United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
JUDGE THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT
matter is before the Court on the Defendant's, Town of
Merrillville, Partial Motion to Dismiss Plaintiff's First
Amended Complaint [ECF No. 21]. The Defendant moves pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief may be granted. For the
reasons stated in the order below, the Court GRANTS the
Plaintiff, Johnathan Woodley, commenced this action on
December 4, 2017 [ECF No. 1] and filed an Amended Complaint
on March 6, 2018 [ECF No. 17]. The Plaintiff alleges
violations of his Fourth and Fourteenth Amendment rights
pursuant to 42 U.S.C. §§ 1983 and 1988. The
Plaintiff alleges that a police canine attacked him after he
was handcuffed and that the Defendants P.O Zabrecky and P.O.
S.E. Leto failed to intervene. (Pl.'s Am. Compl.
¶¶ 11-12.) The Plaintiff alleges that Defendants
Zabrecky and Leto used excessive and unreasonable force
during his arrest. (Id. ¶¶ 17-18.) The
Plaintiff's sole claim against the Town of Merrillville
is an indemnification claim for the alleged misconduct of the
Defendants Zabrecky and Leto. (Id.
March 13, 2018, the Defendant Town of Merrillville filed a
Motion to Dismiss [ECF No. 21] pursuant to Federal Rule of
Civil Procedure 12(b)(6) and a Memorandum in Support [ECF No.
22]. The Defendant Town of Merrillville argues that the
Plaintiff's claim should be dismissed for lack of subject
matter jurisdiction, as the Plaintiff's indemnification
claim is not ripe. (Def.'s Mem. in Supp. of Mot. to
Dismiss. at 3.) The Plaintiff did not file a response, and
the time to do so has since passed.
motion to dismiss pursuant to [Rule] 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a
claim upon which relief may be granted.” Camasta v.
Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th
Cir. 2014). When reviewing a complaint attacked by a Rule
12(b)(6) motion, the Court must accept all of the factual
allegations as true and draw all reasonable inferences in the
light most favorable to the Plaintiff. Erickson v.
Pardus, 551 U.S. 89, 93 (2007). Federal Rule of Civil
Procedure 8(a)(2) requires “'a short and plain
statement of the claim showing that the pleader is entitled
to relief,' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citation omitted). However, though
a complaint need not contain detailed facts, surviving a Rule
12(b)(6) motion “requires more than labels and
conclusions . . . . Factual allegations must be enough to
raise a right to relief above the speculative level.”
Id. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). Because the purpose of a
motion to dismiss “is to test the formal sufficiency of
the statement of the claim for relief[, ] the motion is not a
procedure for resolving a contest between the parties about
the facts or the substantive merits of the plaintiff's
case.” 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (3d ed.).
Defendant Town of Merrillville argues that liability has not
been established and no judgment has been entered that would
give rise to an indemnification claim. (Def.'s Mem. in
Supp. of Mot. to Dismiss at 4.) Thus, the Defendant argues,
the Court lacks subject matter jurisdiction over the
Plaintiff's indemnification claim. The Plaintiff offered
no argument in response.
Court only has subject matter jurisdiction over a case in
which the controversy is ripe, and a claim is unripe if it
“rests upon contingent future events that may not occur
as anticipated, or indeed may not occur at all.”
Texas v. United States, 523 U.S. 296, 300 (1998)
(internal quotation marks omitted). The Seventh Circuit has
repeatedly warned against trying to resolve questions of
indemnity before liability due to ripeness complications.
Doe v. City of Chicago, 360 F.3d 667, 672 (7th Cir.
2004); Lear Corp. v. Johnson Elec. Holdings, Ltd.,
353 F.3d 580, 583 (7th Cir. 2003) (“We regularly say
that decisions about indemnity should be postponed until the
underlying liability has been established.”);
Grinnell Mut. Reinsurance Co. v. Reinke, 43 F.3d
1152, 1154 (7th Cir. 1995) (“[T]he duty to indemnify is
unripe until the insured has been held liable.”)
determination has yet been made as to the Defendants'
liability. At this stage of the proceedings, the
Plaintiff's indemnification claim against the Defendant
Town of Merrillville is premature as it is not clear that
Defendants Zabrecky and Leto will be held liable under any of
the Plaintiff's alleged claims. See Sowell v.
Dominguez, No. 2:09-CV-47, 2011 WL 294758, at *14 (N.D.
Ind. Jan. 26, 2011). The Plaintiff's claim against the
Defendant Town of Merrillville must be dismissed for lack of
subject matter jurisdiction.
foregoing reasons, the Court GRANTS the Defendant's, Town
of Merrillville, Partial Motion to Dismiss Plaintiff's
First Amended Complaint [ECF No. 21]. Count II of the
Plaintiff's Amended Complaint is ...