United States District Court, D. New Hampshire
A. DiClerico, Jr. United States District Judge.
Auction, LLC brought suit against Todd Mueller, seeking a
declaratory judgment that Mueller is obligated under the
parties' Auction Consignment Agreement to indemnify
R&R Auction for costs and fees incurred in litigation
involving Mueller and other parties. R&R Auction also
brings a claim for “Express Indemnity.” Mueller
moves for judgment on the pleadings, and R&R Auction
motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) is addressed under the standard for a
motion to dismiss under Rule 12(b)(6). Shay v.
Walters, 702 F.3d 76, 82 (1st Cir. 2012). The court
takes the plaintiff's factual allegations as true and
draws reasonable inferences in the plaintiff's favor.
Kando v. R.I. State Bd. Of Elections, 880 F.3d 53,
58 (1st Cir. 2018). Legal conclusions are not credited.
Najas Realty, LLC v. Seekonk Water Dist.,
821 F.3d 134, 140 (1st Cir. 2016). Taken in that light, the
complaint must provide facts to support a claim that
“is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Doe v. Brown
Univ., 896 F.3d 127, 130 (1st Cir. 2018).
complaint, R&R Auction alleges that it is an auction
house located in New Hampshire that conducts live and on-line
auctions, specializing in auctions of autographed
memorabilia. Mueller and R&R Auction entered into the
Auction Consignment Agreement (“Agreement”) in
November of 2010. Either then or at another time, Mueller
attempted to consign items to R&R Auction that R&R
Auction rejected because it could not verify the authenticity
of the items.
and his company, Todd Mueller Autographs LLC, brought suit
against R&R Auction, and others, in the Superior Court of
the State of California in April of 2016. Mueller alleged
claims of intentional interference with prospective economic
advantage, violation of California Business and Professional
Code § 17200, and conspiracy to commit trade libel. The
claims arose from disputes between Mueller and R&R
Auction, and others, about the authenticity or value of
same day, Nelson Deedle and his company, Iconographs, Inc.,
also brought suit against R&R Auctions, and others, in
California. Deedle and his company alleged the same claims
that were brought by Mueller based on allegations that
R&R Auction wrongfully refused to accept items from
Deedle, falsely claiming the items were not authentic. Deedle
alleged that R&R Auction rejected the items because of
Deedle's relationship with Mueller.
Auction resolved Deedle's claims on March 7, 2019,
although it apparently has not yet been dismissed from the
action. R&R Auction alleges that Mueller dismissed it
from Mueller's suit on April 3, but then moved to set
aside the dismissal. Counsel for R&R Auction appended to
its objection an order by the California court in
Mueller's case. In the order, the court granted another
defendant's motion to terminate sanctions and also
dismissed Mueller's complaint with prejudice because
Mueller threatened to kill a witness, which resulted in a
civil harassment restraining order, threatened a court
officer, and willfully violated multiple discovery orders.
Auction alleges that it has incurred $250, 000 in
attorneys' fees and costs in litigating the Mueller and
Deedle suits. R&R Auction further alleges that the
Agreement with Mueller provides for reimbursement and
indemnification for those fees and costs. Mueller has refused
to indemnify or reimburse R&R Auction.
Count I of the complaint, R&R Auction seeks a declaratory
judgment that Mueller is obligated under the terms of the
Agreement to indemnify and reimburse R&R Auction for its
fees and costs incurred in the California suits. In Count II,
titled “Express Indemnity, ” R&R Auction
alleges that Mueller breached the Agreement by failing to
indemnify and reimburse R&R Auction for those fees and
costs. Mueller moves for judgment on the pleadings on both of
R&R Auction's claims, arguing that the Agreement does
not provide for reimbursement or indemnification to R&R
Auction for the fees and costs incurred in the California
suits. R&R Auction objects.
Auction Consignment Agreement
Agreement includes information at the top that was filled in
by hand. Todd Mueller is identified as Consignor #1101, with
a Colorado Springs, Colorado, address. The first paragraph of
the Agreement states that R&R Auction agrees to act as
Mueller's agent “in the sale of the property listed
on the Auction Consignment Listing. You commission us to sell
your items to the highest bidder in our monthly telephone and
internet auction.” Doc. no. 1-1, at *2.
other paragraphs provide terms and conditions for the
consignment and sale of items. The Agreement includes a
statement that it is to be signed and returned with the
consignment. It was signed by Mue-ller and by someone on
behalf of R&R Auction on November 5, ...