UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NATIONAL RECOVERY AGENCY, INC., : CIVIL NO. 4:05-CV-0033

and DIVERSIFIED BILLING :

SERVICES, INC., :

:

Plaintiffs : (Magistrate Judge Smyser)

:

v. :

:

AIG TECHNICAL SERVICES, INC., :

AMERICAN INTERNATIONAL GROUP, :

INC. and ILLINOIS NATIONAL :

INSURANCE COMPANY, :

:

Defendants :

MEMORANDUM AND ORDER

The plaintiffs are National Recovery Agency, Inc. and

Diversified Billing Services, Inc. The defendants are AIG

Technical Services, Inc. (“AIGTS”), American International

Group, Inc. (“AIG”) and Illinois National Insurance Company. 

The complaint was filed on January 6, 2005. Jurisdiction of

the court is based upon diversity of citizenship. The

plaintiffs are Pennsylvania corporations. The defendants are

Delaware companies (AIGTS and AIG) and an Illinois corporation. 

The answer to the complaint, filed by all defendants,

was filed on March 1, 2005. On May 2, 2005, the defendants

filed motions for judgment on the pleadings (Docs. 21, 23) and

supporting briefs. Briefs in opposition were filed by the

plaintiffs on May 16, 2005 (Docs. 29, 30). Reply briefs in

support were filed on May 23, 2005 (Docs. 31, 32). These

motions for judgment on the pleadings will be denied for the

reason that the defendants have in their answer denied most of

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the averments in the complaint. Where nearly all of the 174

numbered paragraphs in a complaint are denied in the answer to

the complaint, the framework for a judgment on the pleadings is

hard to find. Some of the averments in the complaint are

denied for the reason that the paragraphs of the complaint

quote language from relevant documents which the defendants

assert speak for themselves. Others are denied on the grounds

that they are conclusions of law (Docs. 1, 12). 

Under Rule 12(c), a party may move for a judgment on

the pleadings. Federal Rule of Civil Procedure 12(c) allows a

party to move for judgment on the pleadings after the pleadings

are closed. The pleadings here are closed. In deciding a

motion for judgment on the pleadings the court must “view the

facts presented in the pleadings and the inferences to be draw

therefrom in the light most favorable to the ... nonmoving

party.” Green v. Fund Asset Management, 245 F.3d 214, 220 (3d

Cir. 2001) (quoting Institute for Scientific Info., Inc. v.

Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1004

(3d Cir. 1991)). Judgment on the pleadings is appropriate only

if the plaintiffs would not be entitled to relief under any set

of facts that could be proved. Id. Rule 12(c) also provides:

If, on a motion for judgment on the pleadings,

matters outside the pleadings are presented to

and not excluded by the court, the motion shall

be treated as one for summary judgment and

disposed of as provided in Rule 56, and all

parties shall be given reasonable opportunity

to present all material made pertinent to such

a motion by Rule 56.

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The plaintiffs’ responsive briefs to the defendants’

motions assert that there are potentially material issues of

fact in dispute. Given the high percentage of averments in

the complaint that the defendants deny, it appears that

material issues of fact are in dispute. 

The complaint contains many quoted portions of the

insurance contract and quotes from or summaries of documents in

the Forward Thinking litigation. The defendants do not dispute

the materiality of these documents, but they do not accept the

accuracy of the plaintiffs’ quotations and summaries. Yet, in

asking the court to enter judgment on the pleadings the

defendants ask the court to base a decision upon writings that

are merely attached to the motions, without any authentication

or compliance with any of the evidentiary underpinnings for

documentary evidence supporting a motion as set by Rule 56 of

the Federal Rules of Civil Procedure. 

In National Wrecking Company v. International

Brotherhood of Teamsters, 1991 WL 249784 (N.D. Ill.), the Court

stated that it is nonsensical to respond to a complaint’s

pleadings of a direct quotation by saying in the answer that

the allegation “purports to characterize a written document

which speaks for itself.” Here, having done that throughout

their answer to the plaintiffs’ pleadings of portions of the

underlying material documents in the complaint, the defendants

now ask the court to grant judgment in their favor by

application of those same documents without discussing any

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flaws found by the defendants in the plaintiffs’ complaint’s

quotations from those documents. Thus, they implicitly require

the court to compare every quoted passage in the complaint

against its counterpart language in the unauthenticated

documents filed by the defendants. In the National Wrecking

Company case, the Court struck the pleading. Here, we will not

strike the defendants’ answers but we will not disregard the

plain construction of the defendants’ denials of the facts

pleaded by the plaintiffs. If the material documentary

language is in dispute, as it is, it necessarily follows that

there is not an absence of a dispute of material facts. 

Therefore, a basis for judgment on the pleadings pursuant to

Rule 12(c) is not presented. 

IT IS ORDERED that the motions for judgment on the

pleadings (Docs. 21, 23) are DENIED. 

/s/ J. Andrew Smyser

 J. Andrew Smyser

 Magistrate Judge

Dated: June 27, 2005. 

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