Guarantee Company of North America USA v. W.D. Wainwright & Sons, Inc. et al

Filing 35

MEMORANDUM OPINION AND ORDER; that Defendants' Motions to Dismiss 11 & 14 are DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 3/23/2010. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION G U A R A N T E E COMPANY OF NORTH A M E R IC A USA, a corporation, Plaintiff, v. W .D . WAINWRIGHT & SONS, INC., e t al., D e f e n d a n ts . ) ) ) ) ) CASE NO. 2:09-cv-1003-MEF-TFM ) ) (WO - DO NOT PUBLISH) ) ) )

MEMORANDUM OPINION AND ORDER G u a r a n te e Company of North America USA ("Guarantee") brought this case against W .D . Wainwright & Sons, Inc. ("WDWS") as well as Stephen R. Wainwright ("Stephen W a in w rig h t" ), Sheryl B. Wainwright, William J. Wainwright ("Jeff Wainwright"), and T r a c ye Wainwright (collectively, "individual indemnitors"). (Doc. #1). Guarantee also n a m e d as defendants Denise Poole ("Poole"), RLI Insurance Company, and First Community B a n k of Central Alabama. Guarantee sues over bonds it issued that it alleges WDWS and in d iv id u a l indemnitors agreed to indemnify. With regards to Jeff and Tracye Wainwright, G u a ra n te e seeks exoneration, specific performance, and a declaratory judgment outlining th e ir indemnity obligations. Now pending before this Court are Jeff Wainwright's Motion t o Dismiss (Doc. #11) and Tracye Wainwright's Motion to Dismiss (Doc. #14).1 For the

Though filed separately, the two motions to dismiss are identical. Differences between the affidavits attached to each motion are not material for the purposes of this order. Therefore, the Court will refer to the arguments and assertions of Jeff and Tracye Wainwright jointly.

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re a so n s set forth in this Memorandum Opinion and Order, both motions are due to be D E N IE D . Je f f Wainwright filed both his answer to Guarantee's complaint (Doc. #10) and his m o tio n to dismiss (Doc. #11) on November 13, 2009. Tracye Wainwright also filed both her a n sw e r to Guarantee's complaint (Doc. #13) and her motion to dismiss (Doc. #14) on N o v e m b e r 13, 2009. Defenses to claims for relief made by motion "must be made before p lead ing if a responsive pleading is allowed." Fed. R. Civ. P. 12(b) (emphasis added). B e c au s e -- f o r both Jeff and Tracye Wainwright--the answer is docketed before the motion to dismiss both defendants filed their motions to dismiss either contemporaneously with or a f te r they filed their answers. Since neither motion was filed before the filing of a responsive p le a d in g , these motions cannot be treated as Rule 12(b) motions. See, e.g., Skrtich v. T h o r n to n , 280 F.3d 1295, 1306 (11th Cir. 2002) ("[B]ecause a responsive pleading--an a n sw e r-- h a d been filed, under the plain language of Rule 12(b), a motion to dismiss would h a v e been inappropriate."); Byrne v. Nezhat, 261 F.3d 1075, 1093 n.35 (11th Cir. 2001) (" H a d Northside wished to file a Rule 12(b)(6) motion for failure to state a claim for relief, it should have done so before filing its answer containing the same defense."). T h o u g h characterized by Jeff and Tracye Wainwright as motions to dismiss, these m o tio n s could be interpreted as motions for judgment on the pleadings under Rule 12(c), w h ich may be filed after the filing of answers so long as they are filed "early enough not to d e lay trial." Fed. R. Civ. P. 12(c); see, e.g., Byrne, 261 F.3d at 1096 n.46 (treating the

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m o t io n to dismiss filed after the answer as a motion filed pursuant to Rule 12(c)). In d e c id in g a Rule 12(c) motion for judgment on the pleadings, a Court may consider only the p le a d in g s , in this case the Complaint and Answers. See id. Documents attached to the p le a d in g s become part of the pleadings and may be considered on a motion for judgment on th e pleadings. See Fed. R. Civ. P. 10(c). The fact allegations of the complaint are to be ta k e n as true, but those of the answer are taken as true only where and to the extent that they h a v e not been denied or do not conflict with those of the complaint. See Stanton v. Larsh, 2 3 9 F.2d 104, 106 (5th Cir. 1956).2 In order to prevail, a motion for judgment on the p le a d in g s "must be based on the undisputed facts appearing in all the pleadings." Id. Thus, ju d g m e n t on the pleadings under Rule 12(c) is appropriate when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Mergens v. D r e y fo o s , 166 F.3d 1114, 1116-17 (11th Cir. 1999). J e f f and Tracye Wainwright argue that the agreement to indemnify Guarantee ("GAI") is void under the Alabama statute of frauds because they did not sign the GAI, and nobody e lse had any authority to sign the GAI for them. Therefore, Jeff and Tracye Wainwright state th a t the statute of frauds bars Guarantee's claims against them. Guarantee responds that a f a ctu a l dispute exists as to whether they signed or otherwise agreed to the GAI. Guarantee fu rth er argues that the motions under submission rely on naked assertions lacking evidentiary

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.

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su p p o rt. G u a ra n te e alleges in its complaint that Stephen Wainwright placed the signatures of J e f f and Tracye Wainwright on the GAI, with their consent. Guarantee further alleges that it relied on the presumed validity and authenticity of all signatures on the GAI--and upon n o ta riz e d acknowledgment of the validity and authenticity of those signatures--in deciding to issue the bonds. Guarantee attached to its pleading a copy of the GAI. (Doc. #1-2). Each p a g e of the GAI includes the initials "JW" and "TW." Furthermore, signatures for both Jeff an d Tracye Wainwright are placed on the signature page, with Stephen Wainwright's s ig n a tu re listed as attesting to both. Finally, Poole notarized the GAI. The signing and n o ta riz in g of the GAI are both shown on the face of the GAI as taking place on May 30, 2007. T h e material fact underlying these motions--that Jeff and Tracye Wainwright did not a g re e to indemnify Guarantee--is clearly disputed by the allegations in the complaint, which th is Court must take as true. Therefore, even if characterized as a motion for judgment on th e pleadings, both motions are due to be denied.3 F o r the foregoing reasons, it is hereby ORDERED that Defendants' Motions to D is m is s (Docs. #11 & 14) are DENIED.

Because Guarantee's complaint asserts that Jeff and Tracye Wainwright agreed to indemnify Guarantee, these motions would also be denied even if they satisfied the requirements of Rule 12(b). See, e.g., Pielege v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (noting that for the purposes of a Rule 12(b)(6) motion to dismiss, the court will accept as true all well-pleaded factual allegations and view them in the light most favorable to the non-movant).

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D O N E this the 23rd day of March, 2010.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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