# Gillaspy v. Club Newtone, Inc

> District Court, N.D. Indiana · August 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10161289

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** August 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10161289

## How later opinions describe it (automated extraction)

- recognizing that “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” and applying that law to a quasi-judicial proceeding

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE

JARISSA GILLASPY,

Plaintiff,

v. CAUSE NO.: 4:20-CV-13-TLS-APR

CLUB NEWTONE, INC. and MJV GROUP,
INC.,

Defendants.

CLUB NEWTONE, INC., MARC A.
VAUGHN, and MJV GROUP, INC.,

Counter Claimants,

v.

JARISSA GILLASPY,

Counter Defendant.

OPINION AND ORDER
This matter is before the Court on Plaintiff Jarissa Gillaspy’s Objection and Appeal of
Magistrate Ruling [ECF No. 42]. For the reasons set forth below, the Plaintiff’s Objection is
overruled.
BACKGROUND
The instant case is based on an alleged campaign of sexual discrimination and harassment
against Plaintiff Jarissa Gillaspy during her term of employment as a fitness instructor for
Defendant Club Newtone, Inc. The Plaintiff initially filed her Complaint [ECF No. 1] on March
3, 2020, against Defendants Club Newtone, Inc., MJV Group, Inc., and Marc A. Vaughn. On
October 15, 2020, the Plaintiff filed a Motion for Leave to File Amended Complaint [ECF No.
36], in which she requested leave to file an amended complaint [ECF No. 36-1] to bring
additional claims of fraud, conspiracy, and defamation.1 The Defendants and Marc A. Vaughn
filed a Response [ECF No. 37] on October 20, 2020. The Plaintiff did not file a reply. On
December 7, 2020, the Court issued an Opinion and Order [ECF No. 38], signed by Magistrate
Judge Andrew P. Rodovich, denying the Plaintiff’s Motion for Leave to File Amended

Complaint. Dec. 7, 2020 Op. & Order 6, ECF No. 38.
The Plaintiff then, on December 16, 2020, filed a Renewed Motion for Leave to File
Amended Complaint [ECF No. 39]. Again, the Defendants and Vaughn filed a Response [ECF
No. 45], and the Plaintiff did not file a reply. On May 11, 2021, the Court issued an Opinion and
Order denying the Plaintiff’s Renewed Motion for Leave to File Amended Complaint. May 11,
2021 Op. & Order 4, ECF No. 50.
On December 16, 2020, in addition to her Renewed Motion, the Plaintiff also filed the
instant Objection and Appeal of Magistrate Ruling [ECF No. 42]. The Defendants and Vaughn
filed a Response [ECF No. 46]. The Plaintiff did not file a reply, and the time to do so has

passed.
LEGAL STANDARD
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend its
pleading with the court’s leave. Fed. R. Civ. P. 15(a)(2). Under the same rule, courts are
instructed to freely give leave when justice so requires. Id. “[D]istrict courts should not deny
leave absent a ‘good reason’—such as futility, undue delay, prejudice, or bad faith.” Kreg
Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 417 (7th Cir. 2019) (quoting Life Plans, Inc. v.

1 The Plaintiff has filed an amended complaint on two other occasions: One to drop certain state law tort
claims and one to drop a Title VII claim that was improperly alleged against Marc A. Vaughn. See ECF
Nos. 9, 26, 27.
Sec. Life of Denver Ins. Co., 800 F.3d 343, 357 (7th Cir. 2015)). “An amendment may be futile
when it fails to state a valid theory of liability, or could not withstand a motion to dismiss.” Ball
v. Norfolk S. Ry. Co., No. 3:10-CV-177, 2011 WL 13352807, at *2 (N.D. Ind. Oct. 11, 2011)
(citing Advent Elecs., Inc. v. Buckman, 918 F. Supp. 260, 264 (N.D. Ill. 1996)). District courts
have “broad discretion” to decide whether to allow an amendment. Levan Galleries LLC v. City

of Chicago, 790 F. App’x 834, 835–36 (7th Cir. 2020) (quoting Garner v. Kinnear Mfg. Co., 37
F.3d 263, 269 (7th Cir. 1994)).
After a magistrate judge issues an order on a pretrial matter that is not dispositive of a
party’s claim or defense, “[a] party may serve and file objections to the order within 14 days
after being served with a copy.” Fed. R. Civ. P. 72(a). “The district judge in the case must
consider timely objections and modify or set aside any part of the order that is clearly erroneous
or is contrary to law.” Id.
ANALYSIS
In her Objection and Appeal of Magistrate Ruling [ECF No. 42], the Plaintiff does not

argue that the magistrate judge’s order is clearly erroneous or contrary to law. Instead, the
Plaintiff solely attempts to relitigate the issue of amending her complaint. This is not the purpose
of an objection to a magistrate judge’s ruling.2 In her Motion for Leave to File Amended
Complaint [ECF No. 36], the Plaintiff sought to add an additional claim of fraud against Vaughn

2 The Court notes that the Plaintiff included a proposed Third Amended Complaint [ECF No. 42-1] with
her Objection and Appeal of Magistrate Ruling [ECF No. 42]. However, it is not identical to the proposed
Third Amended Complaint that was considered by Judge Rodovich in connection with the Plaintiff’s
Motion for Leave to File Amended Complaint. See ECF No. 36-1. The Court already denied the Plaintiff
leave to file this altered version of the proposed Third Amended Complaint [ECF No. 42-1]. See May 11,
2021 Op. & Order, ECF No. 50. There is no reason for the Court to consider the altered Third Amended
Complaint [ECF No. 42-1] at this time, as it has no bearing on whether Judge Rodovich’s order denying
the Motion for Leave to File Amended Complaint [ECF No. 36] is clearly erroneous or contrary to law.
Accordingly, the Court only considers and refers to the proposed Third Amended Complaint [ECF No 36-
1] that was filed with the Plaintiff’s Motion for Leave to File Amended Complaint [ECF No. 36].
and a claim of defamation and civil conspiracy against Vaughn and Kari Cunningham. There are
no claims currently pending against either Vaughn or Cunningham. The Court considers the
viability of each claim in turn.
A. Fraud
Rule 9 of the Federal Rules of Civil Procedure provides: “In alleging fraud or mistake, a

party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). Under Indiana law, the elements of a fraud claim are “(1) a material misrepresentation of
past or existing fact which (2) was untrue, (3) was made with knowledge of or in reckless
ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by
the complaining party, and (6) which proximately caused the injury or damage complained of.”
Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 335 (Ind. 2013) (quoting Lawyers Title Ins.
Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind. 1992)). “Actual fraud may not be based on
representations of future conduct, on broken promises, or on representations of existing intent
that are not executed.” Wallem v. CLS Indus. Inc., 725 N.E.2d 880, 889 (Ind. Ct. App. 2000)

(citing Anderson v. Indianapolis Ind. AAMCO Dealers Advert. Pool, 678 N.E.2d 832, 837 (Ind.
Ct. App. 1997)).
The magistrate judge provided two reasons for concluding that the Plaintiff’s fraud claim
was futile. First, the magistrate judge determined that the Plaintiff’s fraud claim did not meet the
particularity requirement of Rule 9(b). Second, the magistrate judge identified that the conduct at
issue is not actionable because the alleged fraudulent statements concerned only future facts.
Either reason could render the Plaintiff’s fraud claim futile and, thus, would be sufficient
justification to deny the Plaintiff’s request to amend her complaint to include the proposed fraud
claim. The Court addresses only the second reason—that the alleged fraudulent statements
concern only future facts—for the purpose of resolving the Plaintiff’s objection.
The Plaintiff’s fraud and defamation claims are included in the same section of the
proposed Third Amended Complaint and make the following allegations:
117. Marc Vaughn took actions and made statements to Ms. Gillaspy that were
intended to trick and deceive her and encourage her to go to Vaughn’s girlfriend’s
home where Vaughn was alone so that Vaughn could try to force sexual conduct
upon her.

118. Vaughn’s conduct includes, without limitation, sending text messages to
[Gillaspy], falsely claiming that Gillaspy would be providing Vaughn with off-site
personal training; falsely stating that he was or might be asleep when she arrived;
falsely stating that Gillaspy stole one or more items from Vaughn’s then-
girlfriend’s house; and falsely stating he did not engage in any sexual activity with
Ms. Gillaspy that was not consensual.

119. Ms. Gillaspy relied on Vaughn’s statements and conduct to her detriment,
leading her to go to the house, which caused her damages.

120. Vaughn falsely stated to one or more persons that Gillaspy made one or more
false reports of sexual misconduct.

121. Vaughn knew his statements were false.

122. Vaughn communicated to one or more persons that Gillaspy was untruthful,
that she lied about Vaughn engaging in sexual misconduct with her, and that
Vaughn did not touch her.

Proposed 3d Am. Compl. ¶¶ 117–22, ECF No. 36-1. The alleged dishonest conduct does not
amount to a material misrepresentation of past or existing fact; rather it is merely a
representation of future conduct, a broken promise, and/or a representation of existing intent that
was not executed. Not all lies amount to fraud, and not every repugnant act is actionable. If the
Court permitted the Plaintiff to amend her complaint as proposed, her fraud claim would be
defeated on a motion to dismiss because it fails to allege conduct that is actionable in a fraud
claim. Therefore, allowing the Plaintiff to amend her complaint in such a manner would be futile.
The magistrate judge’s decision is not clearly erroneous or contrary to law regarding the
Plaintiff’s fraud claim; thus, the Plaintiff’s objection is overruled.
B. Conspiracy
“A civil conspiracy is a combination of two or more persons who engage in a
concerted action to accomplish an unlawful purpose or to accomplish some lawful purpose

by unlawful means.” Bd. of Trs. of Purdue Univ. v. Eisenstein, 87 N.E.3d 481, 498 (Ind.
Ct. App. 2017) (quoting Birge v. Town of Linden, 57 N.E.3d 839, 845 (Ind. Ct. App. 2016)).
“Civil conspiracy is not an independent cause of action” and “must be alleged with an
underlying tort.” Id. (quoting Birge, 57 N.E.3d at 846). The magistrate judge determined
that the Plaintiff’s conspiracy claim was futile because the Plaintiff did not identify an
underlying tort to support her claim.
In the proposed Third Amended Complaint, the Plaintiff alleges a civil conspiracy
claim against Vaughn and Cunningham. The Plaintiff alleges that Vaughn and
Cunningham entered into an agreement to obstruct the EEOC’s investigation of the

Plaintiff’s complaint and to terminate her employment as retaliation for filing an EEOC
complaint. It is unclear what underlying tort the civil conspiracy claim is based upon, and
the Plaintiff does not offer any legal basis for an underlying tort in her objection. If the
Court permitted the Plaintiff to amend her complaint as proposed, her civil conspiracy
claim would be defeated on a motion to dismiss because civil conspiracy is not an
independent cause of action and the Plaintiff has failed to identify an underlying tort to
support her civil conspiracy claim. Therefore, allowing the Plaintiff to amend her
complaint in such a manner would be futile. The magistrate judge’s decision is not clearly
erroneous or contrary to law as to the Plaintiff’s motion to amend her complaint regarding
her civil conspiracy claim; therefore, the Plaintiff’s objection is overruled.
C. Defamation
Under Indiana law, the elements of a defamation claim are: “(1) a communication with a
defamatory imputation; (2) malice; (3) publication; and (4) damages.” Haegert v. McMullan, 953

N.E.2d 1223, 1230 (Ind. Ct. App. 2011) (citing McQueen v. Fayette Cnty. Sch. Corp., 711
N.E.2d 62, 65 (Ind. Ct. App. 1999)). The specific allegations made in the Plaintiff’s defamation
claim are set forth in Part A above.
1. Magistrate Judge’s Decision—Futility
In considering the Plaintiff’s proposed defamation claim, the magistrate judge explained:
The court finds it troubling that the plaintiff would propose a defamation
claim against Kari [Cunningham] but not include any alleged statements made by
her. As to Marc Vaughn, the plaintiff’s factual allegations are ambiguous as to the
supposed statements he made and to whom they were published. Marc Vaughn
maintains that to the extent such statements were made, they were made in
connection to the pending lawsuit which includes to the EEOC. As noted earlier,
the plaintiff has not opposed any of the defendants’ arguments as to the instant
motion, so for that reason and the reasons discussed above, the court finds the
proposed defamation claim against Marc [Vaughn] and Kari [Cunningham] to be
futile.

Dec. 7, 2020 Op. & Order 5. The Plaintiff’s Motion for Leave to File Amended
Complaint indicates that she sought to bring a “defamation [claim] against Marc Vaughn
and Kari [Cunningham].” Mot. to File Am. Compl. 1, ECF No. 36. However, the “Fraud
& Defamation” Section of her Third Amended Complaint does not reference any conduct
by Cunningham. See Proposed 3d Am. Compl. ¶¶ 117–22. Accordingly, the magistrate
judge’s determination that a defamation claim against Cunningham would be futile is not
clearly erroneous or contrary to law.
Regarding the Plaintiff’s defamation claim against Vaughn, the magistrate judge’s
decision was contrary to law when he concluded that the claim is futile. First, the fact that the
Plaintiff’s factual allegations are ambiguous as to the supposed statements Vaughn made and to
whom they were published does not render the Plaintiff’s defamation claim against Vaughn
futile. See Brock v. U.S. Steel Corp., No. 2:09-CV-344, 2010 WL 405620, at *3 (N.D. Ind. Jan.

27, 2010) (“Indeed, in Cain, Judge Lozano, laid out the various views taken by the courts within
the Seventh Circuit and noted that ‘the trend is to deny a motion to dismiss even though the
complaint does not state in detail the context in which the defamatory statements were made.”
(quoting Cain v. Elgin, Joliet & E. Ry. Co., No. 2:04-CV-347, 2005 WL 1172722, at *3 (N.D.
Ind. May 3, 2005))).
Second, the fact that the Plaintiff did not respond to the Defendants’ and Marc Vaughn’s
argument that the defamatory statements at issue were made in connection to this lawsuit does
not render her defamation claim futile. The Defendants and Vaughn argue that Vaughn’s
litigation statements are privileged and not subject to a defamation lawsuit. The Court recognizes

that this defense is viable under Indiana law. See Hartman v. Keri, 883 N.E.2d 774, 777–78 (Ind.
2008) (recognizing that “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” and applying that law to a quasi-judicial proceeding); Kelley v. Tanoos,
865 N.E.2d 593, 597 (Ind. 2007) (“A qualified privilege protects ‘communications made in good
faith on any subject matter in which the party making the communication has an interest or in
reference to which he has a duty, either public or private, either legal, moral, or social, if made to
a person having a corresponding interest or duty.” (quoting Bals v. Verduzco, 600 N.E.2d 1353,
1356 (Ind. 1992))). However, privilege is an affirmative defense, see 18 Ind. Law Encyc. Libel
and Slander § 33 (2021) (explaining that the principal defenses to an action for defamation
include absolute privilege and qualified or conditional privilege), and “[c]omplaints cannot be
dismissed for failing to anticipate an affirmative defense,” Bledsoe v. Medtronic, Inc., No. 2:18-
CV-133, 2020 WL 43107, at *5 (N.D. Ind. Jan. 3, 2020) (citing Xechem, Inc. v. Bristol-Myers
Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004)). “Only when the plaintiff pleads [herself] out of

court—that is, admits all the ingredients of an impenetrable defense—may a complaint that
otherwise states a claim be dismissed under Rule 12(b)(6).” Xechem, Inc., 372 F.3d at 901 (citing
Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002)). In this case, the Plaintiff’s pleadings do not
contain sufficient factual allegations to support the Defendants and Vaughn’s proposed
affirmative defense; therefore, the possibility of an immunity defense does not render the
Plaintiff’s claim futile.
2. Undue Delay and Prejudice
Because the Court has determined that the Plaintiff’s defamation claim is not futile, it
will consider the arguments that were not addressed by the magistrate judge. In addition to the

futility argument, the Defendants and Vaughn argued that the Plaintiff’s motion should have
been denied on the basis of undue delay and prejudice.
i. Undue Delay
In her motion, the Plaintiff contends that, “[o]n August 25, 2020, Plaintiff conducted the
deposition of Marc Vaughn. Through said deposition, Vaughn testified and provided support for
additional theories.” Mot. to File Am. Compl. 1. The Plaintiff does not identify what facts have
been discovered or how they support her new claims.
The Court recognizes that the discovery of facts supporting a new legal theory is,
generally, sufficient grounds for amending a complaint. However, the Plaintiff’s representation
that new facts have been discovered is misleading. The facts alleged in the proposed Third
Amended Complaint are almost identical to the facts in her Amended Complaint [ECF No. 9],
which was filed four months prior to Vaughn’s deposition. See Am. Compl. ¶¶ 69–73; ECF No.
9. Accordingly, the Plaintiff’s explanation for failing to file this amendment sooner is wholly
inadequate, which weighs in favor of denying leave to amend. See J.P. Morgan Chase Bank,

N.A. v. Drywall Serv. & Supply Co., Inc., 265 F.R.D. 341, 347 (N.D. Ind. 2010) (“If the moving
party fails to provide any explanation for not filing its amendment sooner or if the explanation it
provides is inadequate, that will weigh towards denying leave to amend.” (citing Sanders v.
Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir. 1995); Kleinhans v. Lisle Sav. Profit Sharing Tr.,
810 F.2d 618, 625 (7th Cir. 1987))).
Although the timing of the Plaintiff’s motion was less than ideal, “[u]ndue delay alone is
insufficient to support denial of leave to amend.” Id. (citing Dubicz v. Commonwealth Edison
Co., 377 F.3d 787, 793 (7th Cir. 2004)). However, “it may militate towards a denial when
combined with another factor, often unfair prejudice to the nonmoving party.” Id. (citing Dubicz,

377 F.3d at 793). Accordingly, the Plaintiff’s undue delay alone is not sufficient to deny her
motion to amend.
ii. Prejudice
In their Response, the Defendants and Vaughn argue that they are “prejudiced by these
endless tactics because it unnecessarily drags out litigation against a now closed business
especially when these new theories are barred by Plaintiff’s previous stipulations and
amendments to her pleadings as well as their complete lack of merit, as well as a previous order
declaring such.” Resp. to Obj. 11, ECF No. 46; see also Resp. to Mot. 8, ECF No. 37.
Additionally, the Defendants and Vaughn argue that Vaughn will be prejudiced because the
Plaintiff has already voluntarily dismissed her claims against him. Resp. to Obj. 11; Resp. to
Mot. 9. The Plaintiff’s motion contends that “Defendants will not be prejudiced by the filing of
the response.” Mot. to File Am. Compl. 1. Although the Plaintiff makes this representation, she
provides no justification for her assertion. The Plaintiff does not specifically address whether
Vaughn will be or will not be prejudiced.

“[I]n the Seventh Circuit, the ‘party seeking an amendment carries the burden of proof in
showing that no prejudice will result to the non-moving party.’” J.P. Morgan Chase Bank, N.A,
265 F.R.D. at 354 (quoting King v. Cooke, 26 F.3d 720, 724 (7th Cir. 1994)). The Plaintiff does
not attempt to meet this burden, as the Plaintiff did not file a reply and nothing in her motion
serves to demonstrate that the Defendants or Vaughn would not be prejudiced by her proposed
amendments. Accordingly, due to the Plaintiff’s undue delay and her failure to show that the
non-moving parties will not be prejudiced by her amendment, the Plaintiff’s motion to amend to
bring a defamation claim against Vaughn is denied.
CONCLUSION

The Court’s December 7, 2020 Opinion and Order is MODIFIED by this Opinion and
Order. For the reasons set forth above, the Plaintiff’s Motion for Leave to File Amended
Complaint [ECF No. 36] is DENIED and the Plaintiff’s Objection and Appeal of Magistrate
Ruling [ECF No. 42] is OVERRULED.
SO ORDERED on August 19, 2021.

s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10161289. Public record. Not legal advice.