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

Filing 91

OPINION AND ORDER granting in part and denying in part 29 Defendant Wells Fargo Bank, N.A.'s Motion to Dismiss and Motion to Strike Plaintiffs' Amended Complaint. Counts III and IV of 25 the First Amended Complaint are dismissed withou t prejudice. Plaintiffs may file a second amended complaint setting forth all of their claims within twenty-one days of this Opinion and Order. If no second amended complaint is filed within twenty-one days, the case will proceed on Counts I and II. See Opinion and Order for details. Signed by Judge John E. Steele on 9/3/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, BRIAN BRUCE
BERLINGER,
and
HEATHER
ANNE
BERLINGER, as beneficiaries to the
Rosa B. Schweiker Trust and all of
its related trusts,
Plaintiffs,
vs.

Case No.

2:11-cv-459-FtM-29UAM

WELLS FARGO BANK, 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,
vs.
BRUCE
D.
BERLINGER
CASSELBERRY,

and

SUE

Third-Party
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant Wells Fargo
Bank, N.A.’s Motion to Dismiss and Motion to Strike Plaintiffs’
Amended

Complaint

(Doc.

#29)

filed

on

November

21,

2011.

Plaintiffs filed a Response in Opposition (Doc. #32) on December
15, 2011.

For the reasons set forth below, the motion is granted

in part and denied in part.

I.
On November 2, 2011, plaintiffs Stacey Sue Berlinger, Brian
Bruce

Berlinger,

and

Heather

Anne

Berlinger

(plaintiffs),

beneficiaries to the Rosa B. Schweiker Trust and all of its related
trusts (Trusts), filed a four-count First Amended Complaint (Doc.
#25) against defendant Wells Fargo, N.A. (Wells Fargo), corporate
co-trustee of the Trusts.

Plaintiffs bring claims for breach of

trust, breach of fiduciary duty, prayer for injunctive relief, and
civil theft.

(Doc. #25.)

Defendant contends that plaintiffs’ civil theft claim should
be dismissed because it fails to state a claim upon which relief
can be granted and that plaintiffs’ count for injunctive relief
should be stricken because it is both moot and improper.
#29.)

Plaintiffs argue to the contrary.

(Doc.

(Doc. #32.)

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.

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See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
unadorned,

This is “more than an

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 factual
support are entitled to no assumption of truth,” Mamani v. Berzain,
654

F.3d

1148,

“Threadbare

1153

recitals

of

(11th

Cir.

the

2011)(citations

elements

of

a

cause

omitted).
of

action,

supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

Iqbal,

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012)(internal quotation marks and citations omitted).

Thus,

the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

Iqbal, 556 U.S. at 679.
III.

A.

Count III: Prayer for Injunctive Relief
Defendant argues that Count III, plaintiffs’ request that the

Court issue an order mandating the transfer of the remaining funds
held by defendant to be placed with a new corporate fiduciary,

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should be stricken because it is moot and inappropriate.
#29, p. 13.)

(Doc.

Defendant asserts that Count III is moot because “in

their civil theft claim [plaintiffs] indicate that the Trust assets
have since been transferred to SunTrust Bank” and improper because
an injunction is “potentially available only after a plaintiff can
make

a

showing

infringed.”

that

(Id.;

some

independent

citations

legal

omitted.)

right

This

is

issue

being

is

more

appropriately resolved by the motion to dismiss for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
A claim for injunctive relief is not a freestanding cause of
action in its own right.

See Alabama v. U.S. Army Corps of

Engineers, 424 F.3d 1117, 1127 (11th Cir. 2005)(“any motion or suit
for either a preliminary or permanent injunction must be based upon
a cause of action, such as a constitutional violation, a trespass,
or a nuisance. There is no such thing as a suit for a traditional
injunction in the abstract.”)(citations and internal quotation
marks omitted).

Therefore, Count III will be dismissed without

prejudice with leave to amend.
B.

Count IV: Civil Theft
Defendant

argues

that

Count

IV,

civil

theft,

should

be

dismissed because: (1) plaintiffs do not have standing to assert a
claim for civil theft; (2) Florida’s civil theft statute is trumped
by Florida’s trust code; (3) plaintiffs’ allegation regarding
damages

from

the

purported

theft

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are

insufficient;

and

(4)

plaintiffs’ civil theft claim is barred by the economic loss rule.
(Doc. #29, pp. 4-13.)
[T]o state a claim for civil theft under Florida law,
[plaintiffs] must allege an injury resulting from a
violation by [defendant] of the criminal theft statute,
Fla. Stat. § 812.014.
To do this, [plaintiffs] must
allege that [defendant] (1) knowingly (2) obtained or
used, or endeavored to obtain or use, [plaintiffs’]
property with (3) “felonious intent” (4) either
temporarily or permanently to (a) deprive [plaintiffs] of
[their] right to or a benefit from the property or (b)
appropriate the property to [defendant]'s own use or to
the use of any person not entitled to the property.
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir.
2009)(citations omitted).
Here, plaintiffs allege that: “Defendant failed and refused to
transfer, and therefore did not return, the Plaintiff’s property,
having possessed the felonious intent to steal and commit theft by
permanently

or

temporarily

depriving

the

Plaintiffs

of

their

immediate right to and benefit from the property, or through the
appropriating of the Plaintiffs property for the Defendant’s own
use in violation of Florida Statute § 812.014(1) and (2).”

(Doc.

#25, ¶ 77.) Plaintiffs do not, however, allege sufficient facts to
support

the

conclusory

felonious intent.

allegation

that

defendant

See Iqbal, 556 U.S. at 678.

possessed

Therefore, the

motion to dismiss will be granted as to Count IV, and Count IV will
be dismissed without prejudice with leave to amend.1

1

Because plaintiffs have failed to state a civil theft claim
against defendant, the Court need not address defendant’s
additional arguments.
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Accordingly, it is now
ORDERED:
1.

Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss and

Motion to Strike Plaintiffs’ Amended Complaint (Doc. #29) is
GRANTED to the extent it seeks to dismiss Counts III and IV and is
DENIED in all other respects.

Counts III and IV of the First

Amended Complaint (Doc. #25) are DISMISSED WITHOUT PREJUDICE.
2.

Plaintiffs may file a second amended complaint setting

forth all of their claims WITHIN TWENTY-ONE (21) DAYS of this
Opinion and Order.

If no second amended complaint is filed within

twenty-one days, the case will proceed on Counts I and II.
DONE AND ORDERED at Fort Myers, Florida, this 3rd day of
September, 2013.

Copies: Counsel of record

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