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

Filing 92

OPINION AND ORDER denying 70 Joint Motion to Dismiss Counts I and Count II of Defendant Wells Fargo Bank N.A.'s Third Party Complaint. See Opinion and Order for details. Signed by Judge John E. Steele on 9/12/2013. (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 Joint Motion to Dismiss
Counts I and Count II of Defendant Wells Fargo Bank N.A.’s Third
Party Complaint (Doc. #70) filed on May 9, 2012.

Defendant/Third

Party Plaintiff filed a Memorandum in Opposition (Doc. #89) on
August 16, 2013.
denied.

For the reasons set forth below, the motion is

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 Bank, 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.1

(Doc. #25.)

On April 20, 2012, Wells Fargo filed a Third-Party Complaint
(Doc. #60) alleging claims of contribution and unjust enrichment
against plaintiffs’ father, Bruce D. Berlinger (Berlinger), who is
a co-trustee of the Trusts, and a claim of unjust enrichment
against plaintiffs’ mother, Sue Casselberry (Casselberry).
Plaintiffs and third-party defendant Berlinger contend that
Counts I and II of the Third-Party Complaint should be dismissed
for failing to state a claim upon which relief can be granted.2
(Doc. #70.)

Wells Fargo argues to the contrary.

(Doc. #89.)

1

On September 3, 2013, the Court issued an Opinion and Order
(Doc. #91) dismissing without prejudice the prayer for injunctive
relief and civil theft claims.
2

Because plaintiffs are not a party to the third-party
complaint, they lack standing to bring this motion. See St. Paul
Fire and Marine Ins. Co. v. Lago Canyon, Inc., No. 06-60889-CIV,
2007 WL 1128897 (S.D. Fla. Apr. 16, 2007). Therefore, plaintiffs’
motion is denied, and the Court will address the motion brought by
third-party defendant Berlinger.
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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).
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

“Threadbare

1148,

1153

recitals

of

(11th
the

Cir.

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

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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 I: Contribution
Third-party defendant Berlinger contends that the contribution

claim in Count I should be dismissed for failing to state a claim
for which relief can be granted.
clear

at

this

point

whether

(Doc. #70, pp. 3-13.)
Florida

and/or

It is not

Pennsylvania

law

applies; however, the Court need not make that determination to
resolve the motion.

Under either Florida or Pennsylvania law, a

co-trustee is entitled to contribution from the other co-trustee
only if both co-trustees are liable to the beneficiaries.

Fla.

Stat. § 736.1002(2)(“if more than one person, including a trustee
or trustees, is liable to the beneficiaries for a breach of trust,
each liable person is entitled to pro rata contribution from the
other person or persons”); 42 Pa. Cons. Stat. §§ 8322, 8324 (the
right to contribution exists among joint-tortfeasors – two or more
persons jointly or severally liable in tort for the same injury to
persons

or

property);

Restatement

(Second)

of

Trusts

§

258(1)(“where two trustees are liable to the beneficiary for a

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breach of trust, each of them is entitled to contribution from the
other”).
Here, Wells Fargo alleges that Berlinger requested Wells Fargo
to invest $2,000,000 in the marital home, (Doc. #60, ¶ 21);
requested Wells Fargo to fund certain capital improvements, (id.,
¶ 23); and requested Wells Fargo to provide regular disbursements
of funds, (id., ¶ 24).

Wells Fargo also alleges that Berlinger had

joint

for

responsibility

investment

decisions,

(id.,

¶

26).

Additionally, Count I alleges that: “Wells Fargo will pay more than
its fair share of a common liability,” (id., ¶ 29); “[Berlinger]
should pay part of the liability that would be borne by Wells
Fargo,” (id., ¶ 30); “Wells Fargo would suffer damages in an amount
equal to the excess share of common liability paid by Wells Fargo,”
(id., ¶ 31); and “[Berlinger] should contribute to payment of any
amounts deemed owed to Plaintiffs,” (id., ¶ 32).

The Court finds

the Third-Party Complaint is sufficient to plausibly set forth a
claim for contribution.

Therefore, the motion to dismiss will be

denied as to Count I.
B.

Count II: Unjust Enrichment
Berlinger argues that, if Count I is dismissed, Count II

should be dismissed because unjust enrichment is not a derivative
claim.

(Doc. #70, pp. 13, 14.)

As explained above, the Court will

not dismiss Count I. Additionally, the Court finds the allegations

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set forth a plausible claim for unjust enrichment.

Therefore, the

motion to dismiss will be denied as to Count II.
Accordingly, it is now
ORDERED:
Joint Motion to Dismiss Counts I and Count II of Defendant
Wells Fargo Bank N.A.’s Third Party Complaint (Doc. #70) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 12th day of
September, 2013.

Copies: Counsel of record

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