Baker, J.
Brian Young, Dave Wells, Steve Richmond, and Tim Corbett (collectively, the Officers) appeal the trial court’s order dismissing their complaint against Henry Davis. The Officers filed a lawsuit against Davis, a government employee, and two governmental agencies for actions he took while a government employee. After the Officers voluntarily dismissed the governmental entities from the complaint, the trial court granted Davis’s motion to dismiss based on the Indiana Tort Claims Act (ITCA).[Footnote omitted.] Finding that the dismissal was erroneous, we reverse and remand for further proceedings.
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As noted above, “[a] judgment rendered with respect to . . . a governmental entity bars an action by the claimant against an employee . . . whose conduct gave rise to the claim resulting in that judgment[.]” I.C. § 34-13-3-5(b). If we were to find, as Davis argues we should, that the Officers’ voluntary dismissal of the City and Common Council constitutes a “judgment” for ITCA purposes, then the Officers would not be permitted to pursue an individual claim against Davis for these actions.
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We simply cannot conclude that a plaintiff’s decision to voluntarily dismiss governmental entities from a complaint before litigation has even begun equates to the scenarios contemplated by the Burks and Nevitt Courts. …
Here, in contrast, the Officers made a decision extremely early in the litigation—before attorneys for the City and Common Council had even filed appearances—to pursue recovery solely against Davis as an individual. Indiana Trial Rule 15(A) provides that “[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served[.]” In such a circumstance, the trial court need not, and cannot, rule on the amendment—the plaintiff is entitled to it as of right. And Trial Rule 41(A)(1)(a) provides that an action may be dismissed by the plaintiff without order of court by filing a notice of dismissal before the adverse party has served an answer. Again, no judicial action is required. Because the Officers here took action at such an early date in the litigation, they were within their rights to dismiss the City and Common Council and amend their complaint without first seeking permission from the trial court. As such, we find Burks and Nevitt distinguishable.
Under these circumstances, we find that the voluntary dismissal of the City and Common Council did not constitute a “judgment” for purposes of ITCA. Therefore, the claims against Davis were not barred on this basis.
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We have already noted that the City and Common Council were voluntarily dismissed from the complaint. We have also found that the dismissal did not, in and of itself, bar the Officers from continuing their lawsuit against Davis individually. After the dismissal, the Officers amended their complaint, alleging solely that Davis was acting outside the scope of his employment. At that time, there was no governmental entity participating in the litigation that could have filed a pleading on Davis’s actions. Consequently, to say that the absence of such a pleading is fatal to the Officers’ claims makes little to no sense.
To agree with Davis’s position would be to hand control of litigation over to a third party. We simply cannot countenance, and cannot conclude that the General Assembly intended, such a result. We decline to find that a non-party governmental entity was required to file a pleading before the Officers’ individual claims against Davis were entitled to proceed. Therefore, we reverse the trial court’s order with respect to the wiretap claim and remand for further proceedings.
The judgment of the trial court is reversed and remanded for further proceedings.
Bailey, J., and Mathias, J., concur.