United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY JUDGE
matter is before the court on defendants' motions to
dismiss. For the reasons identified below, defendant
Monumental Life Insurance Company's
(“Monumental”)motion to dismiss (DE # 31) will be
granted, and defendant Crystal Jones Harris'
(“Harris”) motion to dismiss (DE # 37) will be
amended complaint (DE # 27) alleges that, after the death of
their mother in 1995, they were placed in the custody of
Harris, their aunt. (DE # 27 at 1.) At the time, plaintiffs
were minors. (Id.) A settlement agreement on behalf
of plaintiffs was reached with the South Pacific
Transportation Company, Union Pacific Railroad, and the
County of San Bernadino, California, in 1997. (Id.)
The settlement agreement called for payments of $5, 000 to be
paid to each of the plaintiffs for a period of four years,
beginning in 2005, and a lump sum payment to each plaintiff
in the amount of $25, 000 to be paid in 2012. (Id.)
These payments were to be made by defendant Monumental.
(Id.) According to plaintiffs, they were unaware of
the settlement, and the settlement proceeds, until May 2013.
Plaintiffs allege that Harris intentionally exercised
unauthorized control over the settlement proceeds without
their knowledge or consent. (Id. at 3.) Plaintiffs
claim that they never received any portion of the settlement
filed their amended complaint on June 6, 2017. (DE # 27.) On
July 25, 2017, Monumental filed a motion to dismiss arguing
that it must be dismissed from this action because the
amended complaint does not contain any allegations against
it. (DE ## 31, 32.) Plaintiffs did not respond to
Monumental's motion to dismiss. On August 3, 2017,
Magistrate Judge John Martin held a Rule 16 preliminary
pretrial conference with the parties. Magistrate Judge Martin
granted Harris until August 31, 2017, to file a Rule 12(b)
motion to dismiss for improper service. (DE # 34.) On
November 6, 2017, Harris filed a motion to dismiss pursuant
to Rule 12(b)(6) for failure to state a claim. (DE # 37.) On
December 8, 2017, plaintiffs filed a response to Harris'
motion to dismiss. (DE # 40.)
have moved to dismiss plaintiffs' claims pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief may be granted. A judge reviewing a complaint pursuant
to Rule 12(b)(6) must construe the allegations in complaint
in the light most favorable to the non-moving party, accept
all well-pleaded facts as true, and draw all inferences in
favor of the non-movant. Erickson v. Pardus , 551
U.S. 89, 93 (2007); Reger Dev., LLC v. Nat'l City
Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the
liberal notice-pleading requirements of the Federal Rules of
Civil Procedure, the complaint need only contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A
plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009).
Monumental's Motion to Dismiss
failed to respond to Monumental's motion to dismiss.
Failure to respond to an argument presented in a motion to
dismiss results in waiver. Bonte v. U.S. Bank, N.A.,
624 F.3d 461, 466 (7th Cir. 2010) (“The silence
resulting from [plaintiffs'] failure to file a response
brief is deafening.”). See also County of McHenry
v. Ins. Co. of the West, 438 F.3d 813, 818 (7th
Cir.2006) (“When presented with a motion to dismiss,
the non-moving party must proffer some legal basis to support
his cause of action.”) (internal quotations omitted).
Thus, plaintiffs have waived any argument they may have had
in opposition to the motion.
even if plaintiffs had responded, Monumental would
nevertheless be entitled to dismissal from this case. It is
well established that a plaintiff cannot state a claim
against a defendant by merely including the defendant's
name in the caption. See Collins v. Kibort, 143 F.3d
331, 335 (7th Cir.1998). Here, the amended complaint's
sole allegation against Monumental is that it was responsible
for issuing the settlement payments. This allegation alone
does not state a claim for relief against Monumental. Because
plaintiffs do not allege any wrong-doing on the part of
Monumental, its motion to dismiss (DE # 31) will be granted.
Harris' Motion to Dismiss
did respond to Harris' motion to dismiss. In their
response, plaintiffs argue that, pursuant to Federal Rule of
Civil Procedure 12(d), Harris' motion automatically
converted to a motion for summary judgment because the motion
included documents outside of the pleadings. Plaintiffs
misunderstand the rule. Rule 12(d) provides that a Rule
12(b)(6) motion must be treated as a motion for summary
judgment if “matters outside the pleadings are
presented to and not excluded by the court. . .
.” Fed.R.Civ.P. 12(d) (emphasis added). Thus, it is
within the discretion of this court to either consider the
affidavits attached to Harris' motion and construe her
motion as a motion for summary judgment, or exclude those
documents from consideration and proceed pursuant to Rule 12.
See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th
Cir. 1998). It is plain that Harris, a pro se
litigant, intended to file her motion pursuant to Rule 12.
Therefore, the court elects to exclude from consideration any
document outside of the amended pleadings and consider the
motion pursuant to Rule 12.
to Rule 12, Harris' motion to dismiss will be denied as
untimely. Harris' motion was filed five months after
plaintiffs filed their amended complaint. Furthermore, while
Magistrate Judge Martin granted Harris additional time to
file a motion to dismiss based on improper service,
Harris' motion was not filed within that deadline and did
not raise issues regarding service of process. Harris did not
have leave to file her motion to dismiss and therefore it
will be denied as untimely. See Hoeft v. Clark, 401
F. App'x 115, 116 (7th Cir. 2010) (district court did not
abuse discretion in striking pro se litigant's
untimely dispositive motion); Lac du Flambeau Indians v.
Stop Treaty Abuse-Wis., 991 F.2d 1249, 1257 (7th Cir.