After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.81 The principal difference between a motion for judgment on the pleadings and a motion to dismiss is that a motion to dismiss is usually filed before an answer is filed and the pleadings are closed, whereas a motion for judgment on the pleadings may only be filed after the pleadings are closed.82
The standard for granting a motion for judgment on the pleadings has been charatcerized as stringent.82.1 A motion for judgment on the pleadings may be granted only where no issue of material fact exists and where the movant is entitled to judgment as a matter of law. 83 A motion for judgment on the pleadings may not be granted unless it appears that the non-movant either failed to plead facts supporting an element of the claim or could not succeed under any reasonable interpretation of the facts alleged in the complaint.84
For the purposes of the motion, the well-pleaded allegations of the complaint are deemed admitted,85 and all contravening allegations in the answer must be taken as false.86 The non-movant is entitled to the benefit of any inferences that may be drawn fairly from the pleadings.87 However, the Court need not accept as true conclusory statements contained in the pleadings that are unsupported by specific factual allegations. Moreover, factual allegations made on information and belief and denied in a sworn answer are not presumed to be true.87.1 Further, the Court is permitted to consider documents incorporated into the pleadings by reference in making its determination.87.2 If the document is central to the claim but not incorporated into the complaint, the plaintiff may attach the document to the motion for judgment on the pleadings.87.3 Courts may also consider matters that are properly the subject to judicial notice.87.4 Otherwise, facts outside the pleadings may not be considered on a motion for judgment on the p1eadings.88 Presentation and consideration of extrinsic evidence will convert the motion into one for summary judgment.89 However, the court has the discretion to exclude extraneous documents to avoid converting the motion into one for summary judgment.89.1. If the court is going to convert a motion for judgment on the pleadings into a motion for summary judgment, it must give adequate notice of to the parties at least ten days in advance in order to allow them an opportunity to submit evidentiary materials to support or oppose summary judgment.89.2 However, if all parties submit evidentiary material outside of the complaint in connection with the motion for judgment on the pleadings, that may be seen as consent by the parties to have the court treat the motion as one for summary judgment.89.3
As is the case with a motion to dismiss, the plaintiff or counterclaimant will ordinarily not be foreclosed from amending the complaint or counterclaim.90 The moving party thus runs the risk of stimulating the opponent’s thought with the result being an amendment that will strengthen the opponent’s case.
81. Ch. Ct. R. 12(c); Super. Ct. Civ. R. 12(c); Comm. Pls. Ct. Civ. R. 12(c); Fam. Ct. Civ. R. 12(c).
82. See Vale v. Atlantic Coast & Inland Corp., 99 A.2d 396, 400 (Del. Ch. 1953) (motion for judgment on the pleadings filed before the pleadings were closed was deemed premature).
82.1. Artisans’ Bank v. Seaford IR, LLC, C.A. No. S10C-01-009 RFS, slip op. at 4, Stokes, J. (Del. Super. June 21, 2010).
83. West Coast Opportunity Fund, LLC v. Credit Suisse Securities (USA), LLC, __ A.2d ___, ___ n.2 (Del. 2010); Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, 624 A.2d 1199, 1205 (Del. 1993); Fagnani v. Integrity Finance Corp., 53 Del. 193, 167 A.2d 67, 75 (Del. Super.1960); Greene v. Connecticut Mut. Life Ins. Co., C.A. No. 4869, slip op. at 4, Hartnett, V.C. (Del. Ch. Dec. 15, 1976).
84. Wallace ex rel. Cencom Cable Partners II, Inc. v. Wood, 752 A.2d 1175, 1179-80 (Del. Ch. 1999); Warner Communications, inc. v. Chris-Craft Industries, Inc., 583 A.2d 962, 965 (Del. Ch. 1989), aff’d mem., 567 A.2d 419 (Del. 1989); Speiser v. Baker, 525 A.2d 1001, 1006 (Del. Ch.), app. denied, 525 A.2d 582 (Del. 1987).
85. Elliot Associates, L.P. v. Avatex Corp., 715 A.2d 843, 845 n.4 (Del. 1998); Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, 624 A.2d 1199, 1205 (Del. 1993); Krahmer v. MeClafferty, 288 A.2d 678, 680 (Del. Super. 1972); Fagnani v. Integrity Finance Corp., 167 A.2d 67, 75 (Del. Super. 1960); Mabon, Nugent & Co. v. Texas American Energy Corp., C.A. No. 5578, slip op. at 11, Berger, V.C. (Del. Ch. 1988).
86. Mercantile-Safe Deposit and Trust Co. v. Inprojet Corp., C.A. No. 6910, slip op. at 4, Hartnett, V.C. (Del. Ch. Oct. 12, 1984). But see Fagnani v. Integrity Finance Corp., 167 A.2d 67 (Del. Super. 1960) (accepting as true, for purpose of motion, allegations in the defendant’s answer).
87. Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, 624 A.2d 1199, 1205 (Del. 1993); Warner Communications, Inc. v. Chris-Craft Industries, Inc., 583 A.2d 962, 965 (Del. Ch. 1989), aff’d mem., 567 A.2d 419 (Del. 1989); Speiser v. Baker, 525 A.2d 1001, 1006 (Del. Ch. 1987), app. denied, 525 A.2d 582 (Del. 1987).
87.1. Jadczak v. Assurant, Inc., C.A. No. S08C-05-028-RFS, slip op. at 3, Stokes, J. (Del. Super. Jan. 21, 2010).
87.2. In re JCC Holding Co., Inc., 843 A.2d 713, 730 (Del. Ch. 2003); McMillan v. Intercargo Corp., 768 A.2d 492, 500 (Del. Ch. 2000); Ross Holding and Management Co. v. Advance Realty Group, LLC, C.A. No. 4113-VCN, slip op. at 2, Noble, V.C. (Del. Ch. Apr. 28, 2010).
87.3. Velocity Exp., Inc. v. Office Depot, Inc., C.A. No. 07C-05-012 RBY, slip op. at 5, Young, J. (Del. Super. Feb. 4, 2009).
87.4. West Coast Capital & Management, LLC v. Carrier Access Corp., 914 A.2d 636, 641 (Del. Ch. 2006); D.R.E. 201(f).
88. Mergenthaler v. Asbestos Corp. of America, 500 A.2d 1357, 1360 (Del. Super. 1985); Fagnani v. Integrity Finance Corp., 167 A.2d 67 (Del. Super. 1960).
89. Ch. Ct. R. 12(c); Super. Ct. Civ. R. 12(c); Comm. Pls. Ct. Civ. R. 12(c); Fam. Ct. Civ. R. 12(c).
89.1. Jadczak v. Assurant, Inc., C.A. No. S08C-05-028-RFS, slip op. at 8, Stokes, J. (Del. Super. Jan. 21, 2010); Velocity Exp., Inc. v. Office Depot, Inc., C.A. No. 07C-05-012 RBY, slip op. at 4, Young, J. (Del. Super. Feb. 4, 2009).
89.2. Appriva Shareholder Litigation Co., LLC v. EV3, Inc., 937 A.2d 1275, 1286-88 (Del. 2007).
89.3. Andrew and Suzanne Schwartz 2000 Family Trust v. AM Apparel Holdings, Inc., C.A. No. 3172-VCS, slip op. at 7, Strine, V.C. (Del. Ch. July 28, 2008).
90. Ch. Ct. R. 15; Super. Ct. Civ. R. 15; Comm. Pls. Ct. Civ. R. 15; Fam. Ct. Civ. R. 15.
© 2010 David L. Finger