United States District Court, S.D. Indiana, Indianapolis Division
RYAN GOOKINS, RICHARD RECTENWAL, INDIANA PRECAST, INC., Plaintiffs,
COUNTY MATERIALS CORP., CENTRAL PROCESSING CORP., Defendants.
REPORT AND RECOMMENDATION
J. DINSMORE JUDGE
matter is before the Court on a Motion to Dismiss for
Failure to State a Claim, filed by County Materials
Corp. and Central Processing Corp.
(“Defendants”). [Dkt. 36.] Defendants
ask this Court to dismiss all three claims brought by Ryan
Gookins, Richard Rectenwal, and Indiana Precast, Inc.
(“Plaintiffs”). [Dkt. 37 at 1-2.] On
June 19, 2019, District Court Judge James Patrick Hanlon
designated the undersigned Magistrate Judge to issue a report
and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
[Dkt. 53.] For the reasons set forth below, the
Magistrate Judge recommends Defendants' Motion to
Dismiss for Failure to State a Claim be GRANTED
IN PART and DENIED IN PART. Also
before the Court is Plaintiff's Motion for Leave to
Supplement Plaintiffs' Response [Dkt. 49],
which was not opposed. The Court GRANTS
Plaintiffs' Motion [Dkt. 49] and has considered
the supplemental filing in resolving Defendants'
Motion to Dismiss for Failure to State a Claim.
an action to recover damages incurred by Plaintiffs for
defending prior litigation in a lawsuit filed by Defendants.
In the previous suit, Defendants filed a Complaint in this
Court on June 14, 2016. [See No.
1:16-cv-01456-TWP-MJD, Dkt. 1 (S.D. Ind. June 14,
2016).] The suit asserted five claims, including: (1) breach
of Gookins' confidentiality agreement; (2) breach of
Rectenwal's confidentiality and non-competition
agreements; (3) breach of fiduciary duty of loyalty owed to
employer (against Gookins); (4) tortious interference with
contractual relationships (against all Defendants); and (5)
tortious interference with business relationships (against
all Defendants). However, the Complaint was dismissed without
prejudice on forum non conveniens grounds because of
forum selection clauses in Defendants' contracts with
Gookins and Rectenwal. [Dkt. 37. at 5.] In response,
Defendants then filed the same Complaint in Hancock County on
February 3, 2017. [Dkt. 37. at 6.] The case
proceeded to trial, and Plaintiffs received favorable jury
verdicts as to each of Defendants' claims. [Dkt.
37. at 7.] Defendants appealed the court's decision
on February 4, 2019. [Dkt. 37 at 7.]
Plaintiffs filed post-judgment motions for attorneys'
fees, which were granted but subsequently vacated on April
26, 2019, after the court determined that it lacked
jurisdiction to grant the fees. [Dkt. 37 at 7-8.] In
response, Plaintiffs filed a Motion to Dismiss Appeal or,
in the Alternative, to Stay Appeal and Remand for Further
Proceedings on April 30, 2019. [Dkt. 49-1 at
2.] On May 31, 2019, the Indiana Court of Appeals
granted Plaintiffs' Motion and dismissed Defendants'
appeal without prejudice and remanded to the trial court to
resolve the fee orders. [Dkt. 49-1 at 13-14.]
Lastly, on June 7, 2019, Plaintiffs filed a Verified
Motion to Reinstate the Fee Orders. [Dkt. 49-1 at
result of the February 3, 2017 lawsuit, Plaintiffs filed the
present suit on February 1, 2019 in the Hancock Superior
Court before it was removed to this Court on February 28,
2019. [Dkt. 1.] Plaintiffs allege three Counts in
the Amended Complaint filed on April 25, 2019: (1) abuse of
process under Indiana common law; (2) civil damages under
Indiana's Crime Victims' Relief Act allegedly arising
from Defendants' commission of criminal deception; and
(3) two separate causes of action under common law conversion
and criminal conversion under I.C. § 35-43-5-3(a)(2).
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. To survive a Rule
12(b)(6) motion, the complaint must provide enough factual
information to state a claim for relief that is plausible on
its face and “raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint is
facially plausible “when the pleaded factual content
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). At the
12(b)(6) stage, all of the “factual allegations
contained in the complaint” must be “accepted as
true.” Twombly, 550 U.S. at 572. Furthermore,
well-pled facts are viewed in the light most favorable to the
non-moving party. See Ashcroft, 556 U.S. at
678; United Cent. Bank v. Davenport Estate LLC, 815
F.3d 315, 318 (7th Cir. 2016). But “legal conclusions
and conclusory allegations merely reciting the elements of a
claim are not entitled to this presumption of truth.”
McCauley v. City of Chi., 671 F.3d 611, 616 (7th
Cir. 2011). Moreover, the Court is not required to accept as
true “a legal conclusion couched as a factual
allegation.” Bonte v. U.S. Bank, Nat'l
Ass'n, 624 F.3d 461, 465 (7th Cir. 2010).
Statute of Limitations
argue that both Counts I and II (Plaintiffs' abuse of
process and deception claims) are barred by the applicable
statutes of limitations. [Dkt. 37 at 9.] First,
Indiana common law claims for abuse of process have a
two-year statute of limitations under I.C. § 34-11-2-4.
See, e.g., Yoost v. Zalcberg, 925 N.E.2d
763, 771 (Ind.Ct.App. 2010). Second, civil damages under
Indiana's Crime Victims' Relief Act
(“CVRA”) also have a two-year statute of
limitations. See, e.g., In re Rose, 585
F.3d 306, 309 (7th Cir. 2009). Further, under Indiana law, a
claim for abuse of process accrues when the act complained of
is committed. Strutz v. McNagny, 558 N.E.2d 1103,
1106 (Ind.Ct.App. 1990). Therefore, Defendants assert that
Plaintiffs' filing the original suit in federal court on
June 17, 2016 started the statute of limitations period. As a
result, the lawsuit is barred by the statute of limitations.
Alternatively, Defendants argue that “assuming
arguendo that Indiana's discovery rule applies
on the facts of this case, Plaintiffs' abuse-of-process
claim accrued when each became aware of Defendants'
claims in the Federal Court Lawsuit, which occurred sometime
before August 4, 2016, when Plaintiffs jointly moved to
dismiss the Federal Court Lawsuit for forum non
conveniens.” [Dkt. 37 at 11.] Lastly,
Defendants assert that Count II began at the latest August 4,
2016, when Plaintiffs jointly moved to dismiss the Federal
Court Lawsuit for forum non conveniens. [Dkt. 37
response, Plaintiffs argue that “each lawsuit is a
separate process.” [Dkt. 45 at 3.] In
addition, Plaintiffs provide examples of similar situations
to the one at hand to show that the new suit is not a
continuation, but rather a separate and independent event
giving rise to separate and independent claims. [Dkt. 45
“a claim for abuse of process accrues when the act
complained of . . . is committed” the underlying issue
in the present case is Defendants' filing of the suit in
Hancock County on February 3, 2017. Strutz, 558
N.E.2d at 1106. Although the original action was filed in
federal court on June 17, 2016, the action was dismissed
without prejudice on forum non conveniens
grounds. Significantly, the case was not remanded, but rather
was dismissed. Therefore, the filing of the new suit in
Hancock County started the statute of limitations period for
claims arising out of the new lawsuit.
Seventh Circuit cases have held that “a dismissal
without prejudice is treated for statute of limitations
purposes as if suit had never been filed.” SeeMuzikowski v. Paramount Pictures Corp., 322 F.3d
918, 923 (7th Cir. 2003). While Muzikowski deals
with a litigant who originally filed suit within the statute
of limitations period, but whose case was later dismissed and
was consequently barred from re-asserting the same claim
because of the statute of limitations, the basic principle is
applicable to the case at hand. Id. It does not make
sense to this ...