Nimmer v. Heavican, 4:18-CV-3123
| Decision Date | 06 June 2019 |
| Docket Number | 4:18-CV-3123 |
| Parties | JOHN C. NIMMER, Plaintiff, v. HON. MICHAEL G. HEAVICAN, HON. STEPHANIE F. STACY, HON. LINDSEY MILLER-LERMAN, HON. WILLIAM B. CASSEL, HON. JONATHAN J. PAPIK, HON. JEFFREY J. FUNKE, HON. JOHN R. FREUDENBERG, and MARK A WEBER, in their official capacities, Defendants. |
| Court | U.S. District Court — District of Nebraska |
The plaintiff alleges a claim pursuant to 42 U.S.C. § 1983 "to address deprivation, under color of state law, of rights, privileges, and immunities secured to Plaintiff by the Constitution." Filing 1 at 5. The defendants move for dismissal alleging a lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), and that plaintiff failed to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the Court will grant the defendants' motion regarding a lack of subject matter jurisdiction.
A motion pursuant to Rule 12(b)(1) challenges whether the court has subject matter jurisdiction. The party asserting subject matter jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). The court has "substantial" authority to determine whether it has jurisdiction. Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).
A court deciding a motion under Rule 12(b)(1) must distinguish between a "facial attack"' and a "factual attack." Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). In a facial attack, the Court merely needs to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction. Id. Accordingly, the Court restricts itself to the face of the pleadings and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)—that is, the Court accepts all factual allegations in the pleadings as true and views them in the light most favorable to the nonmoving party. Id.; Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008). This case presents a facial attack to subject matter jurisdiction.
The plaintiff was an attorney duly licensed to practice law in Nebraska between September 17, 1993 and August 31, 2018. Filing 1 at 8. On February 1, 2017, defendant Mark Weber, the Counsel for Discipline for the Nebraska Supreme Court, filed formal charges against the plaintiff for violation of the Nebraska Rules of Professional Conduct and violation of his oath of office. State ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Nimmer, 916 N.W.2d 732, 738 (Neb. 2018).1 The United States Securities and Exchange Commission had notified Weber's office of possible professional misconduct bythe plaintiff after reviewing his client trust account records in the course of an investigation unrelated to the plaintiff's conduct. Id. at 739. After reviewing the plaintiff's trust account records and asking him for an explanation of perceived trust account violations,2 Weber's office concluded there were reasonable grounds for discipline and began the process that led to the filing of formal charges. Id.
The plaintiff appeared pro se throughout the proceedings. He twice filed motions to dismiss the formal charges, which were overruled by the Supreme Court. Id. at 740-41. The basis for the plaintiff's first motion was that there was a separation of powers violation due to the fact that the Office of the Counsel for Discipline was under the direct supervision of the Supreme Court, and because of this relationship, he was being denied "constitutional due process." Id.
The plaintiff also filed a motion to recuse Weber's office. That motion was overruled, but the Supreme Court considered it prudent to appoint a special prosecutor to replace Weber's office, and did so on its own motion. Id. The appointed referee conducted an evidentiary hearing and authored a report regarding the referee's findings of fact. The referee concluded there was clear and convincing evidence the plaintiff violated the Rules of Professional Conduct and his oath of office. The referee recommended that the plaintiff should be suspended from the practice of law for one year and upon reinstatement he should be placed on probation for two years under the supervision of a licensed Nebraska attorney. Id. at 741-43.
The plaintiff filed written exceptions to nearly every aspect of the referee's report. The plaintiff's brief also assigned error to the denial of his pre-hearing motions to dismiss. The Supreme Court construed the plaintiff's assignment as to his motions to dismiss as a request for reconsideration, which it declined to accept. Id. at 743-44. The Supreme Court conducted a de novo review of the disciplinary hearing record and agreed with the referee's factual findings that the plaintiff violated the Rules of Professional Conduct and his oath of office. Id. at 745-46. The Supreme Court disagreed with the referee's recommended sanction, and instead, found that disbarment was appropriate for the plaintiff's misconduct. 916 N.W.2d at 753. The Supreme Court filed its decision on August 31, 2018. Filing 1 at 7.
The initial issue is whether this case is an impermissible attempt to appeal to federal district court from a final state court judgment. The plaintiff filed his federal court lawsuit on September 4, 2018. The plaintiff represented that he "intends to file a motion for rehearing" regarding the Supreme Court's decision and order of disbarment on or before September 20. Filing 1 at 8. The plaintiff argues that his Supreme Court matter is not final until after his intended motion for rehearing has been decided. Filing 13 at 3-4.
A federal district court is not a court of general jurisdiction and must be attentive to whether the jurisdictional requirements have been satisfied in all cases. Temple v. Cleve Her Many Horses, 163 F. Supp. 3d. 602, 615 (D. S.D. 2016); Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26-27 (8th Cir. 1964). The absence of subject matter jurisdiction cannot be waived by the parties or ignored by this Court. See Robins v. Ritchie, 631 F.3d 919, 924 (8th Cir. 2011).
The defendants argue that the plaintiff's claims lack subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. Filing 10 at 6-10. Rooker-Feldman is confined to federal district court cases "brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005); Shelby Cty. Health Care Corp. v. S. Farm Bureau Cas. Ins. Co., 855 F.3d 836, 840 (8th Cir. 2017). The plaintiff responds that Rooker-Feldman does not apply for the reason that his state court proceeding is not completed because he intends to file a motion for rehearing. Filing 13 at 3.
In support, the plaintiff relies on Dornheim v. Sholes, 430 F.3d 919 (8th Cir. 2005). In Dornheim, the plaintiff filed a civil rights lawsuit in federal court while a juvenile court matter, as well as a separate child custody matter, were pending in state court or on appeal to the North Dakota Supreme Court. 430 F.3d at 922. The Magistrate Judge dismissed the plaintiff's federal lawsuit for a lack of jurisdiction pursuant to Rooker-Feldman. That ruling was reversed on appeal for the reason that "the Rooker-Feldman doctrine precludes federal district court jurisdiction only if the federal suit is commenced after the state court proceedings have ended." 430 F.3d at 923.
Thus, the question for this Court is whether the plaintiff's state court disbarment proceeding has "ended" for the purposes of Rooker-Feldman. See Exxon Mobil, 544 U.S. at 291-92; Federacion de Maestros de Puerto Rico v. Junta de Relaciones, 410 F.3d 17, 24 (1st Cir. 2005). Relying on Federacion de Maestros, the Dornheim court concluded that state court proceedings have ended when the highest state court issues a final decision and that decisionbecomes appealable to the United States Supreme Court pursuant to 28 U.S.C. § 1257. Dornheim, 430 F.3d 924.
The plaintiff does not allege in his complaint, or argue in his briefing, that his disbarment judgment is not a final order of the state's highest court. Neither does he allege or argue that his disbarment judgment is not ripe for appeal to the United States Supreme Court pursuant to § 1257. The plaintiff only represents that his state court proceedings "are not concluded" because he "intends to file a motion for rehearing." Filing 1 at 8. But whether a state court matter has "concluded" does not determine the application of the Rooker-Feldman doctrine. For example, Rooker-Feldman would apply where a state court's final order adjudicates the issues a federal court plaintiff presents for federal court review, even though other matters remain to be litigated in state court.3 Federacion de Maestros, 410 F.3d at 26.
A Nebraska Supreme Court decision is a final order and appealable to the United States Supreme Court on the date the decision is entered. Thus, the day the decision is entered is the point at which the litigation has ended for purposes of Rooker-Feldman. The availability of a discretionary grant for reconsideration or rehearing does not toll the period for taking an appeal to the United States Supreme Court.4 "Simply labeling a pleading as a motion to reconsider or a motion for rehearing does not toll the time for filing an appeal."Breeden v. Nebraska Methodist Hosp., 598 N.W.2d 441, 444 (Neb. 1999). A motion for rehearing or reconsideration is an invitation to the court to consider "exercising its inherent power to vacate or modify its own judgment." Id. In the absence of an applicable rule to the contrary, a motion asking the court to exercise its inherent power to vacate or...
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