United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANTS GEORGE P. MANN &
ASSOCIATES, P.C. AND GEORGE P. MANN'S MOTION TO DISMISS
(DOC. 23) AND DENYING MARGOLIS LAW, P.C. AND LAURENCE H.
MARGOLIS' MOTION TO DISMISS (DOC. 15)
CARAM STEEH UNITED STATES DISTRICT JUDGE
Wessam Bou-Assaly brings two counts of attorney malpractice.
Count I is filed against George P. Mann & Associates,
P.C. and George P. Mann, hereafter the Mann defendants. Count
II is filed against Margolis Law P.C. and Laurence H.
Margolis, hereafter the Margolis defendants. The matter is
presently before the Court on motions to dismiss by all the
defendants. Oral argument was held on June 15, 2017. For the
reasons stated below, both motions are DENIED.
immigrated to the United States in 2004. (Doc. 1 at PageID
4). He obtained a green card in 2010, was classified as a
lawful permanent resident, and eventually sought to become a
naturalized citizen. (Id.). In 2014, plaintiff, a
doctor, was charged with committing misdemeanor crimes
involving inappropriate sexual conduct in his workplace.
(Id.). Plaintiff was represented by criminal defense
attorney Joseph Simon and retained the Margolis defendants to
address the criminal case's impact on his immigration
status. (Doc. 1 at PageID 5).
about April 24, 2014, plaintiff was offered a Cobbs
agreement. (Doc. 1 at PageID 6). Pursuant to this agreement,
plaintiff would plead no contest to a single charge of
attempted criminal sexual conduct in the fourth degree and be
sentenced to probation. (Id.). Plaintiff would be
subject to imprisonment only if he violated his probation
terms. (Id.). Plaintiff discussed this agreement
with the Margolis defendants on or about April 24, 2014.
(Doc. 1 at PageID 6-7). Margolis advised that pleading to
this charge and receiving the proposed sentence would not
adversely affect plaintiff's immigration status. (Doc. 1
at PageID 7). Plaintiff, relying on this advice, pleaded no
contest to criminal sexual conduct in the fourth degree on
April 24, 2014. (Id.).
thereafter consulted Margolis about an international job
offer. (Doc. 1 at PageID 8). Plaintiff questioned whether
moving abroad would impact his immigration status and ability
to re-enter the United States. (Id.). Margolis
advised that plaintiff may have re-entry issues and
recommended that he consult with Mann. (Doc. 1 at PageID
8-9). Plaintiff retained Mann in May 2014, and based on his
advice, accepted a job in the United Arab Emirates. (Doc. 1
at PageID 9).
sentencing hearing was held on June 13, 2014. (Doc. 1 at
PageID 10). Margolis did not attend. (Id.). Unlike
the sentence anticipated by the Cobbs agreement, plaintiff
was sentenced to 24 months of probation, which included a
suspended 365 day jail sentence. (Id.). The state
court judge permitted plaintiff to leave the country to work
abroad during his probation period. (Id.). Plaintiff
moved to the United Arab Emirates in July 2014. (Doc. 1 at
Margolis defendants learned of plaintiff's sentence in
July 2015 by reading a news report. (Doc. 1 at PageID 13).
Margolis thereafter contacted plaintiff to inquire whether he
was in the United States. (Id.). Plaintiff responded
that he was abroad but intended to return. (Doc. 1 at PageID
13). Margolis did not advise plaintiff that his sentence
would affect his ability to re-enter the United States
because it differed from that contemplated by the
Cobbs agreement with inclusion of the suspended jail
sentence. (Doc. 1 at PageID 14).
returned to the United States on July 24, 2015. (Doc. 1 at
PageID 17). Immigration officials determined that, based on
plaintiff's suspended jail sentence, he was inadmissible
for re-entry. (Doc. 1 at PageID 18). Plaintiff asserts that
defendants never advised him that a 365 day suspended jail
sentence could adversely impact his immigration status and
ability to re-enter the United States. (Doc. 1 at PageID 19).
Plaintiff was detained in jail until finally deported in
August 2015. (Doc. 1 at PageID 21).
later retained Stephen Linden, who filed a motion to set
aside or modify plaintiff's criminal judgment. (Doc. 1 at
PageID 22). A motion hearing was held on November 13, 2015.
(Id.). Margolis testified that plaintiff relied on
the Margolis defendants' advice when entering his plea in
April 2014 and later received a suspended jail sentence that
rendered him inadmissible to re-enter the United States.
(Id.). Margolis further stated that, in order to
avoid plaintiff's immigration issues, he should have told
Simon to make sure plaintiff was not sentenced to “jail
of any sort, ” even a suspended sentence, and should
have attended plaintiff's sentencing hearing. (Doc. 1 at
PageID 23). The state court found that the suspended jail
term was mistakenly ordered and issued an amended judgment
that omitted the suspended jail term. (Id.; Doc. 19
at PageID 216). Plaintiff currently resides in the United
Arab Emirates and purportedly does not know as yet whether
the amended judgment of sentence will affect his status an
inadmissible alien. (Doc. 1 at PageID 23-24).
Federal Rule of Civil Procedure 12(b)(1)
to dismiss for lack of subject matter jurisdiction fall into
two general categories: facial attacks and factual
attacks.” United States v. Ritchie, 15 F.3d
592, 598 (6th Cir.1994). “A facial attack is a
challenge to the sufficiency of the pleading itself. On such
a motion, the court must take the material allegations of the
petition as true and construed in the light most favorable to
the non-moving party.” Id. (emphasis in
original). “A factual attack, on the other
hand, is not a challenge to the sufficiency of the
pleading's allegations, but a challenge to the factual
existence of subject matter jurisdiction. On such a motion,
no presumptive truthfulness applies to the factual
allegations” and “the court is free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case.” Id. (emphasis in original).
The Mann defendants challenge regarding the amount in
controversy is a factual attack. See Allstate Ins. Co. v.
Renou, 32 F.Supp.3d 856, 860 (E.D. Mich. 2014).
subject matter jurisdiction is challenged pursuant to
12(b)(1), the plaintiff has the burden of proving
jurisdiction in order to survive the motion.”
Michigan S. R.R. Co. v. Branch & St. Joseph Counties
Rail Users Ass'n, 287 F.3d 568, 573 (6th Cir.2002);
see also Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 324 (6th Cir.1990). “The
plaintiff must establish subject matter jurisdiction by a
preponderance of the evidence.” Renou, 32
F.Supp.3d at 860 (citing McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936)).
Federal Rule of Civil Procedure 12(b)(6)
party attacks a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must decide whether the
complaint states a claim upon which relief may be granted.
Generally speaking, the court must construe the complaint in
favor of the plaintiff, accept the allegations of the
complaint as true, and determine whether the plaintiff's
factual allegations present plausible claims. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007).
Even though a complaint need not contain
“detailed” factual allegations, its
“factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all
of the allegations in the complaint are true.”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).