Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.
Filing
424
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)
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
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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