IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KAREN DOSWELL, )

)

Plaintiff, )

) CAUSE NO. 3:15-CV-441

vs. )

)

TANGLEWOOD TRACE AND )

MAXIM STAFFING ) 

SOLUTIONS, )

)

Defendants.

OPINION AND ORDER

This matter is before the Court on the: (1) “Defendant, Maxim

Healthcare Services, Inc. D/B/A Maxim Staffing Solutions’ Motion to

Dismiss,” filed by Defendant, Maxim Healthcare Services, Inc. D/B/A

Maxim Staffing Solutions, on February 23, 2016 (DE #33); and (2)

“Defendant CW LLC D/B/A Tangelwood [sic.] Trace’s Motion to Dismiss

Plaintiff’s Amended Complaint,” filed by Defendant, CW LLC d/b/a

Tanglewood Trace, on February 26, 2016 (DE #35). For the reasons

set forth below, both motions to dismiss (DE #33, #35) are GRANTED.

The Clerk is ORDERED to DISMISS all claims in the First Amended

Complaint (DE #29) WITH PREJUDICE. Additionally, the Clerk is

ORDERED to CLOSE this case. 

BACKGROUND

On September 28, 2015, Plaintiff, Karen Doswell (“Doswell”),
filed a complaint against Defendants Tanglewood Trace, Maxim

Staffing Solutions, and CW LLC doing business as Tanglewood Trace

(DE #1). Defendant, Tanglewood Trace, filed a motion to dismiss on

December 21, 2015 (DE #21), but then Doswell filed an amended

complaint (DE #29). Consequently, Tanglewood’s motion to dismiss

was denied as moot (DE #32). 

After the filing of the first amended complaint, the instant

motions to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) were filed by Defendant, Maxim Healthcare Services, d/b/a

Maxim Staffing Solutions (“Maxim”) (DE #33), and Defendant, CW LLC

d/b/a Tanglewood Trace (“Tanglewood Trace”) (DE #35). Doswell

filed a motion to amend the complaint again (DE #37), the

Magistrate Judge denied the motion to amend (DE #42), and denied a

motion for reconsideration (DE #46). 

In response to the motions to dismiss, Doswell referred the

Court to her earlier response to the initial motion to dismiss (DE

##41, 28). Tanglewood Trace also filed a reply to the initial

motion to dismiss (DE #30). As such, these motions are fully

briefed and ripe for adjudication. 

DISCUSSION

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to

be dismissed if it fails to “state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). Allegations other than fraud

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and mistake are governed by the pleading standard outlined in

Federal Rule of Civil Procedure 8(a), which requires a “short and

plain statement” that the pleader is entitled to relief. However,

fraud and constructive fraud claims are subject to the heightened

Rule 9(b) pleading standards. Cincinnati Life Ins. Co. v.

Grottenhuis, No. 2:10-cv-00205-LJM-WGH, 2011 WL 1107114, at *8

(S.D. Ind. Mar. 23, 2011) (it is “undisputed that the constructive

and actual fraud claims are subject to heightened Rule 9(b)

pleading standards.”).

In order to survive a Rule 12(b)(6) motion, the complaint

“must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face’.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must

be accepted as true, and all reasonable inferences from those facts

must be resolved in the plaintiff’s favor. Pugh v. Tribune Co.,

521 F.3d 686, 692 (7th Cir. 2008). However, plaintiffs may plead

themselves out of court if the complaint includes allegations that

show they cannot possibly be entitled to the relief sought. 

McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

Facts

On January 28, 2014, Doswell was employed by Maxim, a medical

personnel temporary staffing agency. (Am. Compl. ¶ 8.) She was a

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nursing assistant. Doswell alleges that during orientation in

November 2013, Maxim showed her a video which promised to defend

her license if an incident occurred which impacted her license.

(Id. ¶ 9.) 

On January 28, 2014, Doswell was sent by Maxim to Tanglewood

to provide resident care for the second shift from 2:00 p.m.-10:00

p.m. (Id. ¶ 10.) Doswell claims she had been assigned by Maxim to

Tanglewood on approximately a dozen occasions, and she was

typically assigned to a hallway as “extra staff or to assist with

a particular duty such as ‘showers.’” (Id. ¶ 11.) Doswell alleges

Tanglewood was poorly run with many vacant rooms and informed Maxim

of this, and that she feared for her license. (Id. ¶ 12.) 

Doswell claims she was assigned to “assist Resident A with his

dinner and to assist him with getting into bed and ensure that

Resident A did not fall.” (Am. Comp. ¶ 14(i)). Resident A had a

history of falls and had a diagnosis that “included: altered mental

status, confusion, hallucinations, exit seeking (elopement),

dementia, fall: injury to head.” (Id. ¶ 14(f-g).) After Resident

A was asleep for 30-40 minutes, Doswell left him alone in his

apartment to start some laundry for him and take her dinner break.

(Id. ¶ 14(l).) Doswell was outside smoking in her car in the

parking lot when she saw an ambulance arrive at Tanglewood because

Resident A was injured and needed transport to the hospital for

stitches. (Id. ¶ 15(b), (e).) Doswell claims that she was not

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told that Resident A required “one-on-one monitoring,” (id. ¶

14(i)), yet after the incident, the LPN on duty asked Doswell where

she had been since Resident A was a one-on-one case and she should

not have left him alone. (Id. ¶ 15(c).) 

The incident was reported to the Indiana Department of Health,

resulting in the temporary loss of Doswell’s license from October

7, 2014, to March 13, 2015, after the Department initially made a

finding of neglect. (Id. ¶¶ 13, 17.) Following Doswell’s appeal

and a hearing where evidence was presented to an Administrative Law

Judge (“ALJ”), Doswell’s license was reinstated. (Id. ¶¶ 18, 22.) 

The ALJ found that Doswell was not negligent in her care of

Resident A. (Id. ¶ 22.) 

The first amended complaint states this action is “based upon

Indiana law of libel and slander, breach of contract and fraud.”

(Id. ¶ 1.) Regarding the alleged defamatory statements, the first

amended complaint provides that the “operative events of this cause

revolve[] around the care of Resident A on January 28, 2014, . . .

and the reporting of Doswell to the Indiana Department of Health .

. . .” (Id. ¶ 13.) Doswell alleges “[t]he specific language of

the Complaint was something akin to: ‘on January 28, 2014, she

left her post without telling anyone after being told ‘don’t let

him fall,’ and Patient A fell and hurt himself.” (Id. ¶ 20.) The

first amended complaint further alleges “[b]ecause Resident A

should never have been accepted by Tanglewood Trace, an assisted

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living facility only, and because defendants placed blame and

maliciously started the license-revocation proceeding . . . knowing

that Doswell’s livelihood would be terminated constituted

unprivileged libel and slander.” (Id.)(emphasis in original). 

Doswell also alleges that “Tangelwood Trace made, and

Defendant Maxim, joint employers, allowed unprivileged false

statements of fact about Doswell causing her harm, and . . . acted

either negligently or with actual malice.” (Id. ¶ 25.) The first

amended complaint alleges that “Defendant Maxim breached the agency

contract with Ms. Doswell assuring Plaintiff that Maxim would

defend its nurses from complaints affecting their nurse’s licenses”

and “fraudulently presented the video described above, knowing that

it would not do anything to defend Ms. Doswell’s license.” (Id. ¶¶

27, 30.)

I. Count I - Libel and Slander

Count I alleges that Defendants Maxim and Tanglewood Trace

maliciously started the license-revocation proceeding, and made

false statements about Doswell, causing her harm. (Am. Compl., pp.

6-7.) Both Maxim and Tanglewood Trace argue that reporting patient

injuries where there is possible neglect to the Indiana Department

of Health cannot form the basis of a defamation claim because the

reporting is required by law, and any statements made are immune

under the absolute privilege for statements made in judicial and

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quasi-judicial proceedings. 

Defendants Maxim and Tanglewood Trace both set forth that they

had a legal obligation to report Patient A’s injury to the Indiana

Department of Health, Division of Health Care Education and

Quality. (DE #34 at 4; DE #36 at 8.) Doswell was a nurse aide

while she was employed by Maxim, and 410 IAC 16.2-3.1-28(c)

establishes that “[t]he facility must ensure that all alleged

violations involving mistreatment, neglect, or abuse, including

injuries of unknown source, and misappropriation of resident

property, are reported immediately to the administrator of the

facility and other officials in accordance with state law through

established procedures, including to the state survey and

certification agency.” 410 IAC 16.2-3.1-28(c) (emphasis added). 

Doswell does not dispute this duty, or the legal obligation.

“Indiana law has long recognized an absolute privilege that

protects all relevant statements made in the course of a judicial

proceeding, regardless of the truth or motive behind the

statements.” Hartman v. Keri, 883 N.E.2d 774, 777 (Ind. 2008)

(citing Wilkins v. Hyde, 41 N.E. 536, 536 (1895); Van Eaton v.

Fink, 697 N.E.2d 490, 494 (Ind. Ct. App. 1998)). “The reason upon

which the rule is founded is the necessity of preserving the due

administration of justice, by providing actors in judicial

proceedings with the freedom to participate without fear of future

defamation claims.” Id.

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While Doswell claims that Indiana cases only refer to an

absolute privilege in “dicta and other loose talk” (DE #28 at 2),

Defendants cite Hartman in direct support of their argument that an

absolute privilege has been extended to quasi-judicial proceedings. 

In Hartman, students were sued by their instructor for defamation

and intentional interference with a contract after the students

filed a complaint against the instructor pursuant to the

university’s anti-harassment policy. 883 N.E.2d at 776. The Court

upheld summary judgment in favor of the students, finding the

absolute privilege applies to communication of students’ complaints

pursuant to the university’s anti-harassment policy because of the

“quasi-judicial” nature of the universities’ policies. Id. at 777-

79. Moreover, the Indiana Supreme Court explicitly stated in

Hartman that “Indiana law has long recognized an absolute privilege

that protects all relevant statements made in the course of

judicial proceedings, regardless of the truth or motive behind the

statements.” Id. at 777. 

In their reply memorandum, Tanglewood Trace goes on to cite a

number of cases applying the absolute privilege for statements made

in judicial proceedings. See, e.g., Estate of Mayer v. Lax, Inc.,

998 N.E.2d 238, 247-49 (Ind. Ct. App. 2013) (finding statements

made in counterclaim were protected by the absolute privilege for

statements made during judicial proceedings); Miller v. Reinert,

839 N.E.2d 731, 735-36 (Ind. Ct. App. 2005) (holding statements

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made in appellate brief were absolutely privileged); Briggs v.

Clinton Cnty. Bank & Trust Co., 452 N.E.2d 989, 997 (Ind. Ct. App.

1983) (finding allegations in a Petition to Discharge, which were

relevant and pertinent, were entitled to absolute privilege); Van

Eaton v. Fink, 697 N.E.2d 490, 494-95 (Ind. Ct. App. 1998);

Chrysler Motors Corp. v. Graham, 631 N.E.2d 7 (Ind. Ct. App. 1994)

(finding statements made in an affidavit filed in an attachment

proceeding were absolutely privileged). See also Sharkey v.

Cochran, No. 1:09-cv-0517-JMS-DKL, 2012 WL 967057, at *3 (S.D. Ind.

Mar. 21, 2012) (statements made in an application for protective

order are absolutely privileged and do no support a defamation

claim). Additionally, the absolute privilege for statements made

in judicial proceedings has been acknowledged by the United States

District Court for the Northern District of Indiana as existing

under Indiana law in Medical Informatics Eng’g, Inc. v.

Orthopaedics Northeast, P.C., 458 F.Supp.2d 716, 723 (N.D. Ind.

2006). The law is clear that Indiana courts recognize an absolute

privilege for judicial proceedings and that Hartman specifically

extended that privilege to quasi-judicial proceedings as well. 

Here, it is clear this is a judicial or quasi-judicial

proceeding. The proceeding was governed by the Administrative

Orders and Procedures Act, IC 4-21.5. The reporting of the

incident resulted in an investigation by the Indiana Department of

Health pursuant to 42 C.F.R. § 483.156, findings, a right to

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appeal, a hearing before an Administrative Law Judge where evidence

was presented, and an issuance by the Administrative Law Judge of

findings of fact and conclusions of law. (Am. Compl. ¶¶ 14, 17,

18, 22.) As noted before, Maxim and Tanglewood had a legal

obligation imposed by 410 I.A.C. 16.2-3.1-28(c), to report Patient

A’s injury to the Indiana Department of Health. As such, any

communication with the Indiana Department of Health was made in the

course of a judicial or quasi-judicial proceeding, and is covered

by an absolute privilege. 

Doswell also argues that in cases like this, “where a license

or livelihood is attacked . . . only a qualified privilege” exists,

not an absolute privilege. (DE #28 at 3.) The only case Doswell

cites in support of this proposition is Blubaugh v. Am. Contract

Bridge League, No. IP 01-358-C/H/K, 2004 WL 392930 (Feb. 18, 2004),

which was decided before Hartman. In Blubaugh, a professional

bridge player sued a bridge league for claims of, inter alia,

defamation stemming from the league’s decision to suspend him. 

There were several causes of actions and defamatory statements at

issue, but the first group of statements were made in connection

with two disciplinary proceedings conducted to adjudicate the

league’s charges against the plaintiff. Id. at *10-11. The Court

found that as a matter of law, the statements were “protected by a

qualified privilege” for “[s]tatements made in the context of

fraternal associations or societies” without analyzing whether they

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could have been protected by an absolute privilege. Id. at *11. 

Thus, Blubaugh dealt with a fraternal association, plus was decided

before Hartman (extending an absolute privilege to quasi-judicial

proceedings). Blubaugh is inapplicable to the present facts, where

case law is clear that an absolute privilege applies to statements

made in judicial and quasi-judicial proceedings. 

Doswell also contends that “our mere allegation of falsity in

our complaint” precludes dismissal. (DE #28 at 3.) In support,

Doswell cites Sanders v. Stewart, 298 N.E.2d 509 (Ind. Ct. App.

1973). However, that case dealt with whether a written statement,

requested by and furnished to, the Indiana Employment Security

Division (“IESD”), was privileged, and if so, which privilege

applied. Sanders involved a nurse’s aide employed by defendant,

who was fired, and subsequently applied with the IESD for

unemployment compensation. The IESD sent her a form to complete

for benefits, and in it, the defendant stated the reasons she was

discharged, and it was the statement of reasons that the plaintiff

contended was libelous. Id. at 510. The defendant contended that

the statute at issue extended an absolute privilege to the

defendant. The statute provided, inter alia, that “[a]ny testimony

or evidence submitted in due course before the board, review board,

a referee, or any duly authorized representative or any of them

shall be deemed a communication presumptively privileged with

respect to any civil action except actions to enforce the

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provisions of this act.” Id. at 511. The Court ruled the phrase

“presumptively privileged” recognized a qualified privilege, rather

than an absolute privilege, on statements made to the IESD. Id. at

511-12. However, Sanders is specific to statements made to the

IESD, within the unemployment context. As such, Sanders is simply

inapplicable to this case, and the allegation that the statements

are false cannot save Doswell’s claims. The Indiana Supreme Court

explicitly stated in Hartman that “Indiana law has long recognized

an absolute privilege that protects all relevant statements made in

the course of judicial proceedings, regardless of the truth or

motive behind the statements.” Hartman, 883 N.E.2d at 777. In

sum, the statements at issue in this case are protected by an

absolute privilege, and dismissal is warranted on this basis for

Count I.1

II. Count II - Breach of Contract

Maxim argues in regard to Count II that Doswell has failed to

state a claim upon which relief can be granted. “The essential

elements of a breach of contract action are the existence of a

contract, the defendant’s breach thereof, and damages.” Berkel &

Co. Contractors, Inc. v. Palm & Assocs., Inc., 814 N.E.2d 649, 655

1

 Tanglewood Trace argues that dismissal is additionally appropriate on

these claims because Doswell has failed to specifically plead the defamation

claims. Because the defamation claims are disposed of due to absolute

privilege, the Court need not reach this argument. 

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(Ind. Ct. App. 2004). Doswell asserts Maxim contracted to defend

its nurses from complaints involving their licenses; however, 

Maxim argues Doswell failed to assert a breach of that contract. 

For example, Maxim points out that Doswell never alleged that Maxim

was notified of the Administrative Hearing, or that Doswell ever

asked Maxim to defend her license. 

Tanglewood Trace joins this argument, plus urges that an

orientation video cannot create a contract of employment. Indeed,

there are cases finding that an employee handbook does not create

a contract of employment. See, e.g., Harris v. Brewer, 49 N.E.3d

632, 640-42 (Ind. Ct. App. 2015) (finding employee handbook did not

create a contract). Tanglewood Trace argues that Doswell has not

alleged that a valid contract existed based upon an alleged promise

made during an orientation video. 

Doswell does not respond to any of these arguments. “Failure

to respond to an argument raised in a motion to dismiss results in

waiver.” Pelham v. Albright, No. 3:11 CV 99, 2012 WL 1600455, at

*5 (N.D. Ind. May 4, 2012) (citing Bonte v. United States Bank,

N.A., 624 F.3d 461, 466 (7th Cir. 2010)). “Additionally, if the

defendant presents plausible reasons why a complaint should be

dismissed, the Court has no responsibility to conduct research on

behalf of a plaintiff in order to discover whether the plaintiff

could prevail against the defendant’s plea for dismissal.” Gluck

v. WNIN Tri-State Public Media, Inc., No. 2-12-cv-32-JMS-DKL, 2012

13
WL 2953074, at *2 (S.D. Ind. July 18, 2012) (citing Kirksey v. R.J.

Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999)). 

Consequently, dismissal is appropriate for Count II. 

III. Count III - Fraud

Doswell attempts to assert a claim for fraud based upon an

orientation video wherein Maxim allegedly promised to “defend her

license,” but then did not defend Doswell during the administrative

hearing. The elements of a fraud claim in Indiana are a “material

misrepresentation of past or existing facts, which representation

is false, made with knowledge or reckless ignorance of its falsity,

which causes reliance to the detriment of the person relying upon

it.” First Nat’l Bank of New Castle v. Acra, 462 N.E.2d 1345, 1348

(Ind. Ct. App. 1984) (citation omitted). Maxim argues that because

Doswell failed to allege that Maxim was notified of an

administrative hearing, or that it was asked by Plaintiff to defend

her at the hearing and refused to do so, Plaintiff cannot

demonstrate that any alleged statements are false. Therefore,

Doswell has failed to sufficiently allege fraud. (DE #34 at 9.)

Tanglewood Trace reiterates this argument, plus additionally

argues that Doswell failed to plead a cognizable claim for fraud

because a promise to do something in the future cannot form a basis

for fraud. (DE #36 at 12-13.) Indeed, “actionable fraud cannot be

predicated upon a promise to do a thing in the future, although

14
there may be no intention of fulfilling the promise.” F. McConnell

& Sons, Inc. v. Target Data Sys., Inc., 84 F.Supp.2d 980, 985 (N.D.

Ind. 2000) (quoting Wright-Moore v. Ricoh Corp., 908 F.2d 128, 141

(7th Cir. 1990)). 

Doswell does not respond to any of these arguments. “Failure

to respond to an argument raised in a motion to dismiss results in

waiver.” Pelham, 2012 WL 1600455, at *5 (N.D. Ind. May 4, 2012).

Dismissal is therefore appropriate for Count III. Gluck, 2012 WL

2953074, at *2 (S.D. Ind. July 18, 2012). 

CONCLUSION

For the reasons set forth above, “Defendant, Maxim Healthcare

Services, Inc. D/B/A Maxim Staffing Solutions’ Motion to Dismiss”

(DE #33) and “Defendant CW LLC D/B/A Tangelwood [sic.] Trace’s

Motion to Dismiss Plaintiff’s Amended Complaint” (DE #35) are BOTH

GRANTED. The Clerk is ORDERED to DISMISS all claims in the First

Amended Complaint (DE #29) WITH PREJUDICE. Additionally, the Clerk

is ORDERED to CLOSE this case. 

DATED: July 12, 2016 /s/ RUDY LOZANO, Judge

United States District Court

 

 

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