United States District Court, D. Nevada
before the court is defendant Randall Roske's motion to
dismiss. (ECF No. 9). Plaintiff Ian
Christopherson filed a response (ECF No. 12), to which
Roske replied (ECF No. 14).
before the court is defendant Joshua Tomshek's motion to
dismiss. (ECF No. 15). Plaintiff filed a response. (ECF No.
21). Tomshek has not filed a reply, and the time to do so has
before the court is defendant United States of America's
motion to dismiss. (ECF No. 18). Plaintiff filed a response.
(ECF No. 20). The United States has not filed a reply, and
the time to do so has since passed.
case arises out of a criminal conviction for tax evasion.
Defendant Roske was plaintiff's counsel during his
criminal trial. (ECF No. 1 at 2). Defendant Tomshek
represented plaintiff for certain post-conviction proceedings
occurring between December of 2011 and March of 2013.
Id. Plaintiff alleges that both defendants committed
legal malpractice that led to plaintiff's conviction and
sentence. Id. at 6. Plaintiff further alleges that
but for defendants' malpractice, plaintiff would not have
been convicted of tax evasion or would have had his
conviction overturned, either at the trial court or on
his conviction and sentencing, Alina Shell of the federal
public defender's office represented plaintiff on appeal.
Id. at 5. Plaintiff alleges that Shell mishandled
plaintiff's appeal which, if properly handled, would have
led to a reversal of plaintiff's conviction. Id.
filed a motion to vacate under 28 U.S.C. § 2255 in April
of 2015. Id. at 2. Plaintiff has not yet obtained a
ruling on his 2255 motion. Id.
Subject matter jurisdiction
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if
the complaint, considered in its entirety, fails to allege
facts on its face sufficient to establish subject matter
jurisdiction. In re Dynamic Random Access Memory (DRAM)
Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a 12(b)(1) motion to
dismiss, the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court to survive
the motion. McCauley v. Ford Motor Co., 264 F.3d
952, 957 (9th Cir. 2001) (citing McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). More
specifically, the plaintiff's pleadings must show
“the existence of whatever is essential to federal
jurisdiction, and, if [plaintiff] does not do so, the court,
on having the defect called to its attention or on
discovering the same, must dismiss the case, unless the
defect be corrected by amendment.” Smith v.
McCullough, 270 U.S. 456, 459 (1926).
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a ...