United States District Court, D. Montana, Billings Division
P. WATTERS, United States District Judge
J. Michael Ozier and Tolliver Law Firm, P.C., have moved to
dismiss Simon Posen's Complaint under Federal Rule of
Civil Procedure 12(b)(6), for failure to state a claim upon
which relief can be granted. (Doc. 6). On August 8,
2017, Magistrate Judge Timothy Cavan issued his Findings and
Recommendations recommending that this Court grant
Defendants' motion to dismiss. (Doc. 18).
party timely objects to any portion of the magistrate
judge's Findings and Recommendations, the district court
must conduct a de novo review of the portions of the Findings
and Recommendations to which objections are made. 28 U.S.C.
§ 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore
Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981).
The district court may then "accept, reject, or modify
the recommended decision, receive further evidence, or
recommit the matter to the magistrate with
instructions." 28 U.S.C. § 636(b)(1). The district
court is not required to review the factual and legal
conclusions of the magistrate judge to which the parties do
not object. United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003).
filed timely objections to Judge Cavan's Findings and
Recommendations. (Docs. 19). After independently reviewing
and considering Posen's objections and Defendants'
response, this Court adopts Judge Cavan's findings and
recommendations, as set forth below.
does not object to the factual history contained in the
Background section of Judge Cavan's Findings and
Recommendations, nor the fact that Judge Cavan took judicial
notice of his bankruptcy proceedings in the United States
Bankruptcy Court for the Southern District of New York, Case
No. 15-12859- MEW-5. Judge Cavan's Background section is
therefore adopted in full and this Court also takes judicial
notice of Posen's New York bankruptcy proceedings.
defendant may move under F.R.Civ.P 12(b)(6) to dismiss an
action for failure to allege "enough facts to state a
claim to relief that is plausible on its face." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). This plausibility
inquiry is "a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense." Id. at 679.
purposes of ruling on a Rule 12(b)(6) motion, a court must
"accept factual allegations in the complaint as true and
construe the pleadings in the light most favorable to the
nonmoving party." Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A
court is not required to "assume the truth of legal
conclusions merely because they are cast in the form of
factual allegations, " however. Foyer v.
Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011). A court may
also reject factual allegations contradicted by judicially
noticed material. See Shwarz v. United States, 234
F.3d 428, 435 (9th Cir. 2000)(citation omitted). Finally,
'"a plaintiff may plead [him]self out of court'
" if he "plead[s] facts which establish that he
cannot prevail on his ... claim." Weisbuch v. Cnty.
of L.A., 119 F.3d 778, 783 n.l (9th Cir. 1997) (quoting
Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).
objects to Judge Cavan's determination that he is
judicially estopped from pursing his legal malpractice claim
against Defendants. Specifically, Posen argues that Judge
Cavan first applied the wrong standard of review and then
failed to properly apply controlling law on judicial
estoppel. (Doc. 19 at 1-2). The Court addresses these
objections in order.
Judge Cavan appropriately applied the ...