United States District Court, D. Nebraska
JOHN C. NIMMER, Plaintiff,
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
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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).
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.
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). 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,  Weber's office concluded
there were reasonable grounds for discipline and began the
process that led to the filing of formal charges.
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
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.
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.
Collateral attack on the State Court Proceeding
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.
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 ...