
    
      Opinion issued December 3, 1980
    
    IDA M. HINER and NORMAN F. HINER, D/B/A HERCULES CONSTRUCTION COMPANY vs. DEPARTMENT OF NATURAL RESOURCES
    (CC-80-150)
    
      Fred A. Jesser, III, Attorney at Law, for the claimants.
    
      Henry C. Bias, Jr., Attorney at Law, and Leonard Knee, Attorney at Law, for the respondent.
   PER CURIAM:

This claim is based upon the allegation that certain employees of the respondent entered a conspiracy as a result of which the claimants sustained the forfeiture of a bond which had been posted as security for a strip mining permit and also were deprived of their privilege to mine coal located upon certain land owned by them.

The matter now is before the Court upon the respondent’s motion to dismiss based upon the following grounds:

1. The alleged conspiracy could not have been committed by the employees while acting within the scope of their employment; and

2. The claimants failed to exhaust their administrative remedy which provided an appeal from the order forfeiting the bond and, for that reason, jurisdiction of this Court is excluded under West Virginia Code, §14-2-14(5).

Due to the extremely vague nature of the allegations relating to conspiracy, the Court is unable to determine the applicability of either of those grounds. In connection with the matter of appeal, the Court observes, however, that the time requirement pertaining to the appeal might be viewed as directory rather than mandatory. See 2 Am. Jur. 2d “Administrative Law”, §544.

In 16 Am. Jur. 2d “Conspiracy”, §67, it is stated:

“The rules governing pleadings in conspiracy actions are not materially different from those applicable to other actions. The complaint must state facts that constitute a cause of action, that is, the complaint must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant thereto, and the damage resulting from such act or acts. Facts, not legal conclusions, must be pleaded, including facts showing damages.”

While this Court may or may not go as far as that text, it is disposed to hold that it is not sufficient merely to allege that a conspiracy has occurred. See 2A Moore’s Federal Practice, §8.17[5], and 5 Wright' and Miller, Federal Practice and Procedure, §1233. Since the claimants’ complaint alleges only the legal conclusion that a conspiracy occurred, the Court, for that reason, is disposed to dismiss the complaint for failure to state a claim upon which relief can be granted but will grant to the claimants leave to file an Amended Notice of Claim within thirty (30) days after the entry of this decision.  