VASQUEZ v. BAYLOR TRUCKING INC.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MARIO VASQUEZ, )

)

Plaintiff, )

)

v. ) Case No. 1:21-cv-02176-TWP-DML

)

BAYLOR TRUCKING INC., BAYLOR )

LEASING INC., MYRA C. SELBY, JAMES T. )

SPOLYAR, and ELIZABETH M. BOLKA, )

)

Defendants. )

ORDER ON MOTIONS TO DISMISS AND MOTION FOR DEFAULT JUDGMENT

This matter is before the Court on Motions to Dismiss filed by Defendant Myra C. Selby

("Selby") (Filing No. 20) and Defendants James T. Spolyar ("Spolyar"), and Elizabeth M. Bolka's

("Bolka") (Filing No. 22). Also before the Court is pro se Plaintiff Mario Vasquez's ("Vasquez")

Motion for Entry of Default against Defendant Baylor Trucking Inc. and Baylor Leasing Inc.

(collectively, "Baylor") (Filing No. 25). On August 4, 2021, Vasquez initiated this action alleging

several unspecified claims including what the Court interprets as breach of contract against Baylor,

fraud or misrepresentation against Spolyar and Bolka, and allegations that Selby violated her

professional oath as an arbitrator. (Filing No. 1 at 7.) For the reasons stated below, the Court

grants both Motions to Dismiss and denies the Motion for Default Judgment.

I. BACKGROUND

The following facts are not necessarily objectively true, but as required when reviewing a

motion to dismiss, the Court accepts as true all factual allegations in the Complaint and draws all

inferences in favor of Vasquez as the non-moving party. See Bielanski v. County of Kane, 550 F.3d

632, 633 (7th Cir. 2008).

Vasquez was hired by Baylor as a company tractor trailer driver in September 2018. (Filing

No. 1 at 7.) Approximately seven months later, on April 26, 2019, he entered into an Independent

Contractor Agreement and a Lease with Option to Purchase Agreement (collectively, the

"Contract") with Baylor. Id. Despite attempting to terminate the Contract approximately fifteen

times over the course of the year, on April 23, 2020, Baylor terminated the Contract without any

prior notice. Id. The reason provided to Vasquez for the termination was violations of performance

and behavior. Id. The termination "left [him] in emotional distress and without a source of income."

Id.

Following his termination, Vasquez pursued claims through arbitration against Baylor. On

September 2, 2020, Vasquez received a letter from Spolyar and Bolka, the attorneys who

represented Baylor, that included "outright lies" and misrepresentations designed to have Vasquez

withdraw his arbitration claim. Id. Vasquez, however, neither attached this letter to his complaint

nor specifically stated the alleged misrepresentations. Defendant Selby was appointed as the

arbitrator for Vasquez's claims. (Filing No. 21 at 1.) After reviewing the testimony, evidence, and

arguments made by both parties, Selby issued her interim award on May 17, 2021, and her final

award on June 21, 2021, in favor of Baylor. Id. at 1-2.

On August 4, 2021, Vasquez filed a Complaint against Baylor, Spolyar, Bolka, and Selby.

(Filing No. 1.) In addition to challenging the results of the arbitration and claiming that Baylor

improperly terminated the Contract, Vasquez is seeking damages against Spolyar and Bolka for

what the Court interprets as a fraud-based claim for sending him the September 2, 2020 letter, as

well as allegedly failing to provide evidence of their allegations in discovery and refusing to have

the letter introduced as evidence during the arbitration. Id. Additionally, Vasquez is seeking

damages from Selby for failing to abide by her "Arbitrator’s Oath" and exceeding her power by

overturning a decision made by the Indiana Department of Workforce Development. Id.

After filing his Complaint, Defendants Selby, Spolyar, and Bolka filed Motions to Dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Vasquez fails to allege facts to

support claims upon which relief may be granted. (Filing No. 20; Filing No. 22.) Thereafter,

Vasquez filed a Motion for Entry of Default against Baylor asserting that Baylor had been served

but failed to respond to his Complaint. (Filing No. 25.)

II. LEGAL STANDARDS

A. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a

complaint that has failed to “state a claim upon which relief can be granted.” When resolving

whether to dismiss a motion under Rule 12(b)(6), a court accepts as true all factual allegations in

the complaint and draws all reasonable inferences in favor of the non-moving party. Covington

Court, Ltd. v. Vill. of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). Nevertheless, courts “are not

obliged to accept as true legal conclusions or unsupported conclusions of fact.” Hickey v.

O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).

The complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007), the Supreme Court explained that a complaint must allege facts that are “enough to

raise a right to relief above the speculative level.” A plaintiff must include sufficient factual detail

to lift his claims from mere hypothetical possibility to plausibility. Schillinger v. Kiley, 954 F.3d

990, 994 (7th Cir. 2020) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The allegations must

“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555.

Likewise, when deciding a Rule 12(b)(6) motion to dismiss, a court may uphold the

dismissal only if the "complaint fails to set forth 'enough facts to state a claim to relief that is

plausible on its face.'" St. John's United Church of Christ v. City of Chi., 502 F.3d 615, 625 (7th

Cir. 2007) (quoting Twombly, 550 U.S. at 544). To be facially plausible, the complaint must allow

“the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Additionally, because Vasquez is

proceeding pro se, the Court will construe his complaint more "forgivingly than a pleading

prepared by a lawyer." Schillinger, 954 F.3d at 994.

B. Default Judgement Under Fed. R. Civ. P. 55

Obtaining a default judgment in federal court is a two-step process. See Federal Rule of

Civil Procedure 55(a)-(b). Step one requires a party to file an application for entry of default by

the clerk pursuant to Rule 55(a). If the defendant fails to timely answer or otherwise respond to a

Complaint, the plaintiff can request entry of default by the court clerk. Id. If the clerk enters a

default, then the plaintiff can move to step two, and ask the Court to grant a default judgment

pursuant to Rule 55(b)(2). The entry of a clerks default is a necessary prerequisite for the court to

grant a default judgment. See 10 Moore’s Federal Practice §55.10[1], at 55-14 (Matthew Bender

3d ed. 2014).

The decision to grant or deny a default judgment is within the Court’s discretion. See

Domanus v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014) (indicating a decision on default judgment

is reviewed for abuse of discretion). A default judgment establishes the defendant’s liability to the

plaintiff on the cause of action alleged in the complaint. Wehrs v. Wells, 688 F.3d 886, 892 (7th

Cir. 2012). “Upon default, the well-pleaded allegations of a complaint relating to liability are taken

as true.” VLM Food Trading Int’l, Inc. v. Ill. Trading Co., 811 F.3d 247, 255 (7th Cir. 2016)

(quoting Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th

Cir. 1983)).

III. DISCUSSION

The Court will first address the Defendants motions to dismiss before turning to Vasquez's

request for a default judgment.

A. Spolyar's and Bolka's Motion to Dismiss

Defendants Spolyar and Bolka move to dismiss Vasquez's Complaint for several reasons.

First, they argue that Vasquez fails to meet the pleading standards set forth in Federal Rules of

Civil Procedure 8 and 9. (Filing No. 23 at 3.) Specifically, while appearing to challenge the final

award reached during the arbitration, Vasquez has failed to provide any facts regarding what

occurred during the arbitration or the decision reached by the arbitrator. Id. Spolyar and Bolka

argue that "it is impossible for the Court and the parties to determine what challenge is being made"

or whether his allegations are appealable under either the federal or Indiana arbitration acts. Id.

Additionally, Spolyar and Bolka contend that the specific allegations against them involve alleged

"misrepresentations," which amounts to a fraud-based claim that requires the heightened pleading

standards of Federal Rule of Civil Procedure 9. Id. at 4.

Second, Spolyar and Bolka argue that, even if Vasquez had properly stated his claim, his

claim is not cognizable on the face of the Complaint. Id. They point out that Indiana law only

recognizes two types of fraud: actual and constructive. Id. (citing Westfield Ins. Co. v. Yaste, Zent

& Rye Agency, 806 N.E.2d 25, 30 (Ind. Ct. App. 2004)). Spolyar and Bolka assert that for both

types of fraud, Vasquez was required to rely on alleged misrepresentations. Id. at 4-5. The

misrepresentation Vasquez alleges was that Spolyar and Bolka sought to have him withdraw his

arbitration claim, which he did not do. Id. Spolyar and Bolka, contend that Vazquez did not rely

on the alleged misrepresentation and has failed to state a claim. Id.

Third, Spolyar and Bolka contend that Vasquez cannot "collaterally attack the judgment

reached in arbitration." Id. at 5. As the attorneys for Baylor during the arbitration, Spolyar and

Bolka argue that they are immune from Vasquez's claims. Id. at 5-6 (citing Loomis v. Ameritech

Corp., 764 N.E.2d 658, 665 (Ind. Ct. App. 2002)). Unless specific conditions are met, such as

fraud or tortious conduct, the Defendants argue that this immunity should be upheld by the Court.

Id. at 6. Spolyar and Bolka argue that, because Vasquez has failed to state a fraud claim, he cannot

overcome this immunity and his claims against them should be dismissed.

Finally, Spolyar and Bolka assert that Vasquez's claims against them are barred both by

the Federal Arbitration Act and the Indiana Arbitration Act. Id. at 6. These statutes state that the

exclusive remedy or relief from an improper arbitration award is to vacate the award. Id. Spolyar

and Bolka argue that neither statute provides Vasquez with the right to sue the opposing party's

attorneys in order to seek damages for an improper award. Id. at 7.

In response, Vasquez argues that Spolyar and Bolka have provided "misleading"

information to the Court and attaches exhibits that he alleges gave the Defendants full knowledge

of the basis of his claims. (Filing No. 28 at 1.) After reciting his grievances with the letter he

received, Vasquez then points to violations of the Rules of Professional Conduct which he alleges

Spolyar and Bolka violated, including Rules 4.1 and 8.4. Id. at 3-4. For these reasons, Vasquez

argues that their Motion should be denied. Id.

In reply, Spolyar and Bolka argue that the accusation that they have misled this Court is

both "improper and inaccurate." (Filing No. 35 at 2.) They contend that their arguments were

based on the content of Vasquez's Complaint and that the documents and matters outside of the

pleadings are irrelevant for the purposes of their Motion. Id. While Spolyar and Bolka request

that the Court strike Vasquez's exhibits, they also argue that even if they are considered by the

Court, the new documents support their previous arguments that Vasquez has failed to state a

claim. Id. Spolyar and Bolka also contend that Vasquez's supporting exhibits are, among other

things, inadmissible settlement communications under Federal Rule of Evidence 408, as well as

Indiana Rule of Evidence 408. Id. at 2-3.

The Court recognizes that a document filed pro se is to be liberally construed, and a pro se

complaint, however unartfully pleaded, must be held to less stringent standards than formal

pleading drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Vasquez's

Complaint, however, fails to meet the heightened pleading standard required for his claim under

Federal Rule of Civil Procedure 9. As a fraud-based claim, Vasquez is required to state with

particularity the basis for his claim, which he does not do. His attempts to correct these deficiencies

in his response brief by attaching exhibits and quoting documents fail, because "[o]rdinarily, a

court only considers the pleading when ruling on a motion to dismiss." Kuebler v. Vectren Corp.,

412 F. Supp. 3d 1000, 1003 (S.D. Ind. 2019) (citing Jackson v. Curry, 888 F.2d 259, 263 (7th Cir.

2018)).

Even if the Court were to consider Vasquez's newly cited materials˗˗which it can do only

if the materials are referred to in the Complaint and central to his claims˗˗the documents he

attached are clearly inadmissible settlement communications under Federal Rule of Evidence 408.

Id. (citing Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002)). And, even if these documents were

admissible, they fail to support a claim for fraud or provide Vasquez with a basis for pursuing

professional misconduct claims against Spolyar and Bolka. Accordingly, Spolyar and Bolka's

Motion to Dismiss is granted.

B. Selby's Motion to Dismiss

Defendant Selby has also moved to dismiss Vasquez's Complaint for failure to state a

claim. Among the several arguments included in her Motion, Selby asserts that both the Seventh

Circuit and Indiana courts recognize and apply arbitral immunity that protects her from Vasquez's

claims. (Filing No. 21 at 3.) Selby is correct. The Seventh Circuit has frequently recognized that

parties adjudicating matters, including arbitrators, are protected by absolute immunity. See

Coleman v. Dunlap, 695 F.3d 650, 652 (7th Cir. 2012) ("Parties who, although not judges, engage

in adjudication . . . such as private arbitrators. . . also enjoy absolute immunity."). So, the issue

the Court must determine is whether Vasquez's claims against Selby are related to her adjudication

of the arbitration.

Vasquez provides little detail in his Complaint and in a conclusory fashion alleges that

Selby "failed to abide by her Arbitrator's Oath and exceeded her power by overturning a decision

made by the Indiana Department of Workforce Development." (Filing No. 1 at 7.) In response to

Selby's Motion, Vasquez contends that Selby disregarded Indiana's unemployment laws when she

"made a decision against [Vasquez] and refused to address this matter when [Vasquez] questioned

her authority to over turn decision [sic] in the interim award . . . ." (Filing No. 27 at 3.) However

these allegations are solely related to Selby's decision in favor of Baylor and the exercise of her

authority as an arbiter and are barred by absolute immunity. Though Vasquez clearly disagrees

with Selby's decision, he cannot pursue claims against her directly. Accordingly, Selby's Motion

to Dismiss is granted.

C. Vasquez's Motion for Default Judgment

Vasquez seeks an entry of default against Baylor alleging that Baylor has been served and

the time for responding to his Complaint has passed. (Filing No. 26.) In response, Baylor argues

that it was never properly served under Federal Rule of Civil Procedure 4 and, therefore, no

response was ever required and default is inappropriate. (Filing No. 32 at 2-3.) Baylor supports

its position by directing the Court to the docket in this matter; specifically, indicating that a

summons to Baylor has never been issued by the Clerk nor has a waiver of service on Baylor's

behalf ever been filed. Id.

Federal Rule of Civil Procedure 12(a) provides that a defendant must serve an answer

within 21 days after being served with the summons and complaint or, if service is waived, within

60 days after the request for a waiver was sent, or 90 days if the defendant is outside any judicial

district of the United States. Given that no waiver has been filed or presented to this Court,

Vasquez was required to properly serve Baylor with a summons and the Complaint. As Baylor is

a corporation, Vasquez could have served Baylor in the manner prescribed for serving an

individual or "by delivering a copy . . . to an officer, a managing or general agent, or any other

agent authorized by appointment or law to receive service of process . . . ." See Fed. R. Civ. P.

4(h). There is no evidence before the Court that Baylor was properly served or waived service,

therefore, not even a clerks default cannot be entered, and Vasquez's Motion is denied.

Despite not being served, Baylor agreed in its briefing to forego formal service and

officially appear as of December 2, 2021. (Filing No. 32.) On the same date, Baylor filed a Motion

of Extension of Time to File a Response to the Complaint, asking the Court to delay its required

responsive pleading until the Motions to Dismiss were resolved. (Filing No. 33.) The Court

granted the Motion and Baylor now has twenty-one (21) days from the date of this ruling to

provide a responsive pleading. (Filing No. 37.)

IV. CONCLUSION

For the foregoing reasons, Defendant Selby’s Motions to Dismiss (Filing No. 20) is

GRANTED and the claims against her are dismissed with prejudice.' Because she has absolute

immunity, an amended complaint would be futile. The clerk is directed to terminate Defendant

Selby from this case.

Defendants Spolyar and Bolka’s Motion to Dismiss (Filing No. 22), is GRANTED and the

claims against them are dismissed without prejudice”. Vasquez is granted leave to file an

amended complaint within fourteen (14) days of the date of this Entry. If an amended complaint

is an exercise in futility and/or if nothing is filed, the Motion to Dismiss will be converted to a

dismissal with prejudice.

Vasquez's Motion for Entry of Default against Defendant Baylor Trucking Inc. and Baylor

Leasing Inc. (Filing No. 25) is DENIED. Defendant Baylor has twenty-one (21) days from the

date of this ruling to provide a responsive pleading.

SO ORDERED.

Date: _ 6/29/2022 Qrenee Dte Leath

Hon. Tanya Walton Pratt, Chief Judge

United States District Court

Southern District of Indiana

The Court is under no obligation to allow further amendments where doing so would be futile, as it would be here.

See Doermer v. Callen, 847 F.3d 522, 528 (7th Cir. 2017).

2 plaintiff whose original complaint has been dismissed under Rule 12(b)(6) should be given at least one

opportunity to try to amend her complaint before the entire action is dismissed . . . [unless] amendment would be futile

Be unwarranted." Runnion vy. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510, 519, 520 (7th Cir.

10

Distribution:

Mario Vasquez

434 North Brockway Ave

Youngstown, Ohio 44509

Nicholas Gene Brunette

REMINGER CO. LPA (Indianapolis)

nbrunette@reminger.com

Lyndsay I. Ignasiak

REMINGER CO. LPA (Indianapolis)

lignasiak@reminger.com

Thomas Eugene Mixdorf

ICE MILLER LLP (Indianapolis)

thomas.mixdorf@icemiller.com