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ASG seeks to dismiss Barlow lawsuit — says attorney fails to provide sufficient facts

“The plaintiff (James Barlow) makes naked assertions coupled with vague inferences to justify its case and neither the court nor ASG (defendant) should be left to fill in the gaps to make the case for the plaintiff,” was ASG’s response to the lawsuit filed by Barlow for negligence, HIPPA violation, negligent infliction of emotional distress and intentional infliction of emotional distress.

 

(Full details of Barlow's lawsuit can be found in May 13, 2014 edition.)

 

Barlow’s complaint was filed in the High Court last month through his attorney, Mark Ude, and responding for ASG is assistant attorney general Vincent Kruse.

 

According to the response, ASG is asking the High Court to dismiss this lawsuit, pointing out that the court lacks jurisdiction to hear this case as plaintiff has not shown any facts to support that the amount in controversy is over $15,000.  Secondly, ASG asserts that Ude has failed to provide sufficient facts to state a claim upon which relief can be granted.

 

According to the response, ASG points out that in order to determine whether the plausibility of a complaint is sufficient, a two pronged test is used.

 

“First, the court must accept all allegations contained in a complaint as true, provided the facts are not merely legal conclusions veiled as facts (“naked assertions”).  Accordingly, if the facts are naked assertions, the court need not consider those facts as true.

 

Secondly, only a complaint that states a plausible claim for relief survives a motion to dismiss.

 

The second prong is context specific and the court draws from its own experience and common sense when making this determination. Therefore, when the court looks upon the well pleaded facts and those facts permit the court to infer only the possibility of misconduct, and nothing more, the complaint fails because it alleges” — it does not shows its pleader is entitled to relief.

 

NEGLIGENCE                            

 

In Barlow's lawsuit, Ude has "provided no facts to show that the negligence claim is plausible and amounts to no more than a mere possibility of misconduct." Although extremely unclear from the complaint, it seems the plaintiff alleges that the purported delay in providing discovery was the direct and proximate cause of plaintiff’s injuries that resulted when plaintiff was assaulted by an unnamed person, with an unspecified relationship to ASG and the discovery request, at an unclear time, which therefore entitles plaintiff to a mysterious amount of damages which remains unknown both to the plaintiff and his legal counsel.

 

Nor does the claim explain “how providing discovery, within the timeframe preferred by Barlow,___ would have prevented him from being injured. Finally, plaintiff has curiously failed to mention that procedural remedies, available in his on-going criminal trial, were used to attempt  to obtain the desired discovery were ultimately insufficient thereby necessitating the use of civil action.”

 

ASG points out that rather than providing specific facts (1) provide ASG with notice of what it must answer and (2) inform the Court what it is asked to review.

 

 "Plaintiff makes the naked assertions by stating his legal promise as facts that some negligence must exist and therefore ASG must pay.

 

“Plaintiff has failed to provide any facts to support the four elements of negligence and therefore this claim should be dismissed," ASG states.

 

HIPAA

 

ASG further notes plaintiff makes naked assertions that his privacy rights under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) have been violated by ASG. With regard to the HIPAA law itself, plaintiff has not stated what specific provisions of this law ASG has violated; and plaintiff has not explained how the High Court is the proper venue to hear this alleged violation of federal law.

 

“With regard to the facts alleged, plaintiff fails to specifically identify who violated his privacy rights, how the unknown person’s action created a liability on ASG, when this violation occurred, how it occurred and how such action entitled plaintiff to relief under HIPAA.  ASG should not be left trying to guess the missing facts and applicable law that apply to plaintiff’s claim and therefore this claim should also be dismissed."

 

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

 

ASG argues that similar to plaintiff’s first two claims, plaintiff fails to provide any well pleaded facts to show that this claim is plausible.

 

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 

 

ASG further says that in order to obtain under a theory of intentional infliction of  emotional distress the plaintiff must prove mental suffering “so extraordinary”, vindictive, extreme, or outrageous. In its complaint plaintiff has not provided any facts necessary to support the plausibility of this claim. Sticking to its status quo, plaintiff merely restates legal conclusions veiled as facts. “ASG’s actions are sanctionable.”

 

“Plaintiff must provide actual facts! Using the same standard that has been repetitiously stated above, this claim should also be dismissed.”

 

CONCLUSION

 

The government points out that “for these reasons, ASG respectfully requests that the Court dismiss all four parts of this complaint" or as an alternative — postpone the timeframe for ASG to respond to plaintiff’s complaint until this Court makes a decision on ASG’s motion to dismiss.