IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

PAUL FLETCHER, )

)

Plaintiff, )

) Cause No. 2:14-CV-231

vs. )

)

HOEPPNER WAGNER & EVANS, )

LLP, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Defendant, Hoeppner

Wagner & Evans, LLP’s Response and Renewed Motion to Dismiss

Plaintiff’s complaint, filed by Defendant, Hoeppner Wagner & Evans,

LLP, on March 9, 2015 (DE #39). For the reasons set forth below,

the motion (DE #39) is DENIED. 

BACKGROUND

Plaintiff, Paul Fletcher, filed his complaint pro se on July

7, 2014, alleging legal malpractice against the law firm Hoeppner

Wagner & Evans, LLP (hereinafter “HWE”), Shambaugh, Kast, Beck &

Williams, LLP, and Wayne Golomb, an individual. On January 12,

2015, HWE filed a motion to dismiss for failure to state a claim

and lack of subject matter jurisdiction, claiming the Court lacked

diversity jurisdiction and the legal malpractice claim was barred
by the applicable two-year statute of limitations. (DE #25). 

Subsequently, Plaintiff filed an amended complaint on March 6, 2015

(DE #38). Because there was a new complaint, the Court then denied

as moot HWE’s motion to dismiss (DE #41).

HWE filed the instant motion to dismiss for failure to state

a claim in the amended complaint (DE #39) and this Court also

allowed it to incorporate previous argument and case law in support

of the pending motion to dismiss. (DE #43.) The only claim HWE

now makes is that the alleged acts of legal malpractice occurred

two years before the filing of Plaintiff’s complaint, and are

therefore barred by the statute of limitations. Plaintiff filed a

response to the instant motion to dismiss on March 23, 2015 (DE

#44). To date, no reply has been filed. Therefore, the motion is

fully briefed and ready for adjudication. 

DISCUSSION

Motion to Dismiss for Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) provides for the

dismissal of a complaint, or any portion of a complaint, for

failure to state a claim upon which relief can be granted. “To

survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (internal quotations omitted); see also Ray v. City of

Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (citation omitted)

(“While the federal pleading standard is quite forgiving . . . the

complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.”).

A complaint should not be dismissed for failure to state a

claim “unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to

relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Plus, Iqbal

requires that a plaintiff plead content which allows this Court to

draw a reasonable inference that the defendant is liable for the

alleged misconduct. 556 U.S. at 678.

In ruling on a motion to dismiss brought pursuant to Federal

Rule of Civil Procedure 12(b)(6), the court must draw all

reasonable inferences that favor the plaintiff, construe the

allegations of the complaint in the light most favorable to the

plaintiff, and accept as true all well-pleaded facts and

allegations in the complaint. Thompson v. Ill. Dep't of Prof'l

Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v.

Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to

withstand a motion to dismiss, a complaint must allege the

“operative facts” upon which each claim is based. Kyle v. Morton

High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner,

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967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to

include allegations in the complaint that “plausibly suggest that

the plaintiff has a right to relief, raising that possibility above

a ‘speculative level’ ” and “if they do not, the plaintiff pleads

itself out of court.” E.E.O.C. v. Concentra Health Servs., Inc.,

496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Twombly, 550

U.S. at 569 n. 14 (2007)). “Factual allegations must be enough to

raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even

if doubtful in fact).” Twombly, 550 U.S. at 555 (quotation marks,

ellipsis, citations and footnote omitted). Thus, a “plaintiff must

do better than putting a few words on paper that, in the hands of

an imaginative reader, might suggest that something has happened to

her that might be redressed by the law.” Swanson v. Citibank,

N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).

Statute of Limitations

The factual allegations do not need to be parsed through at

this point in the litigation. What is important, is Plaintiff

alleges malpractice against HWE in its representation of him in a

lawsuit pending in Lake County, Indiana, filed against Fidelity (a

stock brokerage service), and an individual named Mark Zupan. 

All parties agree that the statute of limitations for a claim

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of legal malpractice is two years. Ind. Code Ann. § 34-11-2-4. 

Both parties also agree that legal malpractice actions are subject

to the “discovery rule,” which provides the statute of limitations

does not begin to run until the plaintiff “knows, or in the

exercise of ordinary diligence could have discovered, that he had

sustained an injury as the result of the tortious act of another.” 

Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 764 (Ind. Ct.

App. 2003) (citing Morgan v. Benner, 712 N.E.2d 500 (Ind. Ct. App.

1999)). The only issue in this motion is whether Plaintiff timely

filed this lawsuit on July 7, 2014. HWE concedes that

“[g]enerally, a statute of limitations affirmative defense is not

susceptible to disposition on a rule 12(b)(6) motion to dismiss.” 

(DE #26, p. 9 quoting Salas v. Wisconsin Dept. Of Corrections, 493

F.3d 913 (7th Cir. 2007)).

In arguing the complaint was untimely, HWE first points to the

amended complaint, where by “mid-February 2012, Plaintiff was

becoming frustrated because he felt that HWE was not engaging in

necessary discovery in a timely manner, nor following up with

discovery requests responsive to deposition testimony and produced

documents.” (Am. Compl., DE #38 ¶ 60.) It also points to the

allegation that “[b]y June 2012, in frustration, Plaintiff withheld

payment of fees from HWE in an effort to get HWE’s attention and to

make sure that the discovery he wanted done would be undertaken and

completed.” (Id. ¶ 73.) The Court does not believe these

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allegations meet the necessary standard of the “discovery rule.” 

Indeed, Biomet holds the two year limitations period does not start

until the plaintiff knows that “he had sustained an injury as the

result of the tortious act of another.” 791 N.E.2d at 765. From

February 2012 to June 2012, while Plaintiff was frustrated with the

representation, there is nothing in the amended complaint that

shows he knew he had suffered an injury because of HWE’s

representation. The Court concurs with Plaintiff that no injury

occurred until after HWE was given leave to withdraw as Plaintiff’s

attorney on July 6, 2012, when a new judge was assigned to the case

and closed discovery without Plaintiff receiving the discovery he

wanted. (Am. Compl., DE #38, ¶¶ 73-74.) The amended complaint

alleges that as a result of failing to conduct discovery, Zupan was

granted summary judgment in the underlying case in May of 2013,

which caused damage to Plaintiff. (Id. ¶ 77.) 

Biomet goes on to adopt the “continuous representation

doctrine,” which holds “the statute of limitations does not

commence until the end of an attorney’s representation of a client

in the same matter in which the alleged malpractice occurred.” Id.

at 765. This rule:

[I]s available and appropriate in those

jurisdictions (like Indiana) adopting the damage

and discovery rules. The policy reasons are as

compelling for allowing an attorney to continue his

efforts to remedy a bad result, even if some

damages have occurred and even if the client is

fully aware of the attorney’s error. The doctrine

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is fair to all parties concerned. The attorney has

the opportunity to remedy, avoid or establish that

there was no error or attempt to mitigate the

damages. The client is not forced to terminate

this relationship, though the option exists. The

result is consistent with all expressed policy

bases for the statute of limitations. 

791 N.E.2d at 766. Even assuming, arguendo, that Plaintiff did

know of his injury and suffered damage in June of 2012 (as HWE

contends), the complaint would still be timely under the continuous

representation rule. HWE’s representation of Plaintiff terminated

on July 6, 2012. (Pl.’s Ex. 1, ¶ 73.) Plaintiff had until July 6,

2014 (2 years after the attorney client relationship terminated) to

file his legal malpractice cause of action. July 6, 2014 fell on

a Sunday, so Plaintiff actually had until July 7, 2014 to file his

complaint, and that is the exact date he filed this action. (DE

#1). As such, Plaintiff’s complaint is timely.

CONCLUSION

For the reasons set forth above, Defendant, Hoeppner Wagner &

Evans, LLP’s Response and Renewed Motion to Dismiss Plaintiff’s

complaint (DE #39) is DENIED. 

DATED: April 22, 2015 /s/ RUDY LOZANO, Judge

United States District Court 

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