United States District Court, E.D. Missouri, Eastern Division
ROBERT M. SILLS, Plaintiff,
NICK ZOTOS, Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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, 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).
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.
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. 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.
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.
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
IS FURTHER ORDERED that defendant Zotos shall file
his answer to the complaint within the time specified by the
Federal Rules ...