United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge.
matter comes before the court on Defendant Nationwide
Affinity Insurance Company of America's
(“Defendant” or “Nationwide”) Rule
12(c) Motion for Judgment on the Pleadings on Plaintiff's
Second Claim for Relief (“the Rule 12(c) Motion”)
[#13, filed March 12, 2019]. Plaintiff Nichole Tuttle
(“Plaintiff” or “Ms. Tuttle”) filed a
Response on April 3, 2019 and Nationwide filed a Reply on
April 4, 2019. [#16; #18]. Oral argument was scheduled for
Monday, May 20, 2019 at 9:00 a.m. in Courtroom A 502 before
Magistrate Judge Nina Y. Wang, but was vacated following
Plaintiff's counsel illness at the scheduled time. [#26].
The undersigned presides with the parties' unanimous
consent [#14], the Order of Reference dated March 26, 2019
[#15], and pursuant to section 28 U.S.C. § 636(c)(1).
Upon review of the Motion, briefing, and applicable legal
standard, Defendant's Rule 12(c) Motion is DENIED
following facts are drawn from the operative Complaint in
this matter and are taken as true for the purposes of this
Motion. [#3]. This case arises from a car accident between
Ms. Tuttle and a third party, Matthew Montano (“Mr.
Montano”), on July 18, 2016. [Id. at ¶
4]. At the time of the accident, Ms. Tuttle was insured by
Defendant Nationwide under policy number PPBM0050062649
(“the Insurance Policy”) with a UM/UIM limit of
$500, 000.00. [Id. at ¶ 6]. On January 19,
2017, Nationwide gave Ms. Tuttle authority to settle her
claim against Mr. Montano for the limits of his policy or
$25, 000. [Id. at ¶ 7].
Tuttle claims that she has not been fully compensated for her
injuries, damages and losses sustained from the collision
with Mr. Montano. Specifically, she claims $100, 000 in past
non-economic damages; $200, 000 in future non-economic
damages, $47, 586.83 in past economic damages, $100, 000 in
permanent impairment damages, and a second, indeterminate
amount of future non-economic damages. [#3 at ¶¶ 5,
17]. She alleges that she has provided all relevant
information necessary for Nationwide to investigate,
evaluate, and negotiate a resolution of Plaintiff's claim
for UIM benefits, and Nationwide has unreasonably delayed and
denied payment of such benefits. [Id. at ¶ 18].
In her first Claim for Relief, Ms. Tuttle contends that
Nationwide has breached its insurance contract with her.
[Id. at ¶ 14]. In her second Claim for Relief,
she asserts that Nationwide has unreasonably delayed payment
of Plaintiff's claims for benefits in violation of Colo.
Rev. Stat. §§ 10-3-1115 and -1116, because
“Nationwide's delay in paying Plaintiff the value
of her UIM claim is unreasonable given the claim is two years
old and in light of the injuries and losses Plaintiff has
suffered.” [Id. at ¶ 19].
Nationwide Affinity Insurance Company of America
(“Defendant” or “Nationwide”) filed
an Answer, and then an Amended Answer, to the Complaint on
February 28, 2019. [#10; #11]. Then, on March 12, 2019,
Nationwide filed this instant Motion, seeking judgment on the
pleadings on the Second Claim for Relief. [#13].
motion for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c) may be filed only “[a]fter the
pleadings are closed.” Fed.R.Civ.P. 12(c). A Rule 12(c)
Motion is evaluated under the same standard applicable to a
Rule 12(b)(6) motion to dismiss. See Corder v. Lewis
Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-24 (10th
Cir. 2009). But the court considers a broader factual record
when evaluating a Rule 12(c) motion; the court is not limited
to the well-pled allegations contained in the Complaint but
instead considers “the complaint, the answer, any
written documents attached to them, and any matter of which
the court can take judicial notice for the factual background
of the case.” L-7 Designs, Inc. v. Old Navy,
LLC, 647 F.3d 419, 422 (2d Cir. 2011); see also Hall
v. D.C., 867 F.3d 138, 152 (D.C. Cir. 2017) (“A
Rule 12(c) motion considers the defendants' answers
together with the complaint . . . .”); Hous. Auth.
Risk Retention Grp., Inc. v. Chicago Hous. Auth., 378
F.3d 596, 600 (7th Cir. 2004) (“In a motion for
judgment on the pleadings, the court considers the pleadings
alone, which consist of the complaint, the answer, and any
written instruments attached as exhibits.”). The Court
accepts all of Plaintiff's well-pleaded allegations as
true, views those allegations in the light most favorable to
the non-moving party, and additionally affords the non-movant
all reasonable inferences from those allegations. Sanders
v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141
(10th Cir. 2012).
should not grant a Rule 12(c) motion unless “the moving
party clearly establishes that no material issue of fact
remains to be resolved and the party is entitled to judgment
as a matter of law.” Ciber, Inc. v. ACE Am. Ins.
Co., 261 F.Supp.3d 1119, 1125 (D. Colo. 2017) (quoting
Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d
1239, 1244 (10th Cir. 2006)). A motion for a judgment on the
pleadings “only has utility when all material
allegations of fact are admitted or not controverted in the
pleadings and only questions of law remain to be decided by
the district court.” 5C Charles Alan Wright et al.,
Federal Practice & Procedure § 1367 (3d ed., Apr.
turning to the merits of the Motion, the court begins by
considering Plaintiff's objection to the court's
consideration of the attachments to Nationwide's Answer,
i.e., the correspondence between the parties. Plaintiff
argues that “it is reversible error to consider matters
outside the pleadings and failing to convert the motion to
dismiss into a motion for summary judgment.” [#16 at
3]. Defendant argues that a court has broad discretion to
consider such matters without conversion to a Rule 56 motion
as attachments to the Answer may be considered under Rule
10(c) which provides that “[a] copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.” [#18 at 1-2].
resolution of this preliminary issue is not unambiguous.
Wright & Miller, § 1371. Certain Circuit Courts of
Appeal have expressly concluded that the attachments
incorporated to the Answer are within the record for Rule
12(c) motions per the language of Rule 10(c). See,
e.g., L-7 Designs, 647 F.3d at 422; Horsley
v. Feldt, 304 F.3d 1125, 1134-35 (11th Cir. 2002);
N. Indiana Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 452 (7th Cir. 1998). But other
courts have not found an answer's attachments
incorporated into the answer and properly before the court
for a Rule 12(c) motion. See, e.g., Clark v.
Chase Home Fin., LLC, No. 08-cv-0500 JM(RBB), 2008 WL
2326307, at *4 (S.D. Cal. June 3, 2008) (“Defendants
fail to cite a single authority where a court has considered
documents attached to the answer in ruling on either a Rule
12(b) or Rule 12(c) motion.”); Toliver v. City of
New York, No. 10 CIV. 3165 PAC JCF, 2012 WL 7782720, at
*4 (S.D.N.Y. Dec. 10, 2012), report and recommendation
adopted, No. 10 CIV. 3165 PAC JCF, 2013 WL 1155293
(S.D.N.Y. Mar. 21, 2013). For its part, the United States
Court of Appeals for the Tenth Circuit (“Tenth
Circuit”) appears to have not squarely analyzed the
question of whether exhibits to an answer can be considered
in adjudicating a Rule 12(c) Motion, but has relied upon the
general proposition that “documents attached to the
pleadings are exhibits and are to be considered in  [the
context of a] Rule 12(c) motion.” Park Univ.
Enterprises, Inc. v. Am. Cas. Co. Of Reading, PA, 442
F.3d 1239, 1244 (10th Cir. 2006), abrogated on other
grounds Magnus, Inc. v. Diamond State Ins. Co., 545
Fed.Appx. 750, 753 (10th Cir. 2013).
the District, some courts have articulated what constitutes
the record to be limited exhibits attached to the complaint
or documents that are central to the allegations of the
complaint. See, e.g., XY, LLC v. Trans Ova
Genetics, LC, 333 F.Supp.3d 1097, 1101 (D. Colo. 2018)
(“In ruling on a motion for judgment on the pleadings,
the Court may consider the complaint, any material that is
attached to the complaint, and the answer.”). But other
courts in this District have stated the standard more
broadly, presumably capturing exhibits to an answer. See,
e.g., UnitedStates v. Zazi, 356
F.Supp.3d 1105, 1114 (D. Colo. 2018) (“Documents
attached to the pleadings, however, are subject to full
consideration in a court's review of a Rule 12(c)
motion.” (citing Park Univ. Enterprises, Inc. v.
Am. Gas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th
Cir. 2006)); see also United States v. Wahdan, 325
F.Supp.3d 1136, 1138 (D. Colo. 2018) (“The factual
record in conjunction with a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) is the
same as that under Rule 12(b).”). Some of our sister
courts within the Tenth Circuit have squarely addressed the
issue, finding that exhibits to an answer are properly
considered in conjunction with the adjudication of a motion
for judgment on the pleadings. See Richard v.
Perkins, 373 F.Supp.2d 1211, 1215 (D. Kan. 2005);
Burkett v. Convergys Corp., No. 2:14-CV-376-EJF,
2015 WL 4487706, at *9 (D. Utah July 23, 2015)
(“Because of the procedural posture of this motion, the
Court will ...