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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hebert v. Honest Bingo (2/23/01) sp-5365

Hebert v. Honest Bingo (2/23/01) sp-5365

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


CORA HEBERT,                  )
                              )    Supreme Court No. S-9028
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-95-2811 CI
DOE II, and JOHN DOE III,     )    O P I N I O N
             Appellees.       )    [No. 5365 - February 23, 2001]

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                   Charles R. Pengilly, Judge.

          Appearances: Arthur Lyle Robson, Fairbanks,
for Appellant.  John J. Tiemessen, Clapp, Peterson & Stowers,
Fairbanks, for Appellee Fairbanks Drama Association.

          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          CARPENETI, Justice.

          Cora Hebert appeals the superior court's grant of
defendant Fairbanks Drama Association's Civil Rule 12(c) motion for
judgment on the pleadings.  Hebert argues that the superior court
should not have granted the motion on statute of limitations
grounds because her amended complaint bringing Fairbanks Drama
Association (FDA) into her personal injury lawsuit relates back to
a timely initial complaint. 
          In this case of first impression, we hold that Hebert's
pleadings did raise a triable issue of fact as to whether the
requirements for relation back in Civil Rule 15(c) are satisfied. 
We therefore reverse and remand.
          On November 29, 1993, Cora Hebert was struck on the head
by a falling bingo box [Fn. 1] at a Fairbanks bingo hall operated
by Honest Bingo. [Fn. 2]  Hebert suffered a number of injuries,
including damage to her neck and head, as well as resulting
problems such as headaches, dizziness, and lack of coordination. 
          On November 28, 1995, one day before the applicable
statute of limitations ran out, [Fn. 3] Hebert filed suit against
Honest Bingo (the entity that operated the bingo game), and the
Monroe Foundation (a permittee under whose permit the game was
conducted).  In addition, because Hebert did not know the exact
structure of the bingo operation, her complaint also named four
"John Doe" defendants: (1) the owner of the building where the
bingo game took place; (2) the lessee of the building; (3) any
additional operators of the bingo game; and (4) any additional
permittees of the bingo game. 
          Honest Bingo was timely served on December 12, 1995. [Fn.
4]  Hebert also served a summons and complaint on the Monroe
Foundation.  Two days later, settlement negotiations began between
Hebert and Honest Bingo's insurer, Catholic Mutual Group.
          After learning that the Boosters of Immaculate Conception
(Immaculate Conception) was another permittee of the bingo game,
Hebert filed an amended complaint bringing it into the lawsuit on
August 2, 1996.  Hebert later learned that FDA was another
permittee of the bingo game.  
          On October 31, 1996, Hebert sent a letter to FDA that
noted FDA's involvement in the bingo operation and advised the
organization to participate in the ongoing settlement negotiations
between Hebert, the Monroe Foundation, and Immaculate Conception.
[Fn. 5] 
          On October 15, 1997, Hebert received a letter from
Catholic Mutual Group representative Cecil Cole, the Monroe
Foundation and Immaculate Conception's representative in the
settlement negotiations, which stated that FDA was unwilling to
participate in the settlement negotiations at all. [Fn. 6] 
          With leave of the superior court, Hebert filed a second
amended complaint naming FDA as a defendant on February 20, 1998. 
FDA answered on March 4, 1998, admitting that FDA was a permittee
of the bingo game at which Hebert was injured, but raising, among
other things, the affirmative defense of statute of limitations. 
In June 1998 FDA filed a Civil Rule 12(c) motion for judgment on
the pleadings, contending that Hebert's second amended complaint
was barred by the statute of limitations.  Hebert filed an
opposition to this motion, arguing that her complaint was timely
because it related back to the timely initial complaint filed
against Honest Bingo in which FDA was named as a John Doe
          The superior court granted FDA's motion without comment. 
Hebert moved to reconsider but this motion was denied.   
          Final judgment was entered in favor of FDA on July 22,
1998.  FDA was also awarded $42.72 in costs and $523.20 in
attorney's fees.  
          Hebert appeals.
          We review de novo a Civil Rule 12(c) motion for judgment
on the pleadings. [Fn. 7] 
          Alaska Civil Rule 12(c) allows any party in an action to
move for judgment on the pleadings after the pleadings are closed.
[Fn. 8]  The purpose of a Rule 12(c) motion is to "provide a means
of disposing of cases when the material facts are not in dispute
and a judgment on the merits can be achieved by focusing on the
content of the pleadings and any facts of which the court will take
judicial notice." [Fn. 9]  Accordingly, a Rule 12(c) motion "only
has utility when all material allegations of fact are admitted in
the pleadings and only questions of law remain." [Fn. 10]
          We have stated that the standard for a Rule 12(c) motion
is identical to that of a Rule 56 motion for summary judgment: The
motion can be granted only if there exists no triable issue of fact
[Fn. 11] and the moving party is entitled to judgment as a matter
of law. [Fn. 12]  But we have never had occasion to apply this rule
in the context of a statute of limitations defense.  We do so now.
          When a court considers a motion for judgment on the
pleadings, it must "view the facts presented in the pleadings and
the inferences to be drawn therefrom in the light most favorable to
the nonmoving party." [Fn. 13]
          When a plaintiff files a Rule 12(c) motion, a judgment on
the pleadings will be awarded only if the answer raises no issues
of material fact that, if proven, would bar recovery. [Fn. 14]  The
standard is slightly different when a Rule 12(c) motion is filed by
a defendant:  A defendant prevails only if there are no allegations
in the plaintiff's pleading that, if proven, would permit recovery.
[Fn. 15]  
          A Rule 12(c) motion based solely upon an affirmative
defense poses a special situation because a plaintiff is not
permitted to reply to affirmative defenses or new material
contained in the defendant's answer absent a court order to the
contrary. [Fn. 16]  Accordingly, judgment on the pleadings is
inappropriate if the defendant seeks relief based upon any factual
matters raised in the answer to which the plaintiff has not had an
opportunity to respond: "Thus, when material issues of fact are
raised by the answer and defendant seeks judgment on the pleadings
on the basis of this matter, his motion cannot be granted." [Fn.
          However, judgment on the pleadings is appropriate where
the defendant raises an affirmative defense that is supported by
the undisputed facts. [Fn. 18]  For example, when the statute of
limitations is alleged as a bar to the plaintiff's claims, a Rule
12(c) motion may be an appropriate avenue for relief if the statute
of limitations defense is apparent on the face of the complaint and
no question of fact exists. [Fn. 19]  Conversely, where the
affirmative defense is based on disputed facts, judgment on the
pleadings is inappropriate. [Fn. 20]  Thus, where a defendant on a
motion for judgment on the pleadings asserts a statute of
limitations defense and the opposition to the motion raises
questions regarding the applicability of the relation back
doctrine, unless the applicability or non-applicability of relation
back is clear on the face of the pleadings, judgment on the
pleadings would not be appropriate because of the necessity of
looking outside the pleadings to resolve the issue. [Fn. 21]
          In the present case, FDA filed a motion for judgment on
the pleadings based on its statute of limitations affirmative
defense.  Therefore, in order to prevail, FDA must demonstrate that
its statute of limitations defense is obvious from the face of the
pleadings filed and that there are no allegations in any of
Hebert's pleadings [Fn. 22] raising a triable issue of fact that,
if resolved in her favor, would permit her to recover.  FDA has not
satisfied this burden.
          While it is true that Hebert's second amended complaint
was filed over two years after the applicable statute of
limitations expired, [Fn. 23] our inquiry does not end there.  When
an amended complaint is filed after the statute of limitations has
run, it is allowable if it "relates back" to the date of a timely
original pleading. [Fn. 24]  
          Civil Rule 15(c) sets out the circumstances under which
an amended pleading will relate back to the original pleading:
          Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction or
occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the original
pleading.  An amendment changing the party against whom a claim is
asserted relates back if the foregoing provision is satisfied and,
within the period provided by law for commencing the action against
the party to be brought in by amendment, that party (1) has
received such notice of the institution of the action that the
party will not be prejudiced in maintaining a defense on the
merits, and (2) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have
been brought against the party. [Fn. 25]

          According to this standard, Hebert's second amended
complaint will relate back to her timely November 1995 complaint
against Honest Bingo if (1) the claim asserted against FDA arises
out of the same transaction or occurrence set forth in the initial
complaint; (2) FDA received sufficient notice such that it would
not be prejudiced in maintaining its defense on the merits; (3) FDA
knew or should have known that it would have been included as a
party in the original complaint but for a mistake concerning its
identity; and (4) FDA received notice and knew or should have known
that, but for a mistake concerning its identity, it would have been
included as a party within "the period provided by law for
commencing the action against" it. [Fn. 26]
          Given the fact-intensive nature of the Rule 15(c)
"relation back" test, FDA can prevail on its Rule 12(c) motion only
if the undisputed facts on the face of the pleadings clearly show
that Hebert's second amended complaint cannot possibly relate back
to her earlier timely complaint against Honest Bingo.  But the
relation back issue presents the following disputed fact questions,
which prevent resolution on a motion for judgment on the pleadings: 
whether FDA received sufficient notice of Hebert's lawsuit within
the limitations period and whether FDA knew or should have known
that, but for a mistake concerning identity, it would have been
included as a party within the applicable period. [Fn. 27]
          It is not clear from the pleadings whether FDA did or did
not receive sufficient notice of Hebert's claim within the
limitations period.  Hebert's complaint asserted that the nature of
the named business entities was unknown.  It also included the
permittee of the bingo game as a John Doe defendant.  Hebert's
amended complaint states that FDA "is one of the three permitees
jointly operating Honest Bingo" and that FDA "was in fact receiving
the benefits of the operation of the bingo game at the time and
place in question."  This statement alleges the existence of a
close business relationship between Honest Bingo and FDA, or
possibly a joint venture or partnership. [Fn. 28]  While admitting
that it is a permittee for bingo games, FDA denied the allegations
of jointly operating Honest Bingo and of receipt of benefits of the
operation.  Viewing the facts in the light most favorable to
Hebert, as we must for the purposes of the motion, it is clear that
the existence of some type of close business relationship is
          A fact question also exists as to whether FDA knew or
should have known that but for a mistake in identity, it would have
been named as a party within the applicable limitations period.  As
an organization under whose permit the Honest Bingo game was run, 
FDA may have had notice of the complaint filed against Honest Bingo
and the Monroe Foundation and consequently may or should have known
that it was one of the "John Does" referred to in the initial
complaint against Honest Bingo.  Similarly, without further
evidence, we are unable to determine whether FDA either knew or
should have known that it was intended as a party in the suit prior
to March 27, 1996, the one hundred twentieth day after filing of
the original complaint. [Fn. 29]
          The pleadings on their face cannot reveal whether
Hebert's second amended complaint relates back to the initial
timely complaint filed against Honest Bingo.  And determining
whether FDA meets the standard for relation back involves a triable
issue of fact.  We therefore cannot affirm the granting of FDA's
Rule 12(c) motion. [Fn. 30]
          "The court either may consider a motion for judgment on
the pleadings at a preliminary hearing as provided by Rule 12(d) or
may postpone its determination until trial." [Fn. 31]  We conclude
that where appropriate and when a motion for judgment on the
pleadings is brought on the basis of the affirmative defense of
statute of limitations, the interests of justice are best served if
the trial court considers the motion at a preliminary hearing
instead of waiting until trial.
          Because fact questions exist as to whether Hebert's
second amended complaint bringing FDA into the lawsuit related back
to her initial complaint against Honest Bingo, FDA was not entitled
to judgment on the pleadings under Rule 12(c).  We therefore
REVERSE the decision of the superior court and REMAND for
proceedings consistent with this opinion.                                 


Footnote 1:

     According to Hebert's counsel, a bingo box is a "box
containing multitudinous pigeon holes" in which bingo cards are
stored.  At the time of Hebert's injury, the bingo box was
partially filled with bingo cards. 

Footnote 2:

     Honest Bingo is a business entity consisting of three members:
(1) the Monroe Foundation, Inc.; (2) the Boosters of Immaculate
Conception; and (3) the Fairbanks Drama Association.  The exact
nature of the relationship between these three organizations is
unclear from the record.

Footnote 3:

     The statute of limitations on Hebert's personal injury claim
is two years.  See AS 09.10.070(a).

Footnote 4:

     Although defendant was served with process after the statute
of limitations expired, service was made within 120 days of filing,
as permitted under Civil Rule 4(j).

Footnote 5:

     This letter stated that Honest Bingo's insurance company
representative, Cecil Cole, had attempted to contact FDA
previously, but that FDA had failed to respond to his

Footnote 6:

     In February 1998 Hebert entered into a settlement agreement
with the Monroe Foundation and Immaculate Conception and filed a
notice with the court acknowledging their dismissal from the
pending lawsuit. 

Footnote 7:

     See Noey v. Bledsoe, 978 P.2d 1264, 1271 n.19 (Alaska 1999).

Footnote 8:

     See Alaska R. Civ. P. 12(c).

Footnote 9:

     5A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure 2d sec. 1367, at 509-10 (1990) (footnotes omitted)
[hereinafter Wright & Miller].

Footnote 10:


Footnote 11:

     A triable issue of fact that will preclude a Rule 12(c) motion
"may be framed by an express conflict on a particular point between
the parties' respective pleadings" or also "may result from [the]
defendant pleading new matter and affirmative defenses in [the]
answer."  5A Wright & Miller, supra, sec. 1368, at 529,  (footnotes

Footnote 12:

     See Jennings v. State, 566 P.2d 1304, 1310 n.23 (Alaska 1977).

Footnote 13:

     5A Wright & Miller sec. 1368 (supp. 2000).

Footnote 14:

     See id. at 527 (footnotes omitted).

Footnote 15:

     See id. at 527-28.

Footnote 16:

     Alaska R. Civ. P. 7(a) contains this limitation on a
plaintiff's right to reply to defendant's affirmative defense: 

               There shall be a complaint and an answer; 
a reply to a counterclaim denominated as such;  an answer to a
cross-claim, if the answer contains a cross-claim; a third-party
complaint, if leave is given under Rule 14 to summon a person who
was not an original party;  and a third-party answer, if a
third-party complaint is served.  No other pleading shall be
allowed, except that the court may order a reply to an answer or a
third-party answer.

          Furthermore, Civil Rule 8(d) states that allegations in
a pleading to which no responsive pleading is required are deemed
by the court to be either denied or avoided.  See Alaska R. Civ. P.

Footnote 17:

     5A Wright & Miller sec. 1368, at 529.

Footnote 18:

     See id. at 530.

Footnote 19:

     See id.

Footnote 20:

     See id.

Footnote 21:

     See id.   

Footnote 22:

     Hebert had not filed any pleading in response to the
affirmative defense.  Civil Rule 7(a) does not normally allow a
responsive pleading.  See n.16 supra.

Footnote 23:

     Hebert was injured on November 29, 1993.  Her second amended
complaint was filed on February 20, 1998, well after the two-year
statute of limitations expired on November 29, 1995.  See AS

Footnote 24:

     See Siemion v. Rumfelt, 825 P.2d 896, 898-99 (Alaska 1992).

Footnote 25:

     Alaska R. Civ. P. 15(c). 

Footnote 26:

     See generally West v. Buchanan, 981 P.2d 1065, 1068-71 (Alaska
1999).  Several federal courts have held that amendments in which
a plaintiff replaces a "John Doe" defendant with a named defendant
are considered amendments to add new parties and will relate back
only when the conditions of Rule 15(c) are satisfied.  See 6A
Wright & Miller, supra sec. 1498, at 105-06; see also Craig v.
States, 413 F.2d 854 (9th Cir. 1969).

Footnote 27:

     The parties do not dispute that the first requirement -- that
the claim against FDA arise out of the same basic claim in the
complaint against Honest Bingo -- is satisfied. 

Footnote 28:

     Hebert may have available to her a second avenue for relief. 
If she can demonstrate that Honest Bingo was a partnership or a
joint venture of which Monroe Foundation and FDA were partners or
joint venturers, it may not be necessary for the second amended
complaint to relate back to the original complaint since service of
the timely original complaint on Honest Bingo or the Monroe
Foundation may be found sufficient to constitute service on FDA. 
See Alaska R. Civ. P. 4(d)(5); Coleman v. Lofgren, 593 P.2d 632,
634 (Alaska 1979).

Footnote 29:

     See Alaska R. Civ. P. 4(j) (allowing 120 days after filing for
service of process).  The record shows that by October 31, 1996,
FDA had refused to participate in settlement negotiations, but the
record is silent as to how long before that time FDA was aware of 
Hebert's claims.

Footnote 30:

     A Civil Rule 12(c) motion can be converted into a Rule 56
motion for summary judgment when the trial judge considers
materials outside the pleadings.  See Alaska R. Civ. P. 12(c). 
However, here the superior court explicitly stated that it did not
consider matters outside the pleadings.  Even if this court were to
consider the additional materials contained in the record, it is
still unclear whether FDA had notice of Hebert's lawsuit and knew
or should have known that it would have been initially included as
a defendant if Hebert had been aware of its identity. 

Footnote 31:

     5A Wright & Miller sec. 1367, at 517.  See Pedersen v.
822 P.2d 903, 907 n.4 (Alaska 1991).