CNH America LLC v. International Union, United Automobile, Aerospace & Agricultural Implement Workers

SUTTON, J., delivered the opinion of the court, in which GILMAN, J., joined. DAUGHTREY, J. (pp. 795-803), delivered a separate opinion concurring in part and dissenting in part. OPINION SUTTON, Circuit Judge. This appeal, one of a never-ending string of healthcare-benefit disputes in this circuit, turns (unsurprisingly) on the interrelationship of two lawsuits. In the first lawsuit, a group of retirees, funded by the UAW, obtained a preliminary injunction preventing CNH from terminating their healthcare benefits. See Yolton v. El Paso Tenn. Pipeline Corp., No. 02-75164 (E.D.Mich.) R.80. That litigation is still pending. See No. 02-75164 (E.D.Mich.). In the second lawsuit, CNH sued the UAW, claiming that the UAW’s participation in the first lawsuit violated a collective bargaining agreement (CBA) between the parties and that the UAW, during the negotiations of the CBA, committed several state law torts. In addressing the second lawsuit, the one at issue in this appeal, the district court dismissed the claims, holding that the UAW did not breach the CBA and that federal law preempted CNH’s additional state law claims. For the reasons set forth below, we affirm the district court’s conclusion that the UAW did not breach the relevant CBA but reverse its preemption decision. I. Here is the cast of characters: * CNH America makes farming and construction equipment and is the plaintiff in this case. * Case Corporation is CNH’s former name. * Tenneco, Inc. was the parent company of CNH until 1994, when Tenneco sold its interest in CNH in an initial public offering (the reorganization). * El Paso Tennessee Pipeline Company is the current name of Tenneco. — 788 — * UAW is a union that represented the relevant employees of all of these companies before they retired and is the defendant in this case. Here is the plot, such as it is: Between 1971 and 1994, Case entered into several CBAs with the UAW in which Case allegedly agreed to provide free health insurance to retirees and their surviving spouses if the employees retired before the expiration of the CBA. As part of the reorganization in 1994, CNH assumed Case’s CBA obligations, but Tenneco promised to indemnify CNH for any pre-reorganization retiree healthcare expenses. See Reese v. CNH America LLC, 574 F.3d 315, 317-18 (6th Cir.2009); Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 574-77 (6th Cir.2006). In 1997, CNH and the UAW began negotiating a new CBA. At about that time, Tenneco told the pre-reorganization retirees that it would be capping the company’s obligations to pay retiree healthcare benefits and that the retirees would soon have to pay $56 per month in health-insurance premiums, labeled “above-cap costs.” The UAW objected to the change, claiming that CNH remained responsible for the prereorganization retirees’ healthcare benefits, and this dispute became a “key issue” in the 1998 negotiations. R.l ¶ 18. The parties reached what seemed to be a compromise. CNH and the UAW formed a Voluntary Employees’ Beneficiary Association (VEBA), see I.R.C. § 501(c)(9), to fund the retirees’ above-cap costs. CNH contributed $24.7 million to the VEBA, and the UAW contributed an additional $2.8 million. The parties documented the 1998 CBA in a 172-page agreement, and they documented the VEBA agreement in the following three-paragraph “letter of understanding”: During the 1998 negotiations, [CNH] and [UAW] had extensive discussions of the medical plan maintained by [Tenneco] for pre IPO retirees. Although these retirees retired prior to the formation of [CNH] and sales of its stock to the public, [CNH] has agreed with the UAW to create a VEBA and to fund it with $24,700,000 in order to pay a portion of the costs of benefits above the cost cap limit under the [Tenneco] Plan (plus $300,000 in 1998 to pay for the 1998 Medicare Part “B” [c]overage). An additional 2.8M from the economic settlement will be contributed for total VEBA funding of approximately $27,800,000. The parties recognize that the VEBA is intended to complete [CNH]’s funding of the above cap cost and that [CNH] will not be required to make any further contributions to the VEBA from its own funds. R.1.2 at 96. The CBA referenced and incorporated the VEBA agreement. Medical costs and insurance premiums rose more than expected, and the prereorganization retirees exhausted the VEBA funds in August 2002, two years short of the 2004 culmination of the 1998 CBA. In October 2002, the UAW and six retirees filed a class-action lawsuit against CNH and Tenneco seeking “lifetime, free health care benefits.” R.l ¶ 30; Yolton, 435 F.3d at 574. In December, the UAW and the retirees voluntarily dismissed the suit without prejudice, and the retirees immediately re-filed the lawsuit without the UAW as a party, although the UAW continued to fund the litigation. In 2003, the district court preliminarily enjoined CNH from discontinuing the payment of the retirees’ above-cap costs during the lawsuit and granted CNH summary judgment on its indemnification claim against Tenneco. R.1 ¶ 34; Yolton v. El Paso Tenn. Pipeline Co., 318 F.Supp.2d 455 — 789 — (E.D.Mich.2003). A panel of our court affirmed the preliminary injunction and indemnification ruling. See Yolton, 435 F.3d at 571. In August 2008, CNH sued the UAW, claiming that, by funding the Yolton litigation, the UAW had breached a covenant not to sue contained in the VEBA agreement. CNH also added several tort claims under Wisconsin law arising from the 1998 negotiations: breach of an implied warranty of authority; negligent misrepresentation; and intentional misrepresentation. The UAW filed a motion to dismiss, which the district court granted, concluding that the UAW did not breach the VEBA agreement, that the Labor Management Relations Act (LMRA or Act) preempted CNH’s state law claims and in the alternative that CNH failed adequately to plead its intentional misrepresentation claim. II. By funding the Yolton litigation, CNH claims, the UAW breached the third paragraph of the VEBA agreement: The parties recognize that the VEBA is intended to complete [CNHj’s funding of the above cap cost and that [CNH] will not be required to make any further contributions to the VEBA from its own funds. R.1.2 at 96. As CNH reads this provision, it contains a “covenant not to sue,” CNH Br. at 16-24, which the UAW allegedly breached when it initiated, then agreed to fund, the Yolton litigation. The text of this provision shows otherwise. Not a word in the paragraph says that the UAW promises not to sue CNH over the pre-reorganization retirees’ healthcare benefits. And not a word in the paragraph even mentions the UAW or its obligations. Of the five words one might expect to see in such a promise— UAW, covenant, not, sue, CNH — only two of them (CNH and not) appear in the provision. That is because the provision focuses on CNH’s burdens and benefits: CNH will “fund” the above-cap costs, and CNH will not have to contribute any additional funds to the VEBA. We break no new contractual ground or any convention of meaning by insisting that a provision purporting to obligate the UAW to do something, or refrain from doing something, must mention the obligor (the union) and the nature of the obligation (not to sue) by name. The first two paragraphs of the VEBA agreement do not fill this gap. Everything in the agreement points to a foundation for a compromise: The agreement describes the extensive negotiations over the retirees’ healthcare costs and the two sides’ obligations to contribute to the VEBA, not to any obligations with respect to suing the other. Although these two paragraphs and the third one may supply a firm foundation for the argument that CNH committed to offer $24.7 million, and no more, to resolve any healthcare obligations with respect to these retirees, that suggests CNH has a basis for winning the Yolton litigation, not that the UAW had to refrain from initiating it. The VEBA could provide CNH with a defense to a lawsuit without precluding the UAW from suing to find out. Think of it this way. Had the agreement contained such a covenant, that would mean the UAW could not have sued CNH even to enforce the company’s commitment to fund the VEBA with $24.7 million. Why would the UAW enter such an agreement, one that obligated CNH to do something but prohibited the UAW from enforcing it? Had that been an acceptable solution to the parties’ ongoing disagreements, they could have resolved them long ago. The most that CNH can — 790 — say, if we read all of the inferences its way, is not that the agreement contains a general covenant by the UAW not to sue CNH, but that it contains a covenant not to win certain types of additional funding obligations from CNH. That, however, is not a covenant not to sue; it is a defense to a lawsuit. The same point defeats CNH’s contention that the agreement is ambiguous, in view of uncertainties about the meaning of “funding” or “further contributions.” The relevant question is whether the agreement contains a covenant not to sue, and it contains no ambiguity on that score. See Zimhelt v. Mich. Consol. Gas Co., 526 F.3d 282, 287 (6th Cir.2008). Any other ambiguities with respect to CNH’s ongoing funding obligations go to the merits of the Yolton litigation, see Docket No. 02-75164 (E.D.Mich.), not to the merits of this case. But why, CNH insists, would it pay $24.7 million in exchange for nothing, all while insisting during negotiations it was not responsible for the retirees’ healthcare costs? That again provides an answer (though in the form of another question) to the merits of the Yolton litigation, not an explanation as to how the words of the VEBA agreement amount to a covenant not to sue, even to sue to collect the $24.7 million that CNH agreed to pay. The district court correctly rejected this argument. III. That leads to the next key subject of the district court’s order: whether § 301 of the LMRA preempts CNH’s state law claims. We think it does not. Section 301 provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 61 Stat. 156, § 301, codified at 29 U.S.C. § 185(a). With these words, § 301 confers federal jurisdiction over the meaning of CBAs and other collective-bargaining disputes that do not otherwise satisfy the general requirements for obtaining federal jurisdiction. See 28 U.S.C. §§ 1331, 1332. The statute also preempts state law claims that “substantially depend upon” the meaning of a CBA. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). In determining what the key phrase— “[sjuits for violation of [labor] contracts”— means, the Supreme Court has refused to be distracted by labels. In Allis-Chalmers, the Court held that a tort claim for breach of the duty of good faith and fair dealing was preempted because it was essentially a contract dispute. A claimant may not sidestep preemption, the Court held, merely by recasting a contract claim as a tort claim. 471 U.S. at 218, 220, 105 S.Ct. 1904. So also for the reverse: Claimants may not create a § 301 claim (and federal jurisdiction) by recasting a tort claim as a contract claim. Section 301 preempts those claims which are “filed because a contract has been violated.” Textron Lycoming Reciprocating Engine Div., Avco Corp. v. UAW, 523 U.S. 653, 657, 118 S.Ct. 1626, 140 L.Ed.2d 863 (1998). In Textron, the plaintiffs claimed that, during the relevant contract negotiations, Textron fraudulently withheld information that the plaintiffs had requested. — 791 — Such pre-contractual conduct, the Court held, amounted to a tort claim, not a breach-of-contract claim, and accordingly did not come within § 801, id. at 655, 658, 118 S.Ct. 1626 (and, it follows, would not be preempted by § 301, see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-95, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). Two cases from our circuit complete the picture. In Alongi v. Ford Motor Co., 386 F.3d 716 (6th Cir.2004), and Northwestern Ohio Administrators v. Walcher & Fox, Inc., 270 F.3d 1018 (6th Cir.2001), we held that § 301 did not preempt the plaintiffs’ fraudulent inducement claims. In both instances, the plaintiffs claimed that, during contract negotiations, the defendants made misrepresentations to the plaintiffs, inducing them to sign CBAs or related contracts. Section 301 did not preempt the plaintiffs’ claims because the claims were not “suit[s] for violation of contracts.” Alongi, 386 F.3d at 725; see Nw. Ohio Adm’rs, 270 F.3d at 1031. Any alleged misrepresentations were independent of the CBAs because “the rights and duties at issue ar[o]se from [the defendants’] actions prior to the formation ” of the agreements. Nw. Ohio Adm’rs, 270 F.3d at 1031 (emphasis added); see Alongi, 386 F.3d at 725-26. CNH included three tort claims in its complaint: (1) breach of an implied warranty of authority, (2) negligent misrepresentation and (3) intentional misrepresentation. A party is liable for breach of an implied warranty of authority if he falsely represents that he has the power to bind another in contract. Restatement (Second) of Agency § 329; Martinson v. Brooks Equip. Leasing, Inc., 36 Wis.2d 209, 152 N.W.2d 849, 855 (1967) (adopting the Restatement). Claims for intentional and negligent misrepresentation require proof of a material, false representation and detrimental reliance. See Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106, 114 (Wis.Ct.App.1992); see also Ramsden v. Farm Credit Servs. of N. Cent. Wis. ACA, 223 Wis.2d 704, 590 N.W.2d 1, 5 (Wis.Ct.App.1998). CNH’s three tort claims are analytically distinct but of a piece for purposes of § 301. The same factual predicate underlies all three claims: that the UAW explicitly and implicitly represented that it had the authority to bind the retirees during the CBA negotiations. “From the beginning of the negotiations,” CNH claims, “[t]he UAW ... made clear that it intended to negotiate with CNH ... on behalf of the Pre-Reorganization Retirees.” R.l ¶ 18. “At no time did the UAW indicate, nor did CNH ... have any reason to believe, that the UAW lacked authority to negotiate ... on behalf of the Pre-Reorganization Retirees.” Id. ¶ 24; see ¶¶ 44, 51. CNH’s claims thus all turn on the UAW’s pre-contractual conduct. None of them requires the court to interpret the CBA. All that the district court must do is determine whether the UAW made these statements and whether CNH reasonably relied on them. In this respect, CNH’s tort claims parallel the fraudulent inducement claims at issue in Textron, Alongi and Northwestern Ohio Administrators. Alongi held that § 301 did not preempt the plaintiffs’ fraudulent inducement claims because the court had to determine only “whether [the defendants] made the statements alleged, and whether plaintiffs reasonably relied on them.” 386 F.3d at 726. These are the same steps the district court will use to decide CNH’s state law claims: Did the UAW represent that it had the authority to bind the pre-reorganization retirees and was CNH’s reliance on the alleged representations reasonable? (The second step is not even needed for the implied warranty of authority claim.) Neither of these — 792 — questions turns on an interpretation of the VEBA agreement. As in these cases, so here: CNH’s “rights and duties ... ar[o]se from the Union’s actions prior to the formation” of any CBAs. Nw. Ohio Admits, 270 F.3d at 1031 (emphasis added). The UAW counters that it could largely defeat CNH’s claims by showing that the agreement did not release CNH’s overall liability to the pre-reorganization retirees. Perhaps so. But the district court does not have to decide whether the VEBA agreement constituted a release in order to resolve CNH’s tort claims. These claims require the district court to decide only whether the UAW made these alleged representations and whether CNH reasonably relied on them. See Alongi, 386 F.3d at 726. Whether the VEBA agreement amounts to a release goes to CNH’s damages, see Restatement (Second) of Agency § 329 cmt. j; Restatement (Second) of Torts § 525, not the substance of its tort claims, which are independent of the 1998 CBA. In these kinds of circumstances, “federal law would govern the interpretation of the agreement to determine the proper damages, [but] the underlying state-law claim, not otherwise preempted, would stand.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 n. 12, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Even if the UAW ultimately establishes that, under the VEBA, CNH remains on the hook for healthcare benefits to the prereorganization retirees, that would not end CNH’s potential tort recovery. There remains another benefit for the pre-reorganization' retirees that the UAW purported to give up: the right to make CNH contribute additional pre-funded benefits to the VEBA. See Yolton v. El Paso Tenn. Pipeline Co., 668 F.Supp.2d 1023, 1033 (E.D.Mich.2009); cf. UAW v. Gen. Motors Corp., 497 F.3d 615, 632-33 (6th Cir.2007). If the UAW lacked the authority to bind the retirees, it did not have the authority to make this deal, leaving CNH with potentially valid state law claims. But CNH (and the UAW) signed the agreement. Doesn’t that require us to interpret the CBA? Not that we can tell. Both the plaintiffs in Alongi and Northwestern Ohio Administrators “relied” on the defendants’ misrepresentations by signing contracts, and yet we still determined that § 301 did not preempt those claims. The fact that a plaintiff (CNH) signs a CBA does not depend on the meaning of the CBA. For our purposes, it matters only that CNH claims to have taken on additional obligations based on the UAW’s alleged misrepresentations, all of which occurred prior to the formation of the CBA. This dispute does not turn on, or for that matter “substantially depend upon,” the meaning of the agreement. A few responses to our dissenting colleague are in order. To decide the materiality of the UAW’s alleged misrepresentations, the dissent maintains, a court will have to interpret the VEBA agreement. Yet this assumes, we think incorrectly, that materiality is a retrospective question, that a court looks back on the agreement the parties signed in order to determine whether pre-contractual statements led to the agreement. Materiality is a prospective, not a retrospective inquiry. The question is whether, given the context of the statement and the parties’ positions, the UAW’s statements were material to CNH and whether CNH reasonably relied on the statements. The question is not whether, given the contract’s terms, the UAW’s statements were material to the agreement. Alongi and Northwestern Ohio Administrators confirm the point. Were materiality decided retrospectively, both cases should have come out the other way because the courts would have had to — 793 — examine the terms of the respective contracts in order to decide whether the defendants’ pre-contractual representations were material to the plaintiffs’ decision to enter the agreements. More to the point, why would materiality depend on what occurred after the UAW’s allegedly tortious conduct — after, in other words, its misrepresentation? Keep in mind that this case comes to us in the context of a Rule 12(b)(6) motion. That means CNH has to allege only that the UAW’s statements were material because they pertained to a key dispute in the negotiations, not that the statements were material to the contract ultimately negotiated. Accepting these allegations as true at this stage of the litigation, we not only can, but we must, say that they are material to the misrepresentation claim without having to factor in the meaning of the agreement, whether a CBA, a VEBA, a settlement of a lawsuit or any other contract, that the misrepresentations ultimately caused. While the VEBA agreement may pertain to CNH’s damages, the Supreme Court has underscored that “Lingle makes plain ... that when liability is governed by independent state law, the mere need to ‘look to’ the collective-bargaining agreement for damages computation is no reason to hold the state-law claim defeated by 301.” Livadas v. Bradshaw, 512 U.S. 107, 125, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). We break no new ground in holding that a tort claim that turns entirely on extra-contractual or pre-contractual conduct is not preempted even when damages are calculated by looking to a collective bargaining agreement. See, e.g., Williams v. Nat’l Football League, 582 F.3d 863, 876-77 (8th Cir.2009); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1082 n. 13 (9th Cir.2005). Long after the Rule 12(b)(6) stage of this case, it may turn out that the meaning of the VEBA bears on CNH’s damages, but that does not make CNH’s claim “substantially depend[]” on the meaning of the agreement. IV. Because § 301 does not preempt CNH’s state law claims, we must decide whether CNH adequately pleaded these claims. The district court held that CNH alleged sufficient facts to state claims for breach of an implied warranty of authority and for negligent misrepresentation, but failed to state a claim for intentional misrepresentation. CNH’s allegations are not extensive, but they are sufficient to state a claim for relief for breach of an implied warranty of authority. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). CNH alleges that (1) during the 1998 negotiations the UAW led CNH to believe that it had the authority to negotiate on behalf of the pre-reorganization retirees and (2) if the UAW did lack authority to bind the pre-reorganization retirees it breached its implied warranty of authority. CNH pointed to several acts generating the implied warranty: the “UAW’s ratification” of the VEBA agreement, R.l ¶ ¶ 24, 43, how the UAW presented itself during negotiations and other statements and conduct during the negotiations. Discovery could shed light on what the UAW did to give CNH the impression that it had the authority to negotiate on behalf of the pre-reorganization retirees. See Twombly, 550 U.S. at 556, 127 S.Ct. 1955. CNH notably avoids stating in its pleadings that the UAW lacked authority to negotiate on behalf of the retirees. At first glance, this might seem to be a fatal flaw: a breach of an implied warranty of authority requires an agent to contract “on — 794 — behalf of [a principal] whom he has no power to bind.” Restatement (Second) of Agency § 329. But CNH alleges sufficient facts to give rise to an inference that the UAW did lack authority to negotiate on behalf of the retirees even if CNH does not explicitly say that the UAW did not have the authority to do so. CNH notes that the pre-reorganization retirees have filed documents in Yolton claiming that the UAW lacked authority to negotiate the VEBA agreement and other similar allegations, see, e.g., R.l ¶¶ 55, 61. These factual allegations suffice to make CNH’s claim for relief plausible. Ashcroft v. Iqbal, 556 U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A similar conclusion applies to CNH’s claim for negligent misrepresentation. Under Wisconsin law, a plaintiff must establish four elements to bring a claim for negligent misrepresentation: (1) negligence in making (2) a misrepresentation (3) that is material and (4) that causes detrimental reliance. Grube, 496 N.W.2d at 114-15. In its complaint, CNH made allegations with respect to all four elements of the claim, and its factual assertions suffice to withstand a motion to dismiss. CNH alleges that the UAW “led [CNH] to believe that the UAW had authority to negotiate for and bind the PreReorganization Retirees.” R.l ¶ 60. And CNH incorporated its earlier allegations about the UAW’s misrepresentations during the negotiations: “The UAW ... made clear that it intended to negotiate ... on behalf of the Pre-Reorganization Retirees”; “the UAW led CNH [ ] to believe ... that the UAW had authority to negotiate ... on behalf of the Pre-Reorganization Retirees”; and “the UAW acted at all times as if it had the authority to bind the Pre-Reorganization Retirees.” R.l ¶¶ 18, 44, 58. So long as these allegations are “plausible,” as indeed they are, they suffice to meet the modest notice-pleading requirements of Civil Rule 8(a). See Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955. To the extent CNH independently argues that the UAW’s misrepresentation was an omission — namely, a failure to tell CNH that it lacked authority over the prereorganization retirees — that is a variation on the same theme. See Grube, 496 N.W.2d at 115. Here, too, the requisite allegation is made: CNH alleges that “the UAW had a duty to disclose to [CNH] any limitations on the UAW’s authority to bind the Pre-Reorganization Retirees]” due to “[t]he UAW’s unique relationship with” the retirees. R.l ¶ 50. And here, too, the theory is a plausible one in light of CNH’s other factual allegations: “The UAW led CNH ... to believe ... that the UAW had authority to negotiate ... on behalf of the Pre-Reorganization Retirees,” and “the UAW acted at all times as if it had the authority to bind the Pre-Reorganization Retirees.” R.l ¶¶ 18, 44, 58. Whether the UAW at the outset had any duty to disclose its authority over the retirees before the UAW and CNH commenced negotiations is beside the point. If CNH’s allegations are believed, it is certainly plausible that the UAW had a duty to “prevent [its] partial or ambiguous statement of the facts from being misleading.” Restatement (Second) of Torts § 551; In re Lecic’s Estate, 104 Wis.2d 592, 312 N.W.2d 773, 781 (1981) (relying on the Restatement). Like the district court, we thus conclude that CNH adequately pleaded its negligent misrepresentation claim. See Twombly, 550 U.S. at 556, 127 S.Ct. 1955. That leaves CNH’s claim for intentional misrepresentation. The elements of this action are (1) an intentional falsity (2) that is material (3) that the defendant intends to cause (4) and that does cause detrimental reliance. Grube, — 795 — 496 N.W.2d at 118-14. The problem for CNH, and the thing that distinguishes this claim from negligent misrepresentation, is the reality that intentional misrepresentation amounts to a type of fraud under Wisconsin law. See Kaloti Enters., Inc. v. Kellogg Sales Co., 283 Wis.2d 555, 699 N.W.2d 205, 211, 214 (2005). When it comes to pleading requirements, the Federal Rules of Civil Procedure draw a distinction between fraud and other torts. Under Rule 9(b), a plaintiff must say things in a complaint that it need not say in filing a run-of-the-mill negligence action. Namely, the plaintiff must “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). That includes, at a minimum, “the time, place, and content” of the misrepresentation. United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 518 (6th Cir.2009). CNH did not meet this requirement. Nowhere in its complaint does it say when and where the UAW made an intentional misrepresentation about its purported authority to negotiate on behalf of the retirees. All that the complaint contains are general allegations, which may suffice to meet the notice-pleading requirements of Civil Rule 8(a) in the context of a negligence action but do not meet the particularity requirements of Civil Rule 9(b) in the context of a fraud action. We thus agree with the district court’s decision to dismiss this claim. CNH alternatively argues that the district court should not have dismissed this claim with prejudice. See PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir.2004). Ordinarily, if a district court grants a defendant’s 12(b)(6) motion, the court will dismiss the claim without prejudice to give parties an opportunity to fix their pleading defects. 2-8 James Wm. Moore, Moore’s Fed. Practice, § 8.10[2] (3d ed.). But if a party does not file a motion to amend or a proposed amended complaint, it is not an abuse of discretion for the district court to dismiss the claims with prejudice. See PR Diamonds, Inc., 364 F.3d at 699; Begala v. PNC Bank, Ohio, 214 F.3d 776, 783-84 (6th Cir.2000). CNH did not file a motion to amend its complaint, and the district court thus acted within its discretion in dismissing CNH’s intentional misrepresentation claim with prejudice. V. For these reasons, we (1) affirm the district court’s decision that CNH failed to state a claim for breach of contract, (2) reverse the court’s decision that § 301 preempts CNH’s state law claims, (3) affirm its decision that CNH adequately pleaded its implied warranty of authority claim, (4) affirm its decision that CNH adequately pleaded its negligent misrepresentation claim, (5) affirm its decision that CNH did not adequately plead its intentional misrepresentation claim and that the claim should be dismissed with prejudice and (6) remand for further proceedings.