Levy v. Ohl, 06-2291.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Benton
• Citation: 477 F.3d 988
• Parties: Nat LEVY, Appellant, v. Donald J. OHL, William J. Knapp, L. David Green, and Merilyn Hamlett, Appellees.
• Docket Number: No. 06-2291.,06-2291.
• Decision Date: 26 February 2007

477 F.3d 988 Nat LEVY, Appellant,
v.
Donald J. OHL, William J. Knapp, L. David Green, and Merilyn Hamlett, Appellees. No. 06-2291. United States Court of Appeals, Eighth Circuit. Submitted: November 17, 2006. Filed: February 26, 2007.

[477 F.3d 990]

Richard C. Witzel, David A. Dimmitt, Jay L. Kanzler, Jr., Witzel & Kenney, St. Louis, MO, for Appellant.

Michael J. Nester, Chi-Yong Throckmartin, Donovan & Rose, Del A. Goldenhersh, Goldenhersh & Goldenhersh, Belleville, IL, for Appellees.

Donald J. Ohl, Knapp & Ohl, Edwardsville, IL, pro se.

Before MURPHY, ARNOLD, and BENTON Circuit Judges.

BENTON, Circuit Judge.

Nat Trevor Levy sued Donald J. Ohl, William J. Knapp, L. David Green, and Merilyn Hamlett in Missouri state court, claiming malicious prosecution. After removal under diversity jurisdiction, defendants moved to dismiss for failure to state a claim. The district court¹ agreed. Levy appeals. Having jurisdiction under 12 U.S.C. § 1291, this court affirms.

I.

On November 15, 2005, Dr. Levy sued Hamlett and her former attorneys, Ohl, Knapp, and Green (collectively Ohl), for malicious prosecution under Missouri law. In the case underlying Levy's suit, in February 2001, Hamlett sued various medical providers, including Levy and Missouri Baptist Medical Center (where Levy worked). In November 2002, Hamlett dismissed Levy without prejudice, never reinstating a case against him. In July 2003, Hamlett and the Medical Center made a confidential settlement agreement that released the Medical Center as well as its agents and employees. On August 20, a Joint Stipulation for Dismissal with Prejudice was filed in state court. The stipulation provided that the case "be dismissed with prejudice as to any other or future action on account of the matters and things contained and set forth in Plaintiff's Petition." On August 21, the court accepted the stipulation in its entirety and ruled accordingly.

In the present case, Hamlett and Ohl moved for dismissal, asserting that the statute of limitations had run and that the underlying case did not terminate in Levy's favor, as required by Missouri law. Ohl also claimed that Levy failed to allege sufficiently the legal malice necessary for a malicious prosecution claim against an attorney. Hamlett and Ohl together attached 14 exhibits to their motions. Levy opposed dismissal and moved to strike the exhibits.

The district court denied the motion to strike, taking judicial notice of public record

477 F.3d 991

exhibits and accepting exhibits relevant to the underlying lawsuit referenced in Levy's complaint. Finding that the statute of limitations had expired, the court dismissed with prejudice as to all defendants. Levy appeals, asserting that he pled all elements of a malicious prosecution claim, and that the district court erred in relying upon matters outside the pleadings and in concluding the statute of limitation had run.

II.

This court reviews de novo the grant of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Botten v. Shorma, 440 F.3d 979, 980 (8th Cir.2006). The court assumes as true all factual allegations of the complaint. Abels v. Farmers Commodities Corp., 259 F.3d 910, 914 (8th Cir.2001). "However, the complaint must contain sufficient facts, as opposed to mere conclusions, to satisfy the legal requirements of the claim to avoid dismissal." DuBois v. Ford Motor Credit Co., 276 F.3d 1019, 1022 (8th Cir.2002). "In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

A.

Dr. Levy contends the district court erred in denying his motion to strike and reviewing matters outside the complaint. Specifically, the court reviewed state filings and the confidential settlement document, as well as Hamlett's affidavit authenticating documents. The parties do not dispute the authenticity of the documents, but Levy questions their legal effect. He also attacks the court's failure to convert the motion to dismiss to one for summary judgment.

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court is "not precluded in [its] review of the complaint from taking notice of items in the public record." Papasan v. Allain, 478 U.S. 265, 269 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Stahl v. U.S. Dep't of Agric., 327 F.3d 697, 700 (8th Cir.2003) ("The district court may take judicial notice of public records and may thus consider them on a motion to dismiss")...