IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
| ROSEMARY KILKENNY, Plaintiff, v. EDWARD SARGENT, Defendant. | CASE NO.: 2020 CA 4315 B JUDGE: HEIDI PASICHOW |
COMES NOW, Defendant EDWARD SARGENT, pro se, pursuant to D.C. Super. Ct. Civ. Proc. Rule 12 (b) moves to dismiss the Complaint; or in the alternative, that the Court orders a six-month continuance/injunction in the instant case.
FACTUAL BACKGROUND
This is a contract law action involving a $20,000 loan provided to Defendant in 1999.
Plaintiff volunteered to write a loan contract between her and Defendant’s company, Sargent Communications, Inc. The company disbursed the funds in two cashier’s checks, one to St. Alban’s and the other to Georgetown Day for her two sons. EXHIBIT 1.
Plaintiff filed this Declaratory judgment action alleging four causes of action: (i) Parties never formed an agreement for Plaintiff to pay more than $20,000 (ii) Parties never formed an agreement for Plaintiff to pay Defendant anything prior to Plaintiff’s retirement (iii) by Defendant refusing to receive the payment of $20,000 from Plaintiff waived Defendant’s right to payment (iv) any allegation that Plaintiff breached the 1999 agreement is barred by the applicable statute of limitations.
Plaintiff also filed a Defamation Complaint against Defendant. The said Complaint was filed on the same day as the Declaratory judgment action.
ARGUMENT
- PLAINTIFF’S COMPLAINT IS MISCAPTIONED
“[i]t is an elementary proposition of law that a plaintiff must sue the proper party or parties as defendant.” Council of Sch. Officers v. Vaughn, 553 A.2d 1222, 1225 (D.C. 1989). Plaintiff’s Complaint lists Defendant as the one who provided the said loan to Plaintiff. Contrariwise, the loan was provided by Defendant’s company, Sargent Communications, Inc. Accordingly, there is no contract between Plaintiff and Defendant. Therefore, the allegations claimed do not apply to Defendant since Defendant did not personally give the loan.
It is trite law that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. Black’s Law Dictionary (10th ed. 2014) defines ‘privity of contract’ as “[t]he relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so.” It follows; privity of contract is premised on the existence of a contractual relationship between two parties, typically in the form of an agreement. In the instant case, Defendant was not privy to the Contract because the said Agreement expressly mentioned Defendant’s company as the lender.
Per Rule 10 of the Superior Court Rules of Civil Rules of Procedure, the title of the complaint must name all the parties to the case. Further, Rule 12 (b) (7) provides that a Defendant may bring a motion for dismissal of the Complaint for failure to join party pursuant to Rule 19. Rule 19 states in that regard that, a “person . . . shall be joined as a party in the action if . . . in the person’s absence complete relief cannot be accorded among those already parties… “. To qualify as an indispensable party, a person must either be necessary to grant complete relief to the parties or “claim[ ] an interest relating to the subject of the action.” Super. Ct. Civ. R. 19(a).
It is worth noting that Rule 12 of the Superior Court’s rules of Civil Procedure is rearranged to reflect the format established by Rule 12 of the Federal Rules of Civil Procedure. D.C. Super. Ct. Civ. Proc. Rule 12 Cmt. In that regard, federal Courts have held based on Rule 12 (b) (7) that the absence from the lawsuit of a person who was “indispensable” or “who ought to be [a] part[y]” itself deprived the court of the power to adjudicate as between the parties already joined. See Samuel Goldwyn, Inc. v. United Artists Corp., 113 F.2d 703, 707 (3d Cir. 1940); McArthur v. Rosenbaum Co. of Pittsburgh, 180 F.2d 617, 621 (3d Cir. 1949); cf. Calcote v. Texas Pac. Coal & Oil Co., 157 F.2d 216 (5th Cir. 1946), cert. denied, 329 U.S. 782 (1946).
DC courts have also held in the same vein that a complaint should be dismissed if it fails to state an indispensable party. The Court in Flack v. Laster, 417 A.2d 393, 399 (D.C. 1980) stated in this regard that, “… [i]f a party is indispensable, the action must be dismissed unless the party is joined.”
It would amount to an abuse of discretion for this honorable Court to grant Plaintiff relief, in the absence of the indispensable party. See American Univ. v. District of Columbia Educ. Licensure Comm’n, 930 A.2d 200, 207–08 (D.C.2007) (trial court’s failure to join indispensable person under Rule 19 reviewed for abuse of discretion).
It follows; this honorable Court should dismiss the Complaint because it violates Rule 12 of the Superior Court rules by: (i) wrongfully listing Defendant as party; and (ii) failing to include an indispensable party.
- DEFENDANT WILL BE BURDENED BY TWO CONCURRENT ACTIONS AGAINST HIM
As already stated in the factual background, Plaintiff filed two cases against Defendant simultaneously, on the same day, minutes apart. This action appears to be Plaintiff’s attempt to harass Defendant and damage Defendant financially. Accordingly, Defendant seeks a continuance of at least six months.
The grant or denial of a continuance rests within the sound discretion of the trial judge. See King v. District of Columbia Water & Sewer Auth., 803 A.2d 968 (D.C.2002); see also Evening Star Newspaper Company v. Covington, D.C.App., 323 A.2d. 718, 722 (1974). Factors that the court should consider when granting a continuance include ” the diligence and good faith of the party seeking the continuance, the prejudice resulting from the denial of the continuance, any prejudice the opposing party would have suffered had the continuance been granted, and the duration of the requested continuance and any likely resulting disruption or delay of the trial.” Murphy v. A.A. Beiro Constr.Co., 679 A.2d 1039, 1043 (D.C.1996) (citations omitted). In the instant case, Defendant seeks the continuance in good faith. Notably, Defendant further avers that he will face prejudice if the Court fails to grant the continuance. Notably, incidental to a denial of the continuance, Defendant will be forced to face financial and emotional loss due to litigation expenses and the rigors of litigation. Defendant also avers that the requested continuance time would not interfere with the Court’s schedule. Notably, the delay might help relieve the court’s schedule following a backlog of critically important criminal and civil matters due to the government shutdown during the COVID pandemic. Lastly, Defendant maintains that Plaintiff will suffer no harm as a result of the continuance.
“A continuance should be granted to avoid material hardship and injustice.” Feaster v. Feaster, 359 A.2d 272, 273 (D.C.1976). Besides, the denial of continuance may be held to be an abuse of discretion. Harris v. Akindulureni, 342 A.2d 684 (1975). As already alleged, Defendant would have to face hardship and injustice if the court denies his request for continuance.
“A party seeking a continuance must make a showing that [the continuance] is reasonably necessary for a just determination of the cause ….” (internal quotation marks omitted)). Kyle v. United States, 759 A.2d 192, 196 n.2 (D.C. 2000). “The trial court also may properly consider the public’s interest in the ‘prompt, effective, and efficient administration of justice.’ ” Brooks, 130 A.3d at 960 (quoting Leak v. United States, 757 A.2d 739, 744 (D.C. 2000)).
In light of the foregoing, Defendant requests this Court grants at least, a sixth month continuance to this case, if the Court refuses Defendant’s motion to dismiss.
WHEREFORE, Defendant, EDWARD SARGENT, prays that this Honorable Court enter an appropriate Order dismissing Plaintiff’s Complaint with prejudice, or alternatively:
- Orders that this case be continued to a later date (after six months); and
- Grants any other relief that the Court deems just.
Respectfully submitted,
DATED: __________
CERTIFICATE OF MAILING
Defendant affirms that a copy of the above was served upon the Plaintiff to this action by electronic and/or U.S. mail to her respective address as stated below:
[ENTER ADDRESS]
ADDENDUM
EXHIBIT 1
EXHIBIT
IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
| ROSEMARY KILKENNY, Plaintiff, v. EDWARD SARGENT, Defendant. | CASE NO.: 2020 CA 4315 B JUDGE: HEIDI PASICHOW |
COMES NOW, Defendant EDWARD SARGENT, pro se, pursuant to D.C. Super. Ct. Civ. Proc. Rule 12 (b) moves to dismiss the Complaint; or in the alternative, that the Court orders a six-month continuance/injunction in the instant case.
FACTUAL BACKGROUND
This is a contract law action involving a $20,000 loan provided to Defendant in 1999.
Plaintiff volunteered to write a loan contract between her and Defendant’s company, Sargent Communications, Inc. The company disbursed the funds in two cashier’s checks, one to St. Alban’s and the other to Georgetown Day for her two sons. EXHIBIT 1.
Plaintiff filed this Declaratory judgment action alleging four causes of action: (i) Parties never formed an agreement for Plaintiff to pay more than $20,000 (ii) Parties never formed an agreement for Plaintiff to pay Defendant anything prior to Plaintiff’s retirement (iii) by Defendant refusing to receive the payment of $20,000 from Plaintiff waived Defendant’s right to payment (iv) any allegation that Plaintiff breached the 1999 agreement is barred by the applicable statute of limitations.
Plaintiff also filed a Defamation Complaint against Defendant. The said Complaint was filed on the same day as the Declaratory judgment action.
ARGUMENT
- PLAINTIFF’S COMPLAINT IS MISCAPTIONED
“[i]t is an elementary proposition of law that a plaintiff must sue the proper party or parties as defendant.” Council of Sch. Officers v. Vaughn, 553 A.2d 1222, 1225 (D.C. 1989). Plaintiff’s Complaint lists Defendant as the one who provided the said loan to Plaintiff. Contrariwise, the loan was provided by Defendant’s company, Sargent Communications, Inc. Accordingly, there is no contract between Plaintiff and Defendant. Therefore, the allegations claimed do not apply to Defendant since Defendant did not personally give the loan.
It is trite law that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. Black’s Law Dictionary (10th ed. 2014) defines ‘privity of contract’ as “[t]he relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so.” It follows; privity of contract is premised on the existence of a contractual relationship between two parties, typically in the form of an agreement. In the instant case, Defendant was not privy to the Contract because the said Agreement expressly mentioned Defendant’s company as the lender.
Per Rule 10 of the Superior Court Rules of Civil Rules of Procedure, the title of the complaint must name all the parties to the case. Further, Rule 12 (b) (7) provides that a Defendant may bring a motion for dismissal of the Complaint for failure to join party pursuant to Rule 19. Rule 19 states in that regard that, a “person . . . shall be joined as a party in the action if . . . in the person’s absence complete relief cannot be accorded among those already parties… “. To qualify as an indispensable party, a person must either be necessary to grant complete relief to the parties or “claim[ ] an interest relating to the subject of the action.” Super. Ct. Civ. R. 19(a).
It is worth noting that Rule 12 of the Superior Court’s rules of Civil Procedure is rearranged to reflect the format established by Rule 12 of the Federal Rules of Civil Procedure. D.C. Super. Ct. Civ. Proc. Rule 12 Cmt. In that regard, federal Courts have held based on Rule 12 (b) (7) that the absence from the lawsuit of a person who was “indispensable” or “who ought to be [a] part[y]” itself deprived the court of the power to adjudicate as between the parties already joined. See Samuel Goldwyn, Inc. v. United Artists Corp., 113 F.2d 703, 707 (3d Cir. 1940); McArthur v. Rosenbaum Co. of Pittsburgh, 180 F.2d 617, 621 (3d Cir. 1949); cf. Calcote v. Texas Pac. Coal & Oil Co., 157 F.2d 216 (5th Cir. 1946), cert. denied, 329 U.S. 782 (1946).
DC courts have also held in the same vein that a complaint should be dismissed if it fails to state an indispensable party. The Court in Flack v. Laster, 417 A.2d 393, 399 (D.C. 1980) stated in this regard that, “… [i]f a party is indispensable, the action must be dismissed unless the party is joined.”
It would amount to an abuse of discretion for this honorable Court to grant Plaintiff relief, in the absence of the indispensable party. See American Univ. v. District of Columbia Educ. Licensure Comm’n, 930 A.2d 200, 207–08 (D.C.2007) (trial court’s failure to join indispensable person under Rule 19 reviewed for abuse of discretion).
It follows; this honorable Court should dismiss the Complaint because it violates Rule 12 of the Superior Court rules by: (i) wrongfully listing Defendant as party; and (ii) failing to include an indispensable party.
- DEFENDANT WILL BE BURDENED BY TWO CONCURRENT ACTIONS AGAINST HIM
As already stated in the factual background, Plaintiff filed two cases against Defendant simultaneously, on the same day, minutes apart. This action appears to be Plaintiff’s attempt to harass Defendant and damage Defendant financially. Accordingly, Defendant seeks a continuance of at least six months.
The grant or denial of a continuance rests within the sound discretion of the trial judge. See King v. District of Columbia Water & Sewer Auth., 803 A.2d 968 (D.C.2002); see also Evening Star Newspaper Company v. Covington, D.C.App., 323 A.2d. 718, 722 (1974). Factors that the court should consider when granting a continuance include ” the diligence and good faith of the party seeking the continuance, the prejudice resulting from the denial of the continuance, any prejudice the opposing party would have suffered had the continuance been granted, and the duration of the requested continuance and any likely resulting disruption or delay of the trial.” Murphy v. A.A. Beiro Constr.Co., 679 A.2d 1039, 1043 (D.C.1996) (citations omitted). In the instant case, Defendant seeks the continuance in good faith. Notably, Defendant further avers that he will face prejudice if the Court fails to grant the continuance. Notably, incidental to a denial of the continuance, Defendant will be forced to face financial and emotional loss due to litigation expenses and the rigors of litigation. Defendant also avers that the requested continuance time would not interfere with the Court’s schedule. Notably, the delay might help relieve the court’s schedule following a backlog of critically important criminal and civil matters due to the government shutdown during the COVID pandemic. Lastly, Defendant maintains that Plaintiff will suffer no harm as a result of the continuance.
“A continuance should be granted to avoid material hardship and injustice.” Feaster v. Feaster, 359 A.2d 272, 273 (D.C.1976). Besides, the denial of continuance may be held to be an abuse of discretion. Harris v. Akindulureni, 342 A.2d 684 (1975). As already alleged, Defendant would have to face hardship and injustice if the court denies his request for continuance.
“A party seeking a continuance must make a showing that [the continuance] is reasonably necessary for a just determination of the cause ….” (internal quotation marks omitted)). Kyle v. United States, 759 A.2d 192, 196 n.2 (D.C. 2000). “The trial court also may properly consider the public’s interest in the ‘prompt, effective, and efficient administration of justice.’ ” Brooks, 130 A.3d at 960 (quoting Leak v. United States, 757 A.2d 739, 744 (D.C. 2000)).
In light of the foregoing, Defendant requests this Court grants at least, a sixth month continuance to this case, if the Court refuses Defendant’s motion to dismiss.
WHEREFORE, Defendant, EDWARD SARGENT, prays that this Honorable Court enter an appropriate Order dismissing Plaintiff’s Complaint with prejudice, or alternatively:
- Orders that this case be continued to a later date (after six months); and
- Grants any other relief that the Court deems just.
Respectfully submitted,
DATED: __________
CERTIFICATE OF MAILING
Defendant affirms that a copy of the above was served upon the Plaintiff to this action by electronic and/or U.S. mail to her respective address as stated below:
[ENTER ADDRESS]
ADDENDUM
EXHIBIT 1
EXHIBIT C
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