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Emerick v. Schlitt

United States District Court, N.D. Indiana, South Bend Division

September 17, 2019

WILLIAM EMERICK, Plaintiff,
v.
ALBERT J. SCHLITT ESQUIRE, et al., Defendants.

          OPINION AND ORDER

          Damon R. Leichty Judge, United States District Court

         William Emerick filed a pro se complaint alleging legal malpractice, fraud, abuse of process, collusion, malfeasance, and other claims against an attorney and three law firms arising from a state court marriage dissolution action in Wabash County, Indiana. The law firms (including individual counsel) have all moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and alternatively 12(b)(6). While fully briefed, Mr. Emerick filed a motion for leave to file an amended complaint trying to remedy the issues raised in the dismissal motion. The law firms have argued the amendment's futility. This presiding judge, having been recently reassigned to the case, now GRANTS in part the motion to dismiss and GRANTS in part leave to amend the complaint.

         BACKGROUND

         Accepting all well-pleaded allegations as true and taking all reasonable inferences in Mr. Emerick's favor, the following facts emerge. Mr. Emerick retained Attorney M. Josh Petruniw on February 25, 2016 to represent him in his marriage dissolution case with Ms. Brenda Purdy. ECF 1 at 2. At the time, Attorney Petruniw was a partner with Tiede Metz Downs & Petruniw, P.C. (“Tiede”). Id. During this time, Albert Schlitt, an attorney with the same firm but at another Tiede office, offered pro bono services to Ms. Purdy and eventually became her retained attorney in the subsequent annulment and dissolution of marriage cases between Mr. Emerick and Ms. Purdy.[1] Id.

         The record does not reveal whether the husband and wife had consented to this representation after consultation, but presumably not. On April 13, 2018, in state court, Mr. Emerick filed a motion to disqualify Mr. Schlitt as Ms. Purdy's counsel claiming a conflict of interest from Tiede representing both Mr. Emerick and Ms. Purdy. Id. Twelve days later Mr. Schlitt filed a motion to withdraw as Ms. Purdy's counsel. Id. at 3.

         It is this conflict of interest that Mr. Emerick alleges motivated several acts by defendants during the two cases. Mr. Emerick says the law firms abused process when they frivolously cancelled 8-18[2] hearings and depositions at the last minute, thus causing him over $12, 800 in travel expenses and causing over $100, 000 in damages from medical complications-a result of a herniated disc and spinal stenosis that he says his physician attributed to this unnecessary travel. Id. at 4.

         Mr. Emerick further alleges the law firms used fraud to obtain the declaratory order issued in the annulment case against Ms. Purdy. Id. at 4-5. Mr. Emerick states that a fraudulent validation of his marriage (with an “unfiled marriage license”) with Ms. Purdy has cost him money and loss of marital assets. Id. at 5.

         Finally, Mr. Emerick alleges that defendants colluded with his new attorney Jack Johnston (who has not been named in this complaint) to obtain the declaratory order that validated his marriage to Ms. Purdy. Mr. Emerick alleges that the law firms and Johnston did so in order to “enrich each other in attorney fees.” Id.

         Mr. Emerick requests compensatory damages resulting from attorney fees, travel, emotional distress, and physical injuries and further requests punitive damages. Id. at 6.

         STANDARD

         In reviewing a motion to dismiss under Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The statement must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face and raise a right to relief above the speculative level. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff's claim must be plausible, not probable. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012). Evaluating whether a claim is sufficiently plausible to survive a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

         When evaluating a facial challenge to subject matter jurisdiction under Rule 12(b)(1), a court must use the same “plausibility” standard; therefore, the court must accept alleged factual matters as true and draw all reasonable inferences in favor of the plaintiff. Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015). Mr. Emerick bears the burden of establishing the jurisdictional requirements. Ctr. for Dermatology and Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588-89 (7th Cir. 2014). Of course, because Mr. Emerick is a pro se plaintiff, the court must liberally construe his complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         DISCUSSION

         Mr. Emerick's complaint appears to adumbrate four main claims: (1) conflict of interest; (2) abuse of process; (3) fraud; and (4) attorney malpractice.[3] Because the law firms have challenged ...


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