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David Lee Laskiewicz v. Russell Swartz

May 13, 2013

DAVID LEE LASKIEWICZ, PLAINTIFF,
v.
RUSSELL SWARTZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff, proceeding in this action in propria persona, brings this civil action. Pending before the court is defendant Berg's motion for more definite statement/motion to dismiss (Doc. 53). A hearing on the motion was held on February 6, 2013, before the undersigned in Redding, California. Defense counsel Howard Churchill appeared on behalf of defendant Berg; there was no appearance by plaintiff.

I. Background

Plaintiff, proceeding pro se, filed this civil action against three attorneys, Russell Swartz, Van Oliver Kinney, and Eric Allen Berg, on the basis of diversity jurisdiction. Based on the allegations in the complaint, it appears plaintiff is claiming legal malpractice stemming from a divorce, as well as conspiracy and fraud. Because plaintiff paid the filing fees, the case was not screened prior to service. Defendant Kinney's default was originally entered for failure to respond to the first amended complaint, the request to enter the other defendants' default was denied for lack of proper service. All of the defendants previously filed a motion to dismiss/more definite statement, which was granted on June 1, 2012. Plaintiff was granted leave to file an amended complaint, and was informed that if he clarified his claims as to defendant Kinney, the default that had been entered as to defendant Kinney would be moot.

Plaintiff thereafter filed his second amended complaint (Doc. 39) against all three defendants on July 2, 2012. On August 27, 2012, plaintiff filed a request for entry of default against all three defendants for failure to respond to the second amended complaint, which was entered on September 5, 2012. Plaintiff has filed a motion for default judgment, but it was not set for hearing. On November 1, 2012, defendant Berg filed a motion to set aside his default, which was granted on December 17, 2012. The current motion was filed by defendant Berg in response to the second amended complaint.

Plaintiff sets forth some fairly vague facts in an attempt to support six claims. The six claims are fraud, conspiracy to commit fraud, conversion, intentional/negligent infliction of emotional distress, breach of fiduciary duty/malpractice and discrimination. Plaintiff alleges that defendants Berg and Kinney each represented him at some point during his divorce and child support proceedings. Defendant Swartz represented plaintiff's ex-wife. The fraud allegations stem from alleged false statements and representations defendant Kinney made in order to obtain information regarding plaintiff's assets. The conspiracy claim is based on allegations that the defendants worked together to obtain the information about plaintiff's assets then used the assets for their own benefit (conversion). The conversion claim stems from the plaintiff's allegations that the defendants obtained all of plaintiff's property through the underlying divorce action and used for their own benefit. His fourth claim, emotional distress, is based on allegations that the defendants took advantage of plaintiff's prison term to rob him resulting in his emotional distress. The malpractice claim stems from the defendants' alleged failure to complete the underlying divorce. Apparently, no final judgment was entered and it was not discovered until 2011 when it was entered nunc pro tunc, and he alleges that resulted in plaintiff losing the ability to regain any of the marital property he should have received. Finally, he claims discrimination based on his religious faith. He alleges he is a Christian, and due to the defendants' action, he was driven to illicit activity, and resigned from his job.

II. Motion

Defendant Berg brings this motion to dismiss on the grounds that the statute of limitations has run and the claims may be barred by res judicata. He requests the court take judicial notice of State court filings in the underlying divorce proceedings in support thereof his motion. In the alternative, defendant moves for a more definite statement, arguing the claims are too general and lack specificity as to defendant Berg's role in the claims.

In response to the motion to dismiss, plaintiff objects to the use of a motion to dismiss. He argues that the defendants have already filed a motion to dismiss, which should have addressed all of the grounds for dismissing the case. In addition, he argues that defendant Berg submitted his motion to dismiss with his motion to set aside his default, and because the court did not address the motion to dismiss at the same time, he cannot now file another motion. As to the merits of the motion, plaintiff argues the complaint is sufficiently clear that defendants can understand the claims and defend against them, they are simply choosing not to. In addition, he argues this case is not barred by the statute of limitations, and defendant Berg's filings do not support his motion. Specifically, he claims the statute of limitations is three years from the time the injured party knew of the fraud, or the last overt act, which he argues was the nunc pro tunc judgment in 2011.

III. Discussion

Motion to Dismiss

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). "Although a pro se litigant ... may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dept of Navy, 66 F.3d 193, 199 (9th Cir. 1995).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).

In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, ...


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