UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION

LORENA E. BOSTIC, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:15-CV-429-PRC

) 

SALVADOR VASQUEZ, CLARENCE D. ) 

MURRAY, DIANE ROSS BOSWELL, THOMAS )

P. STEFANIAK, JR., SAMUEL L. CAPPAS, ) 

JAN PARSONS, and MIROSLAV RADICESKI, ) 

Defendants. )

)

)

MIROSLAV RADICESKI, )

Crossclaimant, )

)

v. )

) 

STATE OF INDIANA and THE LAKE COUNTY ) 

SUPERIOR COURT, CRIMINAL DIVISION, )

Crossclaim Defendants. )

OPINION AND ORDER

This matter is before the Court on the State Defendant’s Motion for Judgment on the 

Pleadings on Miroslav Radiceski’s Cross-Claim [DE 114], filed by Crossclaim Defendants State of 

Indiana and Lake County Superior Court, Criminal Division (collectively, “State Defendants”) on 

May 1, 2018. Crossclaimant Miroslav Radiceski filed a response on June 11, 2018, and the State 

Defendants filed a reply on June 18, 2018.

On November 25, 2015, Plaintiff Lorena E. Bostic filed a Complaint against the State of 

Indiana; Lake County, Indiana; Lake County, Indiana, Board of Commissioners; Roosevelt Allen; 

Gerald J. Scheub; Michael C. Repay; Salvador Vasquez; Clarence D. Murray; Diane Ross Boswell; 

Thomas P. Stefaniak, Jr.; Samuel L. Cappas; Jan Parsons; and Miroslav Radiceski. On December 

1, 2015, Plaintiff filed an Amended Complaint against the same Defendants.
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This case relates to incidents that allegedly occurred while Plaintiff was a probationer in 

Lake County, Indiana. On March 26, 2013, Defendant Miroslav Radiceski became Plaintiff’s 

Probation Officer. Plaintiff alleges that during the course of his time as her Lake County Probation 

Officer, Radiceski engaged in an inappropriate, harmful, and illegal course of conduct. Specifically, 

Plaintiff alleges that Radiceski subjected her to “repeated acts of non-consensual, forcible, sexual 

and non-sexual behavior and deprivations of her liberty,” which culminated in an incident on 

November 26, 2013. (ECF 81, ¶¶ 19, 22). Plaintiff alleges that, in retaliation for her resisting his 

misconduct, on November 26, 2013, Radiceski filed a malicious and meritless Petition to Revoke 

her probation.

On February 8, 2016, motions to dismiss were filed by Miroslav Radiceski, by Jan Parsons, 

and collectively by Defendants Salvador Vasquez, Clarence D. Murray, Diane Ross Boswell, 

Thomas P. Stefaniak, Jr., and Samuel L. Cappas (collectively the “Superior Court Judge 

Defendants”) with the State of Indiana.

Also on February 8, 2016, Defendants Lake County, Indiana; Lake County, Indiana, Board 

of Commissioners; Roosevelt Allen; Gerald J. Scheub; and Michael C. Repay (collectively the 

“Lake County Defendants”) filed an Answer and a Crossclaim against Defendant State of Indiana. 

(ECF 34). Count I of the Crossclaim alleged that the State of Indiana is liable to the Lake County 

Defendants for all or part of the claims and damages asserted against them in Plaintiff’s negligence 

claim. Count II alleged that the State of Indiana has a duty to defend state employees in civil suits 

and, thus, must pay the defense of Defendants Parsons and Radiceski, seeking both a declaratory 

judgment as well as a judgment for damages.
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On September 27, 2016, then-presiding Judge James T. Moody issued an Opinion and Order 

granting in part and denying in part the three motions to dismiss, effectively dismissing Defendant 

State of Indiana from the Complaint.

On August 31, 2017, the parties orally agreed on the record to have this case assigned to a 

United States Magistrate Judge to conduct all further proceedings and to order the entry of a final 

judgment in this case. Therefore, the undersigned Magistrate Judge has jurisdiction to decide this 

case pursuant to 28 U.S.C. § 636(c).

On July12, 2017, the Superior Court Judge Defendants filed a Motion for Judgment on the 

Pleadings on Plaintiff’s Amended Complaint, which the Court granted on October 2, 2017, 

dismissing without prejudice Plaintiff’s remaining claims against the Superior Court Judge 

Defendants.

On November 8, 2017, Plaintiff filed a Motion for Leave to File Second Amended 

Complaint. On December 8, 2017, the Court granted in part and denied in part the motion, ordering 

Plaintiff to file the Second Amended Complaint with specific modificationsto reflect the remaining 

parties and claims based on the prior rulings.

On December 15, 2017, Plaintiff filed the Second Amended Complaint against the Superior 

Court Judge Defendants individually, Jan Parsons, and Miroslav Radiceski. The Second Amended 

Complaint containstwo counts—for constitutional violations under 42 U.S.C. § 1983 and for willful 

and wanton misconduct under Indiana state law. The Lake County Defendants and the State of 

Indiana are not defendants in the Second Amended Complaint.

On January 17, 2018, Radiceski filed an Answer to the Second Amended Complaint and a 

Crossclaim against the “State of Indiana and/or Lake County Superior Court, CriminalDivision.”
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(ECF 90, p. 28). On February 1, 2018, the State Defendants filed an Answer to Radiceski’s 

Crossclaim.

On January 22, 2018, the State of Indiana filed a Motion for Judgment on the Pleadings on 

the Lake County Defendants’ Crossclaim (ECF 93); although the Lake County Defendants were no 

longer Defendants at that point, their Crosslcaim—filed on February 8, 2016, in the Answer to 

Plaintiff’s Amended Complaint—was still pending. On April 13, 2018, the Court granted the State 

of Indiana’s Motion for Judgment on the Pleadings on the Lake County Defendants’ Crossclaim. 

(ECF 113).

On May 1, 2018, the State Defendants filed the instant Motion for Judgment on the 

Pleadings, which is now fully briefed.

ANALYSIS

In the instant motion, Crossclaim Defendants State of Indiana and Lake County Superior 

Court,Criminal Division (collectively “State Defendants”)seek judgment on the pleadings pursuant 

to FederalRule ofCivil Procedure 12(c) on MiroslavRadiceski’sCrossclaim, pleaded in his Answer 

to the Second Amended Complaint on January 17, 2018. See (ECF 90, p. 28) (Radiceski’s 

Crossclaim). Rule 12(c) provides that a party may move for judgment on the pleadings after the 

complaint and answer have been filed. See Fed. R. Civ. P. 12(c); Supreme Laundry Serv., LLC v. 

Hartford Cas. Ins. Co., 521 F.3d 743, 746 (7th Cir. 2008). Rule 12(c) motions are evaluated under 

the same standard as a motion to dismiss under FederalRule of Civil Procedure 12(b)(6), which tests 

the sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chi., 910 F.2d 

1510, 1520 (7th Cir. 1990).
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In ruling on such a motion, the Court accepts as true all of the well-pleaded facts alleged by 

the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th 

Cir. 2008). To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must 

first comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the 

pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of 

what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting 

Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 

Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see 

also Tamayo, 526 F.3d at 1082.

Federal Rule of Civil Procedure 13(g) governs crossclaims:

(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim 

by one party against a coparty if the claim arises out of the transaction or occurrence 

that is the subject matter of the original action or of a counterclaim, or if the claim 

relatesto any property that isthe subject matter of the original action. The crossclaim 

may include a claim that the coparty is or may be liable to the cross-claimant for all 

or part of a claim asserted in the action against the cross-claimant.

Fed. R. Civ. P. 13(g). Radiceski brings the Crossclaim against the State of Indiana and the Lake 

County Superior Court, Criminal Division, even though neither is a party to the Second Amended 

Complaint; the parties do not address whether the Crossclaim could have been brought as a Third 

PartyComplaint. See ZF Steering Sys., LLC v. Busche Enter. Div., Inc., No. 1:12-CV-316, 2013 WL 

1856982, at *7-8 (N.D. Ind. May 2, 2013) (finding that a crossclaim—brought by a defendant 

against whom the case had been stayed—against a former co-defendant who had been dismissed 

from the case was not properly before the court because of the stay against the defendant and
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because the crossclaim was not brought as part of a pleading); Fed. R. Civ. P. 14(a) (“A defending 

party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be 

liable to it for all or part of the claim against it.”). Nevertheless, because the Court could excuse the 

error if there were no prejudice and because the State Defendants have not objected on this 

procedural ground, the Court considers the merits of the Motion for Judgment on the Pleadings as 

to Radiceski’s Crossclaim. See id. at *8 (recognizing that the court could excuse the error if no party 

would be prejudiced but finding that the plaintiff would be prejudiced).

In Counts I and II of the Crossclaim, Radiceski alleges that he is a state employee and seeks 

from the State Defendantsindemnification for his defense and for any damages asserted against him 

by Plaintiff. The State Defendants argue that they are not liable under either Count I or Count II, 

asserting that the county, and not the State Defendants, should bear the cost of Radiceski’s defense 

as well as any judgment entered against him.

Radiceski’s claims are brought under the Court’s supplemental jurisdiction pursuant to 28

U.S.C. § 1367(a), which providesthat “the court hassupplemental jurisdiction over all other claims 

that are so related to claimsin the action within [the court’s] original jurisdiction that they form part 

of the same case or controversy under Article III of the United States Constitution.” However, § 

1367(c) provides that the court may “decline to exercise supplemental jurisdiction over a claim 

under subsection (a) if:”

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the 

district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original 

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for 

declining jurisdiction.
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28 U.S.C. § 1367(c).

The legal issue at the heart of the Crossclaim is whether Radiceski, as a probation officer, 

is a county or state employee for purposes of determining whether the county or the state should 

defend and indemnify him. The legal issues are identical to those raised by the Lake County 

Defendants against the State of Indiana in their Crossclaim. See (ECF 34). In its April 13, 2018 

Opinion and Order dismissing the Lake County Defendants’ Crossclaim, the Court declined to 

accept jurisdiction over the LakeCounty Defendants’s claims against the State of Indiana. See (ECF 

113). The Court does the same here for the same reason. The question of defense and 

indemnification of a probation officer in Indiana is a pure issue of Indiana state law that does not 

appear to have been directly answered by the courts and that the Crossclaim parties dispute as set 

forth in their briefs. The determination of defense and indemnification is wholly separate from the 

factual and legal issues in this litigation between Plaintiff and the remaining defendants. Radiceski 

and the State Defendants are non-diverse, Indiana parties. As such, Indiana courts have a strong 

interest in resolving this claim. Finally, the State of Indiana has asserted Eleventh Amendment 

immunity to the extent Count I of the Crossclaim is a suit for damages.

Therefore, the Court, in its discretion, declines to exercise supplemental jurisdiction over 

Radiceski’s Crossclaim because it involves a novel issue of state law and because compelling 

reasons exist for declining jurisdiction. The Court declines Radiceski’s invitation to certify the 

question to the Indiana Supreme Court. See Howlett v. Hack, 794 F.3d 721, 729 (7th Cir. 2015).
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CONCLUSION

Based on the foregoing, the Court hereby GRANTS the State Defendant’s Motion for 

Judgment on the Pleadings on Miroslav Radiceski’s Cross-Claim [DE 114]. The Court ORDERS 

that Miroslav Radiceski’s Crossclaim [DE 90] is DISMISSED without prejudice.

SO ORDERED this 20th day of June, 2018.

s/ Paul R. Cherry

MAGISTRATE JUDGE PAUL R. CHERRY 

UNITED STATES DISTRICT COURT