United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
E. WIER, UNITED STATES DISTRICT JUDGE
Defendant Diamond Landscapes, Inc. seeks judgment on the
pleadings based on its vendor contract with Third Party
Plaintiffs CF Kentucky Owner, LLC and Friedman Management
Company. DE #27. The motion is fully briefed, DE ##32-33, and
ripe for decision. Because contract ambiguity and disputed
material questions of contractual intent make pleadings-based
dismissal inappropriate, the Court denies Diamond's
Relevant Factual and Procedural Background
Kentucky and Friedman respectively own and manage apartment
complexes in Kentucky, including the Cedarwood Apartments in
Lexington. DE #1-2 at 5-6, ¶¶ 2-3. The Complaint
(originally filed in Fayette Circuit Court) alleges that
Plaintiff Rhonda Gentry-while visiting a patient of her
employer, a Cedarwood tenant, on January 30,
2017-“slipped on a snowy and/or icy sidewalk . . .
causing her to fall and sustain serious physical
injury.” Id. at 7, ¶¶ 8-10. CF
Kentucky and Friedman removed the action to this Court in
September 2018. DE #1.Defendants subsequently sought leave to
file a Third-Party Complaint against Diamond, their
contracted snow and ice removal vendor, see DE #8,
and the Court granted the unopposed impleader request,
see DE #14.
Third-Party Complaint asserts claims for breach of contract,
negligence, and contractual and common law indemnity against
Diamond. DE #15. It avers that, should Gentry's claims
against Defendants succeed, Diamond would in turn be liable
to CF Kentucky and Friedman for any resulting damages. In
response, Diamond contends that the parties' vendor
contract (“the Contract”), see DE #8-5
(Exhibit 1 to the Third-Party Complaint - Vendor Contract),
conclusively establishes that Diamond had no obligation to
perform sidewalk snow/ice removal services on the date of
Gentry's alleged slip-and-fall. DE #27. Diamond further
argues that the invoice it submitted to CF Kentucky and
Friedman for services performed on January 29-30, 2017
(“the Invoice”)confirms that Diamond was not
responsible for clearing or de-icing the Cedarwood sidewalks
on that date. Id.; see DE #8-6 (Exhibit 2
to the Third-Party Complaint - Invoice). CF Kentucky and
Friedman opposed DE #27, see DE #32, and Diamond
replied, see DE #33.
Rule 12(c) Standard
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). The Rule 12(c) standard mirrors that of
Rule 12(b)(6). See Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010);
Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension
Corp., 399 F.3d 692, 697 (6th Cir. 2005). “For
purposes of a motion for judgment on the pleadings, all
well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly
entitled to judgment.” JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 582 (6th Cir. 2007) (quotation
marks and citation omitted). However, the Court is not
required to accept as true “a legal conclusion couched
as a factual allegation[, ]” Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1965 (2007). Rule 12(c)
judgment is proper “when no material issue of fact
exists and the party making the motion is entitled to
judgment as a matter of law.” Winget, 510 F.3d
at 582 (quoting Paskvan v. City of Cleveland Civil Serv.
Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991)).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). To survive dismissal,
it must offer “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do[.]” Twombly, 127 S.Ct. at 1965. In
other words, “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, 129 S.Ct. 1937, 1949 (2009) (quotation marks and
citation omitted). Hinging on Rule 8's minimal standards,
Twombly and Iqbal simply require a
plaintiff to plead facts that “raise a right to relief
above the speculative level[, ]” Twombly, 127
S.Ct. at 1965, permitting the court “to draw a
‘reasonable inference that the defendant is liable for
the misconduct alleged.'” Nwanguma v.
Trump, 903 F.3d 604, 607 (6th Cir. 2018) (quoting
Iqbal, 129 S.Ct. at 1949 (citation omitted)). This
“plausibility standard” does not require a
showing that success on the claims is probable,
“but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 129
S.Ct. at 1949. Where plaintiffs state “simply,
concisely, and directly events that . . . entitled them to
damages, ” the rules require “no more to stave
off threshold dismissal for want of an adequate
statement[.]” Johnson v. City of Shelby,
Miss., 135 S.Ct. 346, 347; see also El-Hallani v.
Huntington Nat. Bank, 623 Fed.Appx. 730, 739 (6th Cir.
2015) (“Although Twombly and Iqbal
have raised the bar for pleading, it is still low.”).
unadorned, naked assertions warrant no presumption of truth
in the plausibility analysis. Iqbal, 129 S.Ct. at
1949. “Plausibility is a context-specific inquiry,
” Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 369 (6th Cir. 2011),
“requiring the reviewing court to draw on its
experience and common sense[, ]” Iqbal, 129
S.Ct. at 1950. In deciding a motion for judgment on the
pleadings, courts may consider (without converting the Rule
12(c) motion into one for summary judgment) “documents
attached to the pleadings[, ]” documents
“referred to in the pleadings” and
“integral to the claims[, ]” and “matters
of public record[.]” Commercial Money Ctr., Inc. v.
Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir.
2007); accord Brent v. Wayne Cty. Dep't of Human
Servs., 901 F.3d 656, 695 (6th Cir. 2018) (noting that
courts “may consider those exhibits [attached to a Rule
12(c) motion] so long as they are referred to in the
Complaint and are central to the claims contained
therein”). The Court thus here considers the Contract
and Invoice; both are referenced in, and attached and central
to, the Third-Party Complaint.
Contract Ambiguity and Disputed Material Questions of
cause of action that CF Kentucky and Friedman assert against
Diamond requires a threshold plausible showing that Diamond
bore responsibility for removing snow/ice from the Cedarwood
sidewalks on the date of Gentry's alleged
fall. Diamond (without analyzing each claim
individually) challenges only this element of the case
against it, arguing that the Contract and Invoice together
unequivocally demonstrate that it had no duty to clear or
de-ice any Cedarwood sidewalks on the date in question.
See DE #27-1 at 4-5; DE #33 at 2 (identifying the
primary issue as “whether the contract . . . required
Diamond Landscapes to remove snow or ice on the sidewalk at
the apartment complex”) (emphasis omitted). CF Kentucky
and Friedman contrarily maintain that the Contract
“obligated [Diamond] to provide snow and ice removal
services for the property, which included Diamond performing
a site inspection to ensure that the property was ‘free
of ice'” on January 30, 2017. DE #32 at 1-2. The
facts indicate a plausible claim, insofar as Plaintiff claims
to have fallen on ice, and the owner/manager claim that
Diamond had a duty to remove snow and ice from the sidewalks
at Cedarwood. The key is the meaning of the Contract.
Court's contractual “review must begin with an
examination of the plain language of the instrument.”
Kentucky Shakespeare Festival, Inc. v. Dunaway, 490
S.W.3d 691, 694 (Ky. 2016). Absent ambiguity in a
contract's plain language, the Court “interpret[s]
the contract's terms by assigning language its ordinary
meaning and without resort to extrinsic evidence[.]”
Id. (internal quotation marks and citation omitted).
The Court must construe the contract “as a whole,
giving effect to all parts and every word in it if
possible.” Cantrell Supply, Inc. v. Liberty Mut.
Ins. Co., 94 S.W.3d 381, 384-85 (Ky. Ct. App. 2002)
(quoting City of Louisa v. Newland, Ky., 705 S.W.2d
916, 919 (1986)). “A contract is ambiguous if a
reasonable person would find it susceptible to different or
inconsistent interpretations.” Id. Determining
whether a contract is ambiguous is a legal inquiry for the
Court. See First Commonwealth Bank of Prestonsburg v.
West, 55 S.W.3d 829, 835 (Ky. Ct. App. 2000).
“However, once a court determines that a contract is
ambiguous, areas of dispute concerning the extrinsic evidence
are factual issues and construction of the contract become[s]
subject to resolution by the fact-finder.” Cantrell
Supply, 94 S.W.3d at 385.
Court thus looks to the four corners of the
Contract. Its recitals provide, in relevant part:
B. Whereas, Owner and Contractor desire that the Contractor
assume responsibility for ...