Meredith v. New Hampshire Insurance Company et al

Filing 50

ORDER finding as moot 36 Motion to Amend/Correct; finding as moot 43 Motion for Leave to File; denying 31 Motion for Judgment on the Pleadings. Signed by Judge David G Campbell on 3/6/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jack Meredith,

No. CV-13-02013-PHX-DGC
Plaintiff,

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v.

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Shepherd Properties Company,

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ORDER

Defendant.

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Defendant Shepherd Properties Company d/b/a ShepCo Commercial Finishes

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(“ShepCo”) has filed a motion for judgment on the pleadings pursuant to Rule 12(c) of

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the Federal Rules of Civil Procedure. Doc. 31. Plaintiff Jack Meredith has filed a

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response or, in the alternative, a motion to amend. Doc. 36. Plaintiff has also filed a

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motion for leave to file a surreply. Doc. 43. For the reasons that follow, the Court will

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deny the motions.

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I.

Background.

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Plaintiff was an employee of Tradesman International, which “is an employee

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leasing company that loans workers to contractors to complete construction projects.”

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Doc. 36 at 2.

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complete construction of a commercial building in Scottsdale, Arizona. Id. On May 20,

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2012, Plaintiff fell off a ladder and broke his arm while on the job. Id.; Doc. 31 at 3.

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Plaintiff filed a claim for workers’ compensation, which was denied by Defendants New

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Hampshire Insurance Company and Gallagher Bassett Services (collectively the

Plaintiff was allegedly “leased” to ShepCo, which assigned him to

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“Insurance Defendants”). Doc. 31 at 3. Plaintiff alleges that ShepCo “discouraged and

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created unnecessary road blocks to prevent [Plaintiff]’s necessary surgery for his

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fractured arm,” and that ShepCo “knew that New Hampshire was acting in bad faith and

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substantially assisted New Hampshire’s breach.” Doc. 36 at 3. Plaintiff further contends

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that “ShepCo’s conduct culminated in its retaliatory termination of [Plaintiff][.]” Id.

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Plaintiff filed this action asserting bad faith against the Insurance Defendants and

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retaliatory termination and aiding and abetting bad faith against ShepCo. See Doc. 1.

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II.

Legal Standard.

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A motion for judgment on the pleadings “is properly granted when, taking all the

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allegations in the non-moving party’s pleadings as true, the moving party is entitled to

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judgment as a matter of law.” Fajardo v. County of L.A., 179 F.3d 698, 699 (9th Cir.

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1998); see Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004). In

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other words, dismissal pursuant to Rule 12(c) is inappropriate if the facts as pled would

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entitle the plaintiff to a remedy. Merchants Home Delivery Serv., Inc. v. Hall & Co., 50

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F.3d 1486, 1488 (9th Cir. 1995).

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In considering a motion for judgment on the pleadings, the Court cannot consider

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evidence outside the pleadings unless the Court treats the motion as one for summary

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judgment pursuant to Federal Rule of Civil Procedure 56. Fed. R. Civ. P. 12(c). If the

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Court treats the motion as having been brought under Rule 56, the Court must give all

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parties the opportunity to present all material pertinent to such motion. Id.

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III.

Analysis.

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ShepCo initially argues that it is entitled to judgment on the pleadings because it

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was not Plaintiff’s employer. Doc. 31 at 2. Plaintiff responds that ShepCo was his

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“borrowing employer” under Arizona law. Doc. 36 at 1. ShepCo concedes this argument

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in its reply, but then argues that it “is entitled to immunity from [Plaintiff]’s aiding and

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abetting claim pursuant to A.R.S. § 23-1022(A)[.]” Doc. 42 at 2. ShepCo cannot

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abandon the original basis for its motion and assert a new basis in its reply brief.

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Arguments raised for the first time in a reply brief are deemed waived. Delgadillo v.

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Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008). Because ShepCo has conceded that its

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motion is moot based on the arguments in Plaintiff’s response, the Court will deny the

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motion.

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IT IS ORDERED that ShepCo’s motion for judgment on the pleadings (Doc. 31)

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is denied. Plaintiff’s motion to amend (Doc. 36) is denied as moot. Plaintiff’s motion

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for leave to file a surreply (Doc. 43) is also denied as moot.

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Dated this 6th day of March, 2014.

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