Standard of Review–Motion to DismissĪ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. Interrogatory responses explaining the basis for these defenses identified the law firm that represented Forest River on appeal, and stated that Fountain “also provided legal advice to Plaintiffs which caused or contributed to Plaintiffs’ alleged damages.” (Resp. Its thirteenth affirmative defense was that the negligence of predecessor, successor, or concurrent counsel proximately caused or contributed to the damages sustained by the Plaintiffs, if any, and that the damages should be attributed and reduced accordingly. 9-1.) Musick Peelers’ fifth affirmative defense was that Forest River consulted separate attorneys and advisors regarding the matters at issue in the Malpractice Litigation, and that it could not be held responsible for any injury caused by the actions or advice of those agents, attorneys, or advisors. Liegl had testified at the Trealoff trial. ![]() Fountain did not tell James Miller this belief until after Mr. Liegl was not a good witness, based on Liegl’s prior testimony at other trials. Several jurors told, after the trial, that they perceived Liegl as a “bully” and a “liar.” Ryan Fountain believed that Mr. With regard to certain of these defenses Musick Peeler wrote: In interrogatories, Forest River asked Musick Peeler to provide the facts upon which it based its affirmative defenses. Wrongful conduct, comparative fault, or negligence of third parties, concurrent counsel, or Forest River’s own agents, attorneys, or advisors. In its answer, Musick Peeler denied the allegations and pled numerous affirmative defenses, including various defenses alleging that Forest River’s damages were caused by theĢ USDC IN/ND case 3:13-cv-00030-TLS-CAN document 24 filed 10/17/13 page 2 of 13 respects other than those specifically described.” (First Amended Complaint ¶ 47, ECF No. The complaint alleged seven specific instances of negligence in the handling of the case, but also noted that the defendants “were negligent in their representation of Forest River and Liegl in. In May 2012, Forest River sued Musick Peeler in California state court, alleging legal malpractice in connection with the Employment Litigation (the Malpractice Litigation). In 2009, a six week jury trial resulted in a judgment (after appeal) against Forest River for about $8 million. Fountain also represented Forest River in connection with the Employment Litigation, and was actively involved with the defense. James Miller, a partner at Musick Peeler, was lead trial counsel. ![]() Forest River hired Musick Peeler to defend the Employment Litigation. In late 2002, Dallen Trealoff sued Forest River and its President and CEO, Peter Liegl, in California state court for unpaid sales commissions and various torts related to his termination from Forest River’s employment (the Employment Litigation). ![]() Grounds that Fountain’s claims are not warrant ed by existing law, do not present a nonfrivolous argument for changing existing law, and have been brought for the improper purpose of disrupting discovery in the malpractice suit and to harass Music Peeler.īACKGROUND A. Additionally, Musick Peeler has filed a Motion for Rule 11 Sanctions on USDC IN/ND case 3:13-cv-00030-TLS-CAN document 24 filed 10/17/13 page 1 of 13 ![]() Musick Peeler has moved to dismiss the Complaint on grounds that Indiana’s absolute privilege shields it from liability for defamation or any other tort, and that the Declaratory Judgment Act is not available to declare nonliability for past actions. Fountain also requests that the Court declare that Musick Peeler has caused trade defamation against him and enjoin Musick Peeler from further defaming him. He seeks a declaration from this Court that he committed no professional misconduct in the California litigation, and has no liability in connection with Forest River’s malpractice suit. As a result of these and other similar allegations, Fountain is suing Musick Peeler for trade defamation and interference with his contractual relations. In defense of the malpractice action, Musick Peeler has alleged that Fountain committed professional negligence that contributed to the damages Forest River sustained in the California litigation. After a jury trial resulted in Forest River incurring substantial damages, the company sued Musick Peeler for professional malpractice. He, along with the California law firm of Musick, Peeler & Garrett, defended Indiana corporation Forest River, Inc., in litigation in California state court. Fountain, practices law in the State of Indiana. MUSICK, PEELER & GARRETT, a ) Partnership including JAMES B. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA RYAN M.
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