United States District Court, W.D. Kentucky, Louisville
KURT K. MOHNSAM PLAINTIFF
JASON M. NEMES, ET AL. DEFENDANTS
Charles R. Simpson III, Senior Judge United States District
matter is before the court on defendants Fultz Maddox Dickens
and Jason M. Nemes' (hereinafter
“Defendants”) motion for judgment on the
pleadings. ECF No. 31. Plaintiff Kurt K. Mohnsam (hereinafter
“Mohnsam”) responded and requested oral argument
on all issues surrounding this motion. ECF No. 35. Defendants
subsequently replied. ECF No. 38. For the reasons set forth
below, the court finds that oral argument on these issues is
unnecessary, and the motion for judgment on the pleadings
will be granted in part and denied in part.
an attorney admitted to practice in Kentucky, was retained by
Morgan Bryan Perry to represent him in a slip-and-fall case
against Martin & Bayley's automobile service station
(“Martin & Bayley”) in September 2012. Pl.
Complaint, ECF No. 1, ¶ 20. Allegedly, Perry and Mohnsam
entered into a written contract of engagement whereby Mohnsam
agreed to represent Perry in exchange for ten percent of the
principal amount recovered from Martin & Bayley in any
litigation or settlement, or alternatively, a reasonable fee
for his legal services. Id. Mohnsam subsequently
commenced personal injury actions against Martin & Bayley
on Perry's behalf in state and federal court.
Id. at ¶ 28.
this time, Perry separately retained Defendants to serve as
Mohnsam's co-counsel. Id. at ¶ 35. On
September 19, 2014, Perry entered into a settlement agreement
with Martin & Bayley whereby Martin & Bayley agreed
to pay Perry $1, 811, 000.00 in exchange for the termination
of the state and federal cases. Id. at ¶ 42.
Perry was solely represented by Defendants in this
settlement. Id. at ¶ 41. Mohnsam was not
& Bayley's insurance carrier, Acuity, subsequently
issued payment to Defendants in satisfaction of the
settlement with Perry. Id. at ¶¶ 43-44.
Defendants retained a portion of this settlement amount for
their legal fees, and then distributed the remainder of the
funds to Perry. Id. at ¶ 46.
17, 2017, Mohnsam filed suit against Perry, Martin &
Bayley, Acuity, and Defendants in this court. Id.
Mohnsam specifically brings claims against Defendants for
breach of fiduciary duty, money had and received, lien for
attorney's fees, negligence per se, and civil conspiracy.
Id. Defendants now move for judgment on the
Court analyzes a Rule 12(c) motion for judgment on the
pleadings under the same standard as a Rule 12(b)(6) motion
to dismiss for failure to state a claim. Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
Therefore, to survive a Rule 12(c) motion, a complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell v. Atlantic Corp.
v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d.
868 (2009). While “[t]he plausibility standard is not
akin to a ‘probability requirement, ' it demands
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. The factual allegations
in the complaint must “raise a right to relief above
the speculative level.” Twombley, 550 U.S. at
considering a motion for judgment on the pleadings, the court
may examine the complaint and its exhibits, public records,
items appearing in the record of the case, and documents
incorporated by reference into the complaint and central to
the claims. Barany-Snyder v. Weiner, 539 F.3d 327,
332 (6th Cir. 2008); Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
The court must view the complaint in the light most favorable
to the nonmoving party, accepting as true all well-pleaded
factual allegations and drawing all reasonable inferences in
the nonmoving party's favor. Commercial Money Ctr.,
Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir.
2007). However, the court need not accept as true the
nonmoving party's legal conclusions or unwarranted
factual allegations. Id. The motion may be granted
only if the moving party is nevertheless entitled to judgment
as a matter of law. Id.
assert that they are entitled to judgment on the pleadings
for each of Mohnsam's claims against them. Specifically,
Defendants argue that although Mohnsam states various causes
of action, all of them “center on the allegation that
[Defendants] detained Perry's personal property . . .
which Mohnsam now seeks to recover.” ECF No. 31-1, p.
5. Accordingly, Defendants contend that each of these claims
is time-barred under KRS § 413.125.
Defendants argue that Mohnsam has failed to allege facts
sufficient to support any of the claims against them. These