Morris v. Trust Company of Virginia et al

Filing 28

ORDER directing that the motions to dismiss (Docs. # 8 , 9 ) are GRANTED in part and DENIED in part as follows: (1) With regard to the claims Mr. Morris brings on his own behalf and on his mother's behalf, the motions are GRANTED, and those cl aims are DISMISSED with prejudice; (2) With regard to any claims Mr. Morris brings on behalf of his mother's estate that arose after she died, the motions are DENIED; further ORDERED that the complaint is STRICKEN with leave to replead on or before May 27, 2013, as further set out. Signed by Chief Judge William Keith Watkins on 5/17/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
THOMAS MORRIS,
Plaintiff,
v.
TRUST COMPANY OF VIRGINIA,
et al.,
Defendants.

)
)
)
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) CASE NO. 2:12-CV-1020-WKW
)
[WO]
)
)
)

ORDER
Plaintiff Thomas Morris filed this action to recover his inheritance, accusing
three Defendants of nine state-law torts. Two Defendants – Trust Company of
Virginia (the “Trust Company”) and George Mason University Foundation, Inc. (the
“Foundation”) – move to dismiss.1 For the reasons that follow, the motion is due to
be granted in part and denied in part.
I. JURISDICTION AND VENUE
Subject matter jurisdiction over this action is exercised pursuant to 28 U.S.C.
§§ 1332 and 1441. Personal jurisdiction and venue are uncontested.2

1

Karen Loulakis, the third Defendant, answered the complaint rather than moving to
dismiss it.
2

The Foundation says it submitted its motion to dismiss “without waiver of its
objections, if any, to Plaintiff’s suggestion that venue in this Court is proper. . . .” The Federal
Rules say otherwise. See Fed. R. Civ. P. 12(h)(1)(A).

II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8: “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take “the
factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 663 (alteration in original) (citation omitted).
“[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard also “calls for enough
2

fact to raise a reasonable expectation that discovery will reveal evidence” of the claim.
Twombly, 550 U.S. at 556. While the complaint need not set out “detailed factual
allegations,” it must provide sufficient factual amplification “to raise a right to relief
above the speculative level.” Id. at 555.
III. FACTUAL BACKGROUND
This lawsuit marks Mr. Morris’s latest sortie in the ongoing battle for the estate
of his late mother. A full account of that conflict would only complicate an already
confused case. Stripped to the essentials, the story runs as follows:
Mr. Morris’s mother died on March 25, 2011. She left two wills: one executed
in 1998 naming Defendant Karen Loulakis the executor and naming the Foundation
as the residuary beneficiary, the other executed in 2007 naming Mr. Morris the
executor and leaving everything to the Morris family. When Mr. Morris admitted the
2007 will to probate here in Montgomery, he demanded that the Trust Company, Ms.
Morris’s conservator, turn over her estate to him. The Foundation, which would take
under the 1998 will, made a similar demand of the Trust Company under that
instrument. In an effort to resolve those competing demands, the Trust Company filed
an interpleader action in the Circuit Court of Virginia Beach, Virginia. That court
ruled that Ms. Morris was incompetent when she executed the 2007 will, voiding that
instrument.
3

On May 19, 2011, the Montgomery County Probate Court ordered the Trust
Company to turn over the mother’s estate to Mr. Morris.3 But the Trust Company
never did. The complaint does not indicate where the estate’s assets went, but the
Trust Company says they were released to Ms. Loulakis for distribution under the
1998 will (Doc. # 9, at 8).
IV. DISCUSSION
Mr. Morris sues Defendants for nine state-law torts: negligence, wantonness,
conspiracy, fraudulent misrepresentation, fraudulent suppression, breach of fiduciary
duty, wanton breach of fiduciary duty, conversion, and tortious interference with an
expectancy. That much is clear.
But that is all that is clear. The complaint suggests Mr. Morris pursues claims
for torts against his mother, torts against himself, and (perhaps) torts against his
mother’s estate. There is no indication, however, what counts proceed under which
theory; the complaint regularly uses the general term Plaintiff to refer to all three. For
instance, the complaint alleges the Trust Company, the Foundation, and Ms. Loulakis
“conspired and confederated to defraud Plaintiff” (Doc. # 1-1, ¶ 83), but it is unclear
whether Defendants allegedly conspired to defraud Mr. Morris, his mother, his

3

The complaint fails to mention an important detail about this order: The Alabama
Supreme Court vacated it. See Ex parte Trust Co. of Virginia, 96 So. 3d 67, 70 (Ala. 2012). At
any rate, the vacature of that order does not affect this opinion’s analysis.
4

mother’s estate, or some combination of the three. Nor is it apparent which
Defendants are accused of committing what torts. This state of affairs has led to
considerable confusion. (The Foundation does not even know how many torts it is
accused of committing – the Foundation thinks the number is two (Doc. # 8, at 8), but
Mr. Morris insists it is six (Doc. # 16, at 5).) A complaint must, at the very least,
identify who accuses whom of what. This complaint leaves Defendants (and the
court) to guess.
The proper remedy for this confusion is to strike the complaint with leave to
replead. See Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (recognizing
the inherent authority of district courts to demand repleader sua sponte). There is,
however, sufficient clarity in the record for the court to conclude many of Defendants’
arguments have merit. To the extent Mr. Morris would replead his complaint to
include all the claims his current one attempts, repleader is largely futile. In order to
facilitate a much-needed narrowing of the issues, this opinion will rule on the pending
motions to dismiss to the extent possible before requiring Mr. Morris to replead
whatever claims are left.
A.

Mr. Morris cannot pursue claims for torts against his mother.
Mr. Morris’s complaint appears to mistakenly assume his mother’s tort claims

survived her death. They did not. See Ala. Code § 6-5-462; Robbins v. Sanders, 890
5

So. 2d 998, 1011 (Ala. 2004) (recognizing unfiled tort claims, including claims for
breach of fiduciary duty, are extinguished upon death). Whatever tort claims Ms.
Morris might have had or maintained during her life died when she did. Accordingly,
all claims Mr. Morris brings for torts committed against his mother fail to state a claim
upon which relief can be granted.
B.

Mr. Morris cannot pursue claims for torts against himself.
To the extent Defendants move to dismiss the claims Mr. Morris brings on his

own behalf, they face no opposition. When Mr. Morris responded to the motions to
dismiss, he only opposed dismissal of “those claims made on behalf of the Estate of
Amy F. Morris,” (Doc. # 16, at 1 (emphasis in original); Doc. # 17, at 1 (same); see
also Doc. # 16, at 9 (noting Mr. Morris’s “individual claims . . . [were] not argued or
presented in [his opposition] brief”; Doc. # 17, at 10 (same)). For the most part, Mr.
Morris’s briefs delivered on those promises, and there is virtually no mention of any
claims he brings on his own behalf.4 Accordingly, the claims Mr. Morris brings on
4

Mr. Morris’s resolve faded toward the end, and he could not help but mount a defense
for his claim of tortious interference with his inheritance. That tort, however, does not exist in
Alabama. Mr. Morris admits as much, but urges that “this is a sufficiently extreme case to merit
recognition of the tort.” (Doc. # 17, at 14.) Because the court sits in diversity, it must respect
the United States Supreme Court’s pronouncement that “the highest court of the state is the final
arbiter of what is state law.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940); see also 28
U.S.C. § 1652. The Alabama Supreme Court has consistently declined invitations to recognize a
cause of action for tortious interference with an expectancy. See Holt v. First Nat’l Bank of
Mobile, 418 So. 2d 77, 81 (Ala. 1982); see also Ex parte Batchelor, 803 So. 2d 515, 519 (Ala.
2001) (withdrawing an earlier opinion that recognized the tort). This court is bound to follow
those precedents.
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his own behalf are due to be dismissed as abandoned. See Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (noting that when a party fails to offer
argument on an issue, it is abandoned).
C.

Mr. Morris may pursue claims for torts against his mother’s estate.
The complaint vaguely suggests Mr. Morris might intend to pursue claims for

torts committed directly against his mother’s estate. That theory might be viable. See
Robbins v. Sanders, 890 So. 2d 998, 1011 (Ala. 2004) (recognizing a claim for a
breach of fiduciary duty owed to an estate, rather than the decedent, was not barred
by Alabama’s survival statute). But neither Defendant has addressed it.
Defendants’ silence is excusable, however, because it is not at all clear from the
complaint whether Mr. Morris intends to actually pursue any such claims. The
complaint only alleges a few facts related to Defendants’ conduct after Ms. Morris’s
death, and those relate exclusively to the attempts to probate her wills and the Virginia
interpleader action. Perhaps those facts support some of Mr. Morris’s claims (e.g.,
claims for breach of fiduciary duty and conversion). But they obviously do not
support others (e.g., the negligence and wantonness claims, which fail because they
are expressly premised on a duty owed to Ms. Morris, not to her estate).
The complaint does not provide enough factual amplification for Defendants
to divine what torts they are accused of committing against Ms. Morris’s estate.
7

Under these circumstances, the best course of action is to strike Mr. Morris’s
complaint with leave to replead any claims for torts committed against Ms. Morris’s
estate. Of note, the signature of Mr. Morris’s counsel certifies to the court that he
pursues only “claims . . . warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law.” Fed. R.
Civ. P. 11(b)(2). To avoid further confusion, any amended complaint Mr. Morris files
may not use the general terms Plaintiff or Defendants, but should instead identify the
parties by name.
V. CONCLUSION
It is therefore ORDERED that the motions to dismiss (Docs. # 8, 9) are
GRANTED in part and DENIED in part as follows:
(1)

With regard to the claims Mr. Morris brings on his own behalf and on his
mother’s behalf, the motions are GRANTED, and those claims are
DISMISSED with prejudice;

(2)

With regard to any claims Mr. Morris brings on behalf of his mother’s
estate that arose after she died, the motions are DENIED.

It is further ORDERED that the complaint is STRICKEN with leave to replead
on or before May 27, 2013. Failure to timely file an amended complaint will result
in dismissal.
8

DONE this 17th day of May, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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