How to Escape Judge Welch's Commercial Court

For Attorneys

Alright Indiana Jones / Batman and Robin / Bo and Luke, you have found yourself in Judge Welch's Commercial Court. That might be because:

• You contractually agreed, even if you didn't realize it, 
• The opposing party is falsely stating that you did sign a contract that never existed and Welch won't make them produce it with new trial court rules, 

Or maybe the opposing party isn't doing any of that since recent trial rule amendments give no greater weight to one venue provision over another, sort of, and subject to the judge's personal preference.

Most importantly, when a party 'familiar' to Judge Welch lands in her court, she has a history of ruling in their favor to keep the case by denying any motion to transfer or claim of improper venue.

So what's the key to escaping Welch's Commercial Court labyrinth? 



Well one case escaped. And just like Indiana Jones, they had to execute perfectly. Any misstep would have been catastrophic as evidenced by the failed attempts scattered along the side (myself included).

The case is 49D02-1907-PL-027305 Tyler C. Sadek v. Foundry Capital, LLC / Scott Wolfrum.

• Sadek was represented by Alice Morical and Evan Carr of Hoover, Hull, Turner, LLP. 😬
• Our heroes are John Moore and Patrick Cline of Touhy, Baily & Moore LLP defending Foundry and Wolfrum.
• Sadek filed Commercial Court Notice with his initial complaint on 7/9/19 effectively choosing Welch as judge.
• As has happened with Welch, she got some activity on the docket early. And it is quite curious, especially the timing.
• Welch ruled on a 9(G) motion. This happened at almost the same time Moore and Cline filed an appearance on 7/12/19. Curious, right? 
• Welch's ruling was last edited, (likely when the clerk stamp is added) at 10:42:53 am. The appearance by the defendants was last edited less than 3 minutes later at 10:45:21 am. 
• Just happenstance, I am sure. Welch was looking over outstanding motions, happened to approve this one, and crazy enough, the Marion County Clerk just happened to stamp the appearance and below notice. I wonder what Welch's work calendar showed that day and what her clerks would say about where she was.
• Welch's 9(G) order (drafted by a paralegal at HHT on 7/8) also included a hearing scheduled for 9/6/19. 
• Let's see how our heroes respond. 
• Concurrent with their appearance, given the metadata, they filed the critical Notice of Refusal to Consent to Commercial Court, successfully navigating the first trap.
• The clerks stamp shows 10:38 am on 7/12, same with the appearance, but the last saved time was 10:45:20 am (one second after the appearance).

Cue the frozen picture of Batman and Robin untying themselves over a radioactive cauldron (or that orange racist car in mid-air) with the announcer coming on...

Now folks, it looks like our heroes survived the Joker (Boss Hog)'s test. But I can't help feeling something else is coming. 

As soon as the commercial started, for those of us who watched those shows, a quick check of the clock, gave it away. Yep, 15 minutes to go. Certainly something else is coming. 

Of our heroes, only Moore has commercial court experience with two cases. Indiana litigation attorneys know that the cards are stacked against our heroes. Because like Bo and Luke / Batman and Robin, the public officials, well they make the rules, often on the fly as we will see here. And they certainly don't have the relationship with Welch that Morical and Carr have.

That's your clock check. 

In our saga, a new trap was added just a month earlier, on June 1, 2019. And our heroes were the first ones to face it. No failed attempts to go by. If they were referencing a printed version of commercial court rules from January, they could have missed it. Typically, new court rules are supposed to be approved during the year with an effective date of January 1 of the following year. That allows attorneys to depend on stable rules of court. Not this one.

Welch ordered on 7/25/19 to remove the case from the Commercial Court Docket. But the new rule simply transfers it to her regular docket. 

Yep, just when it looked like our heroes escaped after the commercial, a backup trap clamped right back down on them keeping them in the same mess! 

Can't you see it? Batman and Robin use some tool to get off the handcuffs and the tool drops with the cuffs into the lava, but then new cuffs they didn't see grab their ankles as they are lowering towards the radioactive waste!!  

How 80's action sitcom is that? Right? Certainly a similar level of cunning.

And look at how buried Commercial Court Rule 4(D)(3) is. Almost makes you wonder if it was instituted just to trap the friend of our heroes.

Sidenote: If you are the plaintiff (filing the lawsuit), say a parent suing IHSAA, you should review with your attorney how to ensure that the initial filing of your case doesn't qualify for the Commercial Court docket. Have them review the rules. For example, the initial Complaint should focus on personal injury and not breach of contract, UCC, fraud, unfair trade / competition, antitrust, etc. You can probably add that to an amended complaint after avoiding Welch. But it can still be assigned at any time on the motion of any party. (Com Rule 4, Comment 1)

Back to our story...

Thankfully our heroes were prepared for the second trap, and realized that they still had Welch, and on 7/25/19 moved for change of judge before that (likely concurrent) deadline ended.

And as is true of 80's action sitcoms, when the heroes escape, it ended quickly. Sadek filed a Motion to Dismiss on 9/3/19. They didn't even need to file an answer. Shoot they didn't even get to the Admin 9(G) hearing!

Time for bed boys!


A few additional notes:

• Now just because you escaped Welch's court, don't expect that you will now have a fully objective judge. But at least you avoided the Indiana judge that every organization in Indiana wants to have on their side, no matter the cost.
• Welch's Commercial Court reach
• There's only 5 other commercial courts all around the edges of the state, Elkhart, Fort Wayne, New Albany, Evansville, and Hammond. So every business / non-profit / partnership from Kokomo to Columbus, Muncie to Bloomington, could choose Welch's court. Makes her favor very attractive, even without impending litigation.
• Attorneys will now realize that one party can get a case venued out from a local county to Marion and specifically Welch with a simple Commercial Court notice. I am not aware of any cases from other counties, that moved to Marion, that then moved back after a party opted out. So that's the trap that will certainly catch more people off-guard. I read articles in other states about venue selection. They have nothing on Indiana.

If you are facing a lawsuit and find yourself in this situation, you should probably call our heroes! IMMEDIATELY! Don't start with your local attorney. They have more risk of getting trapped because they aren't ready for Boss Hog's or The Joker's tricks!