Sills v. Zotos

Filing 13

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Defendant's Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief May be Granted (Docket No. 7 ) is DENIED. IT IS FURTHER ORDERED that defendant Zotos shall file his answer to the complaint within the time specified by the Federal Rules of Civil Procedure. See Rule 12(a)(4)(A). Signed by District Judge Catherine D. Perry on 9/21/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT M. SILLS,
Plaintiff,
v.
NICK ZOTOS,
Defendant.

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No. 4:17-cv-966-CDP

MEMORANDUM AND ORDER
This matter is before the Court upon defendant Nick Zotos’s Rule 12(b)(6) Motion to
Dismiss for Failure to State a Claim Upon Which Relief May be Granted. (Docket No. 7). The
motion is fully briefed and ripe for review. For the reasons explained below, I will deny the
motion.
I. Background
Plaintiff Robert M. Sills, a resident of the state of Texas, is a federal prisoner confined in
the St. Charles County Department of Corrections on a writ of habeas corpus ad testificandum.
Defendant is a Missouri resident. Plaintiff seeks damages in the amount of $2,000,000. The
events giving rise to the instant complaint occurred in St. Louis when plaintiff was a criminal
defendant in a case charging him with violating the federal witness tampering statute. See
United States v. Sills, Case No. 4:10-cr-523-JCH (E.D. Mo. Sept. 16, 2011). Defendant served
as plaintiff’s defense attorney. Plaintiff alleges that defendant advised him to plead guilty in
June of 2011 even though a May 26, 2011 Supreme Court decision placed his indictment beyond
the reach of federal law. The Supreme Court case plaintiff cites is Fowler v. United States, 563

U.S. 668 (2011). Plaintiff alleges that, in March of 2013, his conviction was vacated and
dismissed in light of Fowler, and because of that, he is now entitled to bring this legal
malpractice action against defendant.
II. Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal
sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief can be granted, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff need not provide specific facts in support of his allegations, Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam), but “must include sufficient factual information to
provide the ‘grounds’ on which the claim rests, and to raise a right to relief above a speculative
level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly,
550 U.S. at 555 & n.3). This obligation requires a plaintiff to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. A complaint “must contain either direct or inferential allegations
respecting all the material elements necessary to sustain recovery under some viable legal
theory.” Id. at 562 (quoted case omitted). This standard “simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of [the claim or element].” Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained
in the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556,

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and reviews the complaint to determine whether its allegations show that the pleader is entitled
to relief. Twombly, 550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2).
III. Discussion
Defendant filed the instant motion pursuant to Rule 12(b)(6), and moves to dismiss
plaintiff’s complaint for failure to state a claim upon which relief can be granted. In support,
defendant argues that plaintiff filed the complaint outside of the five-year statute of limitations
applicable to legal malpractice actions in Missouri. Defendant reasons that plaintiff’s cause of
action accrued on September 16, 2011, the date the adverse judgment was entered against him in
United States v. Sills, but the instant complaint was not filed until March 15, 2017, six months
out of time. In response, plaintiff argues that the principles of Heck v. Humphrey precluded him
from bringing this action before his exoneration, and that Missouri’s five-year statute of
limitations therefore did not commence until March 18, 2013, the date his conviction was
overturned. In reply, defendant argues that the principles of Heck are inapplicable to the instant
cause of action, that tolling principles applicable to other cases are inapplicable here, and that
where the alleged malpractice results in an adverse judgment, the statute of limitations begins to
run on the date that judgment was entered.
Bar by a statute of limitation is an affirmative defense, which the defendant must plead
and prove. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008); Fed. R. Civ. P.
8(c). A defendant does not render a complaint defective by pleading an affirmative defense,
Gomez v. Toledo, 446 U.S. 635, 640 (1980), and therefore the possible existence of a statute of
limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint
itself establishes the defense. See Varner v. Peterson Farms, 371 F.3d 1011, 1017–18 (8th Cir.

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2004) (dismissal proper because complaint ruled out tolling of statute of limitations). Therefore,
the inquiry for purposes of the instant motion is whether the complaint itself establishes that
plaintiff’s legal malpractice claim is barred by the statute of limitations.
As noted above, the complaint alleges that the actions constituting the legal malpractice
occurred in June of 2011, when defendant advised plaintiff to plead guilty to a federal charge
even though Fowler, decided earlier, placed his indictment beyond the reach of federal law. The
complaint further alleges that plaintiff was precluded from bringing his claim until his conviction
was vacated on the basis of Fowler in March of 2013. The allegations in the complaint could
plausibly support plaintiff’s argument raised in opposition to the motion to dismiss, and therefore
the complaint itself does not entirely foreclose the possibility that plaintiff can successfully rebut
defendant’s statute of limitations defense.

While defendant presents argument about the

applicability of Heck v. Humphrey and the principles of Missouri law governing accrual of legal
malpractice actions, in the context of a motion to dismiss under Rule 12(b)(6), dismissal on the
basis of the statute of limitations is only proper where the complaint itself establishes the
defense. See Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011) (citing
Varner, 371 F.3d 1017-18) (“the possible existence of a statute of limitations defense is not
ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint itself establishes the
defense.”). Here, the complaint does not so establish. I will therefore deny the motion to
dismiss.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Rule 12(b)(6) Motion to Dismiss for
Failure to State a Claim Upon Which Relief May be Granted (Docket No. 7) is DENIED.

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IT IS FURTHER ORDERED that defendant Zotos shall file his answer to the
complaint within the time specified by the Federal Rules of Civil Procedure.

See Rule

12(a)(4)(A).
Dated this 21st day of September, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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