Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KEVIN C. RYAN, )
)
Plaintiff, )
)
v. ) Cause No. 1:06-cv-1770-JDT-TAB
) Judge John D. Tinder
) Magistrate Judge Tim A. Baker
)
UNDERWRITERS LABORATORIES, INC., )
)
Defendant. )

DEFENDANT’S INSTANTER RESPONSE TO PLAINTIFF’S CORRECTED

SUPPLEMENTAL BRIEF REGARDING MEYERS V. MEYERS

In an order dated May 9, 2007 Magistrate Judge Tim A. Baker instructed the parties in

this matter to file briefs by May 11 supplementing their previously filed motion to dismiss briefs.

Magistrate Judge Baker made clear that the additional briefing should address only the impact of

Meyers v. Meyers, 861 N.E.2d 704 (Ind. 2007), on the parties’ briefs in support of or opposition

to Defendant Underwriter Laboratories, Inc.’s (“UL”) motion to dismiss the initial complaint of

Plaintiff Kevin Ryan (“Plaintiff”). In keeping with these very specific instructions, both parties

filed supplemental briefs on May 11.

On June 3 Plaintiff filed a “corrected” supplemental brief in which he purports to re-

interpret Meyers—a decision issued by the Indiana Supreme Court on February 21, 2007—in

light of a dissenting opinion in a 1986 case and that case’s relationship with a 1973 state

decision.1 Plaintiff’s newest brief is riddled with deficiencies, most notably because it is far

1
Plaintiff’s Corrected Supplemental Brief (“Pl. Corr. Supp. Brief”), filed June 3.

1
 Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 2 of 5

outside the scope of Magistrate Judge Baker’s instructions in that it does not address the effect

Meyers has on Plaintiff’s ability to bring a common-law claim in this case.

I. Plaintiff’s arguments in his new supplemental brief do not undermine Meyers,

which bars his common law claim.

Plaintiff’s re-reading of an old dissenting opinion does not change the fact that Meyers

precludes his common law claim based on the public policy exception to the at-will employment

doctrine.2 Plaintiff frames his discussion of Morgan Drive Away, Inc. v. Brant, 489 N.E.2d 933

(Ind. 1986), by stating that “[t]he Meyers court relied on one of its prior decisions as the basis for

holding that the claim of the plaintiff in Meyers did not fall within the public policy exception.”

See Pl. Corr. Supp. Brief. at 1. Although the Meyers court believed the plaintiff’s claim was

“substantively indistinguishable from that in Morgan Drive Away,” Meyers, 861 N.E.2d. at 706,

and therefore appropriate for dismissal, it did not rest on that determination. Instead, the Indiana

Supreme Court took the opportunity to discuss the history and development of the public policy

exception to the at-will employment doctrine and relied on sixteen Indiana state cases in addition

to Morgan Drive Away to explain the narrow scope of the public policy exception. See id. at

706–07. Based on the overwhelming precedent examined, the supreme court concluded that the

public policy exception did not apply to the facts in Meyers and that expansion of the exception

was a task for the Indiana General Assembly. Id. at 707. Accordingly, it affirmed the dismissal

of the plaintiff’s common law claim. Id.

2
It is doubtful that the short, two paragraph dissent in Morgan Drive Away raises any “ambiguity” or “potential
inconsistency” with Meyers or at all affects the current state of the law. See Pl. Motion to File Corr. Supp. Brief at
2. See also Hale v. Comm. on Character & Fitness, 335 F.3d 678, 683 (7th Cir. 2003) (“[I]t is enough to say that
the views expressed by dissenting judges or justices are not binding.”); id. at 684 (“[A] dissent does not reflect the
state of the law.”); Schleicher v. The Salvation Army, No. 1:06-cv-545-RLY-WTL, 2007 WL 129041, at *4 (S.D.
Ind. Jan 12, 2007) (“The court is not persuaded by the dissenting opinion as it has no precedential value.”). By
contrast, Meyers is a very recent unanimous decision of the state supreme court and thus reflects the current state of
the law in Indiana with respect to common law claims for retaliatory discharge based on the public policy exception.
See Standard Mut. Ins. Co. v. Kidd, 136 F. Supp. 2d 950, 954 (S.D. Ind. 2001) (“Because we are sitting in diversity,
the Court is charged with applying the law of Indiana as interpreted by the highest court of the state.”).

2
 Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 3 of 5

II. Plaintiff’s attempt to create ambiguity by quoting Morgan Drive Away is belied by
the fact that the Meyers court specifically addressed that language in its opinion.

Plaintiff finds it significant that the Morgan Drive Away court reaffirmed its decision in

Frampton v. Cent. Ind. Gas. Co., 297 N.E.2d 425 (Ind. 1973), while simultaneously finding the

plaintiff in Morgan Drive Away could not state a common law claim for retaliatory discharge.

See Pl. Corr. Supp. Brief at 2. Plaintiff even quotes the Morgan Drive Away court’s quotation of

Frampton in an effort to show that “it is not clear that [Morgan Drive Away and Frampton] are

readily and entirely reconcilable.” Id. In Meyers, however, the Indiana Supreme Court quoted

the very same language from Frampton as Plaintiff and explained that “[t]he decisions during the

intervening thirty years have made it plain that this language is intended to recognize quite a

limited exception.” Meyers, 861 N.E.2d at 707. Thus, far from being irreconcilable, Frampton,

Morgan Drive Away, and Meyers are all consistent and completely reconcilable with one

another: Frampton recognized an exception to the at-will employment doctrine; Morgan Drive

Away affirmed that exception but found it inapplicable to the case before it; and Meyers

explained the context of both decisions, reviewed the history of the exception, and held that the

narrow scope of the exception did not merit application to the facts in Meyers. Applying all

three decisions to the facts in this case leads to the unmistakable and remarkably unambiguous

conclusion that Plaintiff may not pursue a common law claim based on the public policy

exception.

CONCLUSION

Plaintiff’s corrected supplemental brief is outside the scope of the court’s instructions and

sheds no light on the dispositive question of whether Meyers bars his common law claim. For

these and all of the foregoing reasons as well as for the reasons set forth in UL’s Motion to

Dismiss Plaintiff’s First Amended Complaint, Defendant Underwriters Laboratories, Inc.

3
 Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 4 of 5

respectfully requests that the Court dismiss Plaintiff’s First Amended Complaint in its entirety

with prejudice.

Respectfully submitted,

Defendant Underwriters Laboratories, Inc.

s/Michael P. Roche
By One of Its Attorneys

Michael P. Roche (admitted pro hac vice)

Aviva Grumet-Morris (admitted pro hac vice)
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, Illinois 60601
Tel: (312) 558-5600
Fax: (312) 558-5600
mroche@winston.com
agmorris@winston.com

Thomas E. Deer
Locke Reynolds LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
Tel: (317) 237-3800
Fax: (317) 237-3900
tdeer@locke.com

4
 Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 5 of 5

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of June, 2007, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to the following parties by operation of the
Court’s electronic filing system. Parties may access this filing through the Court’s system.
Rudolph William Savich – rsavich@aol.com
Mick G. Harrison – mickharrisonesq@earthlink.net

I hereby further certify that service of the foregoing was made by placing a copy of the
same into the United States Mail, first class postage prepaid, this 8th day of June, 2007,
addressed to:

Kara L. Reagan, Esq.

Stafford Law Office, LLC
714 West Kirkwood Ave.
P.O. Box 2358
Bloomington, IN 47402

s/Michael P. Roche
Michael P. Roche

5
CHI:1923687.5
CHI:1862416.2