United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
Peerless Insurance Company ("Plaintiff or
"Peerless") brings this action alleging that the
Defendant, WEO Carpentry, LLC ("Defendant" or
"WEO") is in breach of several insurance contracts.
The parties have reached an impasse concerning the true name
of the Defendant. Plaintiffs Complaint brings suit against
"WEO Construction," but Defendant insists its
correct name is "WEO Carpentry, LLC." WEO has filed
three Motions seeking Judgment in its favor based solely on
this misnomer: a Motion for Judgment on the Pleadings (ECF
No. 16); a Motion for Summary Judgment (ECF No. 17), which
was subsequently withdrawn (ECF Nos. 21, 23); and a Second
Motion for Summary Judgment (ECF No. 20). Plaintiff has not
responded to these Motions. Instead, Plaintiff has filed a
Motion for Leave to File Amended Complaint (ECF No. 32),
seeking, puzzlingly, to substitute "WEO Carpentry"
and not "WEO Carpentry, LLC" as the Defendant. The
parties' submissions have been reviewed and, suffice it
to say, no hearing is necessary. See Local Rule
105.6 (D. Md. 2018). For the reasons stated herein,
Defendant's Motion for Judgment on the Pleadings (ECF No.
16) is DENIED; Defendant's Second Motion for Summary
Judgment (ECF No. 20) is DENIED; and Plaintiffs Motion for
Leave to File Amended Complaint (ECF No. 32) is DENIED AS
MOOT. "WEO Carpentty, LLC" is HEREBY SUBSTITUTED in
place of "WEO Construction." The Clerk of this
Court is directed to recaption this case accordingly.
case arises from Defendant WEO's alleged breach of
several one-year workers' compensation insurance
contracts supplied by Plaintiff, Peerless, between June 2013
and July 2016. (Compl. ¶¶ 6-8, ECF No. 1.) Peerless
asserts that, between all four policies, WEO owes a total of
$996, 831.15 in outstanding premiums. (Id. at¶
13.) Peerless commenced this action on April 10, 2018
alleging four Counts of Breach of Contract (Counts I, II,
III, and IV) and one count of Unjust Enrichment (Count V).
(Complaint, ECF No. 1.) Jurisdiction is based on diversity of
citizenship pursuant to 28 U.S.C. § 1332: Peerless, a
New Hampshire Corporation, has sued WEO, a Maryland
corporation, in an amount exceeding $75, 000.00.
(Id. at 1.)
asserts that it has been misidentified in this action. In its
Complaint, Peerless named "WEO Construction" as the
Defendant. (Id.) On August 14, 2018, WEO Carpentry,
LLC filed an Answer and Counterclaim, noting that it had been
incorrectly identified in Plaintiffs Complaint. (ECF No. 11.)
In its Answer, WEO maintains that it attempted to resolve
this issue with Peerless's attorneys through voicemail
and email, but did not receive a response. (Id. at
1.) As an affirmative defense, WEO asserts that Peerless
failed to join a required party pursuant to Rule 19 of the
Federal Rules of Civil Procedure by identifying the Defendant
in this action as "WEO Construction" rather than
"WEO Carpentry, LLC."
seeks Judgment in its favor based on Plaintiffs failure to
supply the correct entity name in its Complaint. On September
27, 2018 WEO filed a Motion for Judgment on the Pleadings
(ECF No. 16) pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure, seeking Judgment based on Peerless's
failure to name the correct Defendant. In the Motion, WEO
represents that it discussed the identification issue with
counsel for Peerless on August 23, 2018. The Motion also
attaches a Trade Name Cancellation Application filed by WEO
Construction on September 18, 2017 with the State of
Maryland, Department of Assessments and Taxation, Charter
Division. (Defs Mot. for J. Ex. B, ECF No. 16-4.) There is
evidence that this Application was granted and that WEO
Construction is no longer an active trade name. (Def.'s
Mot. for J. Ex. A, ECF No. 16-3.)
September 27, 2018, WEO filed a Motion for Summary Judgment
(ECF No. 16), again seeking Judgment based on Peerless's
failure to name the correct Defendant in its Complaint. This
time, however, WEO submitted an Affidavit from William E.
Ordonez, the owner of WEO Carpentry, LLC. (Def.'s Mot.
Summ. J. Ex. A, ECF No. 17-3.) In the Affidavit, Ordonez
represents that WEO Carpentry has been the name of his
business since 2006 and that he formed WEO Carpentry, LLC on
February 4, 2015. (Id. at ¶ 3.) He explained
that he first procured worker's compensation insurance
for his business using C&E Financial Services
("C&E"), a Liberty Mutual agent in Baltimore,
in 2010. (Id. at ¶ 4.) On August 5, 2013
Peerless, which is owned by Liberty Mutual, issued a one-year
worker's compensation insurance policy in the name of
"WEO Construction." (Id.) Despite
Ordonez's numerous complaints to C&E that this name
was incorrect, each subsequent insurance policy issued by
Peerless over the next three policy years incorrectly listed
"WEO Construction" as the insured entity.
(Id. at ¶¶ 4-5.) Finally, in February
2017, Peerless re-issued the 2014/2015, 2015/2016 and
2016/2017 policies with the correct entity name, "WEO
Carpentry, LLC." (Id. at ¶ 6.) Ordonez
admits that he received notice of this lawsuit when Peerless
served him at his current address in Nottingham, Maryland
with the operative Complaint in this matter, which attaches
four worker's compensation insurance policies naming
"WEO Construction" as the insured. (Id. at
October 23, 2018, WEO Hied a Second Motion for Summary
Judgment (ECF No. 20) after withdrawing its first Motion. The
Motion adds no new arguments, but supplements Mr.
Ordonez's Affidavit with cover sheets of the re-issued
policies, all three of which list "WEO Carpentry,
LLC" as the insured entity. (Supp. Aff. of William E.
Ordonez, Exs. 2, 3, 4, ECF No. 20-3.) Additionally, the
Affidavit has been amended to indicate that Mr. Ordonez's
2013 personal income tax return lists "WEO
Construction" as his business name. (Supp. Aff. of
William E. Ordonez ¶ 8.) Mr. Ordonez speculates that his
tax preparer may have incorrectly used this name by searching
the Maryland State Department of Assessments & Taxation
did not file a response to WEO's motions and has not
otherwise challenged the representations of WEO or Mr.
Ordonez. On February 11, 2019 Peerless filed a Motion for
Leave to File Amended Complaint (ECF No. 32) which seeks to
Amend the Complaint to "reflect the current name of the
defendant." (Id..at 1.) An attached version of
the Amended Complaint, however, names "WEO
Carpentry" and not "WEO Carpentry, LLC" as the
Defendant. (Proposed Amended Complaint, ECF No. 32-1.)
Motion for Judgment on the Pleadings Pursuant to Rule
moves for Judgment on the Pleadings under Rule 12(c) of the
Federal Rules of Civil Procedure, citing Plaintiffs failure
to join a required party. Rule 12(c) authorizes a party to
move for judgment on the pleadings any time after the
pleadings are closed, so long as the motion is made early
enough so as not to delay trial. See Fed. R. Civ. P.
12(c). Pleadings are considered closed "upon the filing
of a complaint and answer (absent a court-ordered reply),
unless a counterclaim, crossclaim, or third-party claim is
interposed, in which event the filing of an answer to a
counterclaim, crossclaim answer, or third-party answer
normally will mark the close of the pleadings." 5C
Charles Alan Wright, et al, Federal Practice &
Procedure § 1367 (4th Ed. May 2019). A party may raise
the failure to join a required party under Rule 19 in a
Motion for Judgment on the Pleadings. See Fed. R.
Civ. P. 12(h)(2).
invites a two-step inquiry. First, this Court must consider
"whether a party is necessary to a proceeding because of
its relationship to the matter under consideration."
Home Buyers Warranty Corp. v. Hanna, 750 F.3d 427,
433 (4th Cir. 2014) (quoting Teamsters Local Union No.
171 v. Keal Driveaway Co., 173 F.3d 915, 917 (4th Cir.
1999). Second, if the party is necessary but joinder would
destroy diversity jurisdiction, this Court must decide under
Rule 19(b) "whether the proceeding can continue in that
party's absence." Buyers Warranty Corp.,
750 F.3d at 433 (quoting Teamsters Local Union No.
171, 173 F.3d at 917-18).
Motion for Summary Judgment ...