Volvo Financial Services v. JRD Contracting, Inc. et al

Filing 11

Order denying the 9 MOTION for Judgment on the Pleadings. The parties are ordered by 7/13/2017 to show cause for their failure to file the Report of Parties. Signed by District Judge William H. Steele on 7/7/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
VOLVO FINANCIAL SERVICES,
Plaintiff,
v.
JRD CONTRACTING, INC., et al.,
Defendants.

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CIVIL ACTION 17-0089-WS-B

ORDER
This matter comes before the Court on Plaintiff’s Motion for Judgment on the Pleadings
(doc. 9). The court-established briefing deadlines have expired without any response from
defendants.1
Plaintiff, Volvo Financial Services, commenced this action by filing a Complaint (doc. 1)
against defendants, JRD Contracting, Inc., John Dailey, Sr., and John Dailey, Jr. According to
the well-pleaded factual allegations of the Complaint, defendant JRD Contracting borrowed the
sum of $315,211.52 from Volvo Financial on or about September 30, 2015 to purchase certain
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In an Order (doc. 10) dated June 12, 2017, the undersigned fixed a deadline of
June 23, 2017 for defendants to file a response to plaintiff’s Rule 12(c) Motion. Although they
have appeared in this action through counsel of record, defendants responded to neither the
Motion nor the June 12 Order. Accordingly, defendants have waived the opportunity to be heard
on Volvo Financial’s Motion for Judgment on the Pleadings. Nonetheless, defendants’ failure to
respond does not warrant the reflexive granting of said Motion without considering its merits.
See generally Gailes v. Marengo County Sheriff’s Dep’t, 916 F. Supp.2d 1238, 1243-44 (S.D.
Ala. 2013) (“the Court will not treat a claim as abandoned merely because the plaintiff has not
defended it in opposition to a motion to dismiss,” but “the Court will review the merits of the
defendant’s position” instead); Tims v. Golden, 2016 WL 4259118, *2 n.4 (S.D. Ala. Aug. 10,
2016) (“the Court does not accept a sub silentio ‘abandonment’ theory of resolving motions to
dismiss”); Branch Banking and Trust Co. v. Howard, 2013 WL 172903, *1 (S.D. Ala. Jan. 16,
2013) (non-movants’ “lack of response to the Rule 12(b)(6) Motion does not trigger the kneejerk
granting of such Motion”). That said, defendants’ omission is at their peril, and they will not
later be heard to complain that this Court failed to divine some argument in defendants’ favor
that they could have raised had they availed themselves of the opportunity to respond to the
Motion.

heavy duty equipment, and executed a Promissory Note promising to repay the amount
borrowed, plus interest, via 60 monthly installment payments. (Doc. 1, ¶ 6.) The Complaint
further alleges that defendants John Dailey, Sr. and John Dailey, Jr. both executed Continuing
Guaranties in favor of Volvo Financial, pursuant to which they guaranteed all payments, notes
and indebtedness owed by JRD Contracting. (Id., ¶ 11.) According to the Complaint, JRD
Contracting defaulted under the note by failing to remit payment to Volvo Financial, and the
Daileys breached their guaranty obligations by failing to remit payment to Volvo Financial. (Id.,
¶¶ 14-15.) Based on these and other factual allegations, Volvo Financial brings causes of action
against defendants for breach of contract and breach of guaranty, and demands money damages
in the amount of $148,743.20, plus interest, attorney’s fees and costs pursuant to the terms of the
subject agreements.
On April 12, 2017, defendants (all of whom are represented herein by the same counsel
of record) filed an Answer (doc. 7) denying nearly every substantive allegation of the Complaint.
For example, defendants’ Answer denied paragraph 6 of the Complaint, in which Volvo
Financial alleged that JRD Contracting had borrowed money from plaintiff and had executed a
promissory note obliging it to repay those sums. (Doc. 7, ¶ 6.) Defendants’ Answer denied the
paragraphs of the Complaint purporting to set forth the terms of the parties’ agreement, including
interest, attorney’s fee and collateral provisions. (Id., ¶¶ 7-9.) Defendants’ Answer also denied
the paragraphs of the Complaint alleging that the Daileys had signed Continuing Guaranties in
Volvo Financial’s favor, and that defendants had defaulted on their repayment obligations. (Id.,
¶¶ 11-15.)2

2

By signing an Answer that included far-reaching denials of all factual averments
in the Complaint concerning the existence, nature and terms of the subject agreements, the
parties’ business dealings, and defendants’ failure to make payments due and owing as to same,
defendants’ counsel certified that to the best of his knowledge, information and belief, formed
after an inquiry reasonable under the circumstances, “the denials of factual contentions are
warranted on the evidence.” Rule 11(b)(4), Fed.R.Civ.P. If defendants’ counsel did not intend
to make such a certification as to the blanket denials of virtually all factual allegations set forth
in the Amended Complaint, then he should promptly move to amend the Answer pursuant to
Rule 15 in a manner that conforms the Answer to the necessary certifications upon reasonable
inquiry and investigation, and that fairly responds to the substance of each factual allegation of
the Complaint, as required by Rules 8(b) and 11(b)(4).

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Nearly two months after defendants filed their Answer, plaintiff filed a Motion for
Judgment on the Pleadings. In that Motion, Volvo Financial asserts that “there is no question
that Defendants executed and agreed to payment for products provided to them by Plaintiff and
then failed to make payment on those products, which resulted in a breach of contract.” (Doc. 9,
at 5.) Volvo Financial requests in its Motion that this Court enter judgment in plaintiff’s favor in
the amount of $148,543.20, plus costs, fees and expenses, on the ground that “Defendants
breached their contractual obligation to remit payment to [plaintiff] for the purchase of
equipment.” (Id. at 7.)
To be entitled to relief under Rule 12(c), a movant must establish that the pleadings
reveal no material issues of fact and that, drawing all reasonable inferences in the non-movant’s
favor, the movant is entitled to judgment as a matter of law. See, e.g., Perez v. Wells Fargo N.A.,
774 F.3d 1329, 1335 (11th Cir. 2014) (“Judgment on the pleadings is appropriate where there are
no material facts in dispute and the moving party is entitled to judgment as a matter of law.”).
Where, as here, the Rule 12(b)(6) Motion is filed by the plaintiff, a critical question is whether
the defendants’ answer raises issues of fact that would defeat the plaintiff’s recovery. See, e.g.,
Gerlinger v. Amazon.Com, Inc., 311 F. Supp.2d 838, 843 (N.D. Cal. 2004) (“A plaintiff is not
entitled to judgment on the pleadings if the defendant’s answer raises issues of fact or an
affirmative defense, which, if proved, would defeat plaintiff’s recovery.”); Air Engineering
Metal Trades Council and Affiliated Unions, AFL-CIO v. Aro, Inc., 307 F. Supp. 934, 935-36
(E.D. Tenn. 1969) (“In considering a motion by the plaintiff for a judgment on the pleadings, …
the question for determination is whether on the undenied facts alleged in the complaint and
assuming as true all the material allegations of fact in the answer, the plaintiff is entitled to
judgment as a matter of law.”) (citation omitted); Alleman v. Montplaisir, 2013 WL 1662936, *2
(D.N.H. Apr. 17, 2013) (“the plaintiff may not secure a judgment on the pleadings when the
answer raises issues of fact that … would defeat recovery”) (citation omitted).
Under any reasonable application of the Rule 12(c) standard, Volvo Financial’s Motion
for Judgment on the Pleadings is not well taken. To be sure, the Complaint sets forth factual
allegations that, if proven at trial, would establish JRD Contracting’s liability for breach of its
repayment obligations under the promissory note and the Daileys’ liability for breach of their
respective guaranty obligations. But defendants’ Answer denies essentially every material fact
relating to Volvo Financial’s claims. Defendants have denied the Complaint’s factual allegations

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concerning the existence, nature and terms of the promissory note and guaranties. They have
denied that JRD Contracting defaulted on its repayment obligations and that the Daileys failed to
pay under the guaranties. A Rule 12(c) Motion requires that all pleadings – not just the
Complaint – be considered, and that factual disputes in the pleadings be resolved in the nonmovant’s favor. Thus, a plaintiff is entitled to judgment on the pleadings only where the
undenied facts set forth in the complaint (considered alongside material allegations of fact in the
answer) establish the defendant’s liability. Here, Volvo Financial’s Rule 12(c) Motion would
disregard the contents of the Answer altogether. After all, the only way one could conclude
“there is no question that Defendants executed and agreed to payment for products provided to
them by Plaintiff and then failed to make payment on those products” (doc. 9, at 5), as plaintiff’s
Motion posits, is if one excluded the Answer from the analysis and simply accepted all factual
allegations in the Complaint at face value. Of course, Rule 12(c) requires that both the
Complaint and the Answer be considered, and authorizes judgment on the pleadings only where
those filings viewed in tandem reveal no material disputes of fact. See Perez, 774 F.3d at 1335
(“If a comparison of the averments in the competing pleadings reveals a material dispute of fact,
judgment on the pleadings must be denied.”) (citation omitted). In this case, the pleadings
appear to reflect that virtually all material facts are in dispute. Accordingly, plaintiff’s Motion
for Judgment on the Pleadings (doc. 9) is denied.
Finally, review of the docket sheet reveals that Magistrate Judge Bivins ordered the
parties “to meet and file a report pursuant to Fed.R.Civ.P. 26(f) as soon as practicable but not
later than JUNE 12, 2017.” (Doc. 8, at 1.) That deadline expired more than three weeks ago;
however, the parties have not filed their Rule 26(f) report to date. The parties are ordered to
show cause, on or before July 13, 2017, for their failure to comply with this aspect of the
Preliminary Scheduling Order.
DONE and ORDERED this 7th day of July, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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