Adams v. Traylor-Wolff et al

Filing 65

OPINION AND ORDER: Court DENIES 57 Motion for Leave to Amend Answer to Amended Complaint. Signed by Magistrate Judge Andrew P Rodovich on 10/18/2013. cc: John R Hillis (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GREGORY ADAMS,

)
)
)
)
) Cause No. 2:11-cv-00365-JTM-APR
)
)
)
)
)
)
)
)

Plaintiff,
v.
LISA M. TRAYLOR-WOLFF, and THE
LAW OFFICES OF KELLY LEEMAN,
CASS COUNTY, and THE BOARD
OF COMMISSIONERS OF THE
COUNTY OF CASS,
Defendants.

OPINION AND ORDER
This matter is before the court on the Motion for Leave to Amend Their Answer to
Amended Complaint [DE 57] filed by the defendants, Lisa M. Traylor-Wolff and the Law
Offices of Kelly Leeman, on April 25, 2013. For the following reasons, the motion is DENIED.

Background
In August 2009, the plaintiff, Gregory Adams, was brought before the Superior Court of
Cass County, Indiana, on drug charges. The court appointed the defendants, Lisa M. TraylorWolff and the Law Offices of Kelly Leeman, to defend Adams. Plea negotiations ensued.
Adams represents that Wolff induced him to execute a plea agreement in November 2010. In
December 2010, Wolff filed a motion to dismiss all pending charges against Adams due to
speedy trial violations. The motion was granted, and Adams was released from custody on
January 18, 2011.
On October 3, 2011, Adams filed the present lawsuit against Wolff and the Law Offices
1

of Kelly Leeman, alleging that they committed malpractice and breached their fiduciary duties
by failing to act with reasonable care, diligence, and promptness while representing him, causing
him to remain incarcerated for more than sixteen months.
In their original answer and their answer to Adams’ amended complaint, the defendants
asserted an affirmative defense that “[p]ublic policy prohibits Plaintiff from recovery against the
Defendants.” Adams moved to strike this defense. The court ruled that the defense, as written,
did not put Adams on notice of the actions that violated public policy. The defendants now
move to amend their answer to include the following affirmative defense:
The public policy of Indiana precludes Plaintiff’s claim against these answering
Defendants. As set forth in Rimert v. Mortell, the public policy of Indiana
precludes a person from maintaining an action if, to establish his cause of action,
he must rely on a violation by himself of the criminal or penal laws. In support of
his cause of action, Adams necessarily must rely upon illegal conduct which
resulted in his arrest and incarceration on drug charges and for which he was
prepared to plead guilty before a motion filed by Defendant Traylor-Wolff
resulted in Adams’ release from jail.
Adams opposes this amendment, arguing that the amendment is futile.
Discussion
Federal Rule of Civil Procedure 15(a) provides that “a party may amend the party's
pleading only by leave of court or by written consent of the adverse party; and leave shall be
freely given when justice so requires.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9
L.Ed.2d 222 (1962). This Circuit has recognized that because pleadings merely serve to put the
opposing side on notice, they should be freely amended as the case develops, as long as
amendments do not unfairly surprise or prejudice the opposing party. Jackson v. Rockford
Housing Authority, 213 F.3d 389, 390 (7th Cir. 2000). The decision to deny leave to amend a
pleading is an abuse of discretion “only if ‘no reasonable person could agree with the decision.’”
2

Winters v. Fru–Con, Inc., 498 F.3d 734, 741 (7th Cir. 2007) (quoting Butts v. Aurora Health
Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004)); Ajayi v. Aramark Business Services, 336 F.3d
520, 530 (7th Cir. 2003).
Leave to amend properly may be denied for “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.” Foman, 371 U.S. at 182, 83 S.Ct. at 230. A motion to amend is more likely to
be denied if it takes place at a relatively late stage in the proceedings. Aldridge v. Forest River,
Inc., 635 F.3d 870, 875 (7th Cir. 2011); Winters, 498 F.3d at 741. See also James v. McCaw
Cellular Communications, Inc., 988 F.2d 583 (5th Cir. 1993) (holding that the district court did
not abuse its discretion in denying plaintiff's motion to amend where the motion was filed almost
15 months after the original complaint, ten months after the joinder dead-line, five months after
the deadline for amendments, and three weeks after the defendant filed motion for summary
judgment).
The court may deny leave because the amendment is futile. Bethany Phamacal
Compamy, Inc. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001). Futility generally is measured
by whether the amendment would survive a motion to dismiss under Federal Rule of Civil
Procedure12(b)(6), unless a summary judgment motion is pending, permitting futility to be
shown with reference to the entire summary judgment record. Peoples v. Sebring Capital Corp.,
209 F.R.D. 428, 430 (N.D. Ill. 2002). If the proposed amendment is not clearly futile, denying
leave to amend on this ground would be improper. See Wright & Miller, 6 Federal Practice &
Procedure § 1487, at 637–642 (2d ed. 1990) (“If the proposed change clearly is frivolous or

3

advances a claim or defense that is legally insufficient on its face, the court may deny leave to
amend.”).
The defendants moved to amend their answer to include an affirmative defense that
Adams’ complaint is barred by public policy. The defendants rely on Rimert v. Mortell, 680
N.E.2d 867 (Ind. App. 1997) in support of their motion. In Rimert, the plaintiff was convicted of
murder and sought damages from his psychiatrist for malpractice, claiming his psychiatrist
negligently discharged him from the hospital. Rimert, 680 N.E.2d at 870. The Indiana
Appellate Court explained that “[i]t is a general rule of public policy that ‘a person cannot
maintain an action if, in order to establish his cause of action, he must rely, in whole or in part,
on an illegal or immoral act or transaction to which he is a party . . . [or] . . . on a violation by
himself of the criminal or penal laws . . .” Rimert, 680 N.E.2d at 871-872 (citing 1A C.J.S.
Actions § 29 (1985)). The rule is based on the principal that someone who knowingly and
intentionally engages in serious illegal conduct should not be able to impose liability on others
for the consequences of their behavior. Rimert, 680 N.E.2d at 872. The Indiana Appellate Court
cited numerous examples where liability was not imposed. For example, a bank robber could not
recover against the FBI for injuries he sustained during a robbery under the theory that the FBI
was negligent for failing to arrest him before the robbery on conspiracy charges despite the
FBI’s knowledge of his intent to commit the crime. Rimert, 680 N.E.2d at 872 (citing Amato v.
United States, 729 F.2d 1445 (3rd Cir. 1984)). Similarly, a man convicted of rape could not
recover damages from the bartender under a theory that the bartender was negligent in serving
him after he became intoxicated. Rimert, 680 N.E.2d at 872 (citing Lord v. Fogcutter Bar, 813
P.2d 660 (Ala. 1991)). This rule prohibits convicted criminals from imposing or shifting liability

4

for their antisocial conduct onto others. Rimert, 680 N.E.2d at 873.
The situation here is much different than in Rimert or the cases it cites. Adams is not
relying on his own criminal conduct in an attempt to shift responsibility for the resulting
damages to another party or to recover damages based on his anti-social behavior. Rather,
Adams seeks damages for the defendants’ own behavior in failing to represent him
appropriately. See DE 61 (explaining that the only remaining counts pending against Kelly and
the Law Offices of Kelly Leeman are for willful and wanton legal malpractice and breach of
fiduciary duties). It was Adams’ conduct that placed him in jail, although he never was
convicted of the crime, but the defendants’ alleged failure to timely file the motion to dismiss
kept Adams in jail. Adams is not arguing that the defendants in anyway caused or contributed to
the commission of his crime. Rather, Adams is seeking to impose liability on the defendants for
their own subsequent conduct that kept him in jail beyond the time he should have served if the
defendants did not commit legal malpractice.
Under the defendants’ theory, a criminal defendant never could pursue a legal
malpractice claim against his attorney because he committed a crime. However, this is contrary
to Indiana law. See Goby v. Whitehead, 837 N.E.2d 146 (Ind. App. 2005) (legal malpractice
action by criminal defendant against attorney); Silvers v. Brodeur, 682 N.E.2d 811 (Ind. App.
1997) (same). In fact, the criminal defendant need not even prove his innocence to proceed with
a legal malpractice case against his attorney. See Goby, 837 N.E.2d 146, 151 (Ind. App. 2005)
(“[A] criminal defendant does not have to prove his innocence before he files a legal malpractice
claim.”); Silvers, 682 N.E.2d at 818. Therefore, the defendants’ theory that a criminal defendant
cannot recover damages that arose because of his behavior is inapplicable in this case, and

5

permitting the defendants to file an amended answer stating this as a defense would be futile.
Based on the foregoing reasons, the defendants’ Motion for Leave to Amend Their
Answer to Amended Complaint [DE 57] is DENIED.
ENTERED this 18th day of October, 2013

/s/ Andrew P. Rodovich
United States Magistrate Judge

6