United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO United States District Judge.
matter is before the Court on Defendant Central Transport,
Inc.'s Motion for Summary Judgment. (ECF # 21). For the
following reasons, the Court grants the Motion and dismisses
the above-captioned case without prejudice, subject to
December 17, 2015, Plaintiff filed its Complaint alleging one
count of Damage to Property for damage to its concrete when
Defendant's truck hit a rock and leaked oil on
Plaintiff's loading dock driveway.
August 18, 2016, Defendant filed its Motion for Summary
Judgment, contending that Plaintiff's Complaint fails to
state a claim because it fails to state a valid cause of
action, location of the loss or date of the loss.
failed to timely oppose the Motion. Instead, on October 13,
2016, Plaintiff filed a Motion for Extension of Time to
Respond to Defendant's Motion for Summary Judgment.
According to Plaintiff, it did not receive a copy of the
Motion until October 3, 2016 because Plaintiff's counsel
moved his office. The Court ordered Plaintiff to file its
Opposition no later than November 16, 2016. Plaintiff filed
its Opposition brief on November 14, 2016. In its four
paragraph Opposition brief, Plaintiff asserts its Complaint
does state a location, cause of action and date of loss.
According to Plaintiff, “Count One of Plaintiffs'
(sic) complaint specifies that on August 14, 2015, at or
around 3:00 PM an employee of the Defendants' (sic) came
to Plaintiffs' (sic) company to pick up a shipment.
Through the negligence of the employee, permanent damage was
done to the driveway of the Plaintiffs' (sic).”
Plaintiff cites the Court to paragraph 3 of his Complaint.
only problem with Plaintiff's recitation of the claims in
his Complaint is that it does not reflect the actual
allegations. The actual wording of Plaintiff's Complaint
reads as follows:
On August 14th at or around three in the afternoon Central
Transport driver James Evans came to pick up a shipment. The
driver struck a rock, damaging the trucks oil pan, which led
to large amounts of oil spilling onto the concrete. Permanent
damage was done to a significant portion of the driveway,
only means to correcting the damage was removal of the old
concrete driveway and paving of a new concrete drive.
absent are the year of the spill and the cause of action.
Contrary to what Plaintiff says in his Opposition brief, the
Complaint does not specify that the injury occurred in 2015
and does not allege that the spill occurred due to the
captions its Motion as a Motion for Summary Judgment but the
Motion relies entirely upon the alleged insufficiencies in
Plaintiff's Complaint and does not assert there are no
genuine issues of fact. Therefore, the Court deems the Motion
as a Motion for Judgment on the Pleadings under Federal Rule
of Civ. P. 12(c).
the pleadings are closed, but within such time as not to
delay the trial, any party may move for judgment on the
pleadings. Fed.R.C.iv.P. 12(c). In this jurisdiction,
“[t]he standard of review for a judgment on the
pleadings is the same as that for a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) . . . . We
‘construe the complaint in the light most favorable to
the plaintiff, accept all of the complaint's factual
allegations as true, and determine whether the plaintiff
undoubtedly can prove no set of facts in support of the
claims that would entitle relief.'” Roger
Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d
383, 389 (6th Cir.2007) (citations omitted). The court's
decision “rests primarily upon the allegations of the
complaint;” however, “‘exhibits attached to
the complaint also may be taken into account.'”
Barany-Snyder v Weiner, 539 F.3d 327, 332 (6th
Cir.2008) (citation omitted) (brackets in the original).
Lastly, a Rule 12(c) motion “is granted when no
material issue of fact exists and the party making the motion
is entitled to judgment as a matter of law.”
Paskvan v. City of Cleveland Civil Serv. Comm'n,
946 F.2d 1233, 1235 (6th Cir.1991). In deciding a motion to
dismiss under Fed.R.Civ.P. 12(b)(6), the court must accept as
true all of the factual allegations contained in the
complaint. Erickson v. Pardus, 551 U.S. 89, 93-94
(2007). The court need not, however, accept conclusions of
law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” As the
Court held in [Bell Atlantic v.] Twombly,
550 U.S. 544, 127 S.Ct. 1955');">127 S.Ct. 1955 [(2007)], the pleading standard
Rule 8 announces does not require “detailed factual
allegations, ” but it demands more than an unadorned,
the-Defendant-unlawfully-harmed-me accusation. Id.
at 555. A pleading that offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of
“further factual enhancement.” Id. at
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Id. at 570. 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. at 556. The
plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a Defendant has acted unlawfully.
Id. Where a complaint pleads facts that are
“merely consistent with” a Defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
to the Sixth Circuit, the standard described in
Twombly and Iqbal “obliges a pleader
to amplify a claim with some factual allegations in those
contexts where such amplification is needed to render the
claim plausible.” Weisbarth v. Geauga Park
Dist., 499 F.3d 538, 541 (6th Cir. 2007) (quoting
Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir.
2007)). That is, “Iqbal interpreted
Twombly to require more concrete allegations only in
those instances in which the complaint, on its face, does not
otherwise set forth a plausible claim for relief.”
Weisbarth, 499 F.3d at 542. A ...