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Bou-Assaly v. George P. Mann & Associates, P.C.

United States District Court, E.D. Michigan, Southern Division

June 26, 2017




         Plaintiff 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.

         I. Background

         Plaintiff 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).

         On or 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.).

         Plaintiff 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).

         Plaintiff's 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 PageID 12-13).

         The 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).

         Plaintiff 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).

         Plaintiff 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).

         II. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(1)

         “Motions 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).

         “Where 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)).

         B. Federal Rule of Civil Procedure 12(b)(6)

         When a 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).

         III. ...

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