Motions for remand, transfer filed in lawsuit against Eric Conn

By Kyla Asbury | Nov 16, 2015

CHARLESTON – Motions have been filed in a lawsuit against Eric C. Conn to dismiss the lawsuit or transfer it to another court.

A memorandum in opposition to the defendants' motion to dismiss or, in the alternative, to transfer have been filed in the U.S. District Court for the Southern District of West Virginia.

"In considering a motion to dismiss for failure to state claim pursuant to Rule 12(b)(1), the court should accept as true all well pleaded allegations and should view the complaint in a light most favorable to Plaintiff," the plaintiff's memorandum states.

A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the subject claim, according to the plaintiff's memorandum.

"The complaint filed herein specifically places the defendants on notice that the defendants committed fraud by making, using or causing to be made or used false records or statements material to a false or fraudulent claim and submitting the same on behalf of plaintiff’s claim for Social Security disability," the plaintiff's memorandum states. "The court need not look beyond the four corners of the complaint to conclude that plaintiff clearly delineates a claim for fraud against the defendants."

Here, the complaint specifically describes facts that, when viewed as true and in a light most favorable to the plaintiff, demonstrate that the plaintiff has stated a claim for fraud against the defendants.

The plaintiff claims her claims are also not premature and that the defendants have chosen to focus solely upon her claims relating to the Social Security Administration’s notice of suspension of benefits.

"The plaintiff has been exposed to potential damages in the future should benefits be suspended which exposure or even potential exposure has caused the plaintiff to suffer great emotional distress," the memorandum states.

The defendants violated their duties to the plaintiff and committed malpractice and breached their fiduciary duties to the plaintiff by using or causing to be made and used false records or statements material to a false and fraudulent claim and submitted the same, as counsel for the plaintiff and without the plaintiff’s knowledge, consent or approval on behalf of the plaintiff’s claim for Social Security disability.

"These claims of Plaintiff against the Defendants exist whether or not Plaintiff’s Social Security benefits are suspended or not in the future," the memorandum states. "Plaintiff has valid claims in this action which are ripe for adjudication. The Court may address the Plaintiff’s loss of benefits claim and withhold judgment on that claim alone pending final adjudication by the Social Security Administration should such adjudication not occur during the Court’s trial schedule."

The defendants' assertion that there is no indication that the plaintiff’s disability benefits will ultimately be revoked is totally without justification in this record.

"Likewise, Defendants assertion that Plaintiff’s benefits will not be suspended for the foreseeable future is totally without basis in this record."

A memorandum in support of the defendants' motion to dismiss or, in the alternative, to transfer, was filed in the U.S. District Court for the Southern District of West Virginia.

Eric C. Conn and Eric C. Conn PSC claim Claudette Block's are premature and not ripe for consideration by this court.

"Plaintiff's claims against Conn in this action – which relate to the plaintiff's right to receive Social Security disability benefits – are premature and not ripe for consideration by this court," the memorandum states. "It is well-settled that federal courts have jurisdiction to hear only a true 'case or controversy' and may not rule on issues which are not yet ripe for decision."

The plaintiff's complaint fails to state a claim against Conn, according to the memorandum.

"Even if this were a proper case before the court, the plaintiff's claims against Conn fail as a matter of law," the memorandum states. "To begin, plaintiff contends that she was, and is, disabled. Conn certainly believed so. Conn represented plaintiff in her successful claim for disability benefits."

Nowhere in that synopsis or in the complaint is there any allegation that Conn defrauded anyone in the presentation of the claims, according to the memorandum.

"Moreover, Conn succeeded in establishing Plaintiff’s eligibility for social security benefits," the memorandum states.

The complaint does not identify any false statements, according to the memorandum.

"It does not state when they were made, to whom they were made, or whether they were material," the memorandum states. "Conn cannot even guess what statements plaintiff believes were fraudulent, since Conn and plaintiff agree that plaintiff was actually disabled and Conn represented her to be so. Rule 9(b) does not permit a plaintiff to go forward on a complaint where the defendant has to guess what he did wrong."

If the court does not dismiss this action in its entirety, Conn submits that the case should be transferred to the U.S. District Court for the Eastern District of Kentucky at Pikeville.

On Sept. 2, a motion to remand was filed by Block, seeking to have the case remanded back to Mingo Circuit Court.

Block stated that she file the proper pre-removal stipulation explicitly limiting her recovery to an amount less than the jurisdictional limit of the court.

On Sept. 1, the lawsuit was removed to the U.S. District Court for the Southern District of West Virginia. The defendants stated that the amount in controversy exceeded $75,000.

On July 30, Block filed her lawsuit in Mingo Circuit Court.

On April 20, 2006, Conn undertook to provide legal service to the plaintiff in Mingo County in connection with her claim for Social Security disability benefits and she was awarded payments on Sept. 11, 2009. She received her benefits until May, when they were suspended.

Block claims at all times, the defendant held himself and his firm out as competent in the area of law, dealing with the legal matters for which she retained Conn's services.

Conn negligently failed to act with the degree of competency generally possessed by attorneys who handle legal matters similar to the plaintiff's, according to the suit.

In the course of the defendant's representation of Conn, he required her to see one of "his doctors," according to the suit.

Block claims she was under the good faith belief that the defendants were properly representing her in a respectful and ethical manner and not engaging in any backroom deals with Social Security judges such as breakfasts before the hearings and/or any possible kickbacks.

Block is seeking compensatory damages less than $75,000. She is being represented by Justin J. Marcum of Marcum Law Office PLLC; and W. Thomas Ward of Ward & Associates PLLC.

Conn is represented by David K. Hendrickson of Hendrickson & Long PLLC.

U.S. District Court for the Southern District of West Virginia case number: 2:15-cv-12856

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