Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.
Filing
520
ORDER denying as moot 470 Motion to Strike Affirmative Defenses; denying 455 Motion to take judicial notice; denying 457 Motion to take judicial notice; denying as moot 483 Motion to Strike Memorandum in Opposition; denying 504 Motion to Strike Exhibit Lists. Signed by Judge John E. Steele on 12/21/2015. (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, and
HEATHER ANNE BERLINGER, as
Beneficiaries to the Rosa B.
Schweiker Trust and all of
its related trusts,
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
the
following motions: (1) Plaintiffs’ Motion for Judicial Notice
(Doc. #455), filed on August 21, 2015; (2) Wells Fargo Bank, N.A.’s
Motion to Take Judicial Notice (Doc. #457), filed on August 21,
2015; (3) Third Party Cross-Plaintiff, Sue Casselberry’s Motion to
Strike
Affirmative
Defenses
from
Third
Party
Cross-Defendant,
Bruce D Berlinger’s, Answer to Second Amended Crossclaim (Doc.
#470), filed on August 28, 2015; (4) Plaintiffs’ Motion to Strike
Wells
Fargo
Bank,
N.A.’s
Memorandum
of
Law
in
Opposition
to
Plaintiffs’ Trial Brief (Doc. 483), filed on September 9, 2015;
and (5) Wells Fargo Bank, N.A.’s Motion to Strike Plaintiffs’ and
Third
Party
Defendant’s
November 23, 2015.
(1)
Exhibit
Lists
(Doc.
#504),
filed
on
The Court will address each motion in turn.
Plaintiffs’ Motion for Judicial Notice (Doc. #455)
Plaintiffs move the Court to take judicial notice of Docket
Entry #101 of the United States Bankruptcy Court for the Southern
District of New York for the case In Re: Cynthia Carrsow-Franklin,
Case. NO. 10-20010 (RDD).
Wells Fargo opposes the motion (Doc.
#479.)
“The court may judicially notice a fact that is not subject
to reasonable dispute because it (1) is generally know within the
trial court’s territorial jurisdiction; or (2) can be accurately
and
readily
determined
from
reasonably be questioned.”
sources
whose
Fed. R. Evid. 201.
accuracy
cannot
“The court may
take judicial notice of a document filed in another court not for
the truth of the matters asserted in the other litigation, but
rather
to
establish
the
fact
of
2
such
litigation
and
related
filings.”
1994)
United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.
(internal
quotation
marks
and
citation
omitted).
Additionally, the fact to be noticed must be “relevant to a
determination of the claims presented in a case.”
Dippin' Dots,
Inc. v. Frosty Bites Distribution, LLC, 369 F.3d 1197, 1204 (11th
Cir. 2004).
The document o which plaintiffs seek judicial notice is the
Wells Fargo Attorney Procedure Manual (Manual).
Plaintiffs assert
this document relates to certain letters plaintiffs allege were
intentionally fabricated by Wells Fargo.
Court finds this document immaterial.
(Doc. #455, p. 4.)
The
As a result of this Court’s
Opinion and Order (Doc. #492), the only remaining issue in this
case is plaintiffs’ claim that the Rosa Trust’s investment in the
Banyan
Blvd.
Property
(and
capital
improvement
made
to
the
property) was imprudent and/or made in bad faith. (Doc. #492, p.
29.)
Therefore, nothing in the instant case relates to the
allegedly fabricated letters. Accordingly, plaintiffs’ motion for
judicial notice (Doc. #455) is denied.
(2)
Wells Fargo’s Motion to Take Judicial Notice (Doc. #457)
Wells Fargo asks the Court to take judicial notice of the
Second
District
Court
of
Appeal
opinion
from
Berlinger
v.
Casselberry, 133 So. 3d 961 (Fla. 2d DCA 2013) and the Florida
3
Supreme Court’s declination of rehearing (Opinion). (Doc. #457.)
Plaintiffs filed a response in opposition (Doc. #477).
As stated above, the fact to be noticed must be “relevant to
a determination of the claims presented in a case.”
Inc., 369 F.3d at 1204.
Dippin' Dots,
The Opinion Wells Fargo seeks judicial
notice of discusses how Florida Statute § 736.0504(2) does not
prohibit a former spouse from obtaining a writ of garnishment
against discretionary disbursements made by a trustee exercising
its discretion.
(Doc. #457, p. 2.)
The Court has already resolved
the issue of the alimony payments in its Opinion and Order (Doc.
#492).
The issues in this case have been narrowed to solely
whether Wells Fargo was imprudent and/or acted in bad faith when
allowing the Rosa Trust’s investment in the Banyan Blvd. Property
(and capital improvement made to the property). (Doc. #492, p.
29.)
Accordingly, the Court finds the Opinion immaterial to the
instant case and Wells Fargo’s motion for judicial notice (Doc.
#457) is denied.
(3)
Third
Party
Cross-Plaintiff,
Sue
Casselberry’s
Motion
to
Strike (Doc. #470)
Third Party Cross-Plaintiff, Sue Casselberry (Sue) seeks to
strike six defenses set forth in Third Party Cross-Defendant, Bruce
D. Berlinger’s (Bruce) Answer to Second Amended Crossclaim (Doc.
#447). On October 16, 2015, the Court entered an Opinion and Order
4
(Doc. #492) granting Third Party Defendant, Sue’s Motion for
Summary Judgment (Doc. #362).
Therefore, there are no remaining
issues to be determined with respect to Sue’s Crossclaim against
Bruce (Doc. #353).
Accordingly, the instant motion is dismissed
as moot.
(4)
Plaintiffs’ Motion to Strike (Doc. #483)
Plaintiffs seek to strike Wells Fargo’s Memorandum of Law in
Opposition to Plaintiffs’ Trial Brief (Doc. #483.)
Wells Fargo
filed a response in opposition (Doc. #489.)
Plaintiffs’ trial brief was submitted to the Court on August
21, 2015.
Order
On October 16, 2015, the Court entered an Opinion and
(Doc.
#492)
granting
Wells
Fargo’s
Motion
for
Summary
Judgment (Doc. #364) in part, and denying plaintiffs’ motion for
summary judgment (Doc. #360). As a result, plaintiffs’ trial brief
contains superfluous facts and information not relevant to the
sole remaining issue before the Court.
In addition, the parties recently filed a Joint Pretrial
Statement.
Thus,
the
Court
finds
that
a
necessary at this stage in the litigation.
trial
brief
is
not
Therefore, the Court
will strike plaintiffs’ trial brief from the docket. Consequently,
Plaintiffs’ Motion to Strike Wells Fargo’s Memorandum of Law in
Opposition to Plaintiffs’ Trial Brief (Doc. #483) is denied as
moot.
5
(5)
Wells Fargo Bank, N.A.’s Motion to Strike (Doc. #504)
On November 23, 2015, Wells Fargo filed a Motion to Strike
Plaintiffs’
#504).
and
Third
Party
Defendant’s
Exhibits
Lists
(Doc.
Plaintiffs and Bruce filed a Joint Response in opposition.
(Doc. #505.)
Wells Fargo seeks to strike plaintiffs’ and Bruce’s trial
exhibit lists as overbroad and irrelevant to the sole remaining
issue before the Court.
As a result of the Final Pretrial
Conference on December 7, 2015, the Court struck The Pretrial
Statement of plaintiffs and third party defendant.
#510.)
(See Doc.
Thus, the instant motion is denied as moot as it relates
to plaintiffs’ pretrial statement (Doc. #502).
The Court also
denies Wells Fargo’s motion to the extent it applies to plaintiffs’
newly filed exhibit list (Doc. #512-3).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
(1)
Plaintiffs’ Motion for Judicial Notice (Doc. #455) is
DENIED.
(2)
Wells Fargo Bank, N.A.’s Motion to Take Judicial Notice
(Doc. #457) is DENIED.
(3)
Strike
Third Party Cross-Plaintiff, Sue Casselberry’s Motion to
Affirmative
Defenses
from
6
Third
Party
Cross-Defendant,
Bruce D Berlinger’s, Answer to Second Amended Crossclaim (Doc.
#470) is DENIED as moot.
(4) Plaintiffs’ Motion to Strike Wells Fargo Bank, N.A.’s
Memorandum of Law in Opposition to Plaintiffs’ Trial Brief (Doc.
483) is DENIED as moot.
(5) Wells Fargo Bank, N.A.’s Motion to Strike Plaintiffs’ and
Third Party Defendant’s Exhibit Lists (Doc. #504) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
December, 2015.
Copies:
Counsel of Record
7
21st
day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?