United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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's 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.
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 continuance of briefing schedule is MOOT.
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
ATC U.Sometimes after moving into the building, ATCU
discovered water leaks, roof leaks, and other problems with
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
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
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
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
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.
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).
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 ...