United States District Court, W.D. Kentucky, Louisville
KURT K. MOHNSAM PLAINTIFF
JASON M. NEMES, ET AL. DEFENDANTS
Charles R. Simpson III, Senior Judge.
case is before the court on defendant Acuity, A Mutual
Insurance Company's (“Acuity”) motion for
judgment on the pleadings under Fed.R.Civ.P. 12(c). ECF No.
44. Plaintiff Kurt K. Mohnsam responded. ECF No. 46. Acuity
replied. ECF No. 47. This matter is now ripe for review. For
the reasons set forth below, Acuity's motion for judgment
on the pleadings will be granted in part and denied in part.
facts of this case were presented in the memorandum opinion
regarding the motion for judgment on the pleadings filed by
Defendants Fultz Maddox Dickens and Jason M. Nemes:
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. ECF No. 42.
the lawsuits were filed, Perry separately retained James M.
Nemes of the law firm Fultz Maddox Dickens to serve as
Mohnsam's co-counsel. Pl. Complaint, ECF No. 1, ¶
28. Then, on September 19, 2014, Perry entered into a
settlement with Martin & Bayley whereby Martin &
Bayley agreed to pay Perry $1, 811, 000.00 in exchange for
termination of the state and federal cases. Id. at
¶ 42. Perry was solely represented by Nemes and Fultz
Maddox Dickens in this settlement. Id. ¶ 41.
Mohnsam was not present. Id.
Martin & Bayley's insurance carrier, issued two
payments to Fultz Maddox Dickens in satisfaction of the
settlement with Perry. Id. at ¶¶ 43-44.
Nemes and Fultz Maddox Dickens retained a portion of the
payment for their legal fees. Id. at ¶ 46.
Nemes then asked Perry what percentage of the payment should
be disbursed to Mohnsam. Id. at ¶ 47. Perry
informed Nemes that he would separately issue a payment to
Mohnsam. Id. The remainder of the funds were then
distributed to Perry. Id. Mohnsam has never been
paid for his legal services. Id. at ¶ 48.
17, 2017, Mohnsam filed suit against Perry, Nemes, Fultz
Maddox Dickens, Martin & Bayley, and Acuity in this
court. Id. Mohnsam specifically brings claims
against Acuity for lien for attorney's fees, negligence
per se, civil conspiracy, and punitive damages. Id.
Acuity now moves for judgment on the pleadings.
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.
asserts that it is entitled to judgment on the pleadings for
each of Mohnsam's claims against it. Acuity contends that
Mohnsam's claims are time-barred, and that
notwithstanding this fact, Mohnsam fails to allege sufficient
facts to support ...