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Patel v. Fifth Third Bank, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

March 15, 2019

ATUL R. PATEL and CHANDRIKA R. PATEL, Plaintiffs,
v.
FIFTH THIRD BANK, INC., Defendant.

          ORDER

          DAVID C. KEESLER, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER IS BEFORE THE COURT on “Defendant's Motion For Judgment On The Pleadings” (Document No. 10). The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and this motion is now ripe for disposition. Having carefully considered the motion, the record, and applicable authority, the undersigned will deny the motion.

         PROCEDURAL BACKGROUND

         Atul R. Patel (“Mr. Patel”) and Chandrika R. Patel (“Mrs. Patel”), (together “Plaintiffs” or the “Patels”) initiated this action with the filing of their “Complaint” (Document No. 1-1) in the Superior Court of Mecklenburg County, North Carolina, No. 18-CVS-9309, on May 1, 2018. The Complaint asserts claims against Fifth Third Bank, Inc. (“Defendant” or “Fifth Third”) for: (1) breach of contract; (2) actual fraud; (3) constructive fraud; (4) conversion; (5) larceny; (6) obtaining property by false pretenses; and (7) negligent retention/hiring and supervision. (Document No. 1-1, pp. 10-16).

         Defendant's “Notice Of Removal” (Document No. 1) was filed in this Court on June 11, 2018. Defendant contends that removal is appropriate because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. (Document No. 1, p. 1). Defendant's “Answer And Affirmative Defenses” (Document No. 4) was then filed on June 18, 2018.

         Following the parties' “Certification And Report Of F.R.C.P. 26(f) Conference And Proposed Discovery Plan” (Document No. 6) and “Joint Stipulation of Consent To Exercise of Jurisdiction by a United States Magistrate Judge” (Document No. 7), the undersigned issued a “Pretrial Order And Case Management Plan” (Document No. 9) on July 24, 2018. The “…Case Management Plan” included the following deadlines: discovery completion - December 28, 2018; mediation report - January 15, 2019; dispositive motions - January 25, 2019; and trial term - July 1, 2019. (Document No. 9).

         “Defendant's Motion For Judgment On The Pleadings” (Document No. 10) and “Memorandum Of Law In Support…” (Document No. 11) were filed on August 17, 2018. On September 5, 2018, “Plaintiffs' Memorandum Of Law In Opposition To Defendant's Motion For Judgment On The Pleadings” (Document No. 13) was filed. Defendant's “Reply In Further Support Of Defendant's Motion For Judgment On The Pleadings” (Document No. 15) was filed September 19, 2018.

         Plaintiffs filed a “Designation Of Expert” (Document No. 18), along with their expert's “Curriculum Vitae” (Document No. 18-1)) and “Report of Examination” (Document No. 18-2) on November 2, 2018.[1]

         The case deadlines were amended on December 18, 2018, pursuant to the parties' joint motion (Document No. 20) as follows: discovery completion - February 28, 2019; mediation report - March 8, 2019; dispositive motions - March 22, 2019; and trial term - August 5, 2019. (Document No. 21).

         On February 19, 2019, the parties' mediator, Edward B. Davis, filed a “Certification Of Mediation Session” (Document No. 22) reporting that the parties' attempt to settle the case had reached an impasse.

         The pending “Motion For Judgment On The Pleadings” is ripe for review and disposition.

         STANDARD OF REVIEW

         Rule 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). “A Rule 12(c) motion tests only the sufficiency of the complaint and does not resolve the merits of the plaintiff's claims or any disputes of fact.” Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (quoting Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014)). In resolving a motion for judgment on the pleadings, a court must accept the nonmovant's allegations as true and view the facts in the light most favorable to the nonmoving party. Bradley v. Ramsey, 329 F.Supp.2d 617, 622 (W.D. N.C. 2004).

         A motion for a judgment on the pleadings is decided under a similar standard as a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), “with the key difference being that on a 12(c) motion, ‘the court is to consider the answer as well as the complaint.'” Bradley, 329 F.Supp.2d at 622 (quoting Continental Cleaning Serv. v. United Parcel Serv., Inc., 1999 WL 1939249 at * 1 (M.D. N.C. 1999)); see also Burbach Broadcasting Co. of Delaware v. Elkins Radio, 278 F.3d 401, 405 (4th Cir. 2002). “[D]ocuments attached to the Answer are part of the pleadings for Rule 12(c) purposes, and may be considered without converting a motion for judgment on the pleadings into a motion for summary judgment, only if the documents are central to the Plaintiff's claim and the authenticity is not challenged.” Mendenhall v. Hanesbrands, Inc., 856 F.Supp.2d 717, 724 (M.D. N.C. 2012). The court may consider materials referenced in, incorporated by ...


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