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Christopherson v. United States

United States District Court, D. Nevada

December 1, 2017

IAN CHRISTOPHERSON, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendants.

          ORDER

         Presently before the court is defendant Randall Roske's motion to dismiss. (ECF No. 9). Plaintiff Ian Christopherson[1] filed a response (ECF No. 12), to which Roske replied (ECF No. 14).

         Also 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 since passed.

         Also 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.

         I. Facts

         This 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 appeal. Id.

         After 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. at 6.

         Plaintiff 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.

         II. Legal Standard

         a. Subject matter jurisdiction

         Federal 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. 1989).

         Federal 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).

         Although 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).

         b. Pleading requirements

         A court 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 ...


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