at 6-12, with citations to paragraphs in the complaint, but refers the parties to these documents. Plaintiffs assert that it is well established that directors, both inside and outside, are liable for false statements made in SEC filings that they sign. See, e.g., F.N. Wolf & Co., Inc. v. Estate of Neal, No. 89 Civ. 1223, 1991 WL 34186, at *9 (S.D.N.Y. Feb. 25, 1991) (a director who signed a document containing misrepresentations or omissions and filed with the SEC is deemed to have made or caused to be made such representations for purposes of liability under § 18). Plaintiffs allege that Outside Directors repeatedly signed Enron’s 10-K filings that contained materially misleading representations. Regarding their claim for aiding and abetting, Plaintiffs insist they have adequately pled the first element, knowledge that the primary violator-party’s conduct is a breach of duty, because an allegation of actual knowledge is not required, only that the aider and abettor have a general awareness of its role in the other’s tortious conduct. Javitch v. First Montauk Financial Corp., 279 F.Supp.2d 931, 946 (N.D.Ohio 2003); Aetna Cas. & Sur. Co., 219 F.3d at 536 (“An alleged aider and abettor ... need not know all the details of the primary party’s scheme for liability to attach.”). Plaintiffs point out that Rule 9(b) permits knowledge to be averred generally. Furthermore, a federal district court in Ohio has held that a plaintiff asserting an Ohio state common law claim for aiding and abetting may use group pleading. In re National Century Financial Enterprises, Inc., Investment Litig., No. 2:03-MD-1565, 2006 WL 469468, *9 (S.D.Ohio Feb. 27, 2006) (“[T]he disagreement [in federal courts about whether the group pleading doctrine may be used] has arisen within the context of federal claims under § 10(b) .... The Court finds no barrier to Plaintiffs[’] relying on group pleading to state a common law claim. Indeed, an aiding and abetting claim rests on the existence of multiple tortfeasors.”). Plaintiffs insist that the Amended Complaint satisfies Rule 9(b) because it names each Outside Director that signed each of Enron’s false and misleading annual reports during the relevant time period, the dates these annual reports were issued, each statement alleged to be false and misleading, and why each statement was false. See paragraphs 295-302, 320-28, 341-52, 371-76. As for objections of untimeliness, Plaintiffs rely on the rule that a motion to dismiss based on statute of limitations should be granted only when the complaint conclusively shows on its facts that the claim is time-barred. Autry Petroleum Co. v. BP Products North America, Inc., No. 4:05-CV-113, 2006 WL 1174443, at *3 (M.D.Ga. May 1, 2006). They argue that as of November 2002 they lacked sufficient information to constitute inquiry notice, no less to plead essential elements of their section 18 claim; they also argue that Defendants have not shown from the face of the Amended Complaint alone that Plaintiffs’ Section 18 claim was time-barred. Last, Plaintiffs contend that the Outside Directors’ argument that OTTA and Cincinnati were not subject to the July 11, 2003 scheduling order that tolled the applicable statute of limitations and are. therefore precluded from asserting negligent misrepresentation claims based on conduct that occurred before September 1, 2001 (four years prior to the date they filed their motion to join this suit), is a narrow construction of that order and ignores the rule that an entity may not file an independent action to avoid the constraints of a scheduling order in an action. Chinn v. Giant Food, Inc., 100 F.Supp.2d 331, 334 (D.Md.2000). They cite United States v. Parker, 165 F.Supp.2d 431, 439 (W.D.N.Y.2001) for the rule that (“[s]cheduling orders are not mere formalities that can be disregarded or treated cavalierly”). Plaintiffs object to Outside Directors’ conditional motion to reopen discovery as conclusory and contend that it does not show good cause with particularity. Because they had a reasonable basis for concluding that Rule 9(b) did not apply to their claims and relied on significant case law that they could satisfy the first element of their aiding and abetting claim by showing a general awareness by the aiding and abetting tortfeasor of its role in the fraud, they request the Court to grant them leave to amend. Outside Directors’ Reply Reiterating that Plaintiffs have incorporated into their claims against Outside Directors pages of factual allegations of fraud that cannot be disentangled from any “non-fraud” allegations, regarding the “massive fraudulent scheme” perpetrated by Enron’s Board of Directors, inter alia, Outside Directors insist that Rule 9(b) applies to all the claims against them under a long line of Fifth Circuit cases. See Amended Complaint, ¶¶ 3, 66, 183, 207, 450, 451, 459, 656. They maintain that Plaintiffs have not urged any separate focus on their negligent misrepresentation and Section 18 claims; instead the claims are based on the same set of facts. Moreover, in the wake of American Realty, the majority of district court decisions have reconciled it with Benchmark and pre-ex-isting authority. See SMI-Owen Steel Co., Inc. v. St. Paul Fire & Marine Ins. Co., Nos. Civ. A. G 00149, G 01 CV 627, 2006 WL 581266, *1 (S.D.Tex. Mar. 7, 2006) (“In the opinion of this Court, there has been no intervening change in controlling law. In Benchmark ..., the Fifth Circuit held that when ‘fraud and negligent misrepresentation claims are based on the same set of alleged facts’ the claims have the same focus and the heightened pleading requirements of Rule 9(b) apply.... In American Realty ..., this Circuit was careful■ to point out that the ‘plaintiffs properly distinguished between their fraud and negligent misrepresentation claims and correctly argued that the Rule 9(b) requirement of particularized pleadings of fraud by its terms does not apply to negligent misrepresentation claims.’ ”); Nazareth International, Inc. v. J.C. Penney Corp., Inc., No. Civ. A. 304CV1265M, 2005 WL 1704793, *3-4 (N.D.Tex. July 19, 2005) (Citing Benchmark, Williams v. WMX Techs., Shushany, American Realty, et al., the court concluded that the prevailing rule is that “Plaintiffs claim must be dismissed if ‘the inadequate fraud averment is so intertwined with the negligent misrepresentation claim that it is not possible to describe a simple redaction that removes the inadequate fraud averment while leaving behind a viable negligent misrepresentation claim”); Kougl v. Xspedius Management Co. of Dallas/Fort Worth, L.L.C., No. Civ. A. 3:04CV2518-D, 2005 WL 1421446, *5-6 (N.D.Tex. June 1, 2005) (same; “[T]he Fifth Circuit does not reject the requirement that parties alleging negligent misrepresentation claims comply with Rule 9(b). Instead, it distinguishes between negligent misrepresentation claims made apart from, and those intertwined with, fraud-based claims.”); Afshar v. Norwood, No. 3:05-CV-1625-G, ECF, 2005 U.S. Dist. LEXIS 33113, *9-13 (N.D.Tex. Dec. 14, 2005) (same). Thus complaints like Plaintiffs’ that are wholly and indiscriminately grounded in fraud are not exempted from the application of Rule 9(b). Next Outside Directors argue that they are not deemed to have “made” all of the statements contained in SEC filings that they have signed; rather their signatures merely “ ‘indicate that they believe that the filing is accurate and complete.’ ” # 291 at 5, quoting In re Enron Corp., 258 F.Supp.2d 5