United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
Lawrence R. Leonard United States Magistrate Judge.
matter is before the Court on Plaintiff Greensill Capital
(UK) Limited's ("Plaintiff' or
"Greensill") Motion for Partial Judgment on the
Pleadings, ECF No. 25. On February 20, 2018, the parties
consented to jurisdiction before the undersigned United
States Magistrate Judge ("the Court") pursuant to
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure
73. ECF No. 32. On April 18, 2018, the parties appeared
before the Court for a hearing on Plaintiffs Motion at which
time counsel were permitted to present oral argument and
answer the Court's inquiries. The Court took the matter
under advisement for the issuance of a written disposition.
For the following reasons, Plaintiffs Motion for Partial
Judgment on the Pleadings (ECF No. 25) is
case arises out of a contractual dispute between foreign
Plaintiff and domestic Defendants Tempus Intermediate
Holdings, LLC ("Defendant Tempus"), Jack Gulbin
("Defendant Gulbin"), and B. Scott Terry
("Defendant Terry") (collectively
"Defendants"). Plaintiff Greensill is a financial
institution incorporated in England and Wales and maintains
its registered office in London, England. Defendant Tempus is
a corporate entity, incorporated in the State of Delaware
with its principal place of business in Williamsburg,
Virginia and is in the business of leasing and selling
airplanes. Defendant Gulbin is an individual, shareholder,
and principal of Tempus who resides in Colorado. Defendant
Terry is an individual, shareholder, and principal of Tempus
who resides in South Carolina. In October 2014 the parties
entered into a Customer Agreement whereby the parties
contracted for Plaintiff to pay certain invoices incurred by
Defendants in the operation of their business, with the
understanding that Defendants would repay Plaintiff in
accordance with the terms of the Customer Agreement. In
October 2015 Gulbin and Terry executed a Guaranty Agreement
whereby they agreed that if Tempus defaulted on any payment
obligation under the Customer Agreement, all liabilities
would be due and owing by Gulbin and Terry. After failing to
make payments as required under the Customer Agreement, in
April 2016, Greensill, Gulbin, and Terry executed a
Forbearance Agreement, whereby Greensill agreed to forbear
legal action against Defendants in exchange for
Defendants' agreement to repay monies owed pursuant to a
specific payment schedule. The Forbearance Agreement also
included a provision that precluded Defendants from pledging
or transferring assets of Tempus prior to payment of all
monies owed without the permission of Plaintiff. Following
Defendants' default on payment, Plaintiff now seeks,
inter alia, declaratory judgment as to the rights
and obligations of the parties under the Forbearance
Agreement. ECF No. 25.
The Complaint (ECF No. 1)
Plaintiffs previous efforts to seek repayment from Defendants
proved unsuccessful, on October 13, 2017, Plaintiff filed a
four count Complaint in this Court on the basis of diversity
jurisdiction. ECF No. 1.
alleges Breach of Contract against Defendant Tempus only, for
breaching the Customer Agreement by failing to make payments
as they came due on four Accounts Receivable Tempus had
submitted for payment. ECF No. 1 at 15-16, ¶¶
55-63. Count II alleges Breach of Contract against Defendants
Gulbin and Terry for breaching the Guaranty Agreement by
defaulting on the payment obligations. ECF No. 1 at 16-17,
¶¶ 64-71. Count III alleges Breach of Contract
against Defendants Gulbin and Terry for breaching the
Forbearance Agreement by failing to pay the entire
outstanding balance owed according to the Schedule of
Payments. ECF No. 1 at 17-18, ¶¶ 72-77. Count IV
seeks Declaratory Relief against all Defendants as well as
injunctive relief. ECF No. 1 at 18-19, ¶¶ 78-83.
Specifically, Plaintiff seeks a declaration that
"Defendants' efforts to pledge and transfer their
assets constitutes a breach of the prohibition in the
Forbearance Agreement against Gulbin and Terry pledging,
selling, transferring or otherwise disposing of any interest
in their assets prior to them completing the Scheduled
Payments to Greensill set forth therein." ECF No. 1 at
19, ¶ 81. In its prayer for relief, Plaintiff also seeks
"an injunction prohibiting Defendants from selling,
leasing, transferring, or otherwise disposing of their assets
except as permitted under the Forbearance Agreement, any such
other and additional relief deemed just and proper." ECF
No. 1 at 19.
obtaining leave of Court to file their respective responses
to the Complaint, see ECF Nos. 10-20, Defendant
Gulbin and Defendants Terry and Tempus filed their respective
Answers to the Complaint, see ECF Nos. 21 (Defendant
Gulbin) & 22 (Defendants Terry and Tempus).
STANDARD OF REVIEW
moves for partial judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c) ("Rule
12(c)"), which provides that "[a]fter 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).
A motion for judgment on the pleadings is an appropriate
mechanism for a party seeking declaratory judgment regarding
a contractual dispute. See Paul v. ImpactOffice LLC,
No. CV TDC-16-2686, 2017 WL 2462492, at *2 (D. Md. June 6,
2017), appeal dismissed sub nom. ImpactOffice LLC v.
Siniavsky, No. 17-1634 (L), 2017 WL 6543801 (4th Cir.
Dec. 1, 2017) ("Such a motion can be used to obtain a
declaratory judgment where the only dispute is the proper
interpretation of contractual terms.") (citing Hous.
Auth. Risk Retention Grp., Inc. v. Chi. Hous. Auth, 378
F.3d 596, 598 (7th Cir. 2004); A. S. Abell Co. v. Bait.
Typographical Union No. 12, 338 F.2d 190, 193-95 (4th
Fourth Circuit, when resolving a Rule 12(c) motion on the
basis of the underlying merits, as is the current posture,
the Court decides such motion under the same standard as a
motion for summary judgment. Thus, the Court
assumes the facts alleged by the nonmoving party to be true
and draws all reasonable factual inferences in its favor, and
judgment is appropriate only if the moving party establishes
that no genuine issue of material fact remains to be resolved
and that the party is entitled to judgment as a matter of
Paul v. ImpactOffice LLC, No. CV TDC-16-2686, 2017
WL 2462492, at *2 (D. Md. June 6, 2017), appeal dismissed
sub nom. ImpactOffice LLC v. Siniavsky, No. 17-1634 (L),
2017 WL 6543801 (4th Cir. Dec. 1, 2017) (citing Sanders
v. Mountain America Fed. Credit Union, 689 F.3d 1138,
1141 (10th Cir. 2012); United States v. Any & All
Radio Station Transmission Equip., 207 F.3d 458, 462
(8th Cir. 2000); Alexander v. City of Chicago, 994
F.2d 333, 336 (7th Cir. 1993); Bell Atlantic-Maryland,
Inc. v. Prince George's Cty., 155 F.Supp.2d 465, 473
(D. Md. 2001)). Thus, "when 'the plaintiff moves for
judgment on the pleadings, the motion should be granted if,
on the undenied facts alleged in the complaint and assuming
as true all the material allegations of fact in the answer,
the plaintiff is entitled to judgment as a matter of
law.'" Zen42 LLC v. Washington &
Lee Univ., No. 6:17-CV-00053, 2017 WL 4532580, at *1
(W.D. Va. Oct.10, 2017) (quoting Walker v. Liberty Mut.
Ins. Co., No. 4:16-CV-01388-RBH, 2017 WL 1020884, at *1
(D.S.C. Mar. 16, 2017); citing Smurfit-Stone Container
Enterprises, Inc. v. Nat'l Interstate Ins.
Co., No. 3:08CV093-HEH, 2008 WL 4153762, at *4 (E.D. Va.
Sept. 5, 2008); A. S. Abell Co. v. Baltimore
Typographical Union No. 12, 338 F.2d 190, 192-93 (4th
Cir. 1964) (affirming plaintiffs motion for judgment
"since the pleadings raised no issue of fact")).
making this determination, the Court considers the pleadings
(to wit: the complaint, the answer, and any written
instruments attached to those filings), as well as any
documents that are "integral to the complaint and
authentic." Occupy Columbia v. Haley, 738 F.3d
107, 116 (4th Cir. 2013) (quoting Phillips v. Pitt Cty.
Mem'I Hosp., 572 F.3d 176, 180 (4th Cir. 2009)).
See also Certusview Techs., LLC v. S&N Locating
Servs., LLC, No. 2;I3CV346, 2016 WL 4251579, at *9 (E.D.
Va. Aug. 10, 2016), aff"d sub nom. CertusView
Techs., LLC v. S & N Locating Servs., LLC, 695
Fed.Appx. 574 (Fed. Cir. 2017) ("On a motion for
judgment on the pleadings made pursuant to Rule 12(c), only
the pleadings are considered, and the exhibits which are part
of such pleadings.") (quoting A.S. Abell Co. v.
Bait. Typographical Union No. 12, 338 F.2d 190, 193 (4th
Cir. 1964)) (internal quotations omitted).
FINDINGS OF FACT
that Plaintiff seeks partial judgment as to Count IV only,
the Court limits its inquiry to the factual allegations and
corresponding admissions and denials that are relevant to
consideration of Count IV. Keeping in mind the standards
enunciated in Part II, supra, the Court considers
Plaintiffs factual allegations (and admissions or denials of
the same) and the language of the Forbearance Agreement when
deciding Plaintiffs Rule 12(c) Motion. Thus, for the purpose