Opinion
CASE NO. 2:09-cv-1003-MEF-TFM.
March 23, 2010
MEMORANDUM OPINION AND ORDER
Guarantee Company of North America USA ("Guarantee") brought this case against W.D. Wainwright Sons, Inc. ("WDWS") as well as Stephen R. Wainwright ("Stephen Wainwright"), Sheryl B. Wainwright, William J. Wainwright ("Jeff Wainwright"), and Tracye Wainwright (collectively, "individual indemnitors"). (Doc. #1). Guarantee also named as defendants Denise Poole ("Poole"), RLI Insurance Company, and First Community Bank of Central Alabama. Guarantee sues over bonds it issued that it alleges WDWS and individual indemnitors agreed to indemnify. With regards to Jeff and Tracye Wainwright, Guarantee seeks exoneration, specific performance, and a declaratory judgment outlining their indemnity obligations. Now pending before this Court are Jeff Wainwright's Motion to Dismiss (Doc. #11) and Tracye Wainwright's Motion to Dismiss (Doc. #14). For the reasons set forth in this Memorandum Opinion and Order, both motions are due to be DENIED.
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.
Jeff Wainwright filed both his answer to Guarantee's complaint (Doc. #10) and his motion to dismiss (Doc. # 11) on November 13, 2009. Tracye Wainwright also filed both her answer to Guarantee's complaint (Doc. #13) and her motion to dismiss (Doc. #14) on November 13, 2009. Defenses to claims for relief made by motion "must be made before pleading if a responsive pleading is allowed." Fed.R.Civ.P. 12(b) (emphasis added). Because — for 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 after they filed their answers. Since neither motion was filed before the filing of a responsive pleading, these motions cannot be treated as Rule 12(b) motions. See, e.g., Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002) ("[B]ecause a responsive pleading — an answer — had been filed, under the plain language of Rule 12(b), a motion to dismiss would have been inappropriate."); Byrne v. Nezhat, 261 F.3d 1075, 1093 n. 35 (11th Cir. 2001) ("Had 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.").
Though characterized by Jeff and Tracye Wainwright as motions to dismiss, these motions could be interpreted as motions for judgment on the pleadings under Rule 12(c), which may be filed after the filing of answers so long as they are filed "early enough not to delay trial." Fed.R.Civ.P. 12(c); see, e.g., Byrne, 261 F.3d at 1096 n. 46 (treating the motion to dismiss filed after the answer as a motion filed pursuant to Rule 12(c)). In deciding a Rule 12(c) motion for judgment on the pleadings, a Court may consider only the pleadings, in this case the Complaint and Answers. See id. Documents attached to the pleadings become part of the pleadings and may be considered on a motion for judgment on the pleadings. See Fed.R.Civ.P. 10(c). The fact allegations of the complaint are to be taken as true, but those of the answer are taken as true only where and to the extent that they have not been denied or do not conflict with those of the complaint. See Stanton v. Larsh, 239 F.2d 104, 106 (5th Cir. 1956). In order to prevail, a motion for judgment on the pleadings "must be based on the undisputed facts appearing in all the pleadings." Id. Thus, judgment 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. Dreyfoos, 166 F.3d 1114, 1116-17 (11th Cir. 1999).
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.
Jeff 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 else had any authority to sign the GAI for them. Therefore, Jeff and Tracye Wainwright state that the statute of frauds bars Guarantee's claims against them. Guarantee responds that a factual dispute exists as to whether they signed or otherwise agreed to the GAI. Guarantee further argues that the motions under submission rely on naked assertions lacking evidentiary support.
Guarantee alleges in its complaint that Stephen Wainwright placed the signatures of Jeff 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 notarized 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 page of the GAI includes the initials "JW" and "TW." Furthermore, signatures for both Jeff and Tracye Wainwright are placed on the signature page, with Stephen Wainwright's signature listed as attesting to both. Finally, Poole notarized the GAI. The signing and notarizing of the GAI are both shown on the face of the GAI as taking place on May 30, 2007.
The material fact underlying these motions — that Jeff and Tracye Wainwright did not agree to indemnify Guarantee — is clearly disputed by the allegations in the complaint, which this Court must take as true. Therefore, even if characterized as a motion for judgment on the pleadings, both motions are due to be 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).
For the foregoing reasons, it is hereby ORDERED that Defendants' Motions to Dismiss (Docs. #11 14) are DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).