MCCARTHY et al v. FULLER et al

Filing 627

ENTRY On Remaining Pending Motions - Sigma Micro Corporation's Motion to Dismiss (Dkt. No. 398 ) is GRANTED and Sigma Micro Corporation is no longer a party to this case; the Plaintiffs' Motion to Dismiss Count 18 of Amended Countercla im (Dkt. No. 408 ) is GRANTED; the request for sanctions contained in the Plaintiffs' Notice of Defendant's Noncompliance with the Court's "Entry Following Status Conference" and Request for Sanctions (Dkt. No. 525 ) is DENIED; the Plaintiffs' Motion for Relief as a Result of Ongoing Fraud (Dkt. No. 556 ) is DENIED; and the Plaintiffs' Petition for Costs Incurred to Complete the Deposition of Fuller (Dkt. No. 610 ) is GRANTED and Fuller is ordered to r eimburse the Plaintiffs the amount of $4107.61 within 45 days of the date of this Entry. Finally, on the Court's own motion pursuant to Federal Rule of Civil Procedure 56(f), summary judgment is entered in favor of the Counterclaim Defendants on Count 20 of the Amended Counterclaim. ***SEE ENTRY***. Signed by Judge William T. Lawrence on 6/5/2013. (copy to Larry Young via US Mail)(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KEVIN B. McCARTHY, et al.,
Plaintiffs,
vs.
PATRICIA ANN FULLER, a/k/a SISTER
JOSEPH THERESE, et al.,
Defendants.

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) CAUSE NO. 1:08-cv-994-WTL-DML
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ENTRY ON REMAINING PENDING MOTIONS
Several motions pend before the Court. Each is resolved as follows. In addition, the
Court issued a Notice pursuant to Rule 56(f) giving the Counterclaimants notice of its intention
to enter summary judgment regarding Count 20 in the Amended Counterclaim. The Court now
resolves that issue as well.
Motion to Dismiss Sigma Micro Corporation (Dkt. No. 398)
Counterclaim Defendant Sigma Micro Corporation has filed a motion seeking to be
dismissed from this case because the Amended Counterclaim does not “contain any allegations
regarding conduct, wrongful or otherwise, in which Sigma Micro was involved,” but, instead,
simply alleges that Counterclaim Defendant Langsenkamp used its facilities for some of his
alleged wrongful conduct. The Court has reviewed the Amended Counterclaim and finds this to
be a fair representation of it. The Counterclaimants have not filed a response to the motion to
dismiss to offer any alternative reading of the Amended Counterclaim that would make Sigma
Micro Corporation a viable Counterclaim Defendant now that all of the RICO claims have been
dismissed. Accordingly, the motion to dismiss is GRANTED. Sigma Micro Corporation is no
longer a party to this action.

Motion to Dismiss Count 18 of Amended Counterclaim (Dkt. No. 408)
The Plaintiffs1 move to dismiss Count 18 of the Amended Counterclaim on the ground
that it only asserts a claim against Alan Kershaw, who has been dismissed from this action. The
Court agrees. Count 18 sets forth actions taken by Kershaw and concludes:
Claimant Sister Mary Joseph Therese is entitled to recover the return of the stolen
money with prejudgment and post judgment interest, compensatory damages,
treble damages, attorneys’ fees, costs, exemplary damages, and punitive damages
because the Claims Defendant Kershaw, in furtherance of the activities of the
Enterprise, acted maliciously, willfully, and with reckless disregard for her rights.
Amended Counterclaim ¶ 289. The Defendants have not filed a response to the motion to
dismiss to offer any theory under which the Plaintiffs may be held liable for the actions of
Kershaw alleged in Count 18. Accordingly, the motion to dismiss is GRANTED and Count 18
of the Amended Counterclaim is dismissed.2
Notice of Defendant’s Noncompliance with the Court’s “Entry Following Status
Conference” and Request for Sanctions (Dkt. No. 525)
During a telephonic status conference on October 24, 2012, the Court ordered the
Defendants to produce (or re-produce) three of their trial exhibits to the Plaintiffs by October 26,
2012. The Court further ordered the Defendants to return their deposition transcripts to the court
reporter by the same date. These orders were memorialized in an Entry Following Status
Conference that was entered by the Court the following day. Dkt. No. 521.
On October 31, 2012, the Plaintiffs filed a “notice” in which they stated that (1) the court
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For the sake of convenience, throughout the remainder of this Entry the Court will use
“Plaintiffs” to refer to all parties represented by attorneys Bradley Stohry and Michael Swift,
which includes some parties that are not actually plaintiffs, but rather only counterclaim
defendants. Similarly, “Defendants” will be used to refer to Patricia Ann Fuller and Paul
Hartman, who are both defendants and counterclaimants in this case.
2
The Court notes that the facts and damages alleged in Count 18 may be relevant to
claims that the Defendants assert against the remaining parties. In other words, this ruling
should not be interpreted as rendering the alleged payment made to Kershaw irrelevant to this
lawsuit.
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reporter had not yet received either Defendant’s deposition transcript; and (2) the exhibits were
not sent by defense counsel until October 29, 2012. The Plaintiffs asserted that these failures by
the Defendants “hinder the administration of justice in this case and continue to unnecessarily
increase the costs of litigation for Plaintiffs” and, therefore, warrant sanctions. Plaintiffs’ Notice
at ¶ 4.
As the Court has noted on more than one occasion over the course of this case, deadlines
are important and defense counsel has missed a lot of them, usually without any acceptable
reason. As this case enters what the Court hopes is its final stretch and the parties begin to
prepare in earnest for trial, deadlines will be strictly enforced and the consequences for missing
them could be severe.
That said, the fact that the Defendants emailed their three trial exhibits to Plaintiffs’
counsel on Monday rather than on Friday could not conceivably have “hindered the
administration of justice” in any way. Nor would it have increased the Plaintiffs’ costs, but for
the Plaintiffs’ choice to file a Notice to point it out. Missed deadlines are unfortunate, but so is
exaggerating the import of a missed deadline and (predictably) generating a flurry of filings as a
result. The Plaintiffs’ request for sanctions is DENIED.
Defendant Hartman has returned his deposition transcript to the court reporter. The Court
is unable to ascertain from the parties’ filings whether Defendant Fuller has done so; she said she
had as of November 27, 2012 (dkt. no. 552 at 9), while the Plaintiffs said she had not as of
December 5, 2012 (dkt. no. 558 at 3). If, in fact, the court reporter has not yet received Fuller’s
deposition transcripts, the Plaintiffs may file a motion to compel raising that issue.

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Motion for Relief as a Result of Ongoing Fraud (Dkt. No. 556)
This motion is curious indeed. The Plaintiffs allege that the Defendants have “apparently
perjured themselves and committed fraud upon the Court” and ask that the Court sanction this
“apparent” conduct by entering default judgment against the Defendants on the Plaintiffs’ claims
and dismissing the Defendants’ claims against them. Plaintiffs’ Motion at 1. The crux of the
alleged factual basis for the Plaintiffs’ motion is summed up in the opening paragraph of the
Plaintiffs’ reply brief:
Defendants have long attributed certain defamatory statements (both in filings
with the Court and in depositions) to a “confidential source.” After significant
expenses were incurred by Plaintiffs, Hartman was twice ordered to identify the
alleged “confidential source.” Hartman ultimately identified his “confidential
source” to be an individual named “Duncan Bannelle.” This individual – whose
name is actually “Duncan Bonnell” – was ultimately deposed and he emphatically
denied being Defendants’ “confidential source” and/or making any of the
statements that Defendants attributed to him. Based on all of the relevant facts,
the only logical conclusion is that Defendants fabricated the statements that they
attributed to Mr. Bonnell in an ill-advised attempt to support their case and
attempted to clothe their deceit under the ruse of protecting a “confidential
source.” 3
The problem with this argument is that, despite the Plaintiffs’ emphatic urging, there is, of
course, more than one “logical conclusion” that can be drawn from the relevant facts. One is the
one posited by the Plaintiffs. Another is that Defendant Hartman has been truthful and Mr.
Bonnell has not.4 It would not be appropriate for the Court to judge the credibility of the two
versions of the story based upon a cold record. It was frivolous for the Plaintiffs to ask the Court

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The Court recognizes that the Plaintiffs point to two other instances of what they assert
is perjury, one involving Fuller and one involving Hartman. The Court declines to address those
instances, other than to note that the arguments made by Fuller and Hartman as to why they do
not involve perjury demonstrate that the Plaintiffs either ignore or fail to appreciate the
complexity of the issue.
4
The Plaintiffs’ insistence that Bonnell is clearly the truthful of the two because he has no
incentive to lie ignores that fact that people lie for many reasons; the desire to gain an advantage
in a lawsuit is but one possibility.
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to do so. Nor is the Court inclined to hold a hearing to determine whether perjury has occurred.
If the alleged perjury is relevant to the issues to be tried, the jury can consider the evidence,
make a credibility determination, and determine whom to believe. The Plaintiffs’ motion,
therefore, is DENIED.
Petition for Costs Incurred to Complete the Deposition of Fuller (Dkt. No. 610)
In a December 14, 2012, Order Imposing Rule 37 Sanctions, Magistrate Judge Lynch
ordered Fuller to “[a]ppear at a deposition for the completion of the plaintiffs’ questioning of her
no later than March 1, 2013.” She further ordered that “Fuller may choose to be deposed at a site
she selects in Ohio, but if her deposition takes place anywhere other than Indianapolis, then
Fuller must reimburse the plaintiffs their reasonable attorneys’ fees and expenses for traveling
from Indianapolis to Ohio (for one attorney only).” Fuller did not file an objection to this order,
and the time for doing so has long since expired.
At Fuller’s request, her deposition was taken in Akron, Ohio. The Plaintiffs have now
filed a motion seeking reimbursement for their fees and expenses as contemplated by Magistrate
Lynch’s order. Fuller has not filed a response to the motion, despite being granted an extension
of time to do so. The Court, being duly advised, finds the amount sought by the Plaintiffs to be
reasonable, and accordingly GRANTS the Plaintiffs’ motion. Fuller shall reimburse the
Plaintiffs the amount of $4107.61 within 45 days of the date of this Entry.
Rule 56(f) Notice Regarding Amended Counterclaim
Counts 10 And 20
Finally, in its Rule 56(f) Notice of Intention to Grant Summary Judgment (dkt. no. 396),
the Court notified the Defendants of its intention to enter summary judgment on Counts 10 and
20 of the Amended Counterclaim. The Defendants have since dismissed Count 10, see Dkt. No.
402-1, although curiously they failed to acknowledge that fact in their subsequently filed
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response to the Rule 56(f) motion. With regard to Count 20, the Court explained in its Notice
that it
does, on its face, purport to assert claims for “victim/witness tampering” and
“victim/witness retaliation” in addition to the dismissed RICO claim. However,
the Court is not aware of any private cause of action for victim tampering, witness
tampering, victim retaliation, or witness retaliation. If defense counsel believes
such an action exists, she shall . . . file a response to this Entry setting forth her
legal authority for that belief.
While the Defendants did file a response to the Notice, it does not attempt to set forth a legal
basis for the non-RICO claims asserted in Count 20. Accordingly, the Court hereby enters
summary judgment on those claims. The facts asserted in Count 20 might be relevant to other
claims asserted by Fuller, but no claim for “victim/witness tampering” or “victim/witness
retaliation” will be submitted to the jury. The Court believes that Count 20 was the only
remaining counterclaim asserted by Hartman; accordingly, Fuller is the only remaining
Counterclaimant.
CONCLUSION
For the reasons set forth above, Sigma Micro Corporation’s Motion to Dismiss (Dkt. No.
398) is GRANTED and Sigma Micro Corporation is no longer a party to this case; the Plaintiffs’
Motion to Dismiss Count 18 of Amended Counterclaim (Dkt. No. 408) is GRANTED; the
request for sanctions contained in the Plaintiffs’ Notice of Defendant’s Noncompliance with the
Court’s “Entry Following Status Conference” and Request for Sanctions (Dkt. No. 525) is
DENIED; the Plaintiffs’ Motion for Relief as a Result of Ongoing Fraud (Dkt. No. 556) is
DENIED; and the Plaintiffs’ Petition for Costs Incurred to Complete the Deposition of Fuller
(Dkt. No. 610) is GRANTED and Fuller is ordered to reimburse the Plaintiffs the amount of
$4107.61 within 45 days of the date of this Entry. Finally, on the Court’s own motion pursuant
to Federal Rule of Civil Procedure 56(f), summary judgment is entered in favor of the
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Counterclaim Defendants on Count 20 of the Amended Counterclaim.
SO ORDERED: 06/05/2013

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by United States Mail to:
LARRY YOUNG
P.O. Box 996
Lake Zurich, IL 60047
Copies to all counsel of record via electronic notification

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