Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.

Filing 196

OPINION AND ORDER denying 96 Motion to dismiss third party complaint. Signed by Judge John E. Steele on 8/18/2014. (RKR)

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 and 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 on review of Third Party
Defendant,

Sue

Casselberry's

Motion

to

Dismiss

Complaint (Doc. #96) filed on October 2, 2013.

Third

Party

Defendant/Third

Party Plaintiff filed a Memorandum of Law in Opposition (Doc. #103)

on October 28, 2013.

For the reasons set forth below, the motion

is denied.
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).
2.)

(Doc. #60, p.

Wells Fargo N.A. (Wells Fargo) served as corporate Co-Trustee

of these three Trusts.

(Id. at p. 4.)

The Third Party Defendant,

Bruce D. Berlinger, served as the other Co-Trustee and primary
beneficiary of these Trusts.

(Id.)

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.

(Id.

at

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 September 24, 2013, plaintiffs filed a three count Second
Amended

Complaint

(Doc.

#93)

against

defendant

Wells

Fargo,

alleging breach of trust, breach of fiduciary duty, and civil

2

theft.

On April 20, 2012, Wells Fargo filed a Third Party

Complaint

(Doc.

#60)

alleging

in

Counts

I

and

II

claims

of

contribution and unjust enrichment against Bruce, and in Count
III, a claim of unjust enrichment against Sue.

Third Party

defendant Sue seeks to dismiss Count III of the Third Party
Complaint.

(Doc. #96.)
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,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate

3

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

defendant’s

facially plausible.”
1337

(11th

omitted).

Cir.

“Factual allegations that are merely
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.

Count
unjustly

III

of

enriched

the
when

Third
she

Party

Complaint

voluntarily

alleges

accepted

and

Sue

was

retained

benefits stemming from Wells Fargo’s alleged improper distribution
of trust assets.
Third

Party

(Doc. #60, p. 7.)

Complaint

should

be

Sue asserts Count III in the
dismissed

because

it

is

not

permissible under Rule 14 of the Federal Rules of Civil Procedure,
fails to state a claim for relief, Wells Fargo lacks standing, and
the claim is barred by the statute of limitations.
The Court will address each argument in turn.

4

(Doc. #96.)

A.

Permissible Impleader
Sue contends the unjust enrichment claim in Count III should

be dismissed because it is not a derivative claim and therefore,
impermissible
Procedure.

under

Rule

14

of

(Doc. #96, pp. 3-5.)

the

Federal

Rules

of

Civil

Wells Fargo asserts its claim is

a classic third party claim and is appropriate under Rule 14.
(Doc. #103, p. 3-4.)

Wells Fargo also highlights that the Court

has already ruled on this matter and found the unjust enrichment
claim was derivative of the outcome of the case.

(Id.)

Under Federal Rule of Civil Procedure 14(a), the defendant as
a third-party plaintiff may implead parties who are or may be
liable to the defendant for all or part of the plaintiff’s original
claim.

Stewart Title Guar. Co. v. Title Dynamics, Inc., 2005 WL

1593364, *3 (M.D. Fla. June 30, 2005).

The liability of the third-

party defendants must be in some way dependent upon, or derivative
of,

the

outcome

defendant.

of

the

claim

between

the

plaintiff

and

the

United States v. Olavarrieta, 812 F.2d 640, 643 (11th

Cir. 1987) (emphasis added); United States v. Joe Grasso & Son,
Inc., 380 F.2d 749, 751 (5th Cir. 1967).

However, if predicated

upon a separate and independent claim, impleader pursuant to
Federal Rule of Civil Procedure 14 will not be appropriate even
though the claim arises out of the same general set of facts.

Id.

The Court has already ruled that the claims set forth in the
Third Party Complaint are derivative of the outcome of the claim

5

between plaintiffs and Wells Fargo and that good cause exists to
join both third party defendants.

(Doc. #59, pp. 2-3.)

The Court

determined impleader of both Sue and Bruce was proper because if
Wells Fargo “should suffer damages in this action, Bruce and/or
Sue should share in the liability or contribute to payment of any
liability.”

(Id.)

The Court finds there is no cause to revisit

this issue and Count III is proper under Rule 14 of the Federal
Rules of Civil Procedure.
B.

Valid Claim for Unjust Enrichment
Sue contends that the unjust enrichment claim in Count III

should be dismissed for failing to state a claim for which relief
can be granted.

(Doc. #96, pp. 6-10.)

Wells Fargo asserts that

to the extent it is liable to plaintiffs for payments provided to
Sue, it would be inequitable for Sue to retain those funds.
#103, pp. 5-7.)

(Doc.

Thus, Wells Fargo argues it has properly alleged

a valid claim for unjust enrichment.

(Id.)

“A claim for unjust enrichment has three elements: (1) the
plaintiff

has

conferred

a

benefit

on

the

defendant;

(2)

the

defendant voluntarily accepted and retained that benefit; and (3)
the circumstances are such that it would be inequitable for the
defendants

to

retain

it

without

paying

the

value

thereof.”

Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir.
2012); Florida Power Corp. v. City of Winter Park, 887 So. 2d.
1237, 1241 n.2 (Fla. 2004).

6

In this case, Wells Fargo alleges it conferred a benefit on
Sue pursuant to a divorce settlement by distributing principal or
income on a monthly, on-going basis to provide for alimony and
support payments.

(Doc. #60, p. 4.)

In addition, Wells Fargo

distributed $2,000,000.00 to Sue, on behalf of Bruce, pursuant to
the divorce settlement.

(Id. at p. 3)

Wells Fargo also alleges

that Sue voluntarily accepted and retained these benefits and if
plaintiffs prevail in the underlying action, Sue’s retention of
the benefit conferred would be inequitable.

(Id. at p. 7.)

Accordingly, the Court finds the allegations set forth a plausible
claim for unjust enrichment.
C.

Standing
Next, Sue argues that Wells Fargo does not have standing to

bring a claim for unjust enrichment against her because the funds
distributed to her came from the Trusts, not Wells Fargo.
#96, pp. 10-11.)

(Doc.

Wells Fargo alleges that because plaintiffs are

holding it liable for funds Sue received, it has standing to bring
a claim against her.
As

discussed

(Doc. #103, pp. 6-7.)

above,

plaintiffs

allege

Wells

Fargo

made

improper distributions from the Trusts to Sue, on behalf of Bruce.
(See Doc. #93, pp. 4-7.)

If plaintiffs succeed, Wells Fargo will

be held liable for the distributions of the funds, not the Trusts,
and it would be inequitable for Sue to keep those funds at Wells
Fargo’s expense.

In addition, this Court has already determined

7

Wells Fargo has good cause to join Sue as third party defendant.
(Doc. #59, pp. 2-3.)

Therefore, this Court finds Wells Fargo has

standing to bring a claim for unjust enrichment against Sue.
D.

Statute of Limitations
Finally, Sue contends Count III is barred by the statute of

limitations and should be dismissed. (Doc. #96, pp. 11-12.) Wells
Fargo asserts the statute of limitations did not began to run until
July 2011 when it was put on notice of the existence of a cause of
action.

(Doc. #103, p. 7.)

The statute of limitations is an affirmative defense, and the
burden of proving an affirmative defense is on the defendant.
Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1292 (11th
Cir. 2005).

A plaintiff is not required to anticipate and negate

an affirmative defense in the complaint.

La Grasta v. First Union

Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

A Rule 12(b)(6)

motion to dismiss on statute of limitations grounds may be granted,
however, if it is apparent from the face of the complaint that the
claim is time-barred. La Grasta, 358 F.3d at 845–46. Nonetheless,
a motion to dismiss on statute of limitations grounds should not
be granted where resolution depends either on facts not yet in
evidence or on construing factual ambiguities in the complaint in
defendants' favor.

Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246,

1252 (11th Cir.2003).

8

Sue admits the unjust enrichment claim for the monthly alimony
payments

made

in

satisfaction

of

Bruce’s

monthly

alimony

obligation are not susceptible to a motion to dismiss because it
is not clear from the Third Party Complaint when these payments
were

made.

(Doc.

#96,

p.

12.)

However,

Sue

contends

the

$2,000,000 distributed to her in December 2007, is barred by the
statute of limitations.

(Id.)

“The possibility that some of the

alleged violations may have occurred during a time-barred period,
however, does not sustain the dismissal of the [claim], in its
entirety.”

Sec'y of Labor v. Labbe, 319 F. App'x 761, 764 (11th

Cir. 2008).

Therefore, at this stage in the litigation, Count III

of Wells Fargo’s Third Party Complaint cannot be dismissed as
untimely on its face.

The motion to dismiss on this basis is

denied.
Accordingly, it is now
ORDERED:
Third Party Defendant, Sue Casselberry's Motion to Dismiss
Third Party Complaint (Doc. #96) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2014.

Copies:
Counsel of record

9

18th

day of