United States District Court, S.D. Indiana, New Albany Division
KASEY HAYES, individually and as next friend of M.S., and on behalf of those individual members of a class of similarly situated persons, Plaintiffs,
MULTIBAND EC CORPORATION, DIRECTV, LLC, JOSEPH McCALEB, Defendants.
ENTRY ON DIRECTV'S MOTION TO DISMISS KASEY HAYES' CLAIMS
RICHARD L. YOUNG, Chief District Judge.
Plaintiff Kasey Hayes, individually and on behalf of her daughter M.S., brought suit against Defendants, Multiband EC Corporation ("Multiband"), DIRECTV, LLC, and Joseph McCaleb. Plaintiffs allege that McCaleb, who was responsible for installing DIRECTV in Plaintiffs' home, took several items of clothing from the home. DIRECTV and Multiband move to dismiss the claims brought by Hayes pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the court GRANTS the motion.
In 2011, McCaleb entered Hayes' residence in order to install DIRECTV. (Complaint ¶ 20, Filing No. 1, at ECF p. 6). McCaleb was employed by Multiband who contracted with DIRECTV to install DIRECTV services. ( Id. at ¶¶ 2-3, Filing No. 1, at ECF p. 2). While in the home, McCaleb took 32 items from Hayes including bathing suit tops, clothing, women's underwear, and lingerie. ( Id. at ¶ 20; Filing No. 1, at ECF p. 6). McCaleb wrote journal entries and fantasies about Hayes and her daughter, M.S., and he tried to solicit a relationship with Hayes. ( Id. at ¶¶ 21-22, Filing No. 1, at ECF p. 6).
Hayes "discovered [McCaleb's] actions when notified by local law enforcement that her name, her daughter's name and their personal items were found in the possession of McCaleb after burglary charges were brought against him in Kentucky." ( Id. at ¶ 27, Filing No. 1, at ECF p. 7). McCaleb pled guilty in December 2011 to felony theft as a result of these actions. (Pronouncement of Sentence, Filing No. 18-1).
Hayes brought suit on October 25, 2013, alleging negligent hiring and supervision, conversion, intentional infliction of emotional distress, and trespass. (Complaint, Filing No. 1). DIRECTV and Multiband now move the court to dismiss the claims pursuant to Rule 12(b)(6) and argue that: (1) the suit was filed after the statute of limitations ran and (2) Hayes has pleaded facts that prevent her from proving a claim for trespass.
II. Motion to Dismiss versus Motion for Summary Judgment
Along with its motion to dismiss, DIRECTV submitted a certified copy of the case file in State of Indiana v. Joseph McCaleb, Ohio Circuit Court, Cause No. 58C01-1107-FD-0047. (Filing No. 13-1). According to DIRECTV the court may consider the case file without converting the motion into a motion for summary judgment. Hayes argues that the court is required to construe the motion as a motion for summary judgment or to strike the documentation.
"The district court may  take judicial notice of matters of public record without converting a 12(b)(6) motion into a motion for summary judgment." Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). The court "generally cannot take notice of findings of fact from other proceedings for the truth of the matter asserted therein because these findings are disputable, and usually are disputed." Wright v. Thompson, 4:12-cv-10-RLY-WGH, 2012 WL 2401532, *1 (S.D. Ind. June 25, 2012) (citing Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997)). The Seventh Circuit, however, has noted that it is "conceivable that a finding of fact may satisfy the indisputability requirement." Gen. Elect. Capital Corp., 128 F.3d at 1082 n. 6.
Particularly at issue is DIRECTV's use of the probable cause affidavit contained in the case file. (Filing No. 13-1, at ECF pp. 43-44). DIRECTV argues that the affidavit is not being used to prove the truth that the clothing belonged to Hayes, but rather that Hayes was aware that McCaleb caused her injury, communicated this belief to the police, and identified the clothing as her own. (Filing No. 24, at ECF p. 3). Hayes does not dispute the validity of the information contained in the affidavit, but rather argues that the probable cause standard is not enough to bring a civil action.
Because Hayes does not dispute the facts within the affidavit, and even acknowledges those facts in her response, the court finds that they satisfy the indisputability requirement for the court to take judicial notice. Therefore, the court will take judicial notice of those facts and construe the motion as a motion to dismiss.
DIRECTV and Multiband bring the motion to dismiss under Rule 12(b)(6), which authorizes the dismissal of claims for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6). The purpose of a motion to dismiss is to test the legal sufficiency of the complaint, not the merits of the lawsuit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A court may grant a Rule 12(b)(6) motion to dismiss only if a complaint lacks "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint sufficient on its face need not give ...