United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge
case is before the Court on two interrelated motions.
Defendants have moved for judgment on the pleadings. DN 14.
Plaintiff responded and cross-moved for summary judgment. DNs
15, 18. Defendants replied in support of their motion for
judgment on the pleadings and responded in opposition to
Plaintiff's motion for summary judgment. DNs 16, 19.
Plaintiff replied in support of its motion for summary
judgment. DN 17. Therefore, this matter is ripe for review.
Finding that the Defendants are entitled to the sovereign
immunity of the Commonwealth of Kentucky, the Court will
grant the Defendants' motion for judgment on the
pleadings, deny the Plaintiff's motion for summary
judgment, and dismiss the case without prejudice.
Defendant's Motion for Judgment on the Pleadings
“After 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). To the extent a Rule
12(c) motion challenges the pleading of plaintiff's
complaint, the inquiry is equivalent to that used under Rule
12(b)(6). Lindsay v. Yates, 498 F.3d 434, 438 (6th
Cir. 2007). Therefore, to survive a Rule 12(c) motion for
judgment on the pleadings, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(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.” Id. The complaint
need not contain “detailed factual allegations, ”
yet must provide “more than an unadorned,
Id. “Conclusory allegations or legal
conclusions masquerading as factual allegations will not
suffice.” Eidson v. Tenn. Dept. of Child
Servs., 510 F.3d 631, 634 (6th Cir. 2007).
undertaking this inquiry, “a district court must (1)
view the complaint in the light most favorable to the
plaintiff and (2) take all well-pleaded factual allegations
as true.” Tackett v. M & G Polymers, USA,
LLC, 561 F.3d 478, 488 (6th Cir. 2009). The Court
“may consider the Complaint and any exhibits attached
thereto, public records, items appearing in the record of the
case and exhibits attached to defendant's motion to
dismiss so long as they are referred to in the Complaint and
are central to the claims contained therein.”
Bassett v. Nat l Collegiate Athletic Ass 'n, 528
F.3d 426, 430 (6th Cir. 2008). “The defendant has the
burden of showing that the plaintiff has failed to state a
claim for relief[.]” Wesley v. Campbell, 779
F.3d 421, 428 (6th Cir. 2015).
Plaintiff's Cross-Motion for Summary Judgment
moving for summary judgment must show that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). A genuine issue for trial exists
when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Id. In undertaking this analysis, the
Court must view the evidence in the light most favorable to
the non-moving party. Scott v. Harris, 550 U.S. 372,
party moving for summary judgment bears the burden of
establishing the nonexistence of any issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
They can meet this burden by “citing to particular
parts of materials in the record” or “showing
that the materials cited do not establish the . . . presence
of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). This
burden can also be met by demonstrating that the nonmoving
party “fail[ed] to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S.
Factual and Procedural Background
2003, Bramer-Ferriell-Stoess, LLC (“Bramer”) and
Hy-Point Family Limited Partnership began work on a
commercial and residential real estate development in Oldham
County, Kentucky known as the Claymont Springs Subdivision.
DN 1 at 2. To finance the development, Bramer obtained a loan
from Branch Banking & Trust Company
(“BB&T”) in the principal amount of $2.2
million on December 21, 2006. Id. To evidence and
secure the loan, Bramer executed a promissory note and a real
estate mortgage. Id. at 2-3. At the same time,
Bramer obtained two irrevocable standby letters of credit
from BB&T totaling $134, 600 to construct certain
improvements and erosion controls required by regulations
from the Oldham County Fiscal Court and the Oldham County
Planning and Zoning Commission (collectively “Oldham
County”). Id. at 3.
assigned the promissory note and mortgage executed by Bramer
to Southern Financial Group, LLC (“Southern”) in
2010. Id. Afterward, on April 6, 2011, Southern
agreed to post cash bonds to replace the irrevocable standby
letters of credit from BB&T. Id. See also DN 1-1
(cash bond agreement). The agreement reduced the amounts
previously pledged to $94, 000. Id. One provision of
the contract, the progenitor of this case, states:
The above amounts will be held by the P&Z until
construction of the Project is completed, whereupon all of
the cash deposits will be returned to SFG, PROVIDED, the cash
deposits shall ...