                                                                             FILED
                                                                     Sep 30 2019, 8:41 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEES
James E. Ayers                                             Daniel J. Paul
Wernle, Ristine & Ayers                                    Williams Barrett & Wilkowski,
Crawfordsville, Indiana                                    LLP
                                                           Greenwood, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Heather Stone,                                             September 30, 2019
Appellant,                                                 Court of Appeals Case No.
                                                           18A-CT-3151
        v.                                                 Appeal from the Vermillion Circuit
                                                           Court
Doyle T. Wright and The City of                            The Honorable Robert M. Hall,
Clinton, Indiana,                                          Special Judge
Appellee.                                                  Trial Court Cause No.
                                                           83C01-1610-CT-17



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019                           Page 1 of 18
[1]   Heather Stone appeals the trial court’s dismissal of her second amended

      complaint against Doyle T. Wright and the City of Clinton (the “City,” and

      together with Wright, “Defendants”) and denial of her motion for leave to file a

      third amended complaint. She raises five issues which we consolidate and

      restate as:


        I.    Whether the trial court erred in dismissing her second amended
              complaint; and
       II.    Whether the court abused its discretion in denying her motion for
              leave to file a third amended complaint.


      We affirm.


                                       Facts and Procedural History

[2]   On October 11, 2016, Stone filed a complaint against Wright, the Deputy Chief

      of Police for the City, and the City alleging that Deputy Chief Wright executed

      a false affidavit for probable cause on May 6, 2014, asserting that she touched

      A.M., a child, in a rude, insolent or angry manner resulting in bodily injury,

      that he conspired with Vermillion County Deputy Prosecutor Gregory S. Carter

      to charge her with a felony for which there was no probable cause as there was

      no injury nor any evidence of injury, and that she was wrongfully arrested and

      held in the Vermillion County Jail. She alleged that she suffered damages “by

      reason of such false charges, by her estrangement from her child, the expenses

      of living apart from her husband and family, the disruption of her marriage and

      home and the embarrassment in her community from the unfounded charges.”

      Appellant’s Appendix Volume II at 12.


      Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019   Page 2 of 18
[3]   On December 5, 2016, Defendants filed a motion to dismiss and alleged that

      state law claims of false arrest and malicious prosecution asserted by Stone were

      torts, that she filed a Notice of Tort Claim on May 23, 2016, that she failed to

      timely provide notice of her tort claims, and that they were entitled to immunity

      for her malicious prosecution claim. Defendants attached a Notice of Claim

      Against Political Subdivision dated May 25, 2016.


[4]   On January 19, 2017, Stone filed a first amended complaint which was similar

      to the initial complaint. On February 1, 2017, Stone filed a second amended

      complaint which was similar to the previous complaints but also referred to

      “causes of action for false arrest and malicious prosecution” and alleged that a

      remedy under the Fourteenth Amendment and 42 U.S.C. § 1983 was

      appropriate. Id. at 17.


[5]   In February 2017, Defendants filed a Notice of Removal of Civil Action to

      United States District Court. On August 15, 2017, the United States District

      Court for the Southern District of Indiana entered an order finding that Stone’s

      false arrest claim began to accrue on May 9, 2014, when the state court found

      probable cause for battery resulting in bodily injury, issued an arrest warrant,

      and set an amount for bond. The court found that Stone had until May 9, 2016,

      to file her false arrest claim but waited until October 11, 2016, to file her

      complaint, and that “[a]ccordingly, her state law false arrest claim is time-

      barred by the statute of limitations.” Appellees’ Appendix Volume II at 58.

      The court found that Stone’s “allegations are insufficient to state a claim for

      malicious prosecution pursuant to § 1983.” Id. at 60. It also stated that “Stone

      Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019      Page 3 of 18
      has failed to allege any facts that demonstrate that Defendants acted with

      malice, and merely provided a conclusory allegation that Chief Deputy Wright

      acted without probable cause” and that “[a]ccordingly, Ms. Stone has failed to

      state a § 1983 malicious prosecution claim.” Id. at 61. It stated that, “[b]ecause

      Ms. Stone’s § 1983 false arrest and malicious prosecution claims are dismissed

      pursuant to this Order, her only remaining claims are state law claims of false

      arrest and malicious prosecution.” Id. The court dismissed with prejudice

      Stone’s false arrest and malicious prosecution claims pursuant to 42 U.S.C. §

      1983 and remanded her state law claims of false arrest and malicious

      prosecution back to the Vermillion Circuit Court. 1


[6]   On September 15, 2017, Defendants filed a motion to dismiss Stone’s second

      amended complaint in the Vermillion Circuit Court pursuant to Ind. Trial Rule

      12(B)(6) and asserted again that she failed to timely provide notice of her tort

      claim regarding her allegation of false arrest and that they were entitled to

      immunity with respect to her malicious prosecution claim.


[7]   On June 11, 2018, the court entered an order granting Defendants’ motion to

      dismiss. On July 12, 2018, Stone filed a motion to correct error. On July 19,

      2018, the court entered an order appointing a special judge and scheduled a

      hearing for August 6, 2018. On August 6, 2018, the court held a hearing at




      1
       We note that Stone appealed the district court’s order and the Seventh Circuit ultimately affirmed and
      concluded: “The district court’s decision sent all of Stone’s state-law claims to state court. That is where they
      belong.” Stone v. Wright, 734 F. App’x 989, 990 (7th Cir. 2018).

      Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019                              Page 4 of 18
      which Stone failed to appear and Defendants filed a response to the motion to

      correct error. On August 10, 2018, Stone filed a motion for enlargement of

      time to reply to Defendants’ response. A chronological case summary entry

      dated August 14, 2018, states that Stone did not appear for the hearing on the

      motion to correct error, the court advised defense counsel that the motion to

      correct error was being taken under advisement, that Stone had filed a

      subsequent motion, “which is untimely, but, if [Stone] desires a telephonic

      conference, then the same may be arranged, otherwise, after August 20, 2018,

      the Court will consider the issue to be under advisement.” Appellant’s

      Appendix Volume II at 8. Following Stone’s request, the court held a

      telephonic conference on August 20, 2018.


[8]   On August 27, 2018, Stone filed a motion for leave to file a third amended

      complaint alleging a claim of intentional infliction of emotional distress and

      that she served notice of her intent to assert her claims against Defendants on

      May 20, 2016 and “did so within 180 days of the dismissal of the charges

      against her . . . .” Id. at 54. On October 29, 2018, the court held a hearing on

      Stone’s motion to correct error. On November 28, 2018, the court entered an

      order denying Stone’s motion to correct error and motion for leave to file a

      third amended complaint.


                                                    Discussion

                                                          I.




      Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019   Page 5 of 18
[9]    The first issue is whether the trial court erred in dismissing Stone’s second

       amended complaint. Stone alleges that she lived with her husband and two-

       year-old ward, that her child had a tantrum, and that “[s]ome bystanders took

       offense at her actions in removing and securing the child, describing her trip to

       her car as abusive and her securing the seat belt as assault.” Appellant’s Brief at

       8. She asserts that Wright “investigated” and called the Department of Child

       Services which deemed the charge unsubstantiated. Id. She asserts that public

       policy supports the position that the claimed immunity be abandoned in cases

       arising out of false arrest and false imprisonment.


[10]   Defendants maintain that Stone waived multiple arguments because she failed

       to present them to the trial court. They assert that, waiver notwithstanding,

       Stone’s false arrest claim was properly dismissed because she conceded that

       claim was untimely, her tort claim notice was untimely, the City did not arrest

       her, the trial court in the criminal case found probable cause existed for her

       arrest, her claim was barred by the statute of limitations, and the district court’s

       ruling constituted res judicata. They argue that Stone’s malicious prosecution

       claim was properly dismissed because they are immune under the Indiana Tort

       Claims Act for malicious prosecution, she did not allege that Wright acted

       outside the course and scope of his employment as a police officer for the City,

       there was a determination of probable cause by the court in the criminal case,

       and the complaint does not allege they instituted an action against her, rather, it

       alleges the Vermillion County Deputy Prosecutor Gregory S. Carter did so.




       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019     Page 6 of 18
[11]   A motion to dismiss pursuant to Ind. Trial Rule 12(B)(6) tests the legal

       sufficiency of the complaint. Price v. Ind. Dep’t of Child Servs., 80 N.E.3d 170,

       173 (Ind. 2017). The rule requires that we accept as true the facts alleged in the

       complaint. Id. We review 12(B)(6) motions de novo and will affirm a dismissal

       if the allegations are incapable of supporting relief under any set of

       circumstances. Id. We will also affirm a dismissal if the decision is sustainable

       on any basis in the record. Id.


       A. False Arrest and False Imprisonment


[12]   With respect to Stone’s claims of false arrest and imprisonment, Stone asserts

       that “[t]he two-year statute of limitations for torts set out in I.C. 34-11-2-4

       applies . . . .” Appellant’s Brief at 19. Ind. Code § 34-11-2-4 provides that “[a]n

       action for . . . injury to person or character . . . must be commenced within two

       (2) years after the cause of action accrues.” See Johnson v. Blackwell, 885 N.E.2d

       25, 30 (Ind. Ct. App. 2008) (holding that the statute of limitations governing

       injury to person applies to a claim of false arrest). “In general, the cause of

       action of a tort claim accrues and the statute of limitations begins to run when

       the plaintiff knew or, in the exercise of ordinary diligence, could have

       discovered that an injury had been sustained as a result of the tortious act of

       another.” Id. (quoting Filip v. Block, 879 N.E.2d 1076, 1082 (Ind. 2008)

       (quotation omitted), reh’g denied).


[13]   “In Livingston v. Consolidated City of Indianapolis, 398 N.E.2d 1302, 1303 (Ind. Ct.

       App. 1979), this Court held that the plaintiff’s causes of action for false arrest,


       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019      Page 7 of 18
false imprisonment, and assault and battery against the City of Indianapolis and

the State of Indiana accrued on the date of the plaintiff’s arrest.” Johnson, 885

N.E.2d at 30. In Johnson, we observed:


        More recently, the United States Supreme Court analyzed the
        accrual date of a § 1983 cause of action for false arrest/false
        imprisonment (which under Illinois law also had a two-year
        statute of limitations) in Wallace v. Kato, 549 U.S. 384, 127 S. Ct.
        1091, 166 L.Ed.2d 973 (2007), reh’g denied. In that case, the
        police arrested Wallace for murder in 1994. He was tried and
        convicted, but the charges were ultimately dismissed in April
        2002. In April 2003 Wallace filed a § 1983 suit against the City
        of Chicago and several police officers seeking damages arising
        from his unlawful arrest. The Seventh Circuit affirmed the
        district court’s grant of summary judgment in favor of the
        defendants finding that Wallace’s § 1983 suit was time barred
        because his cause of action accrued at the time of his arrest and
        not when his conviction was later set aside. On appeal, the
        United States Supreme Court set forth the general rule that the
        period of limitations begins to run when the alleged false
        imprisonment ends. Id. at 1096. Applying common law tort
        principles, the Court stated, “Reflective of the fact that false
        imprisonment consists of detention without legal process, a false
        imprisonment ends once the victim becomes held pursuant to
        such process—when, for example, he is bound over by a
        magistrate or arraigned on charges.” Id. (citations omitted).
        Thereafter, unlawful detention forms part of the damages for the
        entirely separate tort of malicious prosecution. Id. That is, if
        there is a false arrest claim, damages for that claim cover the time
        of detention up until the issuance of process or arraignment but
        not more. Id. From that point on, any damages recoverable
        must be based on a malicious prosecution claim rather than on
        the detention itself. Id. As such, the United States Supreme
        Court held that Wallace’s “contention that his false
        imprisonment ended upon his release from custody, after the

Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019     Page 8 of 18
                 State dropped the charges against him, must be rejected. It ended
                 much earlier, when legal process was initiated against him, and
                 the statute would have begun to run from that date, but for its
                 tolling by reason of [his] minority.” Id. (footnote omitted).


       Id. at 30-31. See also Fox v. Rice, 936 N.E.2d 316, 322 (Ind. Ct. App. 2010)

       (holding that a false imprisonment ends when the defendant becomes held

       pursuant to legal process and that service of an arrest warrant while in prison

       ends a false imprisonment because the imprisonment is no longer false but

       rather is pursuant to an arrest warrant) (citing Wallace v. Kato, 549 U.S. 384, 127

       S. Ct. 1091 (2007)), clarified on reh’g, 942 N.E.2d 167 (Ind. Ct. App. 2011), trans.

       denied.


[14]   Stone’s second amended complaint asserts that the Vermillion Circuit Court

       issued an arrest warrant on or about May 9, 2014. Because she did not file her

       complaint until October 2016, her claims of false arrest and false imprisonment

       are barred by the two-year statute of limitations. See id. at 31. To the extent the

       District Court considered the timeliness of Stone’s state law claim of false

       arrest, we agree with its conclusion that Stone’s “state law false arrest claim is

       time-barred by the statute of limitations.” 2 Appellees’ Appendix Volume II at

       58. With respect to Stone’s argument that the date on which the period in the

       statute of limitations begins should be extended, we disagree. See Johnson, 885

       N.E.2d at 31 (rejecting the plaintiff’s argument that the continuing wrong



       2
        We do not address Defendants’ argument regarding res judicata. We note that the District Court
       “REMAND[ED] Ms. Stone’s state law claims of false arrest . . . .” Appellees’ Appendix Volume II at 62.

       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019                       Page 9 of 18
       doctrine applies and holding that the doctrine does not prevent the statute of

       limitations from beginning to run when the plaintiff learns of facts that should

       lead to the discovery of his cause of action, even if his relationship with the

       tortfeasor continues beyond that point).


[15]   In addition to the statute of limitations, we conclude that dismissal of the false

       arrest and false imprisonment claims was proper based upon the Indiana Tort

       Claims Act (“ITCA”). “This statute granted absolute immunity to

       governmental entities in a number of specific circumstances, and codified rules

       of liability for other areas of governmental activity.” F.D. v. Ind. Dep’t of Child

       Servs., 1 N.E.3d 131, 136 (Ind. 2013) (quoting Gary Cmty. Sch. Corp. v. Roach-

       Walker, 917 N.E.2d 1224, 1227 (Ind. 2009)). “Whether immunity applies is a

       question of law for the court, and the party seeking immunity bears the burden

       of demonstrating that its conduct is within the protection afforded by the

       ITCA.” Id.


[16]   Generally, ITCA bars claims against a political subdivision of the State unless a

       plaintiff has filed notice of the claim with the entity’s governing body within

       180 days after a loss occurs. Ind. Code § 34-13-3-8(a). A loss occurs for

       purposes of ITCA “‘when the plaintiff knew or, in the exercise of ordinary

       diligence, could have discovered that an injury had been sustained as a result of

       the tortious act of another.’” Reed v. City of Evansville, 956 N.E.2d 684, 691 (Ind.

       Ct. App. 2011) (quoting Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843

       (Ind. 1992)), trans. denied. Compliance with the notice provisions of ITCA is a

       procedural precedent the plaintiff must prove and the trial court must determine

       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019     Page 10 of 18
       prior to trial. Brown v. Alexander, 876 N.E.2d 376, 383 (Ind. Ct. App. 2007),

       trans. denied. A governmental defendant may raise the issue of a plaintiff’s

       noncompliance with ITCA’s notice provision in a responsive pleading listing it

       as an affirmative defense. Id. at 383-384. If the defendant raises such a defense,

       the plaintiff bears the burden of proving compliance. Id. at 384. A claimant’s

       failure to provide the notices required by ITCA entitles the State or political

       subdivision to a dismissal. See Ind. Dep’t of Correction v. Hulen, 582 N.E.2d 380

       (Ind. 1991).


[17]   In Fox, we held that when a plaintiff makes a claim of false imprisonment

       against the government, the false imprisonment ends when the person being

       detained is served with legal process, such as an arrest warrant. 936 N.E.2d at

       322. We held that the plaintiff’s ITCA notice filed more than 180 days after the

       false imprisonment ended via service of an arrest warrant while imprisoned was

       untimely, and we refused to apply the “continuing wrong” doctrine to extend

       the notice time period to include the entire time that the plaintiff was

       incarcerated. Id. On rehearing, however, we clarified that although the service

       of such process may have ended the plaintiff’s false imprisonment, it did not

       necessarily extinguish all wrongful conduct such that the plaintiff had no legal

       redress. 942 N.E.2d at 168. In particular, we noted the availability of a

       malicious prosecution action, even after a false imprisonment has ended. Id.


[18]   Stone’s second amended complaint asserts that the Vermillion Circuit Court

       issued an arrest warrant on or about May 9, 2014. Thus, a notice of tort claim

       would have had to have been filed within 180 days of May 9, 2014, or by

       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019     Page 11 of 18
       November 5, 2014. Even assuming that Stone’s notice of tort claim was filed

       on May 20, 2016, as asserted by Stone in her third amended complaint, instead

       of May 23, 2016, as asserted by Defendants in their December 2016 motion to

       dismiss, or May 25, 2016, the date listed on the notice, we conclude that

       Stone’s ITCA notice was untimely.


       B. Malicious Prosecution


[19]   As for Stone’s claim of malicious prosecution against Wright and the City, Ind.

       Code § 34-13-3-3 provides in part: “A governmental entity or an employee

       acting within the scope of the employee’s employment is not liable if a loss

       results from . . . (6) The initiation of a judicial or an administrative proceeding.”

       The Indiana Supreme Court has held that “the fact of criminal conduct

       standing alone is not dispositive of whether the employee was acting outside the

       scope of employment.” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003).

       Rather, “conduct . . . of the same general nature as that authorized, or

       incidental to the conduct authorized,” is within the employee’s scope of

       employment. Id. (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450,

       453 (Ind. 2000) (quoting Restatement (Second) of Agency § 229 (1958))). An

       act is incidental to authorized conduct when it is subordinate to or pertinent to

       an act which the servant is employed to perform or when it is done to an

       appreciable extent, to further his employer’s business. Id.


       Stone “recognizes that under prevailing Indiana law, as developed in Livingston

       v. Indianapolis, . . . the Town of Clinton[] and the Deputy Chief are immune


       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019     Page 12 of 18
from malicious prosecution personal liability.” Appellant’s Brief at 13.

Moreover, Stone failed to allege that Wright committed the alleged acts outside

the scope of his employment as a deputy chief. Based upon the allegations in

Stone’s second amended complaint, we conclude that Wright acted within the

scope of his employment at the time he committed the alleged acts and that the

trial court did not err in dismissing the claim of malicious prosecution. See City

of Anderson v. Weatherford, 714 N.E.2d 181, 185-186 (Ind. Ct. App. 1999)

(observing that, while the defendants blatantly disregarded the chief’s

instructions and standard departmental procedure, the officers’ conduct of

arresting the plaintiff pursuant to a valid arrest warrant did not serve to remove

them from the cover of ITCA, and that such action was done in furtherance of

their employer’s business of executing a duly issued warrant, and concluding

that the officers’ arrest of the plaintiff was not so incompatible with the

performance of their employment as to be deemed outside the scope of their

employment, and reversing the trial court’s denial of the defendants’ motion to

dismiss), trans. denied; see also Serino v. Hensley, 735 F.3d 588, 595 (7th Cir. 2013)

(holding that ITCA shields government employees and entities from claims of

malicious prosecution (citing Ind. Code § 34-13-3-3(6) and Butt v. McEvoy, 669

N.E.2d 1015, 1017-18 (Ind. Ct. App. 1996) (applying § 34-13-3-3(6)’s

predecessor provision to bar a malicious prosecution suit against a police

officer)); cf. Waldrip v. Waldrip, 976 N.E.2d 102, 115 (Ind. Ct. App. 2012)

(addressing the plaintiff’s allegation that his then-wife who was employed as a

court reporter falsely stated to the police that he had battered her and

improperly obtained a protective order and holding that “with respect to the
Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019     Page 13 of 18
       claims of malicious prosecution and intentional infliction of emotional distress,

       we believe [the plaintiff] sufficiently alleged in his complaint that [the

       defendant] made false accusations against him outside the scope of her

       employment and purely in her role as a private citizen”). To the extent Stone’s

       complaint mentioned Vermillion County Deputy Prosecutor Carter, we note

       that she did not allege how he acted outside the scope of his employment and

       did not list him as a defendant.


                                                           II.


[20]   The next issue is whether the trial court abused its discretion in denying Stone’s

       motion for leave to file a third amended complaint. Stone argues that the

       denial of her proposed third amended complaint was inconsistent with Ind.

       Trial Rule 15(B) and (C). Defendants contend that the trial court properly

       denied Stone’s motion to file a third amended complaint because she exhibited

       significant undue delay in attempting to assert a new claim for intentional

       infliction of emotional distress, the City would have been prejudiced if the third

       amended complaint would have been allowed, the City is immune from such a

       claim, and, even if the relation back doctrine applied, the statute of limitations

       had expired on the claim prior to the filing of the original complaint.


[21]   Ind. Trial Rule 15 governs the amendment of pleadings and provides in part:


               (A) Amendments. A party may amend his pleading once as a
               matter of course at any time before a responsive pleading is
               served or, if the pleading is one to which no responsive pleading
               is permitted, and the action has not been placed upon the trial

       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019       Page 14 of 18
        calendar, he may so amend it at any time within thirty [30] days
        after it is served. Otherwise a party may amend his pleading only
        by leave of court or by written consent of the adverse party; and
        leave shall be given when justice so requires. A party shall plead
        in response to an amended pleading within the time remaining
        for response to the original pleading or within twenty [20] days
        after service of the amended pleading, whichever period may be
        the longer, unless the court otherwise orders.

        (B) Amendments to Conform to the Evidence. When issues not
        raised by the pleadings are tried by express or implied consent of
        the parties, they shall be treated in all respects as if they had been
        raised in the pleadings. Such amendment of the pleadings as
        may be necessary to cause them to conform to the evidence and
        to raise these issues may be made upon motion of any party at
        any time, even after judgment, but failure so to amend does not
        affect the result of the trial of these issues. If evidence is objected
        to at the trial on the ground that it is not within the issues made
        by the pleadings, the court may allow the pleadings to be
        amended and shall do so freely when the presentation of the
        merits of the action will be subserved thereby and the objecting
        party fails to satisfy the court that the admission of such evidence
        would prejudice him in maintaining his action or defense upon
        the merits. The court may grant a continuance to enable the
        objecting party to meet such evidence.

        (C) Relation Back of Amendments. Whenever the claim or
        defense asserted in the amended pleading arose out of the
        conduct, transaction, or occurrence set forth or attempted to be
        set forth in the original pleading, the amendment relates back to
        the date of the original pleading. An amendment changing the
        party against whom a claim is asserted relates back if the
        foregoing provision is satisfied and, within one hundred and
        twenty (120) days of commencement of the action, the party to
        be brought in by amendment:




Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019       Page 15 of 18
                 (1) has received such notice of the institution of the action
                 that he will not be prejudiced in maintaining his defense
                 on the merits; and

                 (2) knew or should have known that but for a mistake
                 concerning the identity of the proper party, the action
                 would have been brought against him.

        The requirement of subsections (1) and (2) hereof with respect to
        a governmental organization to be brought into the action as
        defendant is satisfied:

                 (1) In the case of a state or governmental organization by
                 delivery or mailing of process to the attorney general or to
                 a governmental executive [Rule 4.6(A)(3)]; or

                 (2) In the case of a local governmental organization, by
                 delivery or mailing of process to its attorney as provided
                 by statute, to a governmental executive thereof [Rule
                 4.6(A)(4)], or to the officer holding the office if suit is
                 against the officer or an office.


“The rule therefore liberally allows amendments of pleadings but also seeks to

ensure that defendants ‘receive notice of claims within a reasonable time, and

thus are not impaired in their defense by evidence that is lost or diminished in

its clarity because of the undue passage of time.’” Porter Cty. Sheriff Dep’t v.

Guzorek, 857 N.E.2d 363, 368 (Ind. 2006) (quoting Olech v. Vill. of Willowbrook,

138 F. Supp. 2d 1036, 1041 (N.D. Ill. 2000)), reh’g denied. The trial court retains

broad discretion in granting or denying amendments to pleadings, and we will

reverse only upon a showing of abuse of that discretion. MAPCO Coal, Inc. v.

Godwin, 786 N.E.2d 769, 777 (Ind. Ct. App. 2003). In determining whether an

abuse has occurred, we look to a number of factors, which include undue delay,

Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019         Page 16 of 18
       bad faith, or dilatory motive on the part of the movant, repeated failure to cure

       deficiency by amendment previously allowed, undue prejudice to the opposing

       party by virtue of the amendment, and futility of the amendment. Id.


[22]   Ind. Code § 34-13-3-3(8) provides: “A governmental entity or an employee

       acting within the scope of the employee’s employment is not liable if a loss

       results from . . . [t]he adoption and enforcement of or failure to adopt or

       enforce: (A) a law (including rules and regulations); or (B) in the case of a

       public school or charter school, a policy; unless the act of enforcement

       constitutes false arrest or false imprisonment.”


[23]   The record reveals that Stone filed her August 27, 2018 motion for leave to file

       a third amended complaint more than one year and ten months after her initial

       complaint, after the District Court dismissed her § 1983 claims, and after the

       Vermillion Circuit Court dismissed her claims on June 11, 2018. Further,

       Stone failed to assert that Wright’s alleged acts fell outside the scope of his

       employment as a deputy chief. We cannot say that the trial court abused its

       discretion in denying Stone’s motion for leave to file a third amended

       complaint. See Hilliard v. Jacobs, 927 N.E.2d 393, 399 (Ind. Ct. App. 2010)

       (affirming the trial court’s denial of plaintiff’s motion to amend complaint

       where new claims could have been raised in original complaint and motion was

       filed after trial court issued summary judgment order), trans. denied; see also

       Serino, 735 F.3d at 595 (observing that the plaintiff would have to show that the

       police chief, by extreme or outrageous conduct, intentionally or recklessly

       caused him severe emotional distress, holding that ITCA shields a government

       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019    Page 17 of 18
       employee from liability if the employee is acting within the scope of his

       employment and such liability “results from . . . [t]he adoption and enforcement

       of or failure to adopt or enforce . . . a law . . . unless the act of enforcement

       constitutes false arrest or false imprisonment[,]” and affirming the district

       court’s dismissal of the plaintiff’s state law claim of intentional infliction of

       emotional distress) (quoting Ind. Code § 34-13-3-3(8)).


[24]   For the foregoing reasons, we affirm the judgment of the trial court.


[25]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-3151 | September 30, 2019      Page 18 of 18
