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by: Colin E. Flora
This is a rather unusual installment of the Hoosier Litigation Blog. As many of you who know me personally may be aware, this past summer I began an ambitious project to draft a treatise on Indiana small claims law, procedure, and practice. It is my goal with the project to ultimately go through every single reported small claims decision and unpublished decision that I can get my hands on to help break down the intricacies of small claims practice for judges, lawyers, and, most importantly, unrepresented persons. Although the practice in small claims is informal, the law and burdens remain the same. Consequently, it is a much larger project than you might initially expect. It is my goal to have sections addressing causes of action that frequently arise in small claims along with a comprehensive list of defenses. At present, there are currently slotted 111 sections/subsections in the causes of action portion alone. In short, it is still going to be some time before the project is finished.
What causes this entry is that I perceive a need for guidance on Small Claims Rule 12.1, which took effect January 1, 2017. There are a couple issues that need to be addressed. First, at present, the Small Claims Manual available on the Indiana Judicial Branch website is from 2014. Consequently, it not only does not address Rule 12.1, but its current advice on motions for change of judge is inaccurate. At page 13, it states,
You may request a change of judge, but strict time limits apply. A party seeking a change of judge must file that written request with the court within thirty (30) days after suit is filed (Trial Rule 76) or earlier if the trial is set within (30) days after filing suit.
Small Claims Rule 12.1 states,
In any court exercising small claims jurisdiction, a party shall have ten  days from the date of service of the notice of claim to file a change of judge. When a change occurs a new judge shall be selected as provided in Trial Rules 79 or 79.1.
I have sent an email to the Office of the Clerk for the Supreme Court and Court of Appeals in an attempt to have the manual updated.
The other reason is that I see an inherent ambiguity in the rule that merits addressing. The rule does not make clear how the calculation should be made in a case with multiple defendants served on different days. In such actions, the party initiating the action (i.e. the plaintiff) would be well served to presume that it must file a change of judge within ten days after the first defendant has been served. Similarly, defendants should make the same presumption. However, when parties find themselves outside the ten  day window, particularly when the subsequently served defendant receives service after the deadline, parties should act expeditiously but not refrain simply because the window appears to have closed. See State ex rel. Baber v. Circuit Court of Hamilton Cnty., 454 N.E.2d 399 (Ind. 1983) (relieving defendant of unduly harsh operation of T.R. 76 filing deadline in change of venue).
Regrettably, I did not discover the problem until after the window for notice and comment closed on April 11, 2016. Were I to propose an amendment to S.C. 12.1 it would state:
MY PROPOSED AMENDMENT
Rule 12.1. Time to file Change of Judge
(1) Plaintiffs. The party who initiates the action shall have ten  days from the date of service of the notice of claim to file a change of judge. If there are multiple parties upon whom service is to be made, the party who initiates the action must file a change of judge within ten  days after service is made upon the first party served.
(2) Defendants. The party upon whom service is made shall have ten  days from the date it was served with the notice of claim to file a change of judge.
(B) Selection of New Judge. When a change occurs a new judge shall be selected as provided in Trial Rules 79 or 79.1
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.