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The Guarantee Co. of North America USA v. Metro Contracting, Inc.

United States District Court, District of South Carolina, Charleston Division

January 28, 2015

The Guarantee Company of North America USA, Plaintiff,
v.
Metro Contracting, Inc.; Audrey Griebe; and Stephen Griebe, Defendants. Audrey Griebe, Third-Party Plaintiff,
v.
Justin Albright and Cassey White a/k/a Cassey Gawith, Third-Party Defendants.

ORDER

PATRICK MICHAEL DUFFY, United States District Judge

This matter is before the Court on the Report and Recommendation (ECF No. 112) (“R&R”) of the Magistrate Judge, recommending that the Court grant Plaintiff The Guarantee Company of North America USA’s (“Plaintiff”) Motion to Dismiss (ECF No. 38). Defendant Audrey Griebe (“Ms. Griebe”) timely filed Objections (ECF No. 115) to the R&R. As detailed below, the Court has carefully reviewed and considered the entire record, including Ms. Griebe’s Objections, and finds that the Magistrate Judge fairly and accurately summarized the relevant facts and applied the correct principles of law. Accordingly, the Court hereby adopts the Magistrate Judge’s R&R and fully incorporates it into this Order.

The present action is also before the Court on Ms. Griebe’s Objections (ECF No. 116) to the Magistrate Judge’s August 15, 2014 Order (ECF No. 110) (“Rule 11 Order”) denying her Motion for Rule 11 Sanctions (ECF No. 62) (“Motion for Sanctions”). For the reasons that follow, the Court overrules Ms. Griebe’s Objections and affirms the Magistrate Judge’s Rule 11 Order.

The final motion pending before the Court is Plaintiff’s Motion for Entry of Judgment (ECF No. 83) against Mr. Griebe and Defendant Metro Contracting, Inc. (“Metro”), which has been fully briefed and is ripe for disposition. As explained in greater detail herein, given the Court’s action on the Magistrate Judge’s R&R and Rule 11 Order, the Court grants Plaintiff’s Motion for Entry of Judgment.

BACKGROUND[1]

On August 21, 2013, Plaintiff filed this indemnity action against Metro, Ms. Griebe, and Mr. Griebe, asserting that this Court has diversity jurisdiction. Plaintiff alleges that it “executed, as surety, various performance and payment bonds on behalf of Metro, for various construction projects to be performed” around South Carolina. (Compl. 2, ¶ 7, ECF No. 1). Plaintiff further alleges that “[t]o induce Guarantee to execute bonds for Metro, ” Mr. and Ms. Griebe, individually, and Mr. Griebe, on behalf of Metro, “all as Indemnitors, executed a General Agreement of Indemnity (“GAI”) on or about August 26, 2008.” (Id. ¶ 8.)

Plaintiff’s Complaint lists the following causes of action: (1) breach of contract, (2) specific performance, (3) injunctive relief, (4) fraudulent conveyance, (5) fraud, (6) prejudgment attachment, and (7) unfair and deceptive trade practices. Plaintiff seeks, inter alia, actual damages in the amount of $712, 057.07.

Ms. Griebe filed an Answer along with a cross-claim against Mr. Griebe and Metro and a Third-Party Complaint against Justin Albright (“Albright”) and Cassey White a/k/a Cassey Gawith (“White”). Ms. Griebe alleges that Mr. Griebe forged her signature on the GAI; thus, she denies both that she executed the GAI and that she is an indemnitor under the agreement. Ms. Griebe further alleges that when Mr. Griebe forged Ms. Griebe’s signature on the GAI, the signature was witnessed by Albright and notarized by White. Ms. Griebe asserts the following causes of action in her cross-claim and Third-Party Complaint: (1) equitable indemnity, (2) conspiracy, and (3) forgery.

On December 13, 2013, Plaintiff filed the instant Motion to Dismiss pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. In the Motion to Dismiss, Plaintiff states that after reaching a settlement with Metro and Mr. Griebe, Plaintiff’s counsel subsequently circulated a stipulation of dismissal, which counsel for Ms. Griebe refused to sign. Ms. Griebe thereafter filed a responsive pleading, titled “Memorandum of Law in Opposition to Plaintiff’s Motion to Dismiss; and Motion for Attorney’s Fees.” In opposing Plaintiff’s requested voluntary dismissal, Ms. Griebe explains that she did not agree to the dismissal because she seeks attorney’s fees in the amount of $43, 195.17, contending that Plaintiff pursued its claims against her either recklessly or in bad faith.

On February 24, 2014, Ms. Griebe filed a Motion for Sanctions against Plaintiff’s counsel, Kimila L. Wooten, and Ms. Wooten’s law firm, Elmore Goldsmith, P.A. Ms. Griebe asserts that the suit against her was frivolous, because “Plaintiff had no evidence that Mrs. Griebe had signed [the GAI] but had a plethora of evidence that she had not signed it plus clear evidence of fraud.” (Mot. for Sanctions 5). In her Motion for Sanctions, Ms. Griebe seeks attorney’s fees and costs in the amount of $39, 207.50.

Plaintiff filed a Motion to Strike the Motion for Sanctions on February 27, 2014, essentially maintaining that the Motion for Sanctions is improper because Plaintiff sought to voluntarily dismiss its claims before Ms. Griebe filed the Motion for Sanctions. Ms. Griebe opposed Plaintiff’s Motion to Strike, asserting both that such a motion is itself procedurally improper and that the arguments asserted therein lack merit.

On March 24, 2014, Plaintiff filed a Confession of Judgment executed by Metro and Mr. Griebe in the amount of $2 million. Plaintiff’s claims against Metro and Mr. Griebe were subsequently dismissed. On June 24, 2014, Plaintiff filed a Motion for Entry of Judgment, asking that the Court enter judgment against Metro and Mr. Griebe pursuant to the Confession of Judgment. Ms. Griebe thereafter filed a Response, and Plaintiff has filed a Reply.

On August 5, 2014, the Magistrate Judge held a hearing on all pending motions, with the exception of Plaintiff’s Motion for Entry of Judgment. At the conclusion of the hearing, the Magistrate Judge denied Ms. Griebe’s Motion for Sanctions, as well as Plaintiff’s Motion to Strike. The Magistrate Judge issued the Rule 11 Order on August 15, 2014, memorializing its oral ruling. Contemporaneously with the issuance of the Rule 11 Order, the Magistrate Judge also entered the R&R, which recommends granting Plaintiff’s Motion to Dismiss. Ms. Griebe timely filed Objections to both the Rule 11 Order and the ...


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