MARTIN v. INDIANA HORSE RACING COMMISSION et al
Filing
79
ENTRY - Mr. Martin's Rule 56(d) motion (Dkt. 70 ) is DENIED; Mr. Martin's motion for leave to amend his Complaint (Dkt. 50 ) is DENIED; Mr. Davis's and Mr. Klopp's motion for summary judgment (Dkt. 13 ) is GRANTED for both Mr . Martin's defamation and § 1985 claims; Ms. Puccia's motion to dismiss (Dkt. 25 ) is DENIED in part and GRANTED in part. Specifically, Ms. Puccia's motion to dismiss based on a lack of personal jurisdiction is DENIED; her mot ion to dismiss under Rule 10(b) and her motion for a more definite statement under Rule 12(e) are DENIED; her motion to dismiss the defamation claim is DENIED; and her motion to dismiss Mr. Martin's claim for § 1985(3) conspiracy is GRANT ED. The defamation claim against Defendants Davis and Klopp is therefore DISMISSED with prejudice. The claim for conspiracy under § 1985(3) against Defendants Davis, Klopp, and Puccia is DISMISSED without prejudice. Signed by Judge Tanya Walton Pratt on 1/28/2013. (JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
EDMUND W. MARTIN, JR.,
Plaintiff,
v.
JOE GORAJEC,
TERRY RICHWINE,
SARAH MCNAUGHT,
JOE DAVIS,
RANDY KLOPP,
LIANE PUCCIA,
Defendants.
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) Case No. 1:12-cv-00460-TWP-TAB
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ENTRY
This matter is before the Court on the parties’ numerous motions, including Defendants
Joe Davis’s (“Mr. Davis”) and Randy Klopp’s (“Mr. Klopp”) joint Motion to Dismiss (Dkt. 13),
Defendant Liane Puccia’s (“Ms. Puccia”) Motion to Dismiss (Dkt. 25), Plaintiff Edmund
Martin’s (“Mr. Martin”) Motion for Leave to File an Amended Complaint (Dkt. 50), and Mr.
Martin’s Motion to Stay under Rule 56(d) (Dkt. 70). As Defendants Mr. Davis and Mr. Klopp
summarize, Mr. Martin “seems determined to drag this case into the weeds and tie it up in
procedural knots.” Dkt. 73 at 1. In this Entry, the Court untangles those knots and will address
the outstanding motions in turn.
I. BACKGROUND
A.
Factual History
The following relevant factual allegations are made in the Complaint (Dkt.1), Mr.
Martin’s affidavit (Dkt. 35), and Mr. Davis’s and Mr. Klopp’s statement of material facts not in
dispute (Dkt. 44).
Mr. Martin has been engaged in the business of breeding thoroughbred race horses in
Indiana and Florida. Since at least December 2008, Mr. Martin has been actively involved in
supporting and advocating for legal and legislative matters concerning horse racing in Indiana.
In March 2009, Mr. Martin was elected to the Board of Directors of the Indiana Thoroughbred
Owners and Breeders Association, Inc. (“ITOBA”), an Indiana nonprofit trade association
representing the interests of Indiana thoroughbred owners and breeders. Mr. Martin was also
elected as 1st Vice President of ITOBA.
In June 2009, Mr. Martin was critical of the Indiana Horseman’s Benevolent & Protective
Association, Inc. (“IHBPA”), an organization which represents thoroughbred horsemen in the
State of Indiana and competes for funding from the Indiana Horse Racing Commission (“IHRC”)
with ITOBA. Mr. Martin lobbied against Mr. Klopp’s election as president of IHBPA which
created “lingering ill will between the two organizations.” Dkt. 44 at 4.
In October 2009, Mr. Martin was hired as ITOBA’s Executive Director. Mr. Martin
continued advocating in his individual capacity and as a representative of ITOBA throughout
2009 and 2010. Mr. Martin’s views were directly adverse to those of Defendants, IHRC, IHRC
Executive Director Joe Gorajec (“Mr. Gorajec”), and Sarah McNaught (“Ms. McNaught”).
Relations between Mr. Martin, IHRC, Mr. Gorajec, and Ms. McNaught became
“especially acrimonious” in late 2009 and early 2010. Dkt. 1 at 3. Specifically, Mr. Martin
initiated a June 2009 inquiry as to why IHRC had not taken adequate steps to protect purse funds
owed to horsemen, but instead permitted race track owners to comingle such funds with the
tracks’ general operating funds, even while such tracks were at risk of financial insolvency or
bankruptcy. In January 2010, Mr. Martin successfully lobbied against legislation supported by
Mr. Gorajec and Ms. McNaught, which would have eliminated statutory breed development
2
advisory committees.
Then, beginning in March 2010, Mr. Martin and other ITOBA
representatives began discussions with Indiana State Senator Luke Kenley about the negative
economic impact of proposed changes to horse racing purse structures and other policies
advanced by IHRC, Mr. Gorajec, and Ms. McNaught.
Senator Kenley held a meeting on April 6, 2010 with Mr. Martin, Mr. Gorajec, Ms.
McNaught, IHRC legal counsel Robin Babbitt, Indiana Downs General Manager Jon Schuster,
Special Assistant to the Governor Sebastian Smelko, IHBPA Vice President Larry Smallwood,
and Thoroughbred Development Advisory Committee Chair Jim Hartman. At the meeting Ms.
McNaught “expressed outrage” at the legal advocacy initiatives of Mr. Martin and ITOBA, as
well as the media coverage for the same issues initiated by Mr. Martin. Dkt. 1 at 4. Though he
was not present at the April 6, 2010 meeting, in April 2010, Mr. Davis was a member of
IHBPA’s board of directors and was a licensed Indiana horse trainer. During the same time, Mr.
Klopp was president of the IHBPA and a licensed Indiana horse trainer.
On April 7, 2010, Ms. Puccia, a veterinarian, sent written correspondence (the “Puccia
correspondence” or “correspondence”) to Mr. Davis and Mr. Klopp alleging that Mr. Martin was
responsible for various criminal acts of abuse and neglect of horses at Martin Stables South.
This correspondence was sent at the request of Mr. Gorajec. Also on April 7, 2010, Mr. Davis
and Mr. Klopp forwarded the correspondence to Mr. Gorajec.
Then, on April 8, 2010, the IHRC instructed Mr. Martin to apply for a 2010 IHRC
license. Mr. Martin, believing that his activities on behalf of ITOBA did not constitute
“participation in racing” within the meaning of Indiana Code section 4-31-6-1(b)—which would
require him to be licensed—never applied for a license from IHRC.1
1
In May 2012, a Marion County, Indiana court ruled that Mr. Martin had not participated in horse racing within the
meaning of the Indiana Code and, therefore, the IHRC could not require him to be licensed.
3
Thereafter, on April 9, 2010, IHRC initiated an investigation into Mr. Martin’s
thoroughbred breeding operation located in Florida. The breeding operation is known as Martin
Stables South.
Mr. Martin alleges that IHRC, Ms. McNaught, Mr. Gorajec, as well as
Defendants Terry Richwine, Mr. Davis, Mr. Klopp, and Ms. Puccia “conspired to fabricate the
basis for, and initiate, the Investigation for the unlawful purposes of retaliating against Mr.
Martin for his various legal and advocacy initiatives and in order to prevent Mr. Martin, by threat
and intimidation, from engaging in any further legal and advocacy initiatives concerning horse
racing in Indiana.” Dkt. 1 at 5. On April 12, 2010, Mr. Richwine entered Mr. Martin’s property
without Mr. Martin’s consent or warrant and conducted a search. Later that day, the Horse
Protection Association of Florida (“HPAF”) informed Mr. Martin that Mr. Richwine was in
Florida investigating Martin Stables South.
On September 20, 2010, HPAF issued its independent investigation report that
exonerated Mr. Martin from any wrongdoing at Martin Stables South. Nevertheless, IHRC
continued to publish allegations that Mr. Martin was responsible for various criminal acts of
abuse and neglect of horses at Martin Stables South. Mr. Martin was subsequently terminated
from his positions at ITOBA. IHRC has not closed its investigation into Mr. Martin nor has it
released the remainder of the investigation records.
B.
Procedural History
Mr. Martin brought this suit against IHRC, Mr. Gorajec, Mr. Richwine, Ms. McNaught,
Mr. Davis, Mr. Klopp, and Ms. Puccia alleging a conspiracy under 42 U.S.C. § 1985(3). He also
brought suit against Mr. Klopp, Mr. Davis, and Ms. Puccia for the state law claim of defamation.
Mr. Martin brought various other claims against the IHRC and other defendants that are not at
4
issue for the purposes of this Entry. Mr. Davis, Mr. Klopp, and Ms. Puccia seek dismissal of the
§ 1985 and state law defamation claims against them.
In response to Mr. Davis’s and Mr. Klopp’s joint motion, Mr. Martin filed an affidavit
pursuant to Federal Rule of Civil Procedure 12(d), thus converting the motion to one for
summary judgment. Mr. Martin having filed this affidavit and stating such intent, see Dkt. 34 at
2, Mr. Davis and Mr. Klopp replied and conceded that their motion had been converted to a
motion for summary judgment under Rule 12(d).2 Therefore, Mr. Davis’s and Mr. Klopp’s
motion (Dkt. 13) will be treated as a motion for summary judgment and analyzed under the
summary judgment standard.
Subsequent to the filing of Defendants’ motions and Mr. Martin’s responses to those
motions, Mr. Martin requested leave to amend his Complaint (Dkt. 50). He has since filed a
motion to stay the proceedings under Rule 56(d) (Dkt. 70) in order to conduct additional
discovery to adequately respond to Mr. Davis’s and Mr. Klopp’s motion for summary judgment
and Ms. Puccia’s motion to dismiss.
II. LEGAL STANDARDS
A.
Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476
F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court
2
Federal Rule of Civil Procedure 12(d) states: “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. All parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.”
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reviews “the record in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490
(citation omitted). “In much the same way that a court is not required to scour the record in
search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a
paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(citation and internal quotations omitted). Finally, “neither the mere existence of some alleged
factual dispute between the parties nor the existence of some metaphysical doubt as to the
material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion
Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
B.
Motion to Dismiss
When reviewing a 12(b)(6) motion, the Court takes all well-pleaded allegations in the
complaint as true and draws all inferences in favor of the plaintiff. Bielanski v. Cnty. of Kane,
550 F.3d 632, 633 (7th Cir. 2008) (citations omitted). However, the allegations must “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests” and the
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Stated differently, the complaint must include “enough
facts to state a claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575,
580 (7th Cir. 2009) (citations omitted). To be facially plausible, the complaint must allow “the
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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
A 12(b)(2) motion to dismiss is a challenge to the court’s jurisdiction over the person of
the defendant which places the burden on the plaintiff to make a prima facie showing of
jurisdiction. Tamburo v. Dworkin, 601 F.3d 693, 699 (7th Cir. 2010). “[W]here, as here, the
issue is raised by a motion to dismiss and decided on the basis of written materials rather than an
evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts.”
Id. Any conflicts in the facts must be resolved in favor of the non-moving party. Id.
C.
Amending the Complaint
Federal Rule of Civil Procedure 15(a) provides that if a party is not entitled to amend a
pleading as a matter of course, it may amend “with the opposing party’s written consent or the
court’s leave.” Courts should “freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). “Although the rule reflects a liberal attitude towards the amendment of pleadings,
courts in their sound discretion may deny a proposed amendment if the moving party has unduly
delayed in filing the motion, if the opposing party would suffer undue prejudice, or if the
pleading is futile.” Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 848–49 (7th
Cir. 2002). “Leave may be denied due to delay, but the delay must unduly prejudice the
opposing party.” Spolnik v. Guardian Life Ins. Co. of Am., 94 F. Supp. 2d 998, 1004 (S.D. Ind.
2000).
D.
Rule 56(d) Motions
Rule 56(d) states that “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may: (1)
7
defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or take
discovery; or (3) issue any other appropriate order.”3
A party invoking its protections must do so in good faith by affirmatively
demonstrating why he cannot respond to a movant’s affidavits and how
postponement of a ruling on the motion will enable him, by discovery or other
means, to rebut the movant’s showing of the absence of a genuine issue of fact.
Korf v. Ball State Univ., 726 F.2d 1222, 1230 (7th Cir. 1984) (quoting Lamb’s Patio Theatre v.
Universal Film Exchs., 582 F.2d 1068, 1071 (7th Cir. 1978)) (emphasis added). A party seeking
Rule 56(d)’s protection must make a good faith showing that it cannot respond to the movant’s
affidavits. Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058 n.5 (7th Cir. 2000). This
requires an affidavit from the nonmovant identifying the material facts that it anticipates
discovering. See Grundstat v. Ritt, 166 F.3d 867, 873 (7th Cir. 1999) (finding vague assertions
that discovery would develop genuine issues of material fact insufficient to grant continuance).
III. DISCUSSION
A.
Motion under Rule 56(d)
As an initial matter, the Court will address Mr. Martin’s Rule 56(d) motion. Mr. Martin
contends the Defendants have failed to carry their burdens in the motion for summary judgment
and motion to dismiss. However, “out of an abundance of caution and in the event this Court
finds that [Defendants] have carried such respective burdens, Mr. Martin moves this Court . . . to
continue any hearing and/or ruling on the applicable motions for summary judgment and/or
motions to dismiss, as the case may be.” Dkt. 50 at 2. Mr. Martin cites case law that courts
usually grant properly filed 56(d) motions as a matter of course. See Miller v. Account Mgmt.
Servs., No. 1:07-CV-00231, 2008 WL 596011, at *1 (N.D. Ind. Feb. 29, 2008) (citing Doe v.
3
On December 1, 2010, the Federal Rules of Civil Procedure were amended. On that date, the current Rule 56(d)
became effective. Prior to that date, the substance of current Rule 56(d) was contained in the former Rule 56(f).
Many of the authority cited in this opinion pre-date the current Rule 56(d). However, the standards applied to Rule
56(f) apply in equal force to Rule 56(d).
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Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007); Culwell v. City of Fort Worth, 468
F.3d 868, 872 (5th Cir. 2006)). However, the Court finds Mr. Martin’s motion is not “properly
filed.”
Mr. Martin has already fully responded to and briefed Defendants’ motions. At no time
during the response period did Mr. Martin request the Court for a stay to conduct discovery.
And although Mr. Martin was initially pro se, his attorney filed an appearance on June 15,
2012—less than one month after Mr. Davis’s and Mr. Klopp’s motion was filed. Mr. Martin,
then represented by counsel, requested—with good cause—and was granted, two extensions
before responding to the motion. Mr. Martin also requested and was granted an extension of
time to respond to Ms. Puccia’s motion.4 The important fact is that Mr. Martin did respond to
these motions, and in the instance of Mr. Davis’s and Mr. Klopp’s motion, converted it to a
motion for summary judgment by filing his own affidavit containing facts beyond the pleadings.
Mr. Martin argues that he has not been dilatory because there has been no discovery in
this case, and he could not have foreseen that Mr. Davis, Mr. Klopp, and Ms. Puccia would fail
to answer his Complaint and therefore stall discovery moving forward. Yet this argument
ignores that Mr. Martin should have requested this relief when it became apparent he could not
adequately respond to the motions. Instead, Mr. Martin chose to respond.
Therefore, the Court finds that Mr. Martin’s Rule 56(d) motion, filed on October 29,
2012, is not “properly filed” as referred to by the Third and Fifth Circuits. The Court will not
allow Mr. Martin to stall these proceedings by essentially requesting another bite at the apple to
establish facts that support his position, between two and three months after his initial responses
have been filed. See Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006) (finding that
4
As an additional problem with Mr. Martin’s motion as it relates to Ms. Puccia, she has not filed a motion for
summary judgment, which is what Rule 56(d) is designed for. However, even assuming that the rule applied, the
Court would still deny the motion for the reasons explained in this Entry.
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plaintiff should have filed a Rule 56(f) motion when it became clear that the parties’ discovery
dispute was not going to be resolved prior to the expiration of its extended deadline to respond to
summary judgment). Having DENIED Mr. Martin’s Rule 56(d) motion (Dkt. 70), the Court
moves on to address the remaining motions.
B.
Motion to Amend the Complaint
Mr. Martin moved to amend his Complaint on September 10, 2012, after he had
responded to Mr. Davis’s and Mr. Klopp’s motion for summary judgment and Ms. Puccia’s
motion to dismiss. Mr. Davis and Mr. Klopp contend that Mr. Martin’s motion under Rule
15(a)(2), which allows amendments as justice requires, presents a novel issue: “Does justice
require a court to grant a plaintiff leave to amend his complaint after he has intentionally
converted defendants’ motion to dismiss into a motion for summary judgment under Rule
12(d)?” Dkt. 56 at 3. The Court agrees with Defendants that the answer must be “no.”
Seventh Circuit case law advises that undue delay and prejudice occurs when a motion
for leave to amend is filed “after discovery has been closed and a defendant’s motion for
summary judgment had been filed.” Sanders v. Venture Stores, Inc., 56 F.3d 771, 774 (7th Cir.
1995). This reasoning holds especially true when plaintiffs provide no explanation as to “why
the amendment did not take place sooner, and where the delay in filing the motion to amend
would cause delay and burden the parties.” Id. at 775.
Mr. Martin’s lone explanation for requesting leave to amend is that his amendments
would cure the deficiencies alleged by the motions to dismiss and will not prejudice Defendants
on the merits. However, this explanation does not explain to the Court why Mr. Martin chose
first to fully brief each motion against him, as well as convert Mr. Davis’s and Mr. Klopp’s
motion into one for summary judgment, and thereafter move to amend his complaint. Mr.
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Martin’s tactics appear to be the hallmark of undue delay, which necessarily causes Defendants
undue prejudice. Rather than allow the Court to address the dispositive motions on the merits,
Mr. Martin has filed two ancillary motions that have stalled the proceedings. To allow Mr.
Martin to amend his Complaint would essentially require the Court to deny the dispositive
motions as moot, thus placing additional burdens on Defendants. Mr. Martin cannot have
another bite at the apple at the direct expense of Defendants who have actively defended this
suit. Therefore, Mr. Martin’s motion for leave to amend his Complaint (Dkt. 50) is DENIED.
The Court must now turn to the merits of the remaining motions before the Court.
C.
Motion for Summary Judgment by Mr. Davis and Mr. Klopp
As has been discussed above, Mr. Davis and Mr. Klopp initially filed a motion to dismiss
the § 1985(3) and state law defamation claims against them under Rule 12(b)(6) for failure to
state a claim for relief.
Mr. Martin, in his response brief, addressed only the state law
defamation claim and intentionally invoked Rules 12(d) and 56 and filed an affidavit containing
facts outside the pleadings, thus converting the motion to a motion for summary judgment. In
reply, Mr. Davis and Mr. Klopp responded in kind, setting forth their statement of material facts
not in dispute. Mr. Martin did not request or file a surreply.
As an initial matter, Mr. Davis and Mr. Klopp assert that eight paragraphs of Mr.
Martin’s affidavit are insufficient for the purposes of opposing a motion for summary judgment.
Rule 56(c)(4) requires that supporting affidavits used to oppose a motion for summary judgment
“must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant . . . is competent to testify on the matters stated.” However, statements in
affidavits made “upon information or belief” are “insufficient for the purposes of opposing a
motion for summary judgment.”
Price v. Rochford, 947 F.2d 829, 832 (7th Cir. 1991).
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Therefore, the statements made in paragraphs 5, 6, 8, 9. 11, 12, 19, and 20, which are made upon
information and belief, cannot support a denial of summary judgment.5
1.
Defamation Claim
“To prevail on a cause of action for defamation, a plaintiff must prove four elements: (1)
a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages.”
Newman v. Jewish Cmty. Ctr. Ass’n of Indianapolis, Inc., 875 N.E.2d 729, 739 (Ind. Ct. App.
2007). A communication is defamatory per se if it imputes criminal conduct. Id. However, a
qualified privilege exists that “‘applies to communications made in good faith on any subject
matter in which the party making the communication has an interest or in reference to which he
has a duty, either public or private, either legal, moral, or social, if made to a person having a
corresponding interest or duty.’” Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009) (quoting
Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992)).
The defense of qualified privilege does not change the actionable quality of the words
published, but rebuts the inference of malice that is otherwise imputed. Id. When asserting the
qualified privilege, the defendant bears the burden of establishing the existence of a privileged
occasion for the publication. Id. If the defense is established, the burden shifts to the plaintiff to
show the privilege was abused. Id. To make such a showing, a plaintiff can show abuse
wherein: “(1) the communicator was primarily motivated by ill will in making the statement; (2)
there was excessive publication of the defamatory statements; or (3) the statement was made
without belief or grounds for belief in its truth.” Id. at 763–64.
5
Mr. Davis and Mr. Klopp also argue that paragraph 21 contains conclusions of law as opposed to facts admissible
in evidence. See Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (explaining that affidavits containing
“[c]onclusory allegations, unsupported by specific facts,” would not suffice” in defeating summary judgment). In
paragraph 21, Mr. Martin asserts that Defendants “did not act in good faith, did not act for the purpose of protecting
any privileged common interest, acted primarily to further an interest that is not protected, and acted out of ill will
and with recklessness.” Dkt. 35 at 4. The Court will also not accept this paragraph of the affidavit as a fact
supporting Mr. Martin’s position.
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a.
Existence of Qualified Privilege
Mr. Martin alleges that Mr. Davis and Mr. Klopp defamed him when they forwarded the
Puccia correspondence to Mr. Gorajec. Mr. Davis and Mr. Klopp contend they have satisfied
their burden of establishing the existence of the qualified privilege. The defamatory
communication at issue occurred when, in a somewhat convoluted set of facts, Ms. Puccia—at
the bequest of Mr. Gorajec—sent Mr. Davis and Mr. Klopp correspondence that contained
allegations that Mr. Martin was abusing and neglecting horses at Martin Stables South. Mr.
Davis and Mr. Klopp then reported to the IHRC—in effect Mr. Gorajec—what they considered
were suspected acts of criminal abuse and neglect of horses. Mr. Davis and Mr. Klopp assert
they were under a duty as licensed horse trainers to “report any known or suspected
irregularities, any violation of the rules of the commission, or any wrongdoings by any person
immediately to the commission and cooperate in subsequent investigations.” 71 Ind. Admin.
Code 5.5-1-29. Thus, they were acting under a qualified privilege when they forwarded the
Puccia correspondence to the IHRC.
Mr. Martin contends that based upon his “information and belief” neither Mr. Davis nor
Mr. Klopp acted in good faith when they forwarded the Puccia correspondence. Specifically, he
argues that Mr. Davis and Mr. Klopp knew the Puccia correspondence was false and/or omitted
material facts and analysis. Mr. Martin also argues that because he was not licensed by the
IHRC, Mr. Davis and Mr. Klopp were not under a duty to report his alleged wrongdoings to the
IHRC.6 However, as discussed above, Mr. Martin cannot establish a genuine issue of material
fact by asserting “facts” based solely on “information and belief.” He has not supported his
allegation that Mr. Davis and Mr. Klopp knew the Puccia correspondence was false, and the
6
The Court finds it irrelevant and unsupported by any facts in the record that Mr. Davis and Mr. Klopp failed to
report suspected violations committed by another individual, as argued by Mr. Martin.
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undisputed facts do not support Mr. Martin’s position. Moreover, there is no indication that the
duty found in the Indiana Administrative Code is limited to reporting wrongdoing committed by
other license-holders. The Court agrees with Mr. Davis and Mr. Klopp that given Mr. Martin’s
extensive involvement in Indiana horseracing, they “could reasonably believe he was a person
about whom they had a duty to report suspected wrongdoing to the IHRC.” Dkt. 44 at 9 n.4.
The Court finds that there is no genuine issue of material fact and that Mr. Davis and Mr.
Klopp acted in good faith when they forwarded the Puccia correspondence to the IHRC.
Therefore, the qualified privilege is invoked and to defeat summary judgment, Mr. Martin must
establish an abuse of the privilege.
b.
Abuse of Qualified Privilege
An abuse of privilege occurs when the communication was motivated by ill will,
excessive publication occurred, or the communication was made without grounds for belief in its
truth. Williams, 914 N.E.2d at 764. Mr. Martin alleges that Mr. Davis and Mr. Klopp forwarded
the Puccia correspondence to “unduly curry favor with IHRC in order to advance IHBPA’s
legislative agenda, to secure IHRC funding, and to drive membership away from ITOBA and to
IHBPA.” Dkt. 34 at 11. Further, he alleges Mr. Davis and Mr. Klopp acted in retaliation against
Mr. Martin and ITOBA.
Mr. Martin provides no facts to support his position. While he states that he “reasonably
believes the communications by [Mr. Davis and Mr. Klopp] to [ ] Mr. Gorajec at issue herein
were made out of ill will,” a reasonable belief does not establish a genuine issue of material fact.
Moreover, Mr. Martin makes no argument that excessive publication occurred, nor has he
established that the communication was made without grounds for belief in its truth. Because
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Mr. Martin makes only allegations that are unsupported by facts in the record, he has not
established an abuse of the qualified privilege.
2.
Conspiracy Claim under § 1985(3)
Mr. Martin failed to respond to Mr. Davis’s and Mr. Klopp’s motion regarding Mr.
Martin’s claim for conspiracy under § 1985(3). The Court will not scour the record on Mr.
Martin’s behalf. Therefore, Mr. Davis’s and Mr. Klopp’s motion for summary judgment (Dkt.
13) is GRANTED for both the defamation and § 1985 claims.
D.
Ms. Puccia’s Motion to Dismiss
Ms. Puccia, a citizen of Florida, filed her motion to dismiss Mr. Martin’s Complaint on
the basis of personal jurisdiction.
Mr. Martin alleges that Ms. Puccia sent a defamatory
correspondence through email to Mr. Davis and Mr. Klopp, who were located in Indiana. There
are no further allegations that connect Ms. Puccia to Indiana. In the alternative, Ms. Puccia
argues that Mr. Martin’s Complaint should be dismissed because it does not comply with Federal
Rule of Civil Procedure 10(b) or is an impermissible shotgun pleading. She also submits an
alternative motion for more definite statement under Rule 12(e). Finally, Ms. Puccia argues that
Mr. Martin’s claims under § 1985(3) and/or § 1983 and the state law defamation claim must fail
under Rule 12(b)(6).
1.
Personal Jurisdiction over Ms. Puccia
Determining whether jurisdiction over an out-of-state defendant is proper includes
determining (1) whether the state’s long-arm statute allows jurisdiction; and (2) whether
assertion of personal jurisdiction violates due process. Tamburo, 601 F.3d at 701–02. Because
Indiana’s long-arm statute extends personal jurisdiction to the limits allowed under the U.S.
Constitution, see Ind. Trial R. 4.4(A), the only question for the Court to determine is “whether
15
due process would be offended were [the Court] to exercise personal jurisdiction” over Ms.
Puccia. Am. Commercial Lines, LLC v. Northeast Maritime Inst., Inc., 588 F. Supp. 2d 935, 942
(S.D. Ind. 2008). Jurisdiction can be general or specific, and specific jurisdiction occurs when
the suit arises out of or is related to the defendant’s contacts with the forum. Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). Mr. Martin has made no
true allegation of general jurisdiction; therefore the Court will proceed under specific
jurisdiction.
“To support an exercise of specific jurisdiction, the defendant’s contacts with the forum
state must directly relate to the challenged conduct or transaction . . . .” Tamburo, 601 F.3d at
702. Specific personal jurisdiction is appropriate where “(1) the defendant has purposefully
directed his activities at the forum state or purposefully availed himself of the privilege of
conducting business in that state; and (2) the alleged injury arises out of the defendant’s forumrelated activities.” Id. Here, Ms. Puccia does not specifically contest that Mr. Martin’s alleged
injury arises from her alleged forum-related activities. Thus, the Court finds that Mr. Martin has
established as a prong of specific jurisdiction that Ms. Puccia’s alleged forum-related activities
caused his alleged injury in Indiana. Therefore, the issue in this case concerns whether Ms.
Puccia “purposefully directed” her conduct at Indiana.
Here, the facts show that Mr. Gorajec requested that Ms. Puccia write and send an email
to Mr. Davis and Mr. Klopp that contained reports that Mr. Martin was abusing and neglecting
horses at Martin Stables South in Florida. It is undisputed that Ms. Puccia has not traveled to
Indiana or had any other contacts aside from the April 7, 2010 email to Mr. Davis and Mr.
Klopp. Ms. Puccia contends that the “mere sending of an e-mail to someone in Indiana cannot
be considered a purposeful availment of the privilege of conducting business in Indiana nor an
16
activity directed at Indiana.” Dkt. 26 at 5. She argues that her single email, which was sent upon
request, is a random, fortuitous, and attenuated contact with Indiana. Dkt. 26 at 6 (citing
Burleson v. Toback, 391 F. Supp. 401, 421–22 (M.D.N.C. 2005) (finding single email exchange
that was unrelated to cause of action insufficient to confer personal jurisdiction)).
This issue requires the Court to apply the so-called “express aiming test” articulated in
Calder v. Jones, 465 U.S. 783 (1984).7 In Tamburo, the Seventh Circuit instructs that in
determining whether an action was expressly aimed at the forum state, courts should focus on the
relationship between the allegedly tortious conduct and the forum state itself. 601 F.3d at 706.
In other words, courts should determine if the forum state was the “focal point of the tort—at
least with respect to the individual defendants.” Id. In Tamburo, defendants, although acting
from points outside the forum state, specifically aimed “blast” emails at plaintiff and his business
in the forum state, “with the knowledge that he lived, worked, and would suffer the ‘brunt of the
injury’ there.” Id. The court held that “[t]ortious acts aimed at a target in the forum state and
undertaken for the express purpose of causing injury there are sufficient to satisfy Calder.” Id. at
707. The forum state was a focal point of the tortious conduct.
The Court also finds Hoffman v. Barnes, No. 12 C 31, 2012 WL 1021837 (N.D. Ill.
March 26, 2012) helpful. In Hoffman, defendant posted comments on internet forums to defame
plaintiff. The primary question was whether defendant expressly aimed his comments at the
7
To this point, Mr. Martin cites Brockman v. Kravic, 779 N.E.2d 1250 (Ind. Ct. App. 2002) for support. In
Brockman, a case for defamation, defendant was contacted by a third party to provide counseling as part of an
ongoing custody battle. Although the counseling was provided outside of Indiana, defendant sent a report of the
counseling to an Indiana resident. More counseling sessions occurred by order of the court overseeing the custody
battle, and more reports were sent to Indiana. Id. at 1258. The court found that while defendant did not initiate the
relationship with Indiana, “he did have a purposeful contact with Indiana when he mailed the letters there and
voluntarily inserted himself into the legal proceedings being conducted in Indiana by an Indiana court. Moreover,
[he] was aware of the context into which he was offering his opinion.” Id. at 1258–59. The operative facts that led
the court to conclude specific jurisdiction existed, were that defendant knowingly became “embroiled in an
essentially Indiana controversy,” he was aware of the circumstances—the legal battle—when he wrote the letters,
and was not an arms-length negotiation between parties. Id. at 1259. The Court finds Brockman persuasive, but will
apply Seventh Circuit precedent as controlling.
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forum state of Illinois. Id. at *2. The court discussed Calder and Tamburo, and explained that
the Seventh Circuit requires a forum state injury and “something more” directed at the forum
state before jurisdiction is proper. Id. at *3. In Hoffman, defendant’s statements caused an
injury in the forum state, but there was no targeting of the forum state, only a targeting of
plaintiff who happened to reside in the forum state. Id. at *4. The forum state was not a focal
point of the tortious conduct.
With these principles in mind, the Court makes the following observations. Ms. Puccia
was sought out by Mr. Gorajec and asked to send to Indiana the correspondence at issue. The
topic of the correspondence was Mr. Martin’s business, which is located in Florida. The result of
the correspondence was an investigation into Mr. Martin’s Florida business by IHRC, an Indiana
agency. At the time Ms. Puccia sent the correspondence, the investigation had not yet begun.
Ms. Puccia has no other contacts with Indiana. Significantly, the Court finds that Ms. Puccia
cooperated with Mr. Gorajec and inserted herself into Indiana affairs.
She sent her
correspondence to IHBPA leaders Mr. Davis and Mr. Klopp to report abuse and neglect that
allegedly occurred in Florida. While she did not initiate the correspondence, if Ms. Puccia did
not want to insert herself into Indiana affairs, she could have declined and reported the behavior
to Florida authorities. Ms. Puccia also argues that the correspondence is unrelated to the subject
of the current suit or claims—yet the correspondence served as an impetus for the investigation
into Mr. Martin that is the heart of this dispute. Therefore, the Court concludes that it has
specific personal jurisdiction over Ms. Puccia.
Next, the Court must determine if exercising jurisdiction over Ms. Puccia would offend
traditional notions of fair play and substantial justice. See Int’l Shoe Co. v. State of Wash., Office
of Unemployment Compensation & Placement, 326 U.S. 310, 316 (1945). “The following
18
factors are relevant in making this determination: ‘the burden on the defendant, the forum
State’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and
effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution
of controversies, and the shared interest of the several States in furthering fundamental
substantive social policies.’” Felland v. Clifton, 682 F.3d 665, 677 (7th Cir. 2012) (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
Ms. Puccia argues the burden of defending this lawsuit in Indiana is great and that
exercising jurisdiction will “be stifling in the current age and use of e-mail and text messaging.”
Dkt. 26 at 8. The Court disagrees that exercising jurisdiction over Ms. Puccia will set a
precedent that “anyone sending an e-mail or text message may be subject to suit and personal
jurisdiction in the state of the recipient.” Dkt. 26 at 9. The analysis established by the Supreme
Court and the Seventh Circuit, and undertaken by the Court in this Entry, belies her admonition.
Furthermore, although Ms. Puccia will face “some burden in being forced to defend an action in
another state, [ ] out-of-state defendants always face such a burden, and there is no suggestion
that [Ms. Puccia’s] hardship would be any greater than that routinely tolerated by courts
exercising specific jurisdiction against nonresidents.” Felland, 682 F.3d at 677.
Ms. Puccia also argues that Indiana does not have a significant interest in providing a
forum for Mr. Martin’s claim against her, because the correspondence is unrelated to the subject
of the current suit or claims.
The Court has already rejected this argument and finds it
disingenuous given that the correspondence triggered the investigation at the heart of this
dispute. Thus, “as is almost always the case,” id., Indiana has a strong interest in providing a
forum for Mr. Martin to seek redress for torts committed against him in Indiana. Therefore, the
Court finds that exercising personal jurisdiction over Ms. Puccia does not offend traditional
19
notions of fair play and substantial justice. Therefore, Ms. Puccia’s motion to dismiss based on a
lack of personal jurisdiction is DENIED.
2.
Rule 10(b), Shotgun Pleading, and Rule 12(e).
The term “shotgun pleading” is used to describe complaints that utilize excessive
incorporation, thereby taking advantage of Rule 10(b). Rule 10(b) allows a party in a pleading to
“refer by number to a paragraph in an earlier pleading.”
“When a party indiscriminately
incorporates assertions from one count to another, for example, by incorporating all facts or
defenses from all previous counts into each successive count, it can result in an unnecessarily
long and confusing pleading and counts that contain irrelevant facts or defenses, and it can
prevent the opposing party from reasonably being able to prepare a response or simply make the
burden of doing so more difficult.” 5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. Civ. § 1326 (3d. ed.).
Here, Mr. Martin’s Complaint consists of 121 paragraphs. The specific claim against Ms.
Puccia begins at paragraph 116, in which Mr. Martin incorporates all of the previous 115
paragraphs—including all those that allege multiple counts against the other Defendants. This is
a classic example of shotgun pleading that is especially onerous to Ms. Puccia. When faced with
a shotgun pleading, an appropriate solution is to order a plaintiff to replead and state his claims
more clearly. The Court agrees with Ms. Puccia that Mr. Martin’s Complaint lacks clarity and
fails to comply with Rule 10(b). However, there is enough clarity to determine that Mr. Martin
has brought claims of defamation and §1985 conspiracy against Ms. Puccia, and in the interest of
judicial economy, the Court will decide the motion to dismiss on the merits of those claims.
Therefore, Ms. Puccia’s motion to dismiss under Rule 10(b) and her motion for a more definite
statement under Rule 12(e) are DENIED.
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3.
Defamation and Qualified Privilege
Ms. Puccia contends that Mr. Martin’s claim for defamation must be dismissed because
her correspondence is protected by the doctrine of qualified privilege. As explained above, the
privilege “‘applies to communications made in good faith on any subject matter in which the
party making the communication has an interest or in reference to which he has a duty, either
public or private, either legal, moral, or social, if made to a person having a corresponding
interest or duty.’” Williams, 914 N.E.2d at 762 (quoting Bals, 600 N.E.2d at 1356). The burden
is on Ms. Puccia to first establish that the correspondence was privileged.
Ms. Puccia argues she sent the correspondence in good faith under a moral, legal, and
social duty based on the shared interest in the health and welfare of horses. The Complaint
alleges that, “[a]t the request of Mr. Gorajec, Ms. Puccia sent written correspondence [ ] to [Mr.
Davis and Mr. Klopp] alleging that Mr. Martin was responsible for various criminal acts of abuse
and neglect of horses at Martin Stables South.” Dkt. 1 at 5.8 Taking this fact as true, the Court
cannot find at this stage of the proceeding that Ms. Puccia sent the correspondence in good faith.
She did not send the correspondence until asked by Mr. Gorajec. This raises at least a question
of whether the correspondence was sent because of a duty and shared interest, or for a malicious
purpose. Therefore, Ms. Puccia’s motion to dismiss the defamation claim is DENIED.
4.
Conspiracy Claim under § 1985(3)
Ms. Puccia contends that Mr. Martin has not pleaded sufficient factual matters to state a
claim for § 1985(3) conspiracy. In doing so, she also incorporates by reference Section III.A of
8
Mr. Martin, relying on his affidavit filed in connection with Mr. Davis’s and Mr. Klopp’s motion, argues that the
correspondence “was false and/or omitted significant material facts and analysis that, if included, would have
fundamentally changed the tenor and import of the communication.” Dkt. 46 at 7 (quoting Dkt. 35 at 2). However,
the Court found above that the paragraph quoted by Mr. Martin was not made upon personal knowledge and is not a
“fact.” But more importantly the Court is deciding a motion to dismiss, not one for summary judgment where Mr.
Martin can rely on matters outside of the pleadings.
21
Mr. Davis’s and Mr. Klopp’s original motion to dismiss to support her contention. In Section
III.A, Mr. Davis and Mr. Klopp argued that Mr. Martin’s conspiracy claim must fail because
there is no allegation of racial or class-based animus. A proper claim under § 1985(3) must
allege “(1) the existence of a conspiracy, (2) a purpose of depriving a person or class of persons
of equal protection of the laws, (3) an act in furtherance of the alleged conspiracy, and (4) an
injury to a person or property or a deprivation of a right or privilege granted to U.S. citizens.”
Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). “The plaintiff must also show some racial,
or otherwise class-based, invidiously discriminatory animus behind the conspirator’s actions, and
that the conspiracy aimed at interfering with rights that are protected against private, as well as
official encroachment.” Id. Mr. Martin’s Complaint alleges that a conspiracy existed to prevent
Mr. Martin from exercising his right to give support or advocacy in a legal matter.
The
Complaint does not allege any class-based or racial animus, as required by § 1985(3). Therefore,
Ms. Puccia’s motion to dismiss Mr. Martin’s claim for § 1985(3) conspiracy is GRANTED.
IV. CONCLUSION
For the reasons set forth above, the Court makes the following rulings: Mr. Martin’s
Rule 56(d) motion (Dkt. 70) is DENIED; Mr. Martin’s motion for leave to amend his Complaint
(Dkt. 50) is DENIED; Mr. Davis’s and Mr. Klopp’s motion for summary judgment (Dkt. 13) is
GRANTED for both Mr. Martin’s defamation and § 1985 claims; Ms. Puccia’s motion to
dismiss (Dkt. 25) is DENIED in part and GRANTED in part. Specifically, Ms. Puccia’s
motion to dismiss based on a lack of personal jurisdiction is DENIED; her motion to dismiss
under Rule 10(b) and her motion for a more definite statement under Rule 12(e) are DENIED;
her motion to dismiss the defamation claim is DENIED; and her motion to dismiss Mr. Martin’s
claim for § 1985(3) conspiracy is GRANTED.
22
The defamation claim against Defendants Davis and Klopp is therefore DISMISSED
with prejudice. The claim for conspiracy under § 1985(3) against Defendants Davis, Klopp,
and Puccia is DISMISSED without prejudice.
SO ORDERED.
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
01/28/2013
Date: ______________
DISTRIBUTION:
Michael N. Red
michael.n.red@gmail.com
Betty D. Marion
KUBICKI DRAPER, P.A.
bdm@kubickidraper.com
David A. Arthur
OFFICE OF THE INDIANA ATTORNEY GENERAL
david.arthur@atg.in.gov
Steven C. Shockley
TAFT STETTINIUS & HOLLISTER LLP
sshockley@taftlaw.com
Tracy Nicole Betz
TAFT STETTINIUS & HOLLISTER LLP
tbetz@taftlaw.com
23
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