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Scott A. Mcnamara, M.D v. Catherine A. Picken

January 11, 2012


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Scott McNamera ("McNamera") filed this action against defendant Catherine Picken ("Picken") and defendant Washington ENT Group, PLLC ("WENT") for an accounting, conversion, breach of contract, interference with business relations, and defamation. Before this Court is defendants' motion pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings. (See Def.'s Mot. for J. on the Pleadings [Dkt. No. 26] ("Defs.' Mot.").) For the reasons stated, this Court grants defendants' motion with respect to Count III, but denies it in all other respects.


McNamera and Picken are both physicians practicing in the District of Columbia. (Compl. ¶¶ 1, 2.) Picken is the sole owner and member of WENT. (Defs.' Answer, Affirmative Defs., & Countercl. ¶ 4 [Dkt. No. 5].*fn1 ). In June 2010, McNamera and Picken began meeting to discuss the possibility of working together and sharing office space. (Answer ¶¶ 13, 14, 17, 21.)

These discussions continued through that summer and included negotiations to lease office space together near Sibley Memorial Hospital. (Id. ¶¶ 14--18, 25, 26.) Plaintiff alleges that during this period, McNamera and Picken agreed to merge their practices. (Compl. ¶ 9.) In August 2010, Picken and McNamera executed a sublease for an office on Mass. Ave. and McNamera moved into that office. (Defs.' Countercl. ¶¶ 27--30.) They sent out printed announcements announcing the merger of their practices. (Compl. ¶ 13.) WENT began billing health insurers for services rendered by McNamera and depositing the money into WENT's account. (Id. ¶¶ 14--16.) McNamera was added to the WENT account at Bank of America. (Id. ¶ 18.) The parties exchanged communications indicating that each would be expected to contribute equally to the cost of McNamera's move and the initial operating expenses of WENT, and that they would receive an equal salary. (Defs.' Countercl. ¶ 33; Pl.'s Answer ¶ 33.) McNamera alleges that the parties agreed to become partners and share profits and losses equally. (Compl. ¶ 17.) Picken disputes this allegation. (Answer ¶ 17.) McNamera and Picken discussed signing a partnership agreement, but never completed a draft or executed a written agreement. (Defs.' Countercl. ¶ 44.)

Subsequently, the relationship between McNamera and Picken broke down and, on January 21, 2011, Picken informed McNamera that she wanted to separate their practices. (Compl. ¶ 23.) Picken had come to believe that McNamera had stolen money from WENT and indicated this in an email sent to both McNamera and Suzanne Kujawa, an employee of WENT. (Id. ¶ 52.) On February 9, 2011, Picken fired the employee who had assisted McNamera for years. (Id. ¶ 26.) Three days later, McNamera moved out of their shared office. (Id. ¶ 28.) In April 2011, Picken informed colleagues at Sibley Hospital, where she and McNamera both worked, that he had engaged in unprofessional acts. (Id. ¶ 53.)

On May 2, 2011, McNamera filed suit in the Superior Court of the District of Columbia. On June 7, 2011, defendants removed the suit to this Court. Defendants now seek judgment on the pleadings on all counts.*fn2



Under Rule 12(c) of the Federal Rules of Civil Procedure, "[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. Pro. 12(c). A motion pursuant to Rule 12(c) is appropriately granted when, at the close of the pleadings, "no material issue of fact remains to be resolved, and [the movant] is clearly entitled to judgment as a matter of law." Montanans for Multiple Use v. Barbouletos, 542 F. Supp. 2d 9, 13 (D.D.C. 2008) (citations omitted), aff'd 568 F.3d 225 (D.C. Cir. 2009). When evaluating a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), courts employ the same standard that governs a Rule 12(b)(6) motion to dismiss. Jung v. Ass'n of Am. Med. Colls., 339 F. Supp. 2d 26, 35--36 (D.D.C. 2004).

A court must treat the complaint's factual allegations as true, "even if doubtful in fact," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but it need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009). Accordingly, a court must accept the plaintiff's well-pleaded factual allegations to the extent that "they plausibly give rise to an entitlement to relief," id. at 1950, and "may thus only grant judgment on the pleadings if it appears, even accepting as true all inferences from the complaint's factual allegations, that the plaintiff cannot prove any set of facts entitling him to relief." Lans v. Adduci Mastriani & Schaumberg L.L.P., 786 F. Supp. 2d 240, 265 (D.D.C. 2011).


Defendants seek judgment on Counts I (accounting), II (accounting and conversion), and IV (breach of contract), arguing that these claims fail as a matter of law because plaintiff has not adequately alleged the existence of a partnership agreement. (Defs.' Mot. at 6--11.) This argument is based on the fact that the parties had discussed executing a written agreement and a written partnership agreement had never materialized. (Id.) Because the parties had talked about creating a written agreement, defendants argue, the parties could not have had the requisite intent to create an enforceable oral contract.

Under District of Columbia law, parties may create an enforceable oral contact if both parties intend to be bound and they agree on the material terms. Perles, P.C., v. Kagy, 473 F.3d 1244, 1249 (D.C. Cir. 2007). To determine if parties intend to be bound by an oral agreement, courts may find the fact that "parties contemplate a writing" to be evidence that they do not intend to bind themselves by an oral agreement. Id. However, this is one factor among many, for courts may also consider parties' conduct after they reach an alleged oral agreement, the amount of money at stake, and other factors. Id. at 1249--50. Moreover, "'[p]arties [may] make an enforceable contract binding them to prepare and execute a subsequent documentary agreement'" and, in that case, "'[t]hat document is understood to a mere memorial of the agreement already ...

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