Alabama Teachers Credit Union v. Design Build Concepts Inc et al
MEMORANDUM OPINION AND ORDER For the reasons noted within, the court VACATES the previous briefing schedule. The court DENIES the motion for judgment on the pleadings, and finds Alabama Teachers Credit Union's motion for a discovery schedule and continuance of briefing schedule is MOOT. Signed by Chief Judge Karon O Bowdre on 4/11/17. (SAC )
2017 Apr-11 AM 11:18
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALABAMA TEACHERS CREDIT
DESIGN BUILD CONCEPTS, INC, et
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Alabama Teachers Credit Union’s motion for entry of
discovery schedule and continuance of briefing schedule, (doc. 32), as well as Defendant Design
Build Concepts/IBT LLC’s1 Motion for Judgment on the Pleadings. (Doc. 28). Initially, the court
had set the motion for judgment on the pleadings on a briefing schedule. Having reviewed the
recent filings of the parties, the court does not need further briefing on this issue.
Accordingly, the court VACATES the previous briefing schedule. (Doc. 31). For the
reasons discussed below, the court DENIES the motion for judgment on the pleadings, and,
therefore, finds Alabama Teachers Credit Union’s motion for a discovery schedule and
ATCU alleges in the complaint that Design Build Concepts merged with IBT Enterprises
and now operates as “Design Build Concepts/IBT,” which acquired the assets and assumed the
liabilities of Design Build Concepts. (Doc. 15 at 2). Though several defendants are in this action,
they all appear to be some form of these entities. For purposes of this motion, the court will refer
to the defendants collectively as “DBC/IBT.”
continuance of briefing schedule is MOOT.
This case involves claims about the construction of an office building in Gadsden,
Alabama. Around April 17, 2003, Plaintiff ATCU and Defendant DBC/IBT entered into an
agreement for DBC/IBT to design and construct an office for ATCU. Sometimes after moving
into the building, ATCU discovered water leaks, roof leaks, and other problems with the
ATCU requested that DBC/IBT evaluate the leaks and make the proper repairs, but those
repairs were never made, despite assurances the defects would be addressed. Because of the
Defendants’ representations that it would repair the leaks, ATCU deferred hiring another party to
complete the repairs.
ATCU claims DBC/IBT is liable to it for breach of contract, negligence, fraudulent
misrepresentation, breach of warranty, negligent hiring, training, and supervision, professional
negligence, and negligent performance of warranty obligation.
STANDARD OF REVIEW
A party may move for judgment on the pleadings only after the pleadings are closed. See
Fed.R.Civ.P. 12(c). “Judgment on the pleadings is proper when no issues of material fact exist,
and the moving party is entitled to judgment as a matter of law based on the substance of the
pleadings and any judicially noticed facts.” Interline Brands, Inc. v. Chartis Specialty Ins. Co.,
749 F.3d 962, 965 (11th Cir.2014) (internal citation omitted). In determining whether a defendant
is entitled to judgment on the pleadings, courts must “accept all the facts in the complaint as true
and view them in the light most favorable to the nonmoving party.” Id.
In ruling on a motion for judgment on the pleadings, courts apply the same standards as
applied to a Rule 12(b)(6) motion to dismiss. See Strategic Income Fund, LLC v.v Spear, Leeds
& Kellogg Corp., 305 F.3d 1293, 1295 n. 8 (11th Cir.2002). A court must grant the motion for
judgment on the pleadings if, “on the basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall
Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993). Accordingly, to avoid the granting of
judgment on the pleadings, “a complaint must contain sufficient factual matter, accepted as true,
to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation omitted).
This matter can be resolved with brevity. DBC/IBT argues ATCU’s claims are barred by
the statute of limitations for construction claims and the statute of repose under Alabama law.
DBC/IBT bases this argument on its contention that the construction was “substantially
complete” in 2005. But the fact construction was complete in 2005 was not pled in the
complaint, but only raised by the Defendants in their answer.
DBC/IBT says “the court may consider documents attached to the pleadings, such as
those documents attached to the complaint and answer” in deciding judgment on the pleadings.
(Doc. 29 at 4). To support this proposition, the Defendants cite to Yeager v. Ocwen Loan
Servicing, LLC, No. 1:14CV117-MHT(WO), 2017 WL 701387, at *3 (M.D. Ala. Feb. 22, 2017),
which in turn cites to Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002).
But Horsley does not say the court must consider every document attached to the answer.
On the contrary, Horsley teaches that documents attached to the pleadings should only be
considered when they pass the “incorporation by reference” test. Horsley, 304 F.3d at 1134–35.
A document is incorporated by reference “if the contents are alleged in a complaint and no party
questions those contents.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (emphasis
Three documents support DBC/IBT’s contention that building was substantially
completed in 2005: a report by Steepen Ward & Associates, a letter from Design-Build to ATCU,
and an “Implementation Addendum” to the construction contract. None of those documents are
referenced in, attached to, or are central to, ATCU’s claims. Therefore, they cannot be
incorporated by reference and properly considered on a motion under Fed. R. Civ. P 12(c).
Of course, the court is not saying DBC/IBT’s statute of limitations defense lacks merit,
but merely that it cannot be properly adjudicated on a motion for judgment on the pleadings in
this posture. The defense is classic summary judgment material, and the DBC/IBT is free to raise
it in that fashion.
The court DENIES DBC/IBT’s Motion for Judgment on the Pleadings, (doc. 28), and
finds ATCU’s motion for a discovery schedule and continuance of briefing schedule is MOOT.
DONE and ORDERED this 11th day of April, 2017.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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