United States District Court, N.D. Indiana, Hammond Division
OPINION and ORDER
T. MOODY, JUDGE
October 19, 2014, plaintiff Damon Clemons was arrested while
patronizing a Chuck E. Cheese restaurant in Hobart, Indiana.
On October 11, 2016, plaintiff filed suit in Indiana state
court, alleging various tort and constitutional claims
against the City of Hobart, the Hobart Police Department, and
Officer G. Viator, who was directly involved in the arrest.
(DE # 5.) Plaintiff alleged that Officer G. Viator was an
employee of the Hobart Police Department, which should be
held liable for the officer's actions.
to plaintiff, he later learned that Officer G. Viator was
actually employed by CEC Entertainment, Inc.
(“CEC”) during the incident in question as a
private security guard. On December 8, 2016, plaintiff filed
an amended complaint in state court, adding CEC as a
defendant and correcting its allegations regarding Officer G.
Viator's employer to reflect that CEC was the employer
when the events occurred. (DE # 3.) On January 11, 2017, CEC
removed the case to federal court, where it was assigned to
moved pursuant to Federal Rule of Civil Procedure 12(c) for
judgment on the pleadings, citing the two-year statute of
limitations that all parties agree applies to plaintiff's
claims against CEC. (DE # 32.) CEC also argues that plaintiff
has not perfected service of process of his amended complaint
on CEC. (Id.) In reviewing a motion under Rule
12(c), the court applies the same standard that is applied
when reviewing a motion to dismiss pursuant to Rule 12(b)(6).
Pisciotta v. Old Nat'l Bancorp., 499 F.3d 629,
633 (7th Cir. 2007). That means that the court “take[s]
the facts alleged in the complaint as true, drawing all
reasonable inferences in favor of the plaintiff.”
parties do not dispute that the amended complaint was filed
past the expiration of the two-year statute of limitations
applicable to the claims against CEC. However, the parties
disagree as to whether the amended complaint “relates
back” to the original complaint, rendering it timely
for statute of limitations purposes.
argues that the Federal Rules of Civil Procedure apply, and
that, under those rules, plaintiff's amended complaint
naming CEC as a defendant does not relate back to the
original complaint. However, “[t]he Federal Rules make
clear that they do not apply to filings in state court, even
if the case is later removed to federal court.”
Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122
(7th Cir. 2001); Fed.R.Civ.P. 81(c) (federal rules govern in
removal cases only “after it is removed”).
Accordingly, Indiana's rules on relation back apply in
this instance, not the Federal Rules of Civil Procedure.
Indiana's rule governing relation back of amendments to
Whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the
original pleading. An amendment changing the party against
whom a claim is asserted relates back if the foregoing
provision is satisfied and, within one hundred and twenty
(120) days of commencement of the action, the party to be
brought in by amendment:
(1) has received such notice of the institution of the action
that he will not be prejudiced in maintaining his defense on
the merits; and
(2) knew or should have known that but for a mistake
concerning the identity of the proper party, the action would
have been brought against him.
Ind. R. Tr. P. 15(C).
case, there is no dispute that the claims asserted in the
amended complaint against CEC arose out of the same conduct,
transaction, or occurrence set forth in the original
complaint, so the first requirement of Rule 15(C) is easily
regard to subsection (1), plaintiff argues that CEC received
such notice of the institution of the action that it will not
be prejudiced by defending this action. The court agrees. CEC
admits that it was served with a copy of the Amended
Complaint on or about December 12, 2016, four days after it
was filed. (DE # 1 ¶ 3.) Further, the amendment to the
complaint came less than 60 days after the original complaint
was filed. In the context of a lawsuit alleging personal
injury and constitutional harm, 60 days is a short span of
time. There is no indication that any significant progress
had occurred in the litigation at the time of the amended
complaint. Indeed, CEC makes no argument at all that it was
prejudiced by the short delay before it was added to the
litigation, and the court cannot discern any prejudice,
subsection (2), regarding knowledge, plaintiff argues that
CEC knew or should have known the action would have been
brought against it, but for the mistake by plaintiff in
naming Officer G. Viator's employer. Under Indiana law,
when an identity of interest between the original party and
the added party are so closely related in business or other
activity that it is fair to assume that the added party
learned of the institution of the action shortly after it
commenced, notice can be imputed on the added party.
Porter Cty. Sheriff Dep't v. Guzorek, 857 N.E.2d
363, 369 (Ind. 2006). CEC provides no indication of whether
it actually knew of the lawsuit before CEC was named as a
defendant, but this court concludes that CEC should have been
well aware of the institution of the action against Officer
G. Viator. The incident underlying this lawsuit occurred on
CEC's property and involved an individual employed by
CEC. It is reasonable to infer that CEC was aware of the
institution of the action against Officer G. Viator, if not
watching its developments closely. Even if CEC wasn't
aware, it should have been.
argues that plaintiff may have been mistaken about CEC's
employment of Officer G. Viator, but he was not mistaken
about CEC's identity. According to CEC, a conscious
choice not to sue CEC occurred when the original complaint
was filed, not a “mistake.” Plaintiff, on the
other hand, claims that the original complaint attempted to
hold Officer G. Viator's employer liable for his actions.
Plaintiff argues that once he discovered who Officer G.
Viator's employer really was, he amended his complaint
accordingly. Plaintiff points out that the amended complaint
does not attempt to hold CEC liable for negligence or impose
some form of premise liability on CEC. Rather, ...