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Mohnsam v. Nemes

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

April 18, 2018

KURT K. MOHNSAM PLAINTIFF
v.
JASON M. NEMES, ET AL. DEFENDANTS

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge.

         I. Introduction

         This 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.

         II. Factual Background

         The 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.

         After 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.

         Acuity, 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.

         On July 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.

         III. Legal Standard

         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

         Acuity 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 ...


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