In Tatum v. Oberg; UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT;2009 U.S. Dist. LEXIS 82208;September 3, 2009 we see a spirited discussion of the overlap between fraud claims and negligence, as well as a discussion of the overlap between breach of contact claims and negligence.  It is a 2d Circuit case decided on Connecticut law, but the basic premises are similar.

"Oberg and FOMH first move to dismiss Tatum’s fraud claim. Under Connecticut law, a fraud claim is established if "(1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (Conn. 2005). In this case, Tatum alleges that Oberg and FOMH committed fraud because Oberg made numerous false statements of fact related to Tatum’s dissolution action (see, supra section II); Oberg knew such statements to be untrue; Oberg intended to induce Tatum to rely [*9] on her statements; and Tatum relied on Oberg’s statements to his detriment. ""It is also worth noting that Tatum does not specify facts in support of his assertion that Oberg knew her allegedly fraudulent statements to be false and made them for the purpose of inducing Tatum to rely on them. While Rule 9(b) states that the scienter element of fraud "may be alleged generally," pleadings with respect to scienter must still comply with the requirements of Rule 8(a)(2). See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1954, 173 L. Ed. 2d 868 (2009). As the Supreme Court has held, a pleading offering [*11] merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" is insufficient to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. In this case, Tatum’s Amended Complaint contains merely a bare-bones assertion of scienter. It alleges no "facts that give rise to a strong inference of fraudulent intent," as is required by the law of this Circuit. Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
 

"Under Connecticut law, the elements of a breach of contract are "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Rosato v. Mascardo, 82 Conn. App. 396, 411, 844 A.2d 893 (Conn. App. Ct. 2004) (quoting Bouchard v. Sundberg, 80 Conn. App. 180, 189, 834 A.2d 744 (Conn. App. Ct. 2003)). In general, a client may sue his or her attorney for either breach of contract, negligence or both. Conn. Educ. Ass’n, Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 458, 938 A.2d 1249 (Conn. App. Ct. 2008). See also Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 529-30, 559 A.2d 712 (Conn. App. Ct. 1989). The court must dismiss a claim for breach of contract, however, if the claim is in fact "a claim that one has breached a standard of care in the language of contract." Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (Conn. Ct. App. 2003). See also Gazo v. City of Stamford, 255 Conn. 245, 263, 765 A.2d 505 (Conn. 2001) [*13] ("[W]e look beyond the language used in the complaint to determine what the plaintiff really seeks. . . . [P]utting a contract tag on a tort claim will not change its essential character.").

Tatum’s breach of contract and malpractice claims are based largely on the same underlying facts. The only difference in this respect is that the malpractice claim, but not the breach of contract claim, rests in part on allegations that Oberg and FOMH "[c]onceal[ed] discovery and/or fail[ed] to obtain discovery that would have alerted Plaintiff to their failure to comply with the standard of care," and "[f]ail[ed] to respond to Plaintiff’s request regarding the manner in which the case proceeded." Am. Comp. P 19(f)-19(g). 3 Despite similar factual underpinnings, Tatum asserts that his breach of contract claim derives from Oberg and FOMH’s "contractual duty to provide timely and correct legal advice to Plaintiff," and that his malpractice claim derives from the defendants’ "duty to provide Plaintiff with professional services equal to the degree of skill and learning commonly applied under the circumstances then and there existing by a prudent member of the legal profession." Am. Comp. PP 18, 18.

"