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Nimmer v. Heavican

United States District Court, D. Nebraska

June 6, 2019

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.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE

         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.

         I. STANDARD OF REVIEW

         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.

         II. BACKGROUND

         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 by the 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.

         III. DISCUSSION

         1. Collateral attack on the State Court Proceeding

         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 ...


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