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37 UL Instanter Response to 27

37 UL Instanter Response to 27

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Published by Lash L
Kevin Ryan v. Underwriters Laboratories
UL Instanter Response to Ryan Corrected Supplementary - 37
Kevin Ryan v. Underwriters Laboratories
UL Instanter Response to Ryan Corrected Supplementary - 37

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Published by: Lash L on Oct 15, 2009
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10/16/2009

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 1
IN THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF INDIANAINDIANAPOLIS DIVISIONKEVIN 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 CORRECTEDSUPPLEMENTAL BRIEF REGARDING
 MEYERS V. MEYERS
 
In an order dated May 9, 2007 Magistrate Judge Tim A. Baker instructed the parties inthis 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 oppositionto 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 partiesfiled 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—inlight of a dissenting opinion in a 1986 case and that case’s relationship with a 1973 statedecision.
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.
Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 1 of 5
 
 2outside 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 employmentdoctrine.
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 forholding 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 IndianaSupreme Court took the opportunity to discuss the history and development of the public policyexception to the at-will employment doctrine and relied on
sixteen
Indiana state cases in additionto
 Morgan Drive Away
to explain the narrow scope of the public policy exception.
See id 
. at706–07. Based on the overwhelming precedent examined, the supreme court concluded that thepublic policy exception did not apply to the facts in
 Meyers
and that expansion of the exceptionwas a task for the Indiana General Assembly.
 Id 
. at 707. Accordingly, it affirmed the dismissalof 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 “potentialinconsistency” with
 Meyers
or at all affects the current state of the law.
See
Pl. Motion to File Corr. Supp. Brief at2.
See also Hale v. Comm. on Character & Fitness
, 335 F.3d 678, 683 (7th Cir. 2003) (“[I]t is enough to say thatthe views expressed by dissenting judges or justices are not binding.”);
id 
. at 684 (“[A] dissent does not reflect thestate 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.”). Bycontrast,
 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.”).
Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 2 of 5
 
 3
II. Plaintiff’s attempt to create ambiguity by quoting
 Morgan Drive Away
is belied bythe 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 theplaintiff 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
] arereadily and entirely reconcilable.”
 Id 
. In
 Meyers
, however, the Indiana Supreme Court quotedthe very same language from
Frampton
as Plaintiff and explained that “[t]he decisions during theintervening thirty years have made it plain that this language is intended to recognize quite alimited 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 oneanother:
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 thenarrow scope of the exception did not merit application to the facts in
 Meyers
. Applying allthree decisions to the facts in this case leads to the unmistakable and remarkably
un
ambiguousconclusion that Plaintiff may not pursue a common law claim based on the public policyexception.
CONCLUSION
Plaintiff’s corrected supplemental brief is outside the scope of the court’s instructions andsheds no light on the dispositive question of whether
 Meyers
bars his common law claim. Forthese and all of the foregoing reasons as well as for the reasons set forth in UL’s Motion toDismiss Plaintiff’s First Amended Complaint, Defendant Underwriters Laboratories, Inc.
Case 1:06-cv-01770-JDT-TAB Document 37-2 Filed 06/08/2007 Page 3 of 5

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