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Mohnsam v. Nemes

United States District Court, W.D. Kentucky, Louisville

February 22, 2018



          Charles R. Simpson III, Senior Judge United States District Court.

         I. Introduction

         This 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.

         II. Factual Background

         Mohnsam, 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.

         After 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 present. Id.

         Martin & 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.

         On July 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 pleadings.

         III. Legal Analysis

         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 555.

         When 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.

         IV. Discussion

         Defendants 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.[1]

         Alternatively, Defendants argue that Mohnsam has failed to allege facts sufficient to support any of the claims against them. These ...

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