Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A., No. 2:2011cv00459 - Document 424 (M.D. Fla. 2015)
Court Description: OPINION AND ORDER granting in part and denying in part 392 motion to dismiss. The motion is granted as to Count III, and that count is dismissed without prejudice. The motion is otherwise denied. Signed by Judge John E. Steele on 7/21/2015. (RKR)
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Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A. Doc. 424 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION STACEY SUE BERLINGER, as Beneficiaries to the Rosa B. Schweiker Trust and all of its related trusts aka Stacey Berlinger O’Connor, BRIAN BRUCE BERLINGER aka Stacey Berlinger O’Connor, and HEATHER ANNE BERLINGER, as Beneficiaries to the Rosa B. Schweiker Trust ad all of its related trusts aka Stacey Berlinger O’Connor, Plaintiffs, v. Case No: 2:11-cv-459-FtM-29CM WELLS FARGO, N.A. AS SUCCESSOR TO WACHOVIA BANK, N.A., as Corporate Trustee to the Rosa B. Schweiker Trust, and all of its related trusts, Defendant/Third Party Plaintiff BRUCE D. BERLINGER and SUE CASSELBERRY, Third Party Defendants. OPINION AND ORDER This matter comes before the Court upon review of Third Party Defendant/Cross Defendant Bruce D. Berlinger’s Motion to Dismiss. (Doc. #392.) Third Party Defendant/Cross Plaintiff Sue Dockets.Justia.com Casselberry filed a Response (Doc. #397) on March 10, 2015. This motion is now ripe for review. I. The current litigation involves three family Trusts: the Rosa B. Schweiker Family Trust, the Frederick W. Berlinger Family Trust, and the Rose S. Berlinger Family Trust (Trusts). (Doc. #353, ¶ 12.) Wells Fargo N.A. (Wells Fargo) served as corporate Co-Trustee of these three Trusts. (Id. ¶ 11) The Third Party Defendant, Bruce D. Berlinger, served as the other Co-Trustee and primary beneficiary of these Trusts. (Id. ¶ 12.) Plaintiffs Stacey Sue Berlinger, Brian Bruce Berlinger, and Heather Anne Berlinger (plaintiffs), are the children of Bruce D. Berlinger (Bruce) and Sue Casselberry (Sue) and beneficiaries to the Trusts. (Doc. #60, p. 3.) Plaintiffs claim improper distributions were made on behalf of their father, Bruce, to their mother, Sue, as a result of a divorce settlement finalized in 2007. (Id. at pp. 3-5.) These distributions include $2,000,000.00 to Sue, on behalf of Bruce, for the equitable distribution of marital assets, and monthly distributions to provide alimony and support payments due from Bruce to Sue pursuant to the divorce settlement. (Id.) On January 16, 2015, Sue filed a Second Amended Crossclaim (Crossclaim) against Bruce alleging unjust enrichment (Count I), 2 breach of contract (Count II 1) and common law indemnification (Count III). (Doc. #353.) Bruce seeks to dismiss Count II and Count III (Doc. #392) for failure to state a claim. II. Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). than an unadorned, This requires “more the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted). In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 1The Crossclaim incorrectly labels both the breach of contract claim and the common law indemnification claim as Count III. (Doc. #353, p. 5.) The Court will refer to the breach of contract claim as Count II. 3 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth,” v. Berzain, omitted). 654 F.3d 1148, 1153 (11th Cir. Mamani 2011)(citations “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. consistent with a facially plausible.” 1337 (11th omitted). Cir. “Factual allegations that are merely defendant’s liability fall short of being Chaparro v. Carnival Corp., 693 F.3d 1333, 2012)(internal quotation marks and citations Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. III. Sue’s Crossclaim asserts claims against Bruce for unjust enrichment, breach of contract, and common law indemnification. (Doc. #353.) Bruce asserts that the both the breach of contract claim (Count II) and common law indemnification claim (Count III) should be dismissed for failure to state a claim. 1. Breach of Contract Based on the allegations in the Crossclaim, it appears Sue’s breach of contract claim is based on the terms of the Marital Settlement Agreement (MSA). (See Doc. #353, ¶¶ 24-26.) Bruce asserts that jurisdiction for a breach of contract claim based on 4 the MSA is only proper in the Circuit Court in which the MSA was adopted and incorporated into a final judgment. 17-18.) (Doc. #392, ¶¶ Bruce also claims that there is currently an ongoing action between him and Sue being litigated in the Circuit Court regarding an alleged breach of the MSA. (Id. ¶ 19.) Sue asserts that the MSA does not preclude the litigation of a breach of contract claim arising from the MSA in federal court. (Doc. # 397, ¶¶ 13-14.) Sue contends that ¶ 9.2 of the MSA provides that “the MSA survives its incorporation into a final judgment and remains a binding contract upon the parties and ‘shall be fully enforceable in a court of law as a matter of contract.’” While Sue admits that ¶ 12.14 of the MSA provides for the state court’s reservation of jurisdiction, she asserts that such jurisdiction is not exclusive to the state court. The terms of the Marital Settlement Agreement provide that the Circuit Court would retain jurisdiction over the agreement. (Doc. #392, ¶¶ 15-16; Doc. #353-4, pp. 21-22.) However, nothing in the MSA provides that the state court jurisdiction would be exclusive and preclude litigation in federal court. The Court finds pursuant to the terms of the MSA, jurisdiction over the breach of contract claim is proper in this Court. Bruce’s motion to dismiss Count II is denied. 5 Accordingly, 2. Indemnification Sue also alleges a claim for common law indemnification against Bruce. (Doc. #353, ¶¶ 29-33.) The Crossclaim alleges Sue is without fault as to the claims made against her by Wells Fargo or the claims made against Wells Fargo by plaintiffs. 31.) (Id. ¶¶ 30- Sue also alleges that any liability she has to Wells Fargo is vicarious and derivative to Wells Fargo’s wrongdoing. 32) (Id. ¶ She further alleges Bruce is at fault for the claims made by plaintiffs against Wells Fargo. Common law indemnity (Id.) “arises through special relationships.” out of obligations imposed Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61, 65 (Fla. 2d DCA 2005). To state a claim for common law indemnity, a party must allege that he is without fault, that another party is at fault, and that a special relationship between the two parties makes the party seeking indemnification vicariously, constructively, derivatively, or technically liable for the acts or omissions of the other party. Bd. v. Radio Station WQBA, 731 So.2d See Dade Cnty. Sch. 638, 642 (Fla. 1999); Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 493 (Fla. 1979). Sue did not properly plead a claim for common law indemnity because she failed to show the existence of any relationship between herself and Bruce or Wells Fargo. special Without a special relationship, Sue’s claim for common law indemnity against 6 Bruce is not viable. Therefore, the Court dismisses Count III for failure to state a claim. Accordingly, it is now ORDERED: 1. Third Party Defendant/Cross Defendant Bruce D. Berlinger’s Motion to Dismiss (Doc. #392) is GRANTED in part and DENIED in part. III of the prejudice. The motion is granted as to Count III, and Count Second Amended Crossclaim is dismissed without The motion is otherwise denied. DONE AND ORDERED at Fort Myers, Florida, this July, 2015. Copies: Counsel of record 7 21st day of
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