Doswell v. Tanglewood Trace et al

Filing 47

OPINION AD ORDER granting 33 Motion to Dismiss for Failure to State a Claim and granting 35 Motion to Dismiss for Failure to State a Claim. The Clerk is ORDERED to DISMISS all claims in the First Amended Complaint 29 WITH PREJUDICE. Additionally, the Clerk is ORDERED to CLOSE this case. Signed by Judge Rudy Lozano on 7/12/2016. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAREN DOSWELL,
Plaintiff,
vs.
TANGLEWOOD TRACE AND
MAXIM STAFFING
SOLUTIONS,

)
)
)
)
)
)
)
)
)
)

CAUSE NO. 3:15-CV-441

Defendants.
OPINION AND ORDER
This matter is before the Court on the: (1) “Defendant, Maxim
Healthcare Services, Inc. D/B/A Maxim Staffing Solutions’ Motion to
Dismiss,” filed by Defendant, Maxim Healthcare Services, Inc. D/B/A
Maxim Staffing Solutions, on February 23, 2016 (DE #33); and (2)
“Defendant CW LLC D/B/A Tangelwood [sic.] Trace’s Motion to Dismiss
Plaintiff’s Amended Complaint,” filed by Defendant, CW LLC d/b/a
Tanglewood Trace, on February 26, 2016 (DE #35).

For the reasons

set forth below, both motions to dismiss (DE #33, #35) are GRANTED.
The Clerk is ORDERED to DISMISS all claims in the First Amended
Complaint (DE #29) WITH PREJUDICE.

Additionally, the Clerk is

ORDERED to CLOSE this case.

BACKGROUND
On September 28, 2015, Plaintiff, Karen Doswell (“Doswell”),

filed

a

complaint

against

Defendants

Tanglewood

Trace,

Maxim

Staffing Solutions, and CW LLC doing business as Tanglewood Trace
(DE #1). Defendant, Tanglewood Trace, filed a motion to dismiss on
December 21, 2015 (DE #21), but then Doswell filed an amended
complaint (DE #29).

Consequently, Tanglewood’s motion to dismiss

was denied as moot (DE #32).
After the filing of the first amended complaint, the instant
motions to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) were filed by Defendant, Maxim Healthcare Services, d/b/a
Maxim Staffing Solutions (“Maxim”) (DE #33), and Defendant, CW LLC
d/b/a Tanglewood Trace (“Tanglewood Trace”) (DE #35).
filed

a

motion

to

amend

the

complaint

again

(DE

Doswell

#37),

the

Magistrate Judge denied the motion to amend (DE #42), and denied a
motion for reconsideration (DE #46).
In response to the motions to dismiss, Doswell referred the
Court to her earlier response to the initial motion to dismiss (DE
##41, 28).

Tanglewood Trace also filed a reply to the initial

motion to dismiss (DE #30).

As such, these motions are fully

briefed and ripe for adjudication.

DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to
be dismissed if it fails to “state a claim upon which relief can be
granted.”

Fed. R. Civ. P. 12(b)(6).

2

Allegations other than fraud

and mistake are governed by the pleading standard outlined in
Federal Rule of Civil Procedure 8(a), which requires a “short and
plain statement” that the pleader is entitled to relief.

However,

fraud and constructive fraud claims are subject to the heightened
Rule

9(b)

pleading

standards.

Cincinnati

Life

Ins.

Co.

v.

Grottenhuis, No. 2:10-cv-00205-LJM-WGH, 2011 WL 1107114, at *8
(S.D. Ind. Mar. 23, 2011) (it is “undisputed that the constructive
and actual fraud claims are subject to heightened Rule 9(b)
pleading standards.”).
In order to survive a Rule 12(b)(6) motion, the complaint
“must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face’.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must
be accepted as true, and all reasonable inferences from those facts
must be resolved in the plaintiff’s favor.
521 F.3d 686, 692 (7th Cir. 2008).

Pugh v. Tribune Co.,

However, plaintiffs may plead

themselves out of court if the complaint includes allegations that
show they cannot possibly be entitled to the relief sought.
McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

Facts
On January 28, 2014, Doswell was employed by Maxim, a medical
personnel temporary staffing agency.

3

(Am. Compl. ¶ 8.)

She was a

nursing assistant.

Doswell alleges that during orientation in

November 2013, Maxim showed her a video which promised to defend
her license if an incident occurred which impacted her license.
(Id. ¶ 9.)
On January 28, 2014, Doswell was sent by Maxim to Tanglewood
to provide resident care for the second shift from 2:00 p.m.-10:00
p.m.

(Id. ¶ 10.) Doswell claims she had been assigned by Maxim to

Tanglewood

on

approximately

a

dozen

occasions,

and

she

was

typically assigned to a hallway as “extra staff or to assist with
a particular duty such as ‘showers.’” (Id. ¶ 11.)

Doswell alleges

Tanglewood was poorly run with many vacant rooms and informed Maxim
of this, and that she feared for her license. (Id. ¶ 12.)
Doswell claims she was assigned to “assist Resident A with his
dinner and to assist him with getting into bed and ensure that
Resident A did not fall.”

(Am. Comp. ¶ 14(i)).

Resident A had a

history of falls and had a diagnosis that “included: altered mental
status,

confusion,

hallucinations,

dementia, fall: injury to head.”

exit

seeking

(Id. ¶ 14(f-g).)

(elopement),
After Resident

A was asleep for 30-40 minutes, Doswell left him alone in his
apartment to start some laundry for him and take her dinner break.
(Id. ¶ 14(l).)

Doswell was outside smoking in her car in the

parking lot when she saw an ambulance arrive at Tanglewood because
Resident A was injured and needed transport to the hospital for
stitches.

(Id. ¶ 15(b), (e).)

Doswell claims that she was not

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told that Resident A required “one-on-one monitoring,” (id. ¶
14(i)), yet after the incident, the LPN on duty asked Doswell where
she had been since Resident A was a one-on-one case and she should
not have left him alone. (Id. ¶ 15(c).)
The incident was reported to the Indiana Department of Health,
resulting in the temporary loss of Doswell’s license from October
7, 2014, to March 13, 2015, after the Department initially made a
finding of neglect. (Id. ¶¶ 13, 17.)

Following Doswell’s appeal

and a hearing where evidence was presented to an Administrative Law
Judge (“ALJ”), Doswell’s license was reinstated. (Id. ¶¶ 18, 22.)
The ALJ found that Doswell was not negligent in her care of
Resident A.

(Id. ¶ 22.)

The first amended complaint states this action is “based upon
Indiana law of libel and slander, breach of contract and fraud.”
(Id. ¶ 1.)

Regarding the alleged defamatory statements, the first

amended complaint provides that the “operative events of this cause
revolve[] around the care of Resident A on January 28, 2014, . . .
and the reporting of Doswell to the Indiana Department of Health .
. . .”

(Id. ¶ 13.)

Doswell alleges “[t]he specific language of

the Complaint was something akin

to: ‘on January 28, 2014, she

left her post without telling anyone after being told ‘don’t let
him fall,’ and Patient A fell and hurt himself.”

(Id. ¶ 20.)

The

first amended complaint further alleges “[b]ecause Resident A
should never have been accepted by Tanglewood Trace, an assisted

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living facility only, and because defendants placed blame and
maliciously started the license-revocation proceeding . . . knowing
that

Doswell’s

livelihood

would

be

terminated

constituted

unprivileged libel and slander.” (Id.)(emphasis in original).
Doswell
Defendant

also

Maxim,

alleges
joint

that

“Tangelwood

employers,

allowed

Trace

made,

unprivileged

and

false

statements of fact about Doswell causing her harm, and . . . acted
either negligently or with actual malice.”

(Id. ¶ 25.)

The first

amended complaint alleges that “Defendant Maxim breached the agency
contract with Ms. Doswell assuring Plaintiff that Maxim would
defend its nurses from complaints affecting their nurse’s licenses”
and “fraudulently presented the video described above, knowing that
it would not do anything to defend Ms. Doswell’s license.” (Id. ¶¶
27, 30.)

I.

Count I - Libel and Slander
Count I alleges that Defendants Maxim and Tanglewood Trace

maliciously started the license-revocation proceeding, and made
false statements about Doswell, causing her harm. (Am. Compl., pp.
6-7.) Both Maxim and Tanglewood Trace argue that reporting patient
injuries where there is possible neglect to the Indiana Department
of Health cannot form the basis of a defamation claim because the
reporting is required by law, and any statements made are immune
under the absolute privilege for statements made in judicial and

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quasi-judicial proceedings.
Defendants Maxim and Tanglewood Trace both set forth that they
had a legal obligation to report Patient A’s injury to the Indiana
Department
Quality.

of

Health,

Division

of

Health

(DE #34 at 4; DE #36 at 8.)

Care

Education

and

Doswell was a nurse aide

while she was employed by Maxim, and 410 IAC 16.2-3.1-28(c)
establishes that “[t]he facility must ensure that all alleged
violations involving mistreatment, neglect, or abuse, including
injuries

of

unknown

source,

and

misappropriation

of

resident

property, are reported immediately to the administrator of the
facility and other officials in accordance with state law through
established

procedures,

certification agency.”

including

to

the

state

survey

and

410 IAC 16.2-3.1-28(c) (emphasis added).

Doswell does not dispute this duty, or the legal obligation.
“Indiana law has long recognized an absolute privilege that
protects all relevant statements made in the course of a judicial
proceeding,

regardless

statements.”

of

the

truth

or

motive

behind

the

Hartman v. Keri, 883 N.E.2d 774, 777 (Ind. 2008)

(citing Wilkins v. Hyde, 41 N.E. 536, 536 (1895); Van Eaton v.
Fink, 697 N.E.2d 490, 494 (Ind. Ct. App. 1998)). “The reason upon
which the rule is founded is the necessity of preserving the due
administration

of

justice,

by

providing

actors

in

judicial

proceedings with the freedom to participate without fear of future
defamation claims.”

Id.

7

While Doswell claims that Indiana cases only refer to an
absolute privilege in “dicta and other loose talk” (DE #28 at 2),
Defendants cite Hartman in direct support of their argument that an
absolute privilege has been extended to quasi-judicial proceedings.
In Hartman, students were sued by their instructor for defamation
and intentional interference with a contract after the students
filed

a

complaint

against

the

instructor

pursuant

to

the

university’s anti-harassment policy. 883 N.E.2d at 776. The Court
upheld summary judgment in favor of the students, finding the
absolute privilege applies to communication of students’ complaints
pursuant to the university’s anti-harassment policy because of the
“quasi-judicial” nature of the universities’ policies. Id. at 77779. Moreover, the Indiana Supreme Court explicitly stated in
Hartman that “Indiana law has long recognized an absolute privilege
that protects all relevant statements made in the course of
judicial proceedings, regardless of the truth or motive behind the
statements.”

Id. at 777.

In their reply memorandum, Tanglewood Trace goes on to cite a
number of cases applying the absolute privilege for statements made
in judicial proceedings.

See, e.g., Estate of Mayer v. Lax, Inc.,

998 N.E.2d 238, 247-49 (Ind. Ct. App. 2013) (finding statements
made in counterclaim were protected by the absolute privilege for
statements made during judicial proceedings); Miller v. Reinert,
839 N.E.2d 731, 735-36 (Ind. Ct. App. 2005) (holding statements

8

made in appellate brief were absolutely privileged); Briggs v.
Clinton Cnty. Bank & Trust Co., 452 N.E.2d 989, 997 (Ind. Ct. App.
1983) (finding allegations in a Petition to Discharge, which were
relevant and pertinent, were entitled to absolute privilege); Van
Eaton v. Fink, 697 N.E.2d 490, 494-95 (Ind. Ct. App. 1998);
Chrysler Motors Corp. v. Graham, 631 N.E.2d 7 (Ind. Ct. App. 1994)
(finding statements made in an affidavit filed in an attachment
proceeding were absolutely privileged).

See also Sharkey v.

Cochran, No. 1:09-cv-0517-JMS-DKL, 2012 WL 967057, at *3 (S.D. Ind.
Mar. 21, 2012) (statements made in an application for protective
order are absolutely privileged and do no support a defamation
claim).

Additionally, the absolute privilege for statements made

in judicial proceedings has been acknowledged by the United States
District Court for the Northern District of Indiana as existing
under

Indiana

law

in

Medical

Informatics

Eng’g,

Inc.

v.

Orthopaedics Northeast, P.C., 458 F.Supp.2d 716, 723 (N.D. Ind.
2006).

The law is clear that Indiana courts recognize an absolute

privilege for judicial proceedings and that Hartman specifically
extended that privilege to quasi-judicial proceedings as well.
Here, it is clear this is a judicial or quasi-judicial
proceeding.

The proceeding was governed by the Administrative

Orders and Procedures Act, IC 4-21.5.

The reporting of the

incident resulted in an investigation by the Indiana Department of
Health pursuant to 42 C.F.R. § 483.156, findings, a right to
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appeal, a hearing before an Administrative Law Judge where evidence
was presented, and an issuance by the Administrative Law Judge of
findings of fact and conclusions of law.
18, 22.)

(Am. Compl. ¶¶ 14, 17,

As noted before, Maxim and Tanglewood had a legal

obligation imposed by 410 I.A.C. 16.2-3.1-28(c), to report Patient
A’s injury to the Indiana Department of Health.

As such, any

communication with the Indiana Department of Health was made in the
course of a judicial or quasi-judicial proceeding, and is covered
by an absolute privilege.
Doswell also argues that in cases like this, “where a license
or livelihood is attacked . . . only a qualified privilege” exists,
not an absolute privilege.

(DE #28 at 3.)

The only case Doswell

cites in support of this proposition is Blubaugh v. Am. Contract
Bridge League, No. IP 01-358-C/H/K, 2004 WL 392930 (Feb. 18, 2004),
which was decided before Hartman.

In Blubaugh, a professional

bridge player sued a bridge league for claims of, inter alia,
defamation stemming from the league’s decision to suspend him.
There were several causes of actions and defamatory statements at
issue, but the first group of statements were made in connection
with two disciplinary proceedings conducted to adjudicate the
league’s charges against the plaintiff.

Id. at *10-11.

The Court

found that as a matter of law, the statements were “protected by a
qualified privilege” for “[s]tatements made in the context of
fraternal associations or societies” without analyzing whether they

10

could have been protected by an absolute privilege.

Id. at *11.

Thus, Blubaugh dealt with a fraternal association, plus was decided
before Hartman (extending an absolute privilege to quasi-judicial
proceedings). Blubaugh is inapplicable to the present facts, where
case law is clear that an absolute privilege applies to statements
made in judicial and quasi-judicial proceedings.
Doswell also contends that “our mere allegation of falsity in
our complaint” precludes dismissal.

(DE #28 at 3.)

In support,

Doswell cites Sanders v. Stewart, 298 N.E.2d 509 (Ind. Ct. App.
1973).

However, that case dealt with whether a written statement,

requested by and furnished to, the Indiana Employment Security
Division (“IESD”), was privileged, and if so, which privilege
applied.

Sanders involved a nurse’s aide employed by defendant,

who

fired,

was

and

subsequently

unemployment compensation.

applied

with

the

IESD

for

The IESD sent her a form to complete

for benefits, and in it, the defendant stated the reasons she was
discharged, and it was the statement of reasons that the plaintiff
contended was libelous.
the

statute

at

issue

Id. at 510.
extended

an

The defendant contended that
absolute

privilege

to

the

defendant. The statute provided, inter alia, that “[a]ny testimony
or evidence submitted in due course before the board, review board,
a referee, or any duly authorized representative or any of them
shall be deemed a communication presumptively privileged with
respect

to

any

civil

action

except

11

actions

to

enforce

the

provisions of this act.”

Id. at 511.

The Court ruled the phrase

“presumptively privileged” recognized a qualified privilege, rather
than an absolute privilege, on statements made to the IESD.
511-12.

Id. at

However, Sanders is specific to statements made to the

IESD, within the unemployment context.

As such, Sanders is simply

inapplicable to this case, and the allegation that the statements
are false cannot save Doswell’s claims. The Indiana Supreme Court
explicitly stated in Hartman that “Indiana law has long recognized
an absolute privilege that protects all relevant statements made in
the course of judicial proceedings, regardless of the truth or
motive behind the statements.”

Hartman, 883 N.E.2d at 777.

In

sum, the statements at issue in this case are protected by an
absolute privilege, and dismissal is warranted on this basis for
Count I.1

II.

Count II - Breach of Contract
Maxim argues in regard to Count II that Doswell has failed to

state a claim upon which relief can be granted.

“The essential

elements of a breach of contract action are the existence of a
contract, the defendant’s breach thereof, and damages.”

Berkel &

Co. Contractors, Inc. v. Palm & Assocs., Inc., 814 N.E.2d 649, 655

1

Tanglewood Trace argues that dismissal is additionally appropriate on
these claims because Doswell has failed to specifically plead the defamation
claims. Because the defamation claims are disposed of due to absolute
privilege, the Court need not reach this argument.

12

(Ind. Ct. App. 2004).

Doswell asserts Maxim contracted to defend

its nurses from complaints involving their licenses; however,
Maxim argues Doswell failed to assert a breach of that contract.
For example, Maxim points out that Doswell never alleged that Maxim
was notified of the Administrative Hearing, or that Doswell ever
asked Maxim to defend her license.
Tanglewood Trace joins this argument, plus urges that an
orientation video cannot create a contract of employment.

Indeed,

there are cases finding that an employee handbook does not create
a contract of employment.

See, e.g., Harris v. Brewer, 49 N.E.3d

632, 640-42 (Ind. Ct. App. 2015) (finding employee handbook did not
create a contract).

Tanglewood Trace argues that Doswell has not

alleged that a valid contract existed based upon an alleged promise
made during an orientation video.
Doswell does not respond to any of these arguments.

“Failure

to respond to an argument raised in a motion to dismiss results in
waiver.”

Pelham v. Albright, No. 3:11 CV 99, 2012 WL 1600455, at

*5 (N.D. Ind. May 4, 2012) (citing Bonte v. United States Bank,
N.A., 624 F.3d 461, 466 (7th Cir. 2010)).

“Additionally, if the

defendant presents plausible reasons why a complaint should be
dismissed, the Court has no responsibility to conduct research on
behalf of a plaintiff in order to discover whether the plaintiff
could prevail against the defendant’s plea for dismissal.”

Gluck

v. WNIN Tri-State Public Media, Inc., No. 2-12-cv-32-JMS-DKL, 2012

13

WL 2953074, at *2 (S.D. Ind. July 18, 2012) (citing Kirksey v. R.J.
Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999)).
Consequently, dismissal is appropriate for Count II.

III.

Count III - Fraud
Doswell attempts to assert a claim for fraud based upon an

orientation video wherein Maxim allegedly promised to “defend her
license,” but then did not defend Doswell during the administrative
hearing.

The elements of a fraud claim in Indiana are a “material

misrepresentation of past or existing facts, which representation
is false, made with knowledge or reckless ignorance of its falsity,
which causes reliance to the detriment of the person relying upon
it.”

First Nat’l Bank of New Castle v. Acra, 462 N.E.2d 1345, 1348

(Ind. Ct. App. 1984) (citation omitted). Maxim argues that because
Doswell

failed

to

allege

that

Maxim

was

notified

of

an

administrative hearing, or that it was asked by Plaintiff to defend
her

at

the

hearing

and

refused

to

do

so,

Plaintiff

demonstrate that any alleged statements are false.
Doswell has failed to sufficiently allege fraud.

cannot

Therefore,

(DE #34 at 9.)

Tanglewood Trace reiterates this argument, plus additionally
argues that Doswell failed to plead a cognizable claim for fraud
because a promise to do something in the future cannot form a basis
for fraud. (DE #36 at 12-13.) Indeed, “actionable fraud cannot be
predicated upon a promise to do a thing in the future, although

14

there may be no intention of fulfilling the promise.” F. McConnell
& Sons, Inc. v. Target Data Sys., Inc., 84 F.Supp.2d 980, 985 (N.D.
Ind. 2000) (quoting Wright-Moore v. Ricoh Corp., 908 F.2d 128, 141
(7th Cir. 1990)).
Doswell does not respond to any of these arguments.

“Failure

to respond to an argument raised in a motion to dismiss results in
waiver.”

Pelham, 2012 WL 1600455, at *5 (N.D. Ind. May 4, 2012).

Dismissal is therefore appropriate for Count III.

Gluck, 2012 WL

2953074, at *2 (S.D. Ind. July 18, 2012).

CONCLUSION
For the reasons set forth above, “Defendant, Maxim Healthcare
Services, Inc. D/B/A Maxim Staffing Solutions’ Motion to Dismiss”
(DE #33) and “Defendant CW LLC D/B/A Tangelwood [sic.] Trace’s
Motion to Dismiss Plaintiff’s Amended Complaint” (DE #35) are BOTH
GRANTED. The Clerk is ORDERED to DISMISS all claims in the First
Amended Complaint (DE #29) WITH PREJUDICE. Additionally, the Clerk
is ORDERED to CLOSE this case.

DATED: July 12, 2016

/s/ RUDY LOZANO, Judge
United States District Court

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