Anderson v. White et al

Filing 71

ORDER. This matter is not ripe for adjudication. Therefore, this court lacks subject-matter jurisdiction and must dismiss the complaint in its entirety. Accordingly, this court will not address the merits of the summary judgment motion. IT IS HER EBY ORDERED, ADJUDGED, and DECREED that Defendant's Motion for Summary Judgment 40 , be, and the same hereby is, DENIED.IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Defendant's Motion inthe alternative to dismiss under rule 12(b)(1) 40 , be, and the same hereby is, GRANTED. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge James C. Mahan on 11/23/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARK ANDERSON,

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Plaintiff(s),

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Case No. 2:13-CV-2097 JCM (VCF)
ORDER

v.
WESLEY S. WHITE, et al.,

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Defendant(s).

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Presently before the court is defendants , Wesley S. White and the law offices of Wesley

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S. White

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under rule 12(b)(1). (Doc. # 40). Plaintiff Mark Anderson (

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49) and defendant filed a reply. (Doc. # 52).

s , motion for summary judgment and motion in the alternative to dismiss
filed an opposition (doc. #

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I.

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Plaintiff Mark Anderson retained defendant Wesley S. White, an attorney duly licensed to

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practice law in Nevada, to represent him in a dissolution of marriage proceeding against his former

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wife. (Doc. #1 at 10). Defendant filed the divorce complaint on pla

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2012. Id. at 11.

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2012. Id.

Background

on March 30,

former wife filed an answer and counterclaim on April 16,

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Defendants agreed to participate in a settlement conference before the Honorable Robert

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Gaston on May 9, 2012. Id. At the settlement conference, plaintiff and his wife signed a

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. Id. at 43-50. Later, the

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James C. Mahan
U.S. District Judge

plaintiff

MOU. Id.

Shortly after the settlement conference, plaintiff terminated his relationship with defendant
and retained replacement counsel. (Doc. #1 at 12.) On June 29, 2012, c

former

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wife filed a motion to enforce settlement. Id.

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motion to enforce settlement and countermotion to set aside and deem the memorandum of

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understanding unenforceable, which was unsuccessful. Id. Thereafter, replacement counsel

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motion to enforce settlement. (Doc. #1 at 34-36). That

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el filed an opposition to

appeal is currently pending before the Nevada Court of Appeals. Id.

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of contract; (3) breach of fiduciary duty; (4) breach of implied covenant of good faith and fair

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dealing; (5) negligent infliction of emotional distress; and (6) vicarious liability. (Doc. #1).

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was likely to be adjudicated as community property. Id. As a result, plaintiff initiated this action

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in state court on September 3, 2013. Defendant removed to this court in November 2013. Id.
Defendants move for summary judgment or in the alternative to dismiss under rule

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12(b)(1). (Doc. #40).
II.

Legal Standard

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i.

12(b)(1) lack of subject matter jurisdiction

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A court must

-matter jurisdiction. FED. R.

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CIV. P. 12(b)(1). Federal Rule of Civil Procedure 12(b)(1) permits a party to assert this defense by

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motion. Id. Although the defendant is the moving party in a motion to dismiss brought under rule

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12(b)(1), the plaintiff is the party in

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that the case is properly in federal court. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir.

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2001) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). However,

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a court may raise the question of subject matter jurisdiction sua sponte at any time during an action.

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United States v. Moreno-Morillo, 334 F.3d 819, 830 (9th Cir. 2003). Regardless of who raises the

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issue, "when a federal court concludes that it lacks subject-matter jurisdiction, the court must

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dismiss the complaint in its entirety." Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235,

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163 L. Ed. 2d 1097 (2006).

d bears the burden of proving

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ctly,

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the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on

James C. Mahan
U.S. District Judge

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Tosco

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, 236 F.3d 495, 499 (9th Cir. 2001).When presented as a

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factual challenge, a rule 12(b)(1) motion can be supported by affidavits or other evidence outside

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of the pleadings. United States v. LSL Biotechs., 379 F.3d 672, 700 n.14 (9th Cir. 2004) (citing St.

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Clair v. City of Chicago, 880 F.2d 199, 201 (9th Cir. 1989)).

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t is properly the

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subject of a rule 12(b)(1) motion to dismiss. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

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Subject matter jurisdiction does not exist over claims which are not ripe for adjudication. Cardenas

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v. Anzai, 311 F.3d 929 (9th Cir. 2001).

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III.

Discussion

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Scott v. Pasadena Unified Sch.

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Dist., 306 F.3d 646, 662 (9th Cir. 2002) (quotations omitted). The ripeness doctrine has both a

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constitutional component and a prudential component. Thomas v. Anchorage Equal Rights

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, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (quoting Regional Rail Reorg. Act Cases,

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419 U.S. 102, 140 (1974) and Abbott Labs v. Gardner, 387 U.S. 136, 148 (1967)).
The constitutional component of the ripeness test requires a constitutional case or

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abstract. Id. at 1137. The constitutional test has three components: 1) injury in fact that is concrete

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and particularized, and actual or imminent; 2) the injury is fairly traceable to the challenged action

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of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be

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redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Environmental Serv., 528

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U.C. 167 (2000).

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seeking relief will suffer from withholding judicial action, and (b) the fitness of the issues in the

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Buono v. Kempthrone, 502 F.3d 1069, 1077 (9th Cir. 2007). A claim

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James C. Mahan
U.S. District Judge

Id.

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Plaintiff alleges a legal malpractice claim and related causes of action. (Doc. #1). To prevail

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on a legal malpractice claim, plaintiff must show an attorney-client relationship existed, the

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Semenza v. Nev. Med.

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Liab. Ins. Co., 104 Nev. 666, 668, 765 P.2d 184, 186 (1988).

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malpractice actions and appeals is based on the rationale that apparent damage may vanish with

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successful prosecution of an appeal and ultimate vindication of an attorney's conduct by an

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Id. See also Brady, Vorwerck, Ryder & Caspino v. New Albertson's, Inc., 333

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P.3d 229, 235 (Nev. 2014) (holding if the litigation in which the malpractice occurred continues,

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the damages on which the attorney malpractice action is based remain uncertain).

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Defendants argue that this court lacks subject matter jurisdiction over p

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because his claims are not yet ripe for adjudication. Plaintiff contends he has already sustained

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injury in fact and quantifiable damages. (Doc. #49 at 13).

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totaling $267,686.80 with respect to the malpractice claim. (Doc. #49 at 9). He alleges $210,000.00

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in damages as a result of the settlement agreement and $57,686.60 damages for the cost of

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replacement and appellate counsel. Id.

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alleged damages are not consistent with the constitutional component of ripeness

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because they are not yet actual and concrete. As the matter is pending before the court of appeals,

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a possibility exists that the court of appeals could affirm the decision of the lower court, making

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the damages speculative at best. Specifically, p

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his potential damages rests on the contingent future event of whether the court of appeals will set

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aside the

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property. Plaintiff can only prove damages if both events occur. See Ivey v. Spilotro, 2012 U.S.

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Dist. LEXIS 94162, *25-26, 2012 WL 2788980 (D. Nev. July 9, 2012).

re not ripe because the issue of

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disposition of the underlying claim in the court of appeals.

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Although an action against an attorney to recover damages for malpractice must be

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commenced within two years, a litigation legal malpractice action does not accrue until the

James C. Mahan
U.S. District Judge

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underlying cause of action has been finally resolved. See Semanza, 765 P.2d at 186; Nev. Rev.

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Stat. § 11.207(1). The statute of limitations is tolled while an appeal from the adverse ruling is

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pending. Hewitt v. Allen, 118 Nev. 216, 217, 43 P.3d 345, 345 (2002).

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Plaintiff requests that this matter be stayed if this court determines the matter is not ripe for

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adjudication because he is concerned about the statute of limitations. (Doc. # 40). However, as the

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underlying litigation is currently pending before the court of appeals, the statute of limitations on

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the malpractice action will not accrue. See Hewitt, 43 P.3d at 345.

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IV.

Conclusion

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This matter is not ripe for adjudication. Therefore, this court lacks subject-matter

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jurisdiction and must dismiss the complaint in its entirety. Accordingly, this court will not address

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the merits of the summary judgment motion.
for

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summary judgment (doc. # 40), be, and the same hereby is, DENIED.

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motion in

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the alternative to dismiss under rule 12(b)(1) (doc. #40), be, and the same hereby is, GRANTED.

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DATED November 23, 2015.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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