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Elwell v. First Baptist Church of Hammond, Inc.

United States District Court, N.D. Indiana, Hammond Division

September 15, 2016

JOSEPH ELWELL, CRYSTAL ELWELL, DEBORAH BALDWIN, Individually and as custodian for her minor children William McDaniel and Alexander McDaniel, and ROBERT BALDWIN, Plaintiffs,


          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on the Motion to Dismiss Count III of Plaintiffs' Complaint [DE 13] filed by the defendant, First Baptist Church of Hammond, Inc., on July 26, 2016. For the following reasons, the motion is DENIED.


         In January 2006, Pastor Jack Schaap hired Thomas Kimmel as an employee of the First Baptist Church to provide financial advice, debt counseling, budgeting, and investment planning advice to the members of First Baptist Church. In February 2006, Kimmel began soliciting investments in the collateralized note program related to Sure Line Acceptance Corporation. On July 2, 2007, the Elwells invested $160, 000.00 and by October 2009 had invested a total of $225, 000.00, and the Baldwins invested a total of $398, 400.00 in the note program.

         The note program began to fail in January 2012 when Sure Line entered a court ordered receivership. On August 21, 2013, Kimmel was charged with conspiracy to commit wire fraud and mail fraud regarding the sale and solicitation of the note program. Around this time, Deborah Baldwin learned from the FBI that Kimmel and Pastor Schaap were receiving commissions from the proceeds of the investments in the program.

         The plaintiffs' claims arose from the alleged negligent and intentional conduct of First Baptist Church regarding the plaintiffs' financial investments in the collateralized note program that was marketed and sold by Kimmel. According to Count I and Count II, plaintiffs alleged that the defendant is liable for Kimmel's conduct under a theory of respondeat superior. The defendant filed its answer and affirmative defenses regarding Count I and II. The defendant has argued that Count III was not pled in the alternative and alleged Kimmel's conduct was within the scope of his employment. Therefore, the defendant has requested that Count III be dismissed with prejudice for failing to state a claim under Indiana law. The motion also has raised a statute of limitations defense.


         The defendant, First Baptist Church of Hammond, Inc., has requested the court to dismiss Count III of the plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), which allows for a complaint to be dismissed if it fails to “state a claim upon which relief can be granted.” Allegations other than those of fraud and mistake are governed by the pleading standard outlined in Federal Rule of Civil Procedure 8(a)(2), which requires a “short and plain statement” to show that a pleader is entitled to relief. See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The Supreme Court clarified its interpretation of the Rule 8(a)(2) pleading standard in a decision issued in May 2009. While Rule 8(a)(2) does not require the pleading of detailed allegations, it nevertheless demands something more “than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In order to survive a Rule 12(b)(6) motion, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Cincinnati Life Ins., 722 F.3d at 946 (“The primary purpose of [Fed.R.Civ.P. 8 and 10(b)] is to give defendants fair notice of the claims against them and the grounds supporting the claims.”) (quoting Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011)); Peele v. Clifford Burch, 722 F.3d 956, 959 (7th Cir. 2013) (explaining that one sentence of facts combined with boilerplate language did not satisfy the requirements of Rule 8); Joren v. Napolitano, 633 F.3d. 1144, 1146 (7th Cir. 2011). This pleading standard applies to all civil matters. Iqbal, 556 U.S. at 684.

         The decision in Iqbal discussed two principles that underscored the Rule 8(a)(2) pleading standard announced by Twombly. See Twombly, 550 U.S. at 555 (discussing Rule 8(a)(2)'s requirement that factual allegations in a complaint must “raise a right to relief above the speculative level”). First, a court must accept as true only factual allegations pled in a complaint-“[t]hreadbare recitals of the elements of a cause of action” that amount to “legal conclusions” are insufficient. Iqbal, 556 U.S. at 678. Next, only complaints that state “plausible” claims for relief will survive a motion to dismiss. Iqbal, 556 U.S. at 678. If the pleaded facts do not permit the inference of more than a “mere possibility of misconduct, ” then the complaint has not met the pleading standard outlined in Rule 8(a)(2). Iqbal, 556 U.S. at 678-79; see Brown v. JP Morgan Chase Bank, 2009 WL 1761101, at *1 (7th Cir. June 23, 2009) (defining “facially plausible” claim as a set of facts that allows for a reasonable inference of liability). The Supreme Court has suggested a two-step process for a court to follow when considering a motion to dismiss. First, any “well-pleaded factual allegations” should be assumed to be true by the court. Next, these allegations can be reviewed to determine if they “plausibly” give rise to a claim that would entitle the complainant to relief. Iqbal, 556 U.S. at 678-79; Bonte v. U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010). Reasonable inferences from well-pled facts must be construed in favor of the plaintiff. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995); Maxie v. Wal-Mart Store, 2009 WL 1766686, at *2 (N.D. Ind. June 19, 2009) (same); Banks v. Montgomery, 2009 WL 1657465, at *1 (N.D. Ind. June 11, 2009) (same).

         A complaint that lacks organization and coherence so that it is too confusing to understand the factual basis of the wrongful conduct also is subject to dismissal. Cincinnati Life Ins., 722 F.3d at 946. The court assesses this by considering whether it can make out the essence of the claims. Cincinnati Life Ins., 722 F.3d at 946. A complaint is not unintelligible simply because it contains repetitive and irrelevant matter. Cincinnati Life Ins., 722 F.3d at 946. “Rather, we have found complaints wanting when they present a ‘vague, confusing, and conclusory articulation of the factual and legal basis for the claim and [take] a general “kitchen sink” approach to pleading the case.' . . . [D]ismissal is the appropriate remedy for district courts presented with ‘a bucket of mud.'” Cincinnati Life Ins., 722 F.3d at 946-47 (quoting Stanard, 658 F.3d at 798).

         A federal court sitting in diversity applies the substantive law of the forum state, so Indiana law applies here. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); Ruiz v. Blentech, 89 F.3d 320, 324 (7th Cir. 1996). Indiana recognizes a cause of action for negligent retention of an employee. Restatement (Second) of Torts § 317; Grzan v. Charter Hosp. of Northwest Indiana, 702 N.E.2d 786 (Ind. App. Ct. 1998). Negligent retention and supervision is a species of negligence and has the following elements: 1) a duty of care owed by an employer to a third person; 2) breach of that duty; and 3) injury to the third person proximately caused by the employer's breach. Scott v. Retz, 916 N.E.2d 252, 257 (Ind. App. Ct. 2009). In order to determine if an employer is liable for negligent hiring or retention of an employee, the court must determine if the employer exercised reasonable care. Konkle v. Henson, 672 N.E.2d 450, 454-55 (Ind. App. Ct. 1996). Under the principle of negligent retention, an employer may be liable for retaining an employee only if it knows the employee has a habit of misconduct that is dangerous to others. Briggs v. Finley, 631 N.E.2d 959, 966-67 (Ind. App. Ct. 1994).

         Negligent retention and supervision is a distinct tort from respondeat superior; it may impose liability on an employer when an employee “steps beyond the recognized scope of his [or her] employment to commit a tortious injury upon a third party.” Clark v. Aris, Inc., 890 N.E.2d 760, 765 (Ind. App. Ct. 2008); Scott v. Retz, 916 N.E.2d 252, 257 (Ind. App. Ct. 2009). Under the doctrine of respondeat superior, an employer is liable for the acts of its employees which were committed within the course and scope of their employment. Stropes v. Heritage House Childrens Center of Shelbyville, 547 N.E.2d 244, 247 (Ind. 1989). In order for an employee's act to fall “within the scope of employment, ” the injurious act must be incidental to the conduct authorized or it must, to an appreciable extent, further the employer's business. Barnett v. Clark, 889 N.E.2d 281, 283-84 (Ind. 2008) (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000). An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer. Barnett, 889 N.E.2d at 284 (quoting Restatement Third of Agency § 7.07(2)).

         The plaintiffs have argued that under Count III the complaint alleged that Kimmel's conduct was outside the scope of his employment by soliciting specific investments. The plaintiffs indicated that Kimmel's employment gave him the authority to give financial advice, rather than solicit investments in a specific program. The plaintiffs indicated that the defendant is liable for negligent retention since Kimmel's misconduct was outside the scope of his employment, it knew or should have known of the fraudulent conduct, and it should have terminated Kimmel's ability to offer the investment advice or solicit First Baptist members to invest in the note program.

         The defendant has argued that soliciting investment advice was incidental to Kimmel's employment. Also, that his solicitation of the investments allowed parishioners to accumulate more money and therefore further First Baptist's business. Therefore, the defendant has argued ...

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