Duckett v. Enomoto et al

Filing 22

ORDER that Defendants Carol Severyn and Carol Severyn Trust Management Services' Motion to Dismiss (Doc. 14 ) is granted, to the extent that Defendants Carol Severyn and Carol Severyn Trust Management Services are dismissed as parties. See order for details. Signed by Judge Neil V. Wake on 10/29/14. (NKS)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nancy K. Duckett,

No. CV-14-01771-PHX-NVW
Plaintiff,

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v.

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ORDER

Dennis M. Enomoto, et al.,

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Defendants.

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Before the Court are Defendants Carol Severyn and Carol Severyn Trust

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Management Services’ Motion to Dismiss (Doc. 14), Plaintiff’s Response (Doc. 19), the

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United States’ Response (Doc. 20) and Defendant Dennis Enomoto’s Response (Doc.

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21).

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In her last will and testament, the decedent, Miyoko Enomoto, devised one-third

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of her estate to a trust set up to benefit her son, Dennis Enomoto. The will appoints Carol

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Severyn Trust Management Services as trustee but gives Dennis Enomoto “the limited

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authority to request the removal of the Trustee and appoint a successor Trustee.” Doc. 1-

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2 at 34. Almost a year and a half after the will was admitted to probate, Severyn mailed

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copies of a “Rejection of Appointment as Trustee” form to counsel for Plaintiff and for

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the United States on August 7, 2014. Two weeks later, she also sent the other parties a

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signed “Resignation” form announcing that she was resigning her position as trustee,

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thereby creating a vacancy in the trusteeship. A.R.S. § 14-10704. Dennis Enomoto

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subsequently retained Kurt Tittelbach, of Premier Fiduciary Services, to serve as trustee

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of the trust established by the decedent. Doc. 18 at 2.

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With the appointment of Tittelbach, the moving Defendants no longer have any

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interest in this interpleader action. For that reason, Dennis Enomoto does not object to

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the instant Motion. Plaintiff argues in its Response that the Motion should be denied

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because the moving Defendants are “necessary parties to this action.” Doc. 19 at 2. That

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Response, however, was submitted to the Court on October 6, 2014, the same day Dennis

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Enomoto filed an Answer (Doc. 18) that announced the retention of Tittelbach. It

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appears Plaintiff was not aware, at the time it filed its Response, that a new trustee had

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been named to take the moving Defendants’ place. Regardless, now that Tittelbach has

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assumed the trusteeship, the moving Defendants can no longer be described as “necessary

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parties.”

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The moving Defendants request an award of attorney’s fees and costs from

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Plaintiff. The United States objects to the Motion only to the extent that any attorney’s

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fees or costs would be awarded against the interpleaded funds. The moving Defendants

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do not cite any statute, rule or other source of law that would justify an award of fees or

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costs. Instead, they merely assert fees and costs are proper because “counsel for the

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Plaintiff knew or should have known that the [moving] Defendants had no adverse claim

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to the money referenced in the interpleader.” Doc. 14 at 3. Even assuming this is true,

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the moving Defendants have not carried their burden of demonstrating that it entitles

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them to fees or costs. Because there appears to be no basis for any such award, the Court

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will not order Plaintiff to pay attorney’s fees or costs.

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IT IS THEREFORE ORDERED that Defendants Carol Severyn and Carol

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Severyn Trust Management Services’ Motion to Dismiss (Doc. 14) is granted, to the

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extent that Defendants Carol Severyn and Carol Severyn Trust Management Services are

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dismissed as parties.

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Dated this 29th day of October, 2014.

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