By Stephanie V. McGowan
The Indiana Rules of Trial Procedure closely resemble the Federal Rules of Civil Procedure. In fact, when interpreting the Indiana Rules of Trial Procedure, Indiana state courts commonly look to the federal court interpretations when applying the Indiana rule. See Davis ex rel. Davis v. Ford Motor Co., 747 N.E.2d 1146, 1149 n.1 (Ind. Ct. App. 2001) (interpreting Ind. R. Tr. P. 12); Porter Cnty. Sheriff Dept. v. Guzorek, 857 N.E.2d 363, 367 (Ind. 2006) (interpreting Ind. R. Tr. P. 15(C)); Associated Med. Networks, Ltd. v. Lewis, 824 N.E.2d 679, 685 (Ind. 2005) (interpreting Ind. R. Tr. P. 23); Stonger v. Sorrell, 776 N.E.2d 353, 355 (Ind. 2002) (interpreting Ind. R. Tr. P. 60(B)). Yet, while the Indiana Rules of Trial Procedure are similar to the Federal Rules of Civil Procedure, there are a few important differences. When litigating a case in either state or federal court it is important to be cognizant of these differences and adapt accordingly. This article highlights three differences between the state and federal rules of procedure at the three major stages of a case: after the filing of a complaint, during discovery, and preparing for summary judgment.
B. Indiana state courts apply a stricter standard in admitting evidence outside the pleadings for Rule 12(B)(6) and Rule 12(C) motions.
Both Rules 12(B)(6) and 12(C) of the Indiana Rules of Trial Procedure and Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure provide that if a motion presents matters outside the pleadings — and those matters are not excluded by the court — then the motion shall be treated as one for summary judgment. Ind. R. Tr. P. 12(B) and 12(C); Fed. R. Civ. P. 12(d). However, the federal and state rules of procedure allow for parties to request the court take judicial notice of certain facts. See Davis ex rel. Davis, 747 N.E.2d at 1149; Consol. Ins. Co. v. Nat’l Water Servs., LLC, 994 N.E.2d 1192, 1196 (Ind. Ct. App. 2013); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir. 1997) Ind. R. Evid. 201(b); Fed. R. Evid. 201(b).
When filing Rule 12(b)(6) or Rule 12(c) motions, federal courts also allow parties to include a broader category of documents than those allowed under the Indiana Rules of Trial Procedure. Federal courts have crafted a narrow exception to Rule 12(b)(6) and Rule 12(c) that allows for the inclusion of additional documents not allowed by their Indiana state counterparts. The Seventh Circuit allows courts to consider concededly authentic documents that are referred to in a complaint and are central to the plaintiff’s claim. Gillis v. Meisner, 525 Fed. Appx. 506, 508-509 (7th Cir. 2013) (citations omitted); Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). The purpose behind this narrow exception is to prevent a plaintiff from evading dismissal under Rule 12(b)(6) and Rule 12(c) simply by failing to attach a document to the complaint that shows the plaintiff’s claim lacks merit. Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002).
Rule 9.2 of the Indiana Rules of Trial Procedure states that a party must include an original or a copy of any written instrument with any pleading. While it may seem Rule 9.2 is analogous to the Seventh Circuit’s narrow exception, the Seventh Circuit’s allowance of additional documents is broader than merely “written instruments.” For example, the documents that the Seventh Circuit considered as central to the complaint include a board meeting transcript, news segment, fund prospectuses from a co-defendant’s website, EEOC charges, and audio-visual works such as television programs. See Brownmark Films, LLC, 682 F.3d at 690-91; Santana v. Cook Cnty. Bd. of Review, 679 F.3d 614, 619 (7th Cir. 2012); Hecker v. Deere & Co., 556 F.3d 575, 582-83 (7th Cir. 2009); Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014). Yet before running the risk of inadvertently converting a Rule 12(b)(6) or Rule 12(c) motion into one of summary judgment in federal court, counsel should consider whether the document is explicitly referred to in the plaintiff’s complaint and is central to the claim.
When deciding whether to file a Rule 12(B)(6) or Rule 12(C) motion in state court, it is important to remember that Indiana state courts restrict a party to a more limited category of documents than do the federal courts.
C. Indiana state courts allow for parties to initiate discovery upon the filing of a complaint.
Unlike its federal counterpart, Indiana’s Rule 26 allows a party to initiate discovery with the filing of its complaint. Rule 26(D) of the Indiana Rules of Trial Procedure states:
(D) Sequence and timing of discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.
Ind. R. Tr. P. 26(D); see also Amax Coal Co. v. Adams, 597 N.E.2d 350, 353 (Ind. Ct. App. 1992). Conversely, Rule 26(d) of the Federal Rules of Civil Procedures provides that:
(d) Timing and Sequence of Discovery.
(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.
(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
Fed. R. Civ. P. 26(d). The 2015 amendments to Rule 26(d)(2) permit “a party to deliver Rule 34 requests to another party more than 21 days after that party has been served even though the parties have not yet had a required Rule 26(f) conference.” Committee Notes on Rules – 2015 Amendments. But delivery of Rule 34 requests does not equate to service of Rule 34 requests. Id. If Rule 34 requests are delivered before the Rule 26(f) conference, then the date of service is the first Rule 26(f) conference. Id. This change regarding the delivery of Rule 34 requests was “designed to facilitate focused discussion during the Rule 26(f) conference.” Id.
When in federal court, parties need to craft their litigation strategy with Rule 26(d) in mind and avoid “jumping the gun.” For instance, if a party files for summary judgment before the parties hold a discovery conference under Rule 26(f), then the summary judgment motion may be susceptible to a Rule 56(f) motion. See Gottlieb v. United States, No. 1:06-cv-1387-DFH-TAB, 2007 WL 1068465, at *1-3 (S.D. Ind. Apr. 4, 2007). Parties may also show their hands too soon and end up in an unnecessary discovery fight if they subpoena a nonparty for a deposition before the Rule 26(f) conference. See Lumpkin v. Kononov et al., No. 2:12-cv-320, 2013 WL 1343666, at *1 (N.D. Ind. Apr. 3, 2013). On the other hand, if a plaintiff serves discovery prematurely in a federal case, then defense counsel can use this opportunity to gain additional insight into what the plaintiff may consider key issues in a case. Defense counsel can also use the opportunity of prematurely served discovery to argue for limiting the number of interrogatories, requests for admission, and depositions at the Rule 26(f) conference.
Thus, counsel should be aware of the differences in timing and sequencing of discovery in federal and state court, and strategize their case accordingly.
D. Indiana state courts apply a stricter standard in granting a party’s motion for summary judgment.
Both Rule 56 of the Indiana Rules of Trial Procedure and the Federal Rules of Civil Procedure are similar in their wording for granting summary judgment. The Indiana Rules of Trial Procedure state a court shall grant summary judgment if the movant shows “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.” Ind. R. Tr. P. 56(C) (emphasis added). While the Federal Rules of Civil Procedure provide that a court shall grant summary judgment if the movant shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). Despite the similarity in wording, the burden on the movant is heightened for those requesting summary judgment in Indiana state court.
In Hughley v. State, the Indiana Supreme Court reaffirmed Indiana’s heightened summary judgment standard. 15 N.E.3d 1000, 1003-04 (Ind. 2014). The Hughley court stated that “while federal practice permits the moving party to merely show that the party carrying the burden of proof lacks evidence on a necessary element, [Indiana] impose[s] a more onerous burden: to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (emphasis in original) (quotation omitted). The Hughley court also noted that even when a party will be unlikely to prevail at trial or a party provides a “perfunctory and self-serving” affidavit establishing a dispute of the material facts, it may be enough to defeat summary judgment. Id. at 1004.
By contrast, the federal court standard is more lenient. Unlike the Indiana standard, federal courts hold that there exists “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (emphasis in original). Furthermore, the federal standard states that “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Thus, in federal court, a moving party can assert that the nonmoving party has no admissible evidence to support its claims. Nor is a moving party required to anticipate the nonmoving party’s arguments and rebut those arguments when moving for summary judgment.
With the different standards in state and federal court, counsel should be prepared to develop the facts of their cases in ways that allow them to meet the different burdens and briefing requirements on summary judgment.
While there are many similarities between the Indiana Rules of Trial Procedure and the Federal Rules of Civil Procedure, there are also differences. Counsel should keep in mind the differences between the state and federal rules of procedure and craft their litigation strategies appropriately. Finally, if given the option to remove a case to federal court, counsel should consider the facts of the case, the client’s expectations, and whether state or federal court will better meet the client’s needs.•
Ms. McGowan is senior associate in the Indianapolis office of Frost Brown Todd. The opinions expressed in this article are those of the author.