United National Insurance Company v. Horton Sales Development Corp. et al
Filing
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ORDER denying as moot 37 MOTION for Judgment on the Pleadings MOTION for Summary Judgment ; Set Deadlines as to 34 MOTION for Judgment on the Pleadings, (Responses due by 10/18/2012); Plaintiff and Defendant Beard to file Stipulation of Dismissal re claims against each other within 30 days of this order. Signed by District Judge Martin Reidinger on 9/27/12. (Pro se litigant served by US Mail.)(bsw)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv28
UNITED NATIONAL INSURANCE
COMPANY,
Plaintiff,
vs.
HORTON SALES DEVELOPMENT
CORP., WILLIAM GREG HORTON,
CATHRYN J. STROHM HORTON,
and T. ALEXANDER BEARD,
Defendants.
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ORDER and NOTICE
THIS MATTER is before the Court sua sponte following the filing of a
Motion for Judgment on the Pleadings by the Plaintiff [Doc. 34]; the filing of a
Motion for Cross-Judgment on the Pleadings for Liability or, alternatively, for
Partial Summary Judgment by Defendant T. Alexander Beard [Doc. 37]; and
the filing of a Certification of Mediation Session by the mediator advising that
this case has been partially settled [Doc. 42].
I.
PROCEDURAL BACKGROUND
On February 9, 2011, the Plaintiff United National Insurance Company
filed this declaratory judgment action seeking a determination of its rights and
obligations under a commercial general liability insurance policy issued by the
Plaintiff to Defendant Horton Sales Development Corporation (“Horton Sales”)
for damages that may be assessed against the Defendants under a demand
from the South Carolina Department of Health and Environmental Control for
recovery of clean-up costs from alleged contamination of a site owned or
operated by one or more of the Defendants. [Doc. 1]. On April 4, 2011,
William Greg Horton and Cathryn J. Strohm Horton (collectively, “the
Hortons”), appearing pro se, filed an Answer to the Complaint, asserting that
they have no personal liability for the subject clean-up costs. [Doc. 15].
On April 6, 2011, Defendant T. Alexander Beard (“Beard”), appearing
pro se, filed a Motion to Dismiss, alleging that this matter was not ripe for
adjudication. [Doc. 11]. On September 15, 2011, the Honorable Dennis L.
Howell, United States Magistrate Judge, entered a Memorandum and
Recommendation, recommending that the Motion to Dismiss be denied. [Doc.
20].
On October 6, 2011, this Court entered an Order adopting the
Memorandum and Recommendation and denying the Motion to Dismiss.
[Doc. 21].
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On October 19, 2011, Beard filed his Answer to the Plaintiff’s Complaint
and Counterclaim. [Doc. 22]. On November 10, 2011, the Plaintiff replied to
Beard’s Counterclaim. [Doc. 23].
On November 28, 2011, the Court entered an Order directing the
Plaintiff to take further action with respect to the failure of Horton Sales to
respond to the Complaint. [Doc. 24]. On December 1, 2011, the Plaintiff filed
a Motion for Entry of Default against Horton Sales for failure to respond to the
Complaint. [Doc. 25]. On January 4, 2012, the Clerk made an entry of default
against Horton Sales. [Doc. 27].
On December 12, 2011, the Hortons filed a document entitled
“Response to Civil Case No. 1:11 CV 28,” asserting that their liability for the
subject clean-up costs had been discharged in bankruptcy. [Doc. 26]. On
January 24, 2012, the Court entered a Pretrial Order and Case Management
Plan in this case. In that Pretrial Order, the Court directed the Plaintiff to
respond to the Hortons’ December 12, 2011 filing. [Doc. 29]. On February
14, 2012, the Plaintiff filed its Response, asserting that the discharge of the
Hortons’ debts in bankruptcy did not bar Plaintiff’s claim for declaratory
judgment against them. [Doc. 33].
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Thereafter, on May 18, 2012, the Plaintiff filed a motion pursuant to Rule
12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings.
[Doc. 34]. None of the Defendants responded to the Plaintiff’s motion. On
June 11, 2012, Beard filed a cross-motion for judgment on the pleadings, or
alternatively, for partial summary judgment. [Doc. 37].
On September 14, 2012, the parties’ mediator, Donald Britt, filed a
Certification of Mediation Session, advising that this matter has been settled
as between the Plaintiff and Beard. [Doc. 42].
II.
DISCUSSION
A.
Roseboro Notice
In view of the Hortons’ pro se status, the Court hereby provides notice
to them, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of
the burden that they carry in responding to the Plaintiff’s Motion for Judgment
on the Pleadings [Doc. 34].
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings
are closed -- but early enough not to delay trial -- a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). In ruling on a Rule 12(c)
motion, the Court “must accept the nonmovant’s allegations as true[,] viewing
the facts in the light most favorable to the nonmoving party. Judgment on the
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pleadings should be granted if the movant is entitled to judgment as a matter
of law.”
Bradley v. Ramsey, 329 F.Supp.2d 617, 622 (W.D.N.C. 2004)
(citation omitted). This standard is similar to that used in ruling on a Rule
12(b)(6) motion “with the key difference being that on a 12(c) motion, the court
is to consider the answer as well as the complaint.” Continental Cleaning
Serv. v. United Parcel Serv., Inc., No. 1:09CV1056, 1999 WL 1939249, at *1
(M.D.N.C. Apr. 13, 1999) (citation and internal quotation marks omitted).
Where an insurance policy is “integral to and explicitly relied upon in the
complaint,” the policy itself should be considered along with the factual
allegations of the complaint and answer. Colin v. Marconi Commerce Sys.
Employees’ Retirement Plan, 335 F.Supp.2d 590, 596 (M.D.N.C. 2004).
The Court hereby advises the Defendants William Greg Horton and
Cathryn J. Strohm Horton that failure to respond to the Plaintiff’s Motion for
Judgment on the Pleadings may result in the Plaintiff being granted the relief
it seeks, that is, a declaratory judgment construing the subject insurance
policy as affording no defense or indemnity for pollution recovery costs sought
from the Defendants by the South Carolina Department of Health and
Environmental Control.
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Because the Court is just now informing the Defendants of the burden
they have in responding to Plaintiff’s motion, it will allow the Defendants an
additional twenty-one (21) days from the entry of this Order to respond to the
motion.
B.
Partial Settlement of the Case
In light of the Mediator’s report advising that the Plaintiff and Defendant
Beard have settled their respective claims against each other, the Court will
deny Defendant Beard’s Motion for Judgment on the Pleadings for Liability or,
alternatively, for Partial Summary Judgment [Doc. 37] as moot. The Court will
allow these parties thirty (30) days in which to file a stipulation of dismissal.
ORDER
IT IS, THEREFORE, ORDERED that the Defendants William Greg
Horton and Cathryn J. Horton may respond to the Plaintiff’s Motion for
Judgment on the Pleadings [Doc. 34] within twenty-one (21) days from the
entry of this Order. Failure to file a timely and persuasive response will
likely lead to the entry of a declaratory judgment in the Plaintiff’s favor.
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IT IS FURTHER ORDERED that Defendant Beard’s Motion for CrossJudgment on the Pleadings for Liability or, alternatively, for Partial Summary
Judgment [Doc. 37] is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Plaintiff and Defendant Beard shall
file a Stipulation of Dismissal of their respective claims against each other
within thirty (30) days of the entry of this Order.
The Clerk is respectfully DIRECTED to send a copy of this Notice and
Order to the pro se Defendants at their respective addresses of record.
IT IS SO ORDERED.
Signed: September 27, 2012
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