United States District Court, W.D. North Carolina, Charlotte Division
ATUL R. PATEL and CHANDRIKA R. PATEL, Plaintiffs,
FIFTH THIRD BANK, INC., Defendant.
C. KEESLER, UNITED STATES MAGISTRATE JUDGE
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.
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.
“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.
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).
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.
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,
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).
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
pending “Motion For Judgment On The Pleadings” is
ripe for review and disposition.
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.
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