John Maley: Finding your way through a procedural potpourri

Each month federal judges in Indiana address multiple civil procedural issues in written opinions. Few get attention, but most address recurring issues and are informative for federal practitioners.

In the Southern District, these are easily found on a little-known page on the court’s website. Specifically, under the “Judge’s Information” menu item with pull-down options, the first is Court Opinions. See www.insd.uscourts.gov/court-opinions.

At that link anyone can search for free the Southern District’s opinions, specifying date ranges and authoring judge. Also at that link there is a cross-reference to the Government Printing Office’s Federal Digital System, which contains opinions from participating federal courts across the country in full searchable pdf format (including the Southern District of Indiana). Of course there are other sources for searching Indiana federal court decisions, but the Southern District’s “Court Opinions” option is a quick tool for searches, particularly of a particular jurist.

As an admitted procedural nerd, the undersigned periodically skims this section of the court’s website, for instance reviewing the last month’s opinions. Beyond reaffirming how busy Indiana’s federal judges are with the breadth and volume of decisions, there are always informative procedural opinions. For today’s column, four opinions on diverse and recurring procedural issues are highlighted.

Service of process: In Yamamoto-Castillo v. American Express, 1:24-cv-01364-SEB-KMB (S.D. Ind. April 29, 2025), Judge Barker dismissed a contract action for lack of service of process. The action was initiated in state court, defendant removed, then defendant moved to dismiss for lack of summons being included in service.

Applying Indiana law to pre-removal service, Judge Barker held that Indiana Trial Rules require the summons to be included with the complaint in service of process. Further, the attempted service was otherwise defective for not being directed – as required by Trial Rule 4.6 – to an executive officer or agent of the corporate defendant. Nor, post-removal, was defective service cured under the Federal Rules. Finally, plaintiff had not attempted to cure these deficiencies despite ample time, so good cause was not found for additional time.

Motion to compel: In Wright v. Nelson, 1:23-cv-01362-SEB-KMB (S.D. Ind. April 29, 2025), Magistrate Judge Barr granted in part and denied in part a pro se prisoner’s motion to compel. At issue were records relating to a broken toilet, which Judge Barr had twice ordered the defense to provide exacting detail of efforts to obtain one custodian’s emails. Judge Barr expressed displeasure in defense counsel’s conduct, including failing to respond as ordered. The opinion has a good discussion of relevant discovery standards and burdens.

Dismissal with prejudice, remand of state-law claims: In Hertog v. 1002 Sister Barbara Way Property, LLC, 4:24-cv-00093-TWP-KMB (S.D. Ind. April 23, 2025), Chief Judge Pratt dismissed with prejudice plaintiff’s Title VII claims, denied the motion to dismiss as to supplemental claims and remanded them to state court. In dismissing the Title VII claims with prejudice, Judge Pratt addressed precedent on with/without prejudice standards and ruled that plaintiff had multiple opportunities to amend her complaint to cure any deficiencies, including having the benefit of a prior motion to dismiss but failed to do so. As to the supplemental state-law claims, Judge Pratt traced and followed current case law on the presumption in favor of relinquishing jurisdiction when the federal claims are dismissed.

Motion to reconsider/jurisdictional discovery: In ICPEP, LLC v. SMC Specialty Finance, LLC¸1:24-cv-01819-JRS-KMB (S.D. Ind. May 28, 2025), Judge Barr granted a motion to reconsider an order allowing limited discovery for personal jurisdiction. The opinion includes a good discussion of standards for motion to reconsideration, as well as for conducting jurisdictional discovery.

The judge wrote: “Motions to reconsider “’serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.’” Id. The motion is to be used “where the Court has patently misunderstood a party or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” Id.

Judge Barr granted reconsideration because she originally believed, based on the prior filings, that defendant did not oppose limited discovery when in fact they did. As she explained, the original decision allowing limited discovery “was based at least in part on the erroneous belief that Defendants did not oppose the pending discovery motion and it was granted before Defendants’ time to file its opposition had passed.”

On the merits of the discovery issue, Judge Barr explained the standards, writing: “To secure jurisdictional discovery, a plaintiff must, at a minimum, ‘establish a colorable or prima facie showing of personal jurisdiction.’”

A court will generally allow jurisdictional discovery if the requesting party can show that “the factual record is at least ambiguous or unclear on the jurisdiction issue.” Id.. However, a party is not always entitled to this discovery, even for purposes of responding to a motion to dismiss for lack of personal jurisdiction. Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 312 (S.D. Ind. 1997). “Using their power to control discovery, courts should take care to ensure that litigation of the jurisdictional issue does not undermine the purposes of personal jurisdiction law in the first place.” Id.

The motion for jurisdictional was denied, with Judge Barr reasoning: “The Court reaches this conclusion primarily because these Parties are far from strangers to each other, as their extensive and detailed briefing on the various pending motions proves. In fact, these Parties are so well-known to each other than ICPEP filed its opposition brief to the Defendants’ Motion to Dismiss the same day it asked for leave to conduct the jurisdictional discovery. [See dkts. 15; 17.] In other words, ICPEP cannot contend that it does not already have enough information to oppose Defendants’ arguments regarding the Court’s personal jurisdiction over these Defendants because it has already filed a thirty-page brief opposing Defendants’ Motion to Dismiss on the merits. [Dkt. 17.] A review of that brief reveals that more than half of it is focused on setting forth extensive details about each of the Defendants and then comprehensively arguing why ICPEP believes that this Court has personal jurisdiction over them in this case. [See dkt. 17 at 1-21.] This is clearly not a situation where the party seeking the jurisdictional discovery is a ‘total stranger’ to the other party.”

Save the date: The Annual Federal Civil Practice seminar featuring Indiana federal judges is set for 1:30 to 4:45 p.m. Dec. 12 in Indianapolis, both live and virtual.•

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John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing employment law, federal and state litigation, and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as Chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana.