Bond v. Wile et al

Filing 44

OPINION AND ORDER: GRANTING 34 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) by Counter Defendant Ron Bond. Defendant Bryan K. Wile's counterclaim ( 19 , p. 13) is DISMISSED. All other claims and defenses asserted by any party are unaffected by this ruling and remain pending. Signed by Judge William C Lee on 6/30/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

RON BOND
Plaintiff,
v.
GENERAL MOTORS, LLC,
BRYAN K. WILE, and
EDWARD L. KLINGAMAN, JR.,
Defendants.

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CASE NO: 1:15-CV-00290

OPINION AND ORDER
This matter is before the court on Plaintiff’s Motion to Dismiss (ECF at 34) in which he
argues Defendant Bryan K. Wile’s counterclaim was filed outside the applicable two-year statute
of limitations and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Defendant Bryan K. Wile filed a response in opposition to the motion (ECF at 37)
and Plaintiff filed a reply brief (ECF at 41). For the reasons discussed below, the court finds
Plaintiff’s motion should be GRANTED. Defendant Bryan K. Wile’s counterclaim [DE 19, p.
13] is DISMISSED. All other claims and defenses asserted by any party are unaffected by this
ruling and remain pending.
BACKGROUND
The facts giving rise to this lawsuit are largely undisputed. On October 7, 2015, Plaintiff
Ron Bond (“Bond”) filed his Complaint (ECF at 1) against Defendant General Motors, LLC
alleging race harassment in violation of 42 U.S.C. § 1981, Defendant Bryan K. Wile (“Wile”)
alleging assault and battery, and Defendant Edward L. Klingaman alleging defamation and

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slander. The assault and battery claim stems from a physical altercation between Bond and Wile
on October 17, 2013. Bond’s assault and battery claim was timely filed within the two (2) year
applicable statute of limitations pursuant to Indiana Code § 34-11-2-4. On January 29, 2016,
Wile responded to Bond’s complaint by filing an answer and a counterclaim (ECF at 19) alleging
assault and battery stemming from the incident on October 17, 2013.
Bond now moves the court to dismiss Wile’s counterclaim alleging the counterclaim falls
outside the applicable statute of limitations and requires dismissal pursuant to Rule 12(b)(6).
Bond’s Memorandum in Support of Motion to Dismiss, (ECF at 38), pp 3-4. Wile does not
dispute his counterclaim was filed outside the applicable two-year statute of limitations.
However, Wile argues that Indiana Trial Rule 13(J) permits a party to assert a counterclaim that
would otherwise be barred by a statute of limitations if that counterclaim diminishes or defeats
the opposing party’s claim. Bond contends that Indiana Trial Rule 13(J) is not applicable here
because Wile’s counterclaim seeks affirmative relief. Wile’s Countercl. ¶¶ 13, 14.
STANDARD OF REVIEW
Rule 12(b)(6) allows a defendant to move to dismiss a complaint that has fails to “state a
claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding a motion to
dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and
draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633
(7th Cir. 2008). The complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the
Supreme Court explained that the complaint must allege facts that are “enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). Stated differently, the complaint must include “enough facts to state a claim to relief

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that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal
citation and quotation marks omitted). To be facially plausible, the complaint must allow “the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly,
550 U.S. at 556).
DISCUSSION
The issue before the court is whether Wile’s untimely counterclaim qualifies under
Indiana Trial Rule 13(J) for an exemption to the applicable two-year statute of limitations. Wile
does not dispute that he failed to file his counterclaim within the statute of limitations period,
rather he maintains that his counterclaim is salvaged by Indiana Trial Rule 13(J)(1) because it
“diminishes or defeats” Bond’s personal injury claims. Wile’s Response in Opposition to
Motion to Dismiss (ECF at 37), p. 2. The court does not agree.
Indiana Code § 34-11-2-4 is the applicable statute of limitations for an action for injury to
a person, as in this case. Section 34-11-2-4 requires an action to “be commenced within two (2)
years after the cause of the action accrues.” Ind. Code § 34-11-2-4. Here, Wile’s counterclaim
of assault and battery stems from a physical altercation between Bond and Wile on October 17,
2013. 1 Thus, Wile’s January 2015 counterclaim would otherwise seem to be time-barred.
Indiana Trial Rule 13 governs counterclaims. Under Rule 13, counterclaims are either
compulsory or permissive. Bacompt Sys., Inc. v. Ashworth, 752 N.E.2d 140, 143 (Ind. Ct. App.
2001). A compulsory counterclaim “arises out of the transaction or occurrence that is the
subject-matter of the opposing party’s claim.” Ind. Trial Rule 13(A). A permissive counterclaim
is a “claim against an opposing party not arising out of the transaction or occurrence that is the

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Wile does not dispute that his counterclaim accrued as of October 17, 2013.
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subject-matter of the opposing party’s claim.” Ind. Trial Rule 13(B). Here, it is evident that
Wile’s counterclaim arises out of the same transaction or occurrence—the physical altercation
with Bond on October 17, 2013—as Bond’s claim. Bond Compl. ¶ 19; Wile Countercl. ¶ 7.
Thus, Wile’s counterclaim is considered compulsory.
Next, Trial Rule 13(J) allows a defendant to assert a time-barred claim to the extent that it
defeats or diminishes the plaintiff’s claim. Although the Indiana Trial Rules are modeled on the
federal rules, Trial Rule 13(J) is unique to the Indiana rules. Rule 13(J) provides in pertinent part
that the statute of limitations shall not bar a claim asserted as a counterclaim to the extent that “it
diminishes or defeats the opposing party’s claim if it arises out of the transaction or occurrence
that is the subject-matter of the opposing party’s claim[.]” Ind. Trial Rule 13(J). On its face,
Rule 13(J) does not prohibit untimely compulsory counterclaims nor does Rule 13 distinguish
the type of relief sought by the defendant as a means for barring an untimely compulsory
counterclaim. See generally Ind. Trial Rule 13.
In Crivaro v. Rader, 469 N.E.2d 1184 (Ind. Ct. App. 1984), 2 the court determined that for
a defendant to assert an untimely compulsory counterclaim under Trial Rule 13, the relief sought
must be defensive in nature. Id. at 1185. The court refused to permit affirmative recovery by
way of a time-barred counterclaim. Id. at 1187. In Delacruz v. Wittig, 42 N.E.3d 557 (Ind. Ct.
App. 2015), 3 the court held that the ability to obtain affirmative relief is foreclosed under Trial

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In Crivaro, the plaintiff filed a complaint seeking $1,000 in damages nineteen days before the
expiration of the two-year statute of limitations. The defendant filed a counterclaim eight days
after the running of the statute of limitations on the action seeking $60,000 for personal injuries
and property damage.
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In Delacruz, sheriff's deputies timely brought action for assault against party guest in
connection with injuries they sustained during investigation of a disturbance. More than two
years after the incident, guest counterclaimed for excessive force.
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Rule 13. Id. at 562. The court held that Trial Rule 13(J) only applies to counterclaims for
recoupment and not to counterclaims seeking affirmative recovery. See id. A counterclaim for
affirmative relief is one that “could have been maintained independently of the plaintiffs [sic]
action.” Delacruz, 42 N.E.3d at 560 (citing York Linings Int'l, Inc. v. Harbison–Walker
Refractories Co., 839 N.E.2d 766, 771 (Ind. Ct. App. 2005)). In contrast, “a counterclaim in
recoupment is defensive in posture.” Id. (citing York Linings, 839 N.E.2d at 769).
Here, Wile’s counterclaim seeks affirmative recovery. Wile could have filed his
counterclaim as an independent action prior to the end of the statute of limitations. For whatever
reason, Wile did not do so—that is certainly his right. However, for affirmative counterclaims,
Trial Rule 13(J)(1) simply does not operate to toll the statute of limitations. Delacruz, 42 N.E.3d
at 562; Crivaro, 469 N.E.2d at 1186. Wile also seeks affirmative relief in the form of damages.
Wile’s counterclaim requests compensatory damages, punitive damages, attorney fees, and costs.
Wile Countercl. ¶¶ 13, 14. These types of damages are indicative of affirmative relief and are
commonly associated with an independent cause of action. See Delacruz, 42 N.E.3d at 560
([C]ompensatory and consequential damages plus attorney fees are more indicative of an
affirmative counterclaim rather than simply a claim in recoupment).
Finally, a counterclaim asserted by way of a set-off or recoupment or that seeks to
diminish or defeat the plaintiff’s claim is defensive in nature. See Delacruz, 42 N.E.3d at 560;
see also York, 839 N.E.2d at 769. Here Wile contends his counterclaim will diminish or defeat
Bond’s claim. Wile’s Resp., p. 3. However, Wile does not allege any facts in his counterclaim
to indicate how his assault and battery claim would defeat or diminish Bond’s claims. In other
words, Wile fails to indicate how his counterclaim of assault and battery would diminish or
defeat Bond’s ability to establish liability on his claims. Thus, Wile’s counterclaim is

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affirmative and not merely one that seeks recoupment or setoff. Wile maintains Indiana Trial
Rule 13(J) rescues his otherwise time-barred counterclaim because it diminishes or defeats
Bond’s claims. The court disagrees. 4
CONCLUSION
For the foregoing reasons, Wile’s counterclaim was untimely filed and does not
otherwise qualify for exemption under Trial Rule 13(J)(1). As such, it is time-barred and subject
to dismissal. Accordingly, the court GRANTS Plaintiff’s motion to dismiss. Defendant Bryan K.
Wile’s counterclaim [DE 19, p. 13] is DISMISSED. All other claims and defenses asserted by
any party are unaffected by this ruling and remain pending.

Date: June 30, 2016.
/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana

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The court notes that it is debatable whether Rule 13 even applies in this case. See Murray v.
Conseco, Inc., 2009 WL 126343, at * 3 (S.D.Ind. Jan. 16, 2009), amended in part on
reconsideration, 2009 WL 1228552 (S.D. Ind. May 4, 2009) (“Trial Rule 13(J) is an Indiana
state court procedural rule and, therefore, it does not apply in federal proceedings.”) (citing
Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135 v. Jefferson Trucking
Co., Inc., 473 F.Supp. 1255, 1258 (S.D.Ind. 1979)) (questioning the applicability of Indiana Rule
13 in federal proceedings, while holding that a party may not utilize Rule 13 in any event since
party was seeking affirmative relief in counterclaim). The court need not address this point,
however, since all the cases discussed in this order share a common legal thread—that Indiana
Trial Rule 13 does not save an otherwise time-barred counterclaim if that counterclaim seeks
affirmative relief (as opposed to setoff or recoupment), as does Wile’s.

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