Virginia E. Mourning v. Allison Transmission, Inc.

FILED
Mar 15 2017, 5:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven T. Fulk Andrew J. Miroff
Fulk & Associates, LLC Emmanuel V. Boulukos
Indianapolis, Indiana Derek R. Molter
Ice Miller LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Virginia E. Mourning, March 15, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1608-MI-1822
v. Appeal from the Marion Superior
Court
Allison Transmission, Inc., The Honorable James A. Joven,
Appellee-Defendant Judge
Trial Court Cause No.
49D13-1504-MI-12620
Vaidik, Chief Judge.
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Case Summary
[1] This case involves the interplay between Indiana Trial Rules 12(C) and 12(B).
A Trial Rule 12(C) motion for judgment on the pleadings is typically directed
toward a determination of the substantive merits of the controversy. A Trial
Rule 12(B) motion to dismiss, in contrast, is directed solely toward procedural
defects or the statement of the plaintiff’s claim for relief and does not seek to
determine the substantive merits of the controversy. However, a defense of
failure to state a claim upon which relief can be granted can be raised under
either Trial Rule 12(B)(6) or Trial Rule 12(C). When raised in a Trial Rule
12(C) motion, the court must treat the motion pursuant to Trial Rule 12(B)(6)
and, if granted, give the plaintiff ten days to amend the complaint once as of
right.
[2] Here, Virginia Mourning sued Allison Transmission, Inc. claiming that it
played a role in getting her fired from her long-time employer, Ternes
Packaging. Mourning alleged tortious interference with an employment
contract and defamation. Allison Transmission then filed an ambiguously
worded “12(C) Motion to Dismiss” alleging that Mourning “failed to state a
claim upon which relief may be granted” and that her claims failed “as a matter
of law.” The trial court granted Allison Transmission’s motion and entered
final judgment in its favor. Applying the above principles here, we find that
Mourning sufficiently pled her defamation claim but not her tortious-
interference claim. We therefore reverse and remand this case to the trial court
to give Mourning an opportunity to amend her complaint once as of right.
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Facts and Procedural History
[3] In accordance with our standard of review for judgments on the pleadings, our
review is confined to the pleadings, accepting well-pled material facts in the
complaint as true. Mourning became an at-will employee with Ternes
Packaging in 1997. Ternes provides supply-chain-management services to
Allison Transmission.
[4] From early February 2013 to late March 2013, Mourning took time off under
the federal Family and Medical Leave Act (FMLA). While Mourning was on
medical leave, a group of employees under her supervision filed a complaint
against her. Mourning’s manager at the time assisted these employees in
making their complaint. The complaining employees were further assisted in
making their complaint by individuals at Allison Transmission.
[5] Mourning was first informed of the complaint when she returned from medical
leave on April 1, 2013, at which point she was suspended for two weeks and
then terminated on April 16, 2013.
[6] In May 2014, Mourning sued Ternes in federal court alleging violations of Title
VII of the Civil Rights Act of 1964 and FMLA. Mourning later added state-law
claims against Allison Transmission for tortious interference with an
employment contract and defamation, but these claims were dismissed for lack
of subject-matter jurisdiction. For the claims against Ternes, the district court
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granted summary judgment in its favor. See Mourning v. Ternes Packaging—Ind.,
Inc., 1:14-cv-00772-SEB-DML (S.D. Ind. Feb. 22, 2016).1
[7] Mourning then filed a complaint against Allison Transmission in Marion
Superior Court in September 2015. Mourning made the same claims that she
had made in federal court: tortious interference with an employment contract
and defamation. The tortious-interference count (Count I) specifically alleges:
16. During the period of Plaintiff’s medical leave from early
February, 2013, until her return on or about April 1, 2013, and
during her suspension upon her return to work until her
termination on or about April 16, 2013, Defendant Allison by
and through its agents including without limitation Ron Sauer,
Senior Director of Global Parts and Customization Centers, and
Dennis Nicholas, Director of Orders Administration,
intentionally induced the breach of the employment contract
between Ternes and Plaintiff by communicating with Ternes
(specifically beginning at a meeting initiated by Sauer and
Nicholas on February 26, 2013, and continuing through
Plaintiff’s termination on April 16, 2013) that Plaintiff was not
competent to continue working in her position with Ternes in
their provision of bundled services to Allison, and that Plaintiff
was not to continue in her position of employment with Ternes.
17. Defendant Allison had no justification for inducing the
breach of the employment contract between Ternes and Plaintiff,
as Defendant willfully failed to abide by established procedure
regarding staffing requests or complaints/discipline directed to
Ternes Packaging, and as Defendant leveraged its continued
business relationship with Ternes (which was at that time in re-
1
Mourning has appealed that decision, and the appeal is pending.
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bid negotiations) to demand the termination of Plaintiff’s
employment.
Appellant’s App. Vol. II pp. 10-11. The defamation count (Count II)
specifically alleges:
20. During the period of Plaintiff’s medical leave from early
February, 2013, until her return on or about April 1, 2013, and
during her suspension upon her return to work until her
termination on or about April 16, 2013, agent(s) for Defendant
Allison by and through its agents including without limitation
Ron Sauer, Senior Director of Global Parts and Customization
Centers, and Dennis Nicholas, Director of Orders
Administration, made defamatory communications regarding
Plaintiff and her job to Ternes (specifically beginning at a
meeting initiated by Sauer and Nicholas on February 26, 2013,
and continuing through Plaintiff’s termination on April 16, 2013)
stating that Plaintiff did not embrace change, was not data-
driven, had performance issues in her position, was not
competent to continue working in her position managing staff or
providing bundled services to Allison, and should not . . .
continue in her position of employment with Ternes.
21. The communications made by Defendant Allison regarding
Plaintiff during this period were false, were made with malice (as
Defendant leveraged its continued business relationship with
Ternes—which was at that time in re-bid negotiations—to
defame Plaintiff and secure her termi[n]ation), and were
published through inter-company communications between
Allison and Ternes (including in-person communications
between Sauer and Nicholas and employees at Ternes beginning
on February 26, 2013), and through intra-company
communications within Ternes itself.
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Id. at 11-12. Allison Transmission filed its answer in October 2015.2
[8] In January 2016, Allison Transmission filed a “12(C) Motion to Dismiss”
Mourning’s complaint in which it alleged that Mourning “failed to state a claim
upon which relief may be granted” and that her claims failed “as a matter of
law.” Id. at 15-16. Mourning responded that she sufficiently alleged her claims
and, in the alternative, because Allison Transmission’s Trial Rule 12(C) motion
alleged failure to state a claim, it should be treated like a Trial Rule 12(B)(6)
motion, which meant that she would have a right to amend her complaint and
fix any defects if the motion were granted. In March 2016, the trial court
granted Allison Transmission’s motion and entered final judgment in its favor.
[9] Mourning now appeals.
Discussion and Decision
[10] This case involves the relationship between Trial Rules 12(C) and 12(B).
According to Trial Rule 12(C), after the pleadings are closed but within such
time as not to delay the trial, any party may move for judgment on the
pleadings. A motion for judgment on the pleadings is typically directed toward
a determination of the substantive merits of the controversy. Davis ex rel. Davis
v. Ford Motor Co., 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001) (citing 5C
Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1369 (3d
2
The answer is not included in the record on appeal.
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ed. 2004)), trans. denied. Such motions should be granted “only where it is clear
from the face of the complaint that under no circumstances could relief be
granted.” Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 789
(Ind. 2012) (quotation omitted); see also ESPN, Inc. v. Univ. of Notre Dame Police
Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (judgment on the pleadings should be
granted only “where it is clear from the face of the pleadings that one party is
entitled to prevail as a matter of law”). “[A] judgment on the pleadings is, in
reality, a summary judgment minus affidavits and other supporting
documents.” 1A William F. Harvey, Indiana Practice, Rules of Procedure
Annotated, Trial Rule 12(C) Civil Code Study Commission Comments (3d ed.
1999).
[11] Trial Rule 12(B), on the other hand, provides for certain defenses to be raised
by motion before an answer is filed. In contrast to a typical Trial Rule 12(C)
motion for judgment on the pleadings, a Trial Rule 12(B) motion is directed
solely toward procedural defects or the statement of the plaintiff’s claim for
relief and does not seek to determine the substantive merits of the controversy.
Davis, 747 N.E.2d at 1149; 5C Wright & Miller, § 1369. One of the defenses
that can be raised is failure to state a claim upon which relief can be granted.
See Ind. Trial Rule 12(B)(6). The basic purpose of a Trial Rule 12(B)(6) motion
to dismiss is to test the legal sufficiency of the complaint to state an actionable
claim, not to test the truth of the facts alleged in the complaint. Davis, 747
N.E.2d at 1149. This defense is typically used in one of three situations: (1) the
allegations in the complaint are so insufficient that the pleader has stated no
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claim for relief; (2) the pleader has alleged sufficient facts to state a claim for
relief but has also alleged facts that disclose a bar to the suit or claim (such as
when the complaint establishes a statute-of-limitations defense); and (3) the
pleader has made an allegation that is not recognized in the law as a basis for
recovery. 22 Stephen E. Arthur, Indiana Practice, Civil Trial Practice § 15.19 (2d
ed. 2007). Importantly, when a motion to dismiss is sustained for failure to
state a claim under 12(B)(6), “the pleading may be amended once as of right
pursuant to Rule 15(A) within ten [10] days after service of notice of the court’s
order . . . .” T.R. 12(B).
[12] However, a motion under Trial Rule 12(B)(6) is not the only way to raise a
defense of failure to state a claim upon which relief can be granted. This
defense can also be made in a Trial Rule 12(C) motion or at trial. T.R. 12(H).
We have previously explained the relationship between Trial Rule 12(C) and
Trial Rule 12(B) as follows: “a T.R. 12(B) motion is essentially procedural,
while a T.R. 12(C) motion is substantive unless it is brought on T.R. 12(B)
grounds.” Davis, 747 N.E.2d at 1150 (emphasis added). Accordingly, where a
motion for judgment on the pleadings raises a defense of failure to state a claim
upon which relief can be granted, the motion for purposes of that defense
should be treated in the same manner as a Trial Rule 12(B)(6) motion to dismiss
for failure to state a claim. See Columbus Specialty Surgery Ctr. v. Se. Ind. Health
Org., 22 N.E.3d 665, 669 (Ind. Ct. App. 2014); Gregory & Appel, Inc. v. Duck, 459
N.E.2d 46, 49 (Ind. Ct. App. 1984) (“We agree that where a 12(B)(6) defense is
raised by a 12(C) motion for judgment on the pleadings, the court must treat the
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motion pursuant to 12(B)(6) and accord the non-moving party ten days to
amend as a matter of right.”); Anderson v. Anderson, 399 N.E.2d 391, 405 (Ind.
Ct. App. 1979); see also 22 Stephen E. Arthur, § 15.24 (“When a motion under
Trial Rule 12(C) challenges the sufficiency of a plaintiff’s complaint because of
the failure to state a claim upon which relief can be granted, that motion should
be determined by the same standard that is applicable to a motion under Trial
Rule 12(B)(6).”). The rationale for this rule is that a plaintiff’s right to amend a
complaint should not be based on whether the defendant’s challenge to its
sufficiency is brought under the guise of Trial Rule 12(B)(6) or Trial Rule 12(C).
Davis, 747 N.E.2d at 1151. “There is no principled reason why the fact of
closed pleadings should be determinative of the plaintiff’s right to amend his or
her complaint when the basis of the motion for judgment on the pleadings is the
failure of the complaint to state a claim.” Id.[13] Here, Mourning contends that the trial court erred by not treating Allison
Transmission’s Trial Rule 12(C) motion as a Trial Rule 12(B)(6) motion, which
would have given her an opportunity to amend her complaint and fix any
defects. Allison Transmission responds that the trial court properly treated it as
a substantive Trial Rule 12(C) motion. It argues that “[a] customer complaint
does not constitute tortious interference or defamation as a matter of law.”
Appellee’s Br. p. 24. But Allison Transmission fails to cite any authority in
support of its position that a customer or client can never be held liable for
tortious interference or defamation based on statements it makes to a service
provider about one of the service provider’s employees, and we are aware of
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none. Accordingly, the trial court’s judgment on the merits in Allison
Transmission’s favor cannot be affirmed on this basis.
[14] As for whether Mourning failed to state a claim upon which relief can be
granted, which is a defense that may be made in a “procedural” Trial Rule
12(C) motion and is subject to Trial Rule 12(B)(6) standards, Allison
Transmission first argues that Mourning did not sufficiently plead the operative
facts to support her claim of tortious interference with an employment contract.
See State v. Am. Family Voices, Inc., 898 N.E.2d 293, 296 (Ind. 2008) (noting that
although Indiana’s notice-pleading rules do not require the complaint to state
all elements of a cause of action, the plaintiff must still plead the operative facts
necessary to set forth an actionable claim).
[15] Tortious interference with a contractual relationship consists of the following
elements: (1) the existence of a valid and enforceable contract; (2) the
defendant’s knowledge of the existence of the contract; (3) the defendant’s
intentional inducement of breach of the contract; (4) the absence of justification;
and (5) damages resulting from the defendant’s wrongful inducement of the
breach. Duty v. Boys & Girls Club of Porter Cty., 23 N.E.3d 768, 774 (Ind. Ct.
App. 2014). In order to adequately plead the fourth element—the absence of
justification—the plaintiff must state more than a mere assertion that the
defendant’s conduct was unjustified. Id. at 775. That is, the plaintiff must set
forth factual allegations from which it can reasonably be inferred that the
defendant’s conduct was unjustified. Morgan Asset Holding Corp. v. CoBank,
ACB, 736 N.E.2d 1268, 1272 (Ind. Ct. App. 2000). In this context,
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“unjustified” means “malicious and exclusively directed to the injury and
damage of another.” Duty, 23 N.E.3d at 775; see also Bochnowski v. Peoples Fed.
Sav. & Loan Ass’n, 571 N.E.2d 282, 285 (Ind. 1991) (“The plaintiff bringing [an
action for tortious interference] must be prepared to show that the defendant
interferer acted intentionally and without a legitimate business purpose.”).
[16] To support the absence-of-justification element, Mourning alleged the following
facts:
17. Defendant Allison had no justification for inducing the
breach of the employment contract between Ternes and Plaintiff,
as Defendant willfully failed to abide by established procedure
regarding staffing requests or complaints/discipline directed to
Ternes Packaging, and as Defendant leveraged its continued
business relationship with Ternes (which was at that time in re-
bid negotiations) to demand the termination of Plaintiff’s
employment.
Appellant’s App. Vol. II pp. 10-11. As Allison Transmission points out on
appeal, Mourning’s factual allegations “address how Allison allegedly went
about causing [her] to get fired, not why it did so.” Appellee’s Br. p. 16. In
other words, just because Allison Transmission may not have gone through the
correct channels or may have been in contract negotiations with Ternes does
not mean that it acted unjustifiably, i.e. with malice, when it made the
statements about Mourning. Accordingly, Mourning’s complaint fails to state a
claim for tortious interference. Cf. Duty, 23 N.E.3d at 775 (concluding that
plaintiff stated a claim for tortious interference by alleging that defendant’s
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actions were “vindictive,” because “[v]indictiveness is, by its nature,
malicious”).
[17] Allison Transmission next argues that Mourning did not sufficiently plead the
operative facts to support her claim of defamation. The general elements of
defamation are: (1) a communication with defamatory imputation, (2) malice,
(3) publication, and (4) damages.3 Trail v. Boys & Girls Clubs of Nw. Ind., 845
N.E.2d 130, 136 (Ind. 2006). Mourning alleged the following facts to support
her defamation claim:
20. [Defendant Allison stated] that Plaintiff did not embrace
change, was not data-driven, had performance issues in her
position, was not competent to continue working in her position
managing staff or providing bundled services to Allison, and
should not . . . continue in her position of employment with
Ternes.[4]
3
The parties proceed as if malice is a required element of Mourning’s defamation claim; indeed,
Mourning’s complaint alleges malice. While private individuals must show actual malice when the
communication in question relates to an issue of public concern, if the matter does not concern the
public, then malice is not a required element. See 23 James R. Fisher & Debra H. Miller, Indiana
Practice, Personal Injury Law and Practice, § 3:21 (2d ed. 2007); see also Brewington v. State, 7 N.E.3d 946,
962 (Ind. 2014) (“Determining whether a controversy is of public or general concern is a question of
law for the court. . . . Out of an abundance of caution, though, we will assume arguendo that if a
psychologist actually were abusing his position of trust to give corrupt expert testimony or for personal
gratification, it would be a matter of public or general concern. Under that assumption, the actual-
malice standard would apply . . . .” (emphasis added)), reh’g denied. It is not clear why the parties treat
malice as a required element in this seemingly private matter. However, because they do, we do the
same.
4
Allison Transmission argues that “[n]one of th[e]se statements are false statements of verifiable fact.”
Appellee’s Br. p. 18. Even a statement that on first blush appears to constitute an opinion may still be
legally defamatory if “a reasonable fact finder could conclude that the statement implies facts which
may be proven true or false.” McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d 62, 66 (Ind. Ct. App.
1999), trans. denied. Accordingly, we find that Mourning’s allegations are sufficient. See id. (“Miller’s
statement [that McQueen destroyed the girls’ basketball program] implies verifiable facts regarding
McQueen’s performance and conduct as a basketball scout and coach. The statement at issue was not
uttered by an irate fan during a hotly contested basketball game or by a sports commentator, but by
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21. The communications made by Defendant Allison regarding
Plaintiff during this period were false, were made with malice
(as Defendant leveraged its continued business relationship
with Ternes—which was at that time in re-bid negotiations—
to defame Plaintiff and secure her termi[n]ation), and were
published through inter-company communications between
Allison and Ternes . . . and through intra-company
communications within Ternes itself.
22. Defendant Allison . . . made these communications without
belief or grounds for belief in their truth, as at the time Plaintiff
went on leave she had no disciplinary record or pending
complaints whatsoever regarding her performance in the
provision of bundled services to Allison.
Appellant’s App. Vol. II pp. 11-12 (emphasis added).
[18] Allison Transmission specifically challenges the malice element of Mourning’s
defamation claim. Allison Transmission makes the same argument that it did
with respect to the absence-of-justification element of Mourning’s tortious-
interference claim, that is, it argues that Mourning’s factual allegations for the
malice element address “how Allison allegedly caused M[s]. Mourning’s
termination, not why,” which is not enough. Appellee’s Br. p. 19.
another coach, a professional colleague. At this early stage in the litigation, we must infer there was a
factual predicate for Miller’s statement of McQueen’s job performance and that those within earshot
understood his statement to be grounded in fact. Thus, McQueen’s complaint is sufficient on its face,
and it would be premature to dismiss the complaint [pursuant to Trial Rule 12(B)(6)].”).
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[19] But malice for purposes of tortious interference is different than malice for
purposes of defamation. In the defamation context, the actual-malice element
is not to be confused with the ordinary definition of malice as “an evil intent or
motive arising from spite or ill will.” McCollough v. Noblesville Schs., 63 N.E.3d
334, 348 (Ind. Ct. App. 2016) (quotation omitted), trans. denied. Rather, actual
malice as an element of defamation exists when the defendant publishes a
defamatory statement “with knowledge that it was false or with reckless
disregard of whether it was false or not.” Id. (quotations omitted). Here,
Mourning included parenthetical information after it alleged that Allison
Transmission made the defamatory statements with “malice”:
21. The communications made by Defendant Allison regarding
Plaintiff during this period . . . were made with malice (as
Defendant leveraged its continued business relationship with
Ternes—which was at that time in re-bid negotiations—to
defame Plaintiff and secure her termi[n]ation) . . . .
Appellant’s App. Vol. II p. 12 (emphasis added). Although this parenthetical
information does not address the “actual malice” standard for defamation,
Mourning alleged in Paragraph No. 22 that Allison Transmission made the
false communications “without belief or grounds for belief in their truth.”5 This
5
Anticipating that Allison Transmission would claim the common-interest privilege, see McCollough, 63
N.E.3d at 348 (explaining that this privilege applies to communications made in good faith on any subject
matter in which the party making the communication has an interest if made to a person having a
corresponding interest), Mourning alleged in Paragraph No. 22 that Allison Transmission abused this
privilege as follows:
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satisfies the specificity required for stating actual malice in a defamation suit
under our notice-pleadings rules, and the parenthetical information about
Allison Transmission leveraging its business relationship is mere surplusage.
See Miller by Miller v. Mem’l Hosp. of S. Bend, Inc., 679 N.E.2d 1329, 1332 (Ind.
1997) (the notice-pleading rule “is designed to discourage battles over mere
form of statement and to sweep away needless controversies that have occurred
either to delay trial on the merits or to prevent a party from having a trial
because of mistakes in statement” (quotation omitted)); see also Ind. Trial Rule
8(F) (“All pleadings shall be so construed as to do substantial justice, lead to
disposition on the merits, and avoid litigation of procedural points.”).
22. Defendant Allison made the foregoing defamatory communications in bad faith (as
Defendant willfully failed to abide by established procedure regarding staffing requests or
complaints/discipline directed to Ternes Packaging, and as Defendant leveraged its
continued business relationship with Ternes which was at that time in re-bid
negotiations), excessively published them through numerous conversations over the
period of Plaintiff’s medical absence, and/or made these communications without belief
or grounds for belief in their truth, as at the time Plaintiff went on leave she had no
disciplinary record or pending complaints whatsoever regarding her performance in the
provision of bundled services to Allison.
Appellant’s App. Vol. II p. 12; see McCollough, 63 N.E.3d at 348 (explaining that plaintiff can show
an abuse of this privilege in one of three ways: (1) the communicator was motivated primarily by
ill will (absence of good faith); (2) the communication was published excessively; or (3) the
communication was made without belief or grounds for belief in its truth). Mourning’s allegation
that Allison Transmission published the communications excessively through numerous
conversations is sufficient to withstand Allison Transmission’s Trial Rule 12(B)(6) challenge. See
Appellee’s Br. p. 24 (Allison Transmission explaining that whether its statements are subject to the
privilege is a “typical Rule 12(B)(6) analysis”).
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[20] We reverse the dismissal of Mourning’s defamation claim and remand this case
to give Mourning an opportunity to amend her tortious-interference claim once
as of right pursuant to Trial Rule 15(A).6 See T.R. 12(B).
[21] Reversed and remanded.
Bradford, J., and Brown, J., concur.
6
Allison Transmission argues that giving Mourning an opportunity to amend her complaint would be a
“fleeting victory” because collateral estoppel “would then bar her suit based on the recent summary judgment
in federal court . . . .” Appellee’s Br. p. 25. Because Allison Transmission does not list the elements of
collateral estoppel or explain how they apply to the facts in this case, this argument is waived.
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