Parducci v. Huynh
OPINION AND ORDER DENYING 16 Defendants' Trial Rule 12(c) MOTION for Judgment on the Pleadings filed by Quynh Phung, Golden Phoenix Restaurant Inc. Signed by Judge Rudy Lozano on 10/12/16. (kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
EVELYN HUYNH, QUYNH PHUNG, and
GOLDEN PHOENIX RESTAURANT, INC.
OPINION AND ORDER
This matter is before the Court on “Defendants’ Trial Rule
12(c) Motion for Judgment on the Pleadings,” filed by Defendants
Quynh Phung and Golden Phoenix Restaurant, Inc., on May 18, 2016
For the reasons set forth below, Defendants’ motion (DE
#16) is DENIED.
In September 2015, Plaintiff Anthony Parducci (“Parducci”)
filed a complaint against Evelyn Huynh (“Huynh”) in Indiana state
In October 2015, Huynh removed the case to
federal court and filed an answer to the complaint.
(DE ##1, 4.)
On April 6, 2016, Parducci filed the First Amended Complaint for
Damages and Jury Demand (“Complaint”), adding as defendants Quynh
Defendants filed their Answer and
Affirmative Defense to the Complaint on May 18, 2016.
They filed the instant motion for judgment on the pleadings the
The parties have fully briefed the instant
motion, and the Court is prepared to rule on it.
The Court accepts as true, as it must when considering a
motion for judgment on the pleadings, the following facts alleged
in the Complaint.
(7th Cir. 2000).
Forseth v. Village of Sussex, 199 F.3d 363, 368
On September 13, 2015, Parducci was a pedestrian
in the parking lot located at 1715 US 41, in Schererville, Indiana,
when he was struck by a vehicle owned and driven by Huynh, causing
Count II, the only count to mention
Defendants, alleges that Huynh “was the agent, servant and/or
employee of the [D]efendants,” and that they were negligent in
hiring, supervising, training, and retaining Huynh.
proximate result of Defendants’ fault and negligence, and seeks
compensatory damages and attorney’s fees.
Defendants filed the instant motion for judgment on the
pleadings, and submitted the Affidavit of Quynh Phung (“Phung”) in
support of the motion.
Parducci filed an opposition
brief to the motion, along with portions of the transcript of
subsequently filed a reply brief and the Affidavit of Huynh.
Once a complaint and answer have been filed, a party may file
a motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c).
Moss v. Martin, 473 F.3d 694, 698 (7th
Cir. 2007) (citation omitted).
A court may rule on a Rule 12(c)
motion based upon a review of the pleadings alone, which include
the complaint, the answer, and any written instruments attached as
See Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”). “If, on a motion under Rule 12(b)(6)
or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”
Fed. R. Civ. P. 12(d).
the court “may (1) ‘convert the 12[(c)] motion into a motion for
summary judgment under Rule 56 and proceed in accordance with the
latter rule,’ or (2) ‘exclude the documents attached to the motion
[for judgment on the pleadings] and continue under Rule 12.’”
Tradewinds Glob. Logistics, LLC v. Garrett's Transp., LLC, No.
115CV00608RLYDKL, 2015 WL 8362401, at *2 (S.D. Ind. Dec. 8, 2015)
(quoting Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir.
The court has discretion in determining which option to
Id. (citations omitted).
Here, both Parducci and Defendants submit evidence outside
the pleadings in connection with the Rule 12(c) motion. Defendants
submit the affidavits of Phung and Huynh in support of the motion.
Parducci proffers the deposition testimony of Huynh in opposition
to the motion.
None of this evidence was mentioned in or attached
to the pleadings.
Yet Defendants specifically brought this motion
under Rule 12(c) and used that procedural standard.1
the Court excludes this evidence and will consider the merits of
the motion under Rule 12(c).
“A Rule 12(c) motion is governed by the same standards as a
“[T]o survive a motion to dismiss under Rule
plausible on its face.”
Lodholtz v. York Risk Servs. Grp., Inc., 778 F.3d 635,
639 (7th Cir. 2015).
Id. (citations and internal quotation
allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff” for the purposes of deciding
Forseth, 199 F.3d at 368. A Rule 12(c) motion
should be granted “[o]nly when it appears beyond a doubt that the
plaintiff cannot prove any facts to support a claim for relief and
Even if this Court were to convert this motion to a motion for summary
judgment, it appears at this early stage in the proceedings that there is an
issue of fact as to whether Huynh was Defendants’ agent. A motion for
summary judgment may be more appropriate following the close of discovery in
the moving party demonstrates that there are no material issues of
fact to be resolved.”
Moss, 473 F.3d at 698 (citations omitted).
Count II of the Complaint alleges an employer liability claim
against Defendants based on the doctrine of respondeat superior
and negligent hiring and retention of an employee.
respondeat superior doctrine, “an employer is liable for the acts
of its employees which are committed within the course and scope
of their employment.”
Davis v. Macey, 901 F. Supp. 2d 1107, 1111
(N.D. Ind. 2012) (quoting City of Fort Wayne v. Moore, 706 N.E.2d
604, 607 (Ind. Ct. App. 1999)).
The Davis Court also stated:
As an alternative theory of employer liability, Indiana
also recognizes a cause of action against an employer
based on negligent hiring and retention of an employee.
Employer liability under negligent hiring and retention
is a separate and distinct cause of action from
respondeat superior, and it accrues when an employee
steps beyond the recognized scope of employment to
commit a tortious injury upon a third party.
Id. (internal citations and quotation marks omitted).
here, the issue of respondeat superior has not been admitted, a
“plaintiff could theoretically plead both theories of liability in
Id. (quoting Clark v. Aris, Inc., 890 N.E.2d
760, 765 (Ind. Ct. App. 2008)).
Defendants move to dismiss Parducci’s employer liability
claim based solely on the assertion that Huynh was not their agent,
servant or employee.
They rely upon evidence that is outside the
pleadings, and thus, is excluded from the Court’s consideration.
Count II of the Complaint clearly alleges that Huynh was “the
agent, servant and/or employee of the [D]efendants.”
While Defendants deny this allegation in their Answer to the
Complaint (DE #15 at ¶¶3-4), the Court must accept as true all
well-pleaded allegations in the Complaint, and all reasonable
inferences to be drawn from those allegations.
not demonstrated that there are no material issues of fact to be
resolved as to Count II.
Nor does it appear beyond a doubt that
Parducci cannot prove any facts to support Count II.
473 F.3d at 698.
Therefore, the Court DENIES Defendants’ motion
for judgment on the pleadings.
For the reasons set forth above, “Defendants’ Trial Rule 12(c)
Motion for Judgment on the Pleadings” (DE# 16) is DENIED.
October 12, 2016
/s/ RUDY LOZANO, Judge
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?