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Gustafson v. Schwarz

United States District Court, D. Nevada

February 11, 2015



ROBERT C. JONES, District Judge.

This case arises from Defendant's alleged legal malpractice and breach of contract. Pending before the Court is Defendant's Motion to Dismiss (ECF No. 25) Plaintiff's Amended Complaint ("AC"). Plaintiff has filed a Response. (ECF No. 27).


In November 2008, Plaintiff was a convicted prisoner of Minnesota being housed in a prison located in Nevada as part of an interstate compact. Plaintiff retained Defendant as legal counsel during that time to file a habeas petition in this District challenging his Minnesota conviction. Plaintiff sought to challenge his conviction in this District because he believed that his habeas petition would not be given a fair review in Minnesota. ( See Mot. under Rule 60(b), Gustafson v. Williams, No. 2:09-cv-01225-KJD-LRL, ECF No. 24).[1] After the habeas petition was filed, the defendants moved to transfer the case to the District of Minnesota. The motion presented a unique procedural question given the Supreme Court's ruling in Rumsfeld v. Padilla, 542 U.S. 426 (2004), regarding jurisdiction and the proper respondent to be named in custodial habeas matters. The court noted that Padilla likely required the warden of the Nevada prison to be named since he was Plaintiff's immediate physical custodian. The court determined that this complicated the issue of whether "a petitioner could challenge his present rather than future custody under an out-of-state conviction in a district in the state of conviction rather than a district in the state of confinement." (May 10, 2010 Order 4, Gustafson v. Williams, No. 2:09-cv-01225-KJD-LRL, ECF No. 21). The court found that Ninth Circuit precedent prior to Padilla, namely Fest v. Bartee, 804 F.2d 559 (9th Cir. 1986), made it clear that the court had authority to transfer the action to the District of Minnesota and that "it not only [could] do so but should do so." ( Id. at 3). But the court also found that Padilla introduced "a measure of doubt as to whether Fest remain[ed] good law." ( Id. ). The court went on to find that, assuming it had authority to transfer the case, the District of Minnesota would be the best forum to litigate Plaintiff's petition. The court issued its order on May 10, 2010 transferring the case.

However, the court stayed its order for forty-five days so that an interlocutory appeal could be filed with the Ninth Circuit to review whether Padilla impacted the holding in Fest. ( Id. at 7). Defendant at this time was relying upon the District's email correspondence system to receive notifications regarding Plaintiff's case. Defendant claims that he received these emails in his personal account through an email forwarding system from his professional account. Defendant further claims that, unbeknownst to him, his professional account was switched when his office changed service providers. In any event, Defendant did not receive the electronic notification that the court had issued an order granting the defendant's motion to transfer Plaintiff's case to the District of Minnesota. ( See AC at 4, ECF No. 23).

It was not until July 16, 2010 when Defendant received a letter from a Magistrate Judge in the District of Minnesota that Defendant and Plaintiff became aware that the case had been transferred. By then, the time to file the interlocutory appeal had passed and this District no longer had jurisdiction over the case. Nevertheless, in an attempt to correct the mistake, Defendant filed a motion under Rule 60(b) and Rule 6(b) asking the court to either reconsider its order to transfer the case or to reissue the order so that the interlocutory appeal could be filed with the Ninth Circuit. (Mot. under Rule 60(b), Gustafson v. Williams, No. 2:09-cv-01225-KJD-LRL, ECF No. 24). The court found that neither Rule was beneficial to Plaintiff and that the time for interlocutory appeal had passed, especially because the case was lodged in the transferee court. ( Id. at 3-7).

Plaintiff then convinced Defendant to file a writ of mandamus with the Ninth Circuit in a last ditch effort to have this District ordered to hear Plaintiff's case. (AC at 4). The petition for a writ was filed by Defendant on December 13, 2010. Thereafter, the Ninth Circuit found that Plaintiff's writ raised issues that warranted a response and ordered that the real parties in interest do so. (9th Cir. Feb. 8, 2011 Order 1, No. 10-73787, ECF No. 23, Ex. 1). A response was filed and Defendant filed a reply on Plaintiff's behalf. ( Gustafson v. USDC-NV, 9th Cir. Dkt., Case No. 10-73787, ECF No. 13). Defendant also filed a motion for preliminary and injunctive relief on Plaintiff's behalf, ( Gustafson v. USDC-NV, No. 10-73787, 9th Cir. Dkt., ECF No. 14), which was opposed by the real parties in interest. The Ninth Circuit then held that Plaintiff had failed to demonstrate that his case warranted the intervention of the Appeals Court "by means of the extraordinary remedy of mandamus." (9th Cir. June 28, 2011 Order, ECF No. 23, Ex. 2).

At this point, Plaintiff alleges that Defendant abandoned him. Defendant did not seek a rehearing en banc of the panel's decision to deny the writ. Instead, Plaintiff himself filed an emergency motion to stay or recall the mandate, which the Ninth Circuit denied as an untimely motion for reconsideration of the June 28, 2011 order since no mandate had been issued, and the case was closed. ( Gustafson v. USDC-NV, Case No. 10-73787, 9th Cir. Dkt., ECF No. 19). Plaintiff's habeas petition was still pending in the District of Minnesota, however, and Plaintiff alleges that Defendant's duties to represent him continued after the case transferred or that alternatively Defendant should have made other arrangements for Plaintiff's representation.

Plaintiff filed this action against Defendant on November 26, 2013. On May 13, 2014, Defendant filed his first motion to dismiss Plaintiff's malpractice and breach of contract claims, which the Court granted because Plaintiff had failed to plausibly plead damages. (Sept. 9, 2014 Order, ECF No. 22). The Court gave Plaintiff leave to amend his initial complaint to correct the deficiencies. Defendant now moves to dismiss the Amended Complaint either because it fails to allege any cause of action, or because it fails to state a claim for relief pursuant to Rule 12(b)(6).


The Court acknowledges Defendant's argument that Plaintiff's Amended Complaint does not conform to the structure of a traditional complaint filed in federal court. However, given Plaintiff's status as a pro se litigant and the fact that Defendant has adequate notice of the claims against him, the Court finds that it may accept the filing as Plaintiff's attempt to demonstrate the plausibility of his claims. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (noting that courts "tolerate informalities from civil pro se litigants"). The Court, therefore, will not regard the filing as a motion for reconsideration as Defendant suggests. Instead, the Court will evaluate the Amended Complaint under the Rule 12(b)(6) standard.

The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (quotations omitted). To avoid a Rule 12(b)(6) dismissal, a complaint does not need detailed factual allegations, but it must plead "enough facts to state a claim to relief that is plausible on its face." Clemens v. Daimler Chrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). Even though a complaint does not need "detailed factual allegations" to pass Rule 12(b)(6) muster, the factual allegations "must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555. "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678. "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancements.'" Id. (quoting Twombly, 550 U.S. at 557).


Plaintiff's Amended Complaint alleges that Defendant committed legal malpractice by failing to monitor the District's website for notification that an order had been issued regarding the motion to transfer in Plaintiff's habeas case. Plaintiff claims that this failure caused him to miss the deadline by which the interlocutory appeal could have been filed to challenge this District's authority to transfer Plaintiff's habeas case to Minnesota. Plaintiff also claims that Defendant's assistance with filing the writ of mandamus in the Ninth Circuit, as well as the motion for an injunction, was insufficient because he did not seek a rehearing of the panel's decision en banc. ...

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