                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
SCOTT A. McNAMARA, M.D.,                   )
                                           )
            Plaintiff/Counter-Defendant,   )
                                           )
            v.                             ) Civil Action No. 11-1051 (ESH)
                                           )
CATHERINE A. PICKEN, M.D., et al.,         )
                                           )
            Defendants/Counter-Plaintiffs. )
__________________________________________)

                                 MEMORANDUM OPINION

       Plaintiff Scott McNamara, M.D., has sued Catherine A. Picken, M.D. and the

Washington ENT Group PLLC (“WENT”) for an accounting, conversion, breach of contract,

and breach of employment contract. (See Amended Complaint, Jan. 29, 2013 [ECF No. 62-1].)

Defendants have counterclaimed, alleging fraud, breach of fiduciary duty, promissory fraud,

aiding and abetting a breach of fiduciary duty, and inducement of a breach of fiduciary duty.

(See Answer, Affirmative Defenses, and Counterclaims to Amended Complaint, Mar. 29, 2013

[ECF No. 74].) 1 Before the Court are two pretrial motions: plaintiff/counter-defendant’s motion

for partial summary judgment with respect to Counterclaim Three (May 20, 2013 [ECF No. 82]

(“Counter-Def.’s MSJ”)) and defendants’ motion for judgment on the pleadings with respect to

Counts One, Two, and Four (May 20, 2013 [ECF No. 85] (“Rule 12(c) Mot.”)).

                                       BACKGROUND

       The relevant factual background was laid out in this Court’s earlier opinion dismissing

plaintiff’s Count Three. McNamara v. Picken, 866 F. Supp. 2d 10, 13-14 (D.D.C. 2012). Since

1
 Within this document there are two separate sections, “Answer” and “Affirmative Defenses and
Counterclaims,” each with separately numbered paragraphs. Therefore, this Memorandum
Opinion will cite to the specific section of this document (as “Answer” or “Countercl.”) and the
paragraph number.
                                                1
that time, plaintiff has voluntarily dismissed Count Five, which alleged defamation (see Order,

May 22, 2013 [ECF No. 89]), and has added Count Six, which alleges breach of contract under

defendants’ theory that the parties had entered into an employment relationship wherein

McNamara was hired as an employee of WENT. (See Amended Complaint ¶¶ 59-65.)

                                            ANALYSIS

I.     Plaintiff/Counter-Defendant’s Motion for Partial Summary Judgment on
       Counterclaim Three

       A motion for summary judgment is appropriate when the pleadings, the discovery and

disclosure materials on file, and any affidavits show that “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). There is a genuine dispute

as to a material fact if a “reasonable jury could return a verdict for the nonmoving party.” Galvin

v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting Anderson, 477 U.S. at 248). A

moving party is entitled to summary judgment if the nonmoving party “fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

When considering a motion for summary judgment, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

       In Counterclaim Three, counter-plaintiffs (“Picken”) allege that counter-defendant

(“McNamara”) committed promissory fraud by “entering into a business arrangement with

Picken and WENT without revealing to them that he [had] a preconceived and undisclosed

intention of not performing any such arrangement.” (See Countercl. ¶ 98.)

       McNamara argues that Picken cannot meet her burden of proof on this claim. (Counter-

Def.’s MSJ at 2.) Specifically, he argues that a necessary element of a claim for promissory

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fraud is a lack of intent to enter into the business relationship in question. (Id.) He insists that

“[w]hile the parties may have had different notions of what that business arrangement entailed,

and when it came into existence,” there is “ample evidence of his intent to enter into a business

relationship with [Picken].” (Id. at 2-3.) Thus, he argues that “there is no genuine dispute as to

the lack of the requisite state of mind on [his] part,” and so summary judgment in his favor is

appropriate. (Id. at 2 (quoting Willis v. Cheek, 387 A.2d 716, 719-20 (D.C. 1978)).)

       However, in her opposition, Picken clarifies that Counterclaim Three is premised on

McNamara’s alleged agreement to enter into an employment relationship with Picken and

WENT. (See Opposition to Motion for Partial Summary Judgment on Counterclaim Three, June

4, 2013 [ECF No. 99].) She claims that McNamara agreed that he and his staff would come to

WENT as “employees thereof while [the parties] continued discussion on how, if at all, they

might one day become co-owners of WENT.” (Id. ¶ 3.) She further asserts that McNamara “had

no intention of fulfilling his promise to work for WENT under Picken’s direction” as evidenced

by the fact that he “showed contumacious disregard for WENT’s rules and Picken’s sole control

of WENT.” (Counter-Plaintiffs’ Rule 7(h) Statement of Disputed Facts, June 4, 2013 [ECF No.

99-1] ¶ 3.)

       With this understanding of Picken’s claim, it is clear that, construing the evidence in her

favor, she could establish all the necessary elements of her counterclaim, including that

McNamara never intended to enter into an employment relationship with Picken and WENT.

Indeed, McNamara himself has consistently asserted that the parties agreed to enter into a

partnership relationship. (See Amended Complaint ¶ 17 (“It was the agreement of the parties

that [McNamara] and [Picken] would be partners and, as such, would share profits and losses

equally.”); Answer to Counterclaim to Amended Complaint, Apr. 30, 2013 [ECF No. 77] ¶ 32



                                                  3
(“The Counter-Defendant further avers that he was not merely an ‘employee’ of WENT at times

pertinent to this litigation.”).) Thus, there is clearly a genuine dispute as to the material issue of

whether the parties even agreed to enter into an employment relationship and a further genuine

dispute as to whether McNamara ever fully intended to perform his obligations under any such

agreement and behave as an employee.

       McNamara’s motion for partial summary judgment with respect to Counterclaim Three

for promissory fraud will therefore be denied.

II.    Defendants’ Motion for Judgment on the Pleadings with Respect to Counts One,
       Two, and Four

       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. P. 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).

       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, 556 U.S. 662, 678 (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 679, and “may thus only grant judgment on

the pleadings if it appears, even accepting as true all inferences from the complaint's factual

                                                   4
allegations, that the plaintiff cannot prove any set of facts entitling him to relief.” Lans v. Adduci

Mastriani & Schaumberg LLP, 786 F. Supp. 2d 240, 265 (D.D.C. 2011).

       Defendants previously moved for judgment on the pleadings with respect to Counts One,

Two, and Four. (See Motion for Judgment on the Pleadings, Oct. 3, 2011 [ECF No. 26] at 6-11.)

Defendants argued that because plaintiff admitted that the parties had discussed executing a

written partnership agreement but had never done so, plaintiff could not establish that the parties

had the requisite intent to create an enforceable oral contract. (See id.) This Court denied that

motion, noting that, under D.C. law, “the fact that a written agreement was contemplated is not

dispositive of whether an enforceable agreement was created.” McNamara, 866 F. Supp. 2d at

15. Thus, this Court ruled that “plaintiff’s factual allegations regarding the parties’ conduct after

the alleged creation of the oral agreement are sufficient to support his contention that they

created a valid oral contract and, therefore, plaintiff has satisfied his burden under Ashcroft v.

Iqbal, 129 S. Ct. 1937.” Id.

       Defendants have now moved again for judgment on the pleadings for those same three

counts—Counts One, Two, and Four. (See Rule 12(c) Mot.) The only material difference

between the pleadings this Court already found adequate and the pleadings currently before the

Court is that plaintiff has added Count Six for breach of an employment contract. (See Amended

Complaint ¶¶ 59-65.) In that count, plaintiff states that defendants claim he was hired as an

employee of WENT and that he is therefore entitled to damages based on defendants’ breach of

the terms of that alleged employment contract. (See id.) And in fact defendants have admitted

that McNamara was an employee of WENT. (Answer ¶¶ 14, 23.)

       Defendants argue that the allegations in Count Six are “judicial admissions” that there

was an employment relationship between the parties rather than a partnership. (See Rule 12(c)



                                                  5
Mot. at 12.) Thus, defendants insist that plaintiff cannot recover under any theory of liability

premised upon a partnership agreement, as are Counts One, Two, and Four. (See id. at 13-14.)

       The Court disagrees for several reasons. First, plaintiff’s Count Six is plainly pled in the

alternative to Counts One, Two, and Four, as permitted under Rule 8(d)(2). Fed. R. Civ. P.

8(d)(2). Under that rule, a plaintiff may plead inconsistent theories of liability, and may even

argue alternative claims to a jury. See Scott v. District of Columbia, 101 F.3d 748, 753 (D.C.

Cir. 1996). To be sure, defendants are correct that “McNamara at no time explicitly pleaded

Count Six in the alternative to Counts One, Two, and Four.” (Reply in Support of Motion for

Judgment on the Pleadings, June 10, 2013 [ECF No. 104] at 7.) However, a plaintiff “need not

use particular words to plead in the alternative as long as it can be reasonably inferred that this is

what [it was] doing.” G-I Holdings, Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 536-37

(S.D.N.Y. 2002) (internal quotation marks omitted) (collecting cases). Such is the case here.

Plaintiff’s allegation in Count Six that he was hired as an employee of WENT is preceded by the

words “[a]ccording to the Defendants.” (Amended Complaint ¶ 59.) That particular allegation is

therefore undeniably intended to raise an alternative theory of liability where plaintiff would be

entitled to recover damages even under defendants’ view of their relationship. Moreover, it is

entirely reasonable to infer that the remaining allegations in Count Six were similarly pled as an

alternative to Counts One, Two, and Four. Bolstering this conclusion is plaintiff’s recent

statement in his opposition that “[a]t the conclusion of the trial, before the jury deliberates, [he]

will make an election as to which theory will be presented to the jury.” (Plaintiff’s Opposition to

Motion for Judgment on the Pleadings, June 3, 2013 [ECF No. 96] at 2.)

       Second, plaintiff’s allegations in Count Six are not binding “judicial admissions” that

impermissibly conflict with plaintiff’s other counts, as defendants suggest. To begin with, the



                                                  6
question of whether an employment relationship exists is a question of law, not of fact. See U.S.

ex rel. Siewick v. Jamieson Sci. & Eng’g, Inc., 322 F.3d 738, 740 (D.C. Cir. 2003). That

question is therefore not susceptible to judicial admission, as “[i]t is well established that judicial

admissions on questions of law have no legal effect.” Dabertin v. HCR Manor Care, Inc., 68 F.

Supp. 2d 998, 1000 (N.D. Ill. 1999), quoted in Globalaw Ltd. v. Carmon & Carmon Law Office,

452 F. Supp. 2d 1, 34 (D.D.C. 2006); see also U.S. ex rel. Miller v. Bill Harbert Int’l Constr.,

Inc., 2007 WL 851871, at *1 (D.D.C. Mar. 14, 2007) (“A judicial admission is usually treated as

absolutely binding, but such admissions go to matters of fact which, otherwise, would require

evidentiary proof.”) (quoting New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 24 (4th Cir.

1963)). Thus, plaintiff’s allegation in paragraph 59 of his Amended Complaint is not a judicial

admission that can be used against his other counts.

       To be sure, the remainder of the allegations in Count Six do contain specific facts that are

properly considered judicial admissions. For example, he states that he was entitled to a salary

of $20,000 per month and reimbursement for business expenses. (Amended Complaint ¶¶ 60-

61.) However, those facts are not necessarily inconsistent with the existence of a partnership

agreement, as they do not disclaim any additional ownership interest in the business. See Queen

v. Schultz, 888 F. Supp. 2d 145, 165 (D.D.C. 2012) (“The critical element of a partnership not

present in an employment relationship is co-ownership.” (internal quotation marks omitted)).

Thus, they do not prevent plaintiff from simultaneously pursuing his claims for breach of a

partnership agreement and an employment agreement.

       Because plaintiff’s Count Six simply states an alternative theory of liability from that

stated in Counts One, Two, and Four, defendants’ motion for judgment on the pleadings with

respect to the latter counts will be denied.



                                                   7
                                       CONCLUSION

       For the foregoing reasons, plaintiff/counter-defendant’s Motion for Partial Summary

Judgment is denied and defendants’ Motion for Judgment on the Pleadings is denied. A separate

Order accompanies this Memorandum Opinion.


                                                                      /s/
                                                          ELLEN SEGAL HUVELLE
                                                          United States District Judge

Date: June 18, 2013




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