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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

ANTHONY PARDUCCI 

 Plaintiff, 

 vs. 

EVELYN HUYNH, QUYNH PHUNG, and 

GOLDEN PHOENIX RESTAURANT, INC. 

 Defendants. 

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NO. 2:15-cv-392 

OPINION AND ORDER

 This matter is before the Court on “Defendants’ Trial Rule 

12(c) Motion for Judgment on the Pleadings,” filed by Defendants 

Quynh Phung and Golden Phoenix Restaurant, Inc., on May 18, 2016 

(DE #16). For the reasons set forth below, Defendants’ motion (DE 

#16) is DENIED.

BACKGROUND 

 In September 2015, Plaintiff Anthony Parducci (“Parducci”) 

filed a complaint against Evelyn Huynh (“Huynh”) in Indiana state 

court. (DE #3.) In October 2015, Huynh removed the case to 

federal court and filed an answer to the complaint. (DE ##1, 4.) 

On April 6, 2016, Parducci filed the First Amended Complaint for 

Damages and Jury Demand (“Complaint”), adding as defendants Quynh 

Phung and Golden Phoenix Restaurant, Inc. (together, 

“Defendants”). (DE #10.) Defendants filed their Answer and 
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Affirmative Defense to the Complaint on May 18, 2016. (DE #15.) 

They filed the instant motion for judgment on the pleadings the 

same day. (DE #16.) The parties have fully briefed the instant 

motion, and the Court is prepared to rule on it. 

FACTS 

The Court accepts as true, as it must when considering a 

motion for judgment on the pleadings, the following facts alleged 

in the Complaint. Forseth v. Village of Sussex, 199 F.3d 363, 368 

(7th Cir. 2000). On September 13, 2015, Parducci was a pedestrian 

in the parking lot located at 1715 US 41, in Schererville, Indiana, 

when he was struck by a vehicle owned and driven by Huynh, causing 

him injury. (Compl. ¶¶1-3.) Count II, the only count to mention 

Defendants, alleges that Huynh “was the agent, servant and/or 

employee of the [D]efendants,” and that they were negligent in 

hiring, supervising, training, and retaining Huynh. (Id. ¶¶5-6.) 

Count II alleges that Parducci was injured as a direct and 

proximate result of Defendants’ fault and negligence, and seeks 

compensatory damages and attorney’s fees. (Id. ¶7.) 

Defendants filed the instant motion for judgment on the 

pleadings, and submitted the Affidavit of Quynh Phung (“Phung”) in 

support of the motion. (DE #16-1.) Parducci filed an opposition 

brief to the motion, along with portions of the transcript of 

Huynh’s deposition. (DE #18 at 9-30.) Defendant Phung 
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subsequently filed a reply brief and the Affidavit of Huynh. (DE 

#22, #22-1.)

DISCUSSION 

Once a complaint and answer have been filed, a party may file 

a motion for judgment on the pleadings pursuant to Federal Rule of 

Civil Procedure 12(c). Moss v. Martin, 473 F.3d 694, 698 (7th 

Cir. 2007) (citation omitted). A court may rule on a Rule 12(c) 

motion based upon a review of the pleadings alone, which include 

the complaint, the answer, and any written instruments attached as 

exhibits. See Fed. R. Civ. P. 10(c) (“A copy of a written 

instrument that is an exhibit to a pleading is a part of the 

pleading for all purposes.”). “If, on a motion under Rule 12(b)(6) 

or 12(c), matters outside the pleadings are presented to and not 

excluded by the court, the motion must be treated as one for 

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Thus, 

the court “may (1) ‘convert the 12[(c)] motion into a motion for 

summary judgment under Rule 56 and proceed in accordance with the 

latter rule,’ or (2) ‘exclude the documents attached to the motion 

[for judgment on the pleadings] and continue under Rule 12.’” 

Tradewinds Glob. Logistics, LLC v. Garrett's Transp., LLC, No. 

115CV00608RLYDKL, 2015 WL 8362401, at *2 (S.D. Ind. Dec. 8, 2015) 

(quoting Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 

1998)). The court has discretion in determining which option to 

choose. Id. (citations omitted). 
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Here, both Parducci and Defendants submit evidence outside 

the pleadings in connection with the Rule 12(c) motion. Defendants 

submit the affidavits of Phung and Huynh in support of the motion. 

Parducci proffers the deposition testimony of Huynh in opposition 

to the motion. None of this evidence was mentioned in or attached 

to the pleadings. Yet Defendants specifically brought this motion 

under Rule 12(c) and used that procedural standard.1 Therefore, 

the Court excludes this evidence and will consider the merits of 

the motion under Rule 12(c). 

“A Rule 12(c) motion is governed by the same standards as a 

motion to dismiss for failure to state a claim under Rule 

12(b)(6).” Lodholtz v. York Risk Servs. Grp., Inc., 778 F.3d 635, 

639 (7th Cir. 2015). “[T]o survive a motion to dismiss under Rule 

12(b)(6), a complaint must state a claim to relief that is 

plausible on its face.” Id. (citations and internal quotation 

marks omitted). The Court must “accept all well-pleaded 

allegations in the complaint as true and draw all reasonable 

inferences in favor of the plaintiff” for the purposes of deciding 

Defendants’ motion. Forseth, 199 F.3d at 368. A Rule 12(c) motion 

should be granted “[o]nly when it appears beyond a doubt that the 

plaintiff cannot prove any facts to support a claim for relief and 

                                                            

1 Even if this Court were to convert this motion to a motion for summary 

judgment, it appears at this early stage in the proceedings that there is an 

issue of fact as to whether Huynh was Defendants’ agent. A motion for 

summary judgment may be more appropriate following the close of discovery in 

this case. 
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the moving party demonstrates that there are no material issues of 

fact to be resolved.” Moss, 473 F.3d at 698 (citations omitted). 

Count II of the Complaint alleges an employer liability claim 

against Defendants based on the doctrine of respondeat superior

and negligent hiring and retention of an employee. Under the 

respondeat superior doctrine, “an employer is liable for the acts 

of its employees which are committed within the course and scope 

of their employment.” Davis v. Macey, 901 F. Supp. 2d 1107, 1111 

(N.D. Ind. 2012) (quoting City of Fort Wayne v. Moore, 706 N.E.2d 

604, 607 (Ind. Ct. App. 1999)). The Davis Court also stated: 

As an alternative theory of employer liability, Indiana 

also recognizes a cause of action against an employer 

based on negligent hiring and retention of an employee. 

Employer liability under negligent hiring and retention 

is a separate and distinct cause of action from 

respondeat superior, and it accrues when an employee 

steps beyond the recognized scope of employment to 

commit a tortious injury upon a third party. 

Id. (internal citations and quotation marks omitted). Where, as 

here, the issue of respondeat superior has not been admitted, a 

“plaintiff could theoretically plead both theories of liability in 

the alternative.” Id. (quoting Clark v. Aris, Inc., 890 N.E.2d 

760, 765 (Ind. Ct. App. 2008)). 

Defendants move to dismiss Parducci’s employer liability

claim based solely on the assertion that Huynh was not their agent, 

servant or employee. They rely upon evidence that is outside the 

pleadings, and thus, is excluded from the Court’s consideration. 
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Count II of the Complaint clearly alleges that Huynh was “the 

agent, servant and/or employee of the [D]efendants.” (Compl. ¶5.) 

While Defendants deny this allegation in their Answer to the 

Complaint (DE #15 at ¶¶3-4), the Court must accept as true all 

well-pleaded allegations in the Complaint, and all reasonable 

inferences to be drawn from those allegations. Defendants have 

not demonstrated that there are no material issues of fact to be 

resolved as to Count II. Nor does it appear beyond a doubt that 

Parducci cannot prove any facts to support Count II. See Moss, 

473 F.3d at 698. Therefore, the Court DENIES Defendants’ motion 

for judgment on the pleadings. 

CONCLUSION 

 For the reasons set forth above, “Defendants’ Trial Rule 12(c) 

Motion for Judgment on the Pleadings” (DE# 16) is DENIED.

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

 United States District Court