United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. Leichty Judge, United States District Court
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
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.
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.
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 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.
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.
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.
Emerick requests compensatory damages resulting from attorney
fees, travel, emotional distress, and physical injuries and
further requests punitive damages. Id. at 6.
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).
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).
Emerick's complaint appears to adumbrate four main
claims: (1) conflict of interest; (2) abuse of process; (3)
fraud; and (4) attorney malpractice. Because the law firms have