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Posen v. Ozier

United States District Court, D. Montana, Billings Division

September 26, 2017

SIMON POSEN, Plaintiff,
v.
J. MICHAEL OZIER and TOLLIVER LAW FIRM, P.C., Defendants.

          ORDER

          SUSAN P. WATTERS, United States District Judge

         I. Introduction

         Defendants 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).[1] On August 8, 2017, Magistrate Judge Timothy Cavan issued his Findings and Recommendations recommending that this Court grant Defendants' motion to dismiss. (Doc. 18).

         When a 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).

         Posen 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.

         II. Relevant Background

         Posen 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.

         III. Applicable Law

         A. Legal Standard

         A 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.

         For 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)).

         IV. Discussion

         Posen 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.

         A. Judge Cavan appropriately applied the ...


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