Motherway v. Teachers Insurance and Annuity Association of America

Filing 142

OPINION AND ORDER granting 127 plaintiff Sally Motherway's Motion for Summary Judgment. Cross-defendants Megan Motherway, Mavis Motherway, Carmel Motherway, and Mara Motherway are dismissed without prejudice. Summary judgment is granted in favor of plaintiff and against the defaulted cross-defendants Joseph E. Motherway, Edward J. Motherway, American Bank, as Temporary Co-Trustee of the Sally D. Motherway Living Revocable Trust, Melita M. Motherway, Suzanne M. Murray, and William D. Motherway. Judgment shall enter in favor of plaintiff as to entitlement of the funds at issue. Plaintiff is the sole party entitled to the funds and entitled to instruct as to the distribution of the funds. The Clerk shall terminate all remaining deadlines and motions and close the file. See Opinion and Order for details. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SALLY D. MOTHERWAY,
Plaintiff,
v.

Case No:

2:15-cv-68-FtM-29CM

TEACHERS
INSURANCE
AND
ANNUITY
ASSOCIATION
OF
AMERICA - COLLEGE RETIREMENT
AND EQUITIES FUND INDIVIDUAL
& INSTITUTIONAL SERVICES,
LLC,
Defendant.
OPINION AND ORDER
This

matter

comes

before

the

Court

on

plaintiff

Sally

Motherway’s Motion for Summary Judgment (Doc. #127) filed on August
21, 2017.

Sally Motherway (plaintiff) moves for summary judgment

as to the potential claims of remaining cross-defendants Christine
Engustian, Megan Motherway, Mara Motherway, Mavis Motherway, and
Carmel Motherway, and as to the defaulted cross-defendants Joseph
E. Motherway, Edward J. Motherway, First American Bank, Melita M.
Motherway, Suzanna M. Murray, and William D. Motherway.
Carmel

Motherway

filed

a

Response

to

the

Motion

for

(Id.)
Summary

Judgment (Doc. #138) and Christine Engustian filed a Notice that
she would not be filing a substantive response to the Motion for
Summary

Judgment

due

to

ongoing

settlement

discussions

(Doc.

#136).

The other cross-defendants have not filed Responses and

the time to do so has expired.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. Am.’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co.
v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that

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should be drawn from these facts”)).

“If a reasonable fact finder

evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
II.
This

matter

arises

out

of

payouts

on

annuity

contracts

maintained by TIAA-CREF Individual & Institutional Services, LLC.
(Doc. #2.)
In 2004, plaintiff Sally Motherway created an estate plan
pursuant to Florida law, which included a Living Revocable Trust
and a durable power of attorney. (Doc. #2, ¶ 11; Doc. #127, p. 2.)
Her assets included Annuity Contracts with Teachers Insurance and
Annuity Association of America – College Retirement and Equities
Fund Individual & Institutional Services, LLC (“TC Services”), 1
which generated income for plaintiff during her lifetime.

(Doc.

#127, p. 2.)
Plaintiff, exercising her rights under the annuity contracts,
gave instructions to TC Services to deposit funds paid from the

1

Originally the action was brought against Teachers Insurance
and Annuity Association of America – College Retirement and
Equities Fund (TIAA-CREF), but later TIAA-CREF was dismissed from
the action and TIAA-CREF Individual & Institutional Services, LLC
(“TC Services”) was substituted in its place as the proper party.
(Doc. #17.) For sake of simplicity, the Court will only refer to
TC Services throughout this Opinion and Order.

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annuity contracts into her Florida trust account. (Id. at 3.)

TC

Services honored plaintiff’s instruction through October 2013.
(Id.)

Then TC Services received an order from the Rhode Island

court indicating that two guardians had been appointed on behalf
of Sally Motherway.

(Id.)

After receiving the Rhode Island

order, TC Services changed the payee of the accounts from Sally
Motherway’s Florida trust account to an account created by the
Rhode Island guardians established in the state of Rhode Island,
and began distributing accrued funds and monthly distributions to
the Rhode Island guardians.

(Id. at 4.)

On December 4, 2014, Sally Motherway filed this action in
Florida state court for declaratory and injunctive relief, seeking
to enjoin TC Services from distributing funds from her retirement
account administered by TC Services.

(Doc. #2; Doc. #127, p. 4.)

On February 4, 2015, TC Services removed the action to this Court.
(Doc. #1.)

On April 27, 2015, TC Services answered and filed a

third-party interpleader complaint against Christine Engustian,
Megan

Motherway,

Motherway,

and

Mara
other

Motherway,
alleged

Mavis

Motherway,

beneficiaries

of

the

and

Carmel

accounts,

seeking clarification as to whose instructions it should follow
and where payments should be made.

(Docs. ##14, 18.)

Since the filing of the third-party interpleader complaint,
some of the interpleaded parties have been dismissed from the

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matter by stipulation or have had a clerk’s default entered against
them

for

failure

complaint.

to

respond

to

(Docs. ##100-02, 104.)

the

third-party

interpleader

Specifically, Sherry Goldin

was dismissed with prejudice by stipulation, and a clerk’s default
was

entered

as

to

Joseph

E.

Motherway,

Edward

J.

Motherway,

American Bank, as Temporary Co-Trustee of the Sally D. Motherway
Living Revocable Trust, Melita M. Motherway, Suzanne M. Murray,
and William D. Motherway. (Id.)

Therefore, the only parties who

have not been dismissed or had a clerk’s default entered against
them are Christine Engustian, Megan Motherway, Mara Motherway,
Mavis Motherway, and Carmel Motherway.
On August 21, 2017, plaintiff filed a Motion for Summary
Judgment

against

the

remaining

cross-defendants,

Christine

Engustian, Megan Motherway, Mara Motherway, Mavis Motherway, and
Carmel Motherway, and also as to the parties against whom the
clerk’s

default

was

entered,

Joseph

E.

Motherway,

Edward

J.

Motherway, American Bank, as Temporary Co-Trustee of the Sally D.
Motherway Living Revocable Trust, Melita M. Motherway, Suzanne M.
Murray, and William D. Motherway.

(Doc. #127.)

On January 5,

2018, plaintiff and Christine Engustian filed a Stipulation for
Dismissal, agreeing to the dismissal with prejudice of all claims
and counterclaims (Doc. #139), and on January 8, 2018, an Order
was entered dismissing Christine Engustian with prejudice (Doc.

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#140).

On January 2, 2018, Carmel filed an Opposition to plaintiff

Sally Motherway’s Motion for Summary Judgment.

(Doc. #138.)

The

other parties have not responded and the time to do so has expired. 2
III.
The only remaining claims in this action are those at issue
in

the

third-party

interpleader

complaint.

(See

Doc.

#130.)

Cross-defendants were interpleaded into this action by TC Services
as potential future beneficiaries of the funds at issue.

However,

as

and

beneficiaries,

their

interests

have

not

vested

are

contingent, at a minimum, upon the death of the plaintiff, Sally
Motherway.

Because these beneficiaries do not have any present

right to the funds at issue, the Court finds that plaintiff Sally
Motherway

is

the

only

distribution proceeds.

individual

entitled

to

her

annuity

As such, the Court dismisses without

prejudice Megan Motherway, Mavis Motherway, and Carmel Motherway
as any potential claims to the proceeds are not ripe and for lack
of standing.
Plaintiff also seeks entry of summary judgment as to the
parties against whom a clerk’s default was entered.
pp. 13-14.)

(Doc. #127,

Because a Clerk’s Entry of Default (Doc. #104) was

2

On December 19, 2017, the Court directed cross-defendants
to file a Response to plaintiff’s Motion for Summary Judgment
within ten days or the Court would rule without the benefit of a
Response. (Doc. #135.)

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issued against all potential claimants who failed to file a timely
claim or answer, the Court will grant summary judgment as to the
parties against whom a clerk’s default was entered.
Lastly,

plaintiff

asserts

that

Mara

Motherway

should

be

dismissed from this action because she was never served with
process. (Doc. #127, pp. 14-15.)
is

not

effectuated

within

Pursuant to Rule 4(m), if service

ninety

days

of

the

filing

of

the

complaint, the court “must dismiss the action without prejudice
against that defendant.” Fed. R. Civ. P. 4(m).

Therefore, Mara

Motherway is dismissed without prejudice from this action.
Accordingly, plaintiff is the only party entitled to the funds
at issue in this matter, and therefore instructions regarding
payments should be taken from, and payments should be made to,
plaintiff Sally Motherway.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Plaintiff's Motion for Summary Judgment (Doc. #127) is

GRANTED.
2.
Carmel

Cross-defendants
Motherway,

and

Megan

Mara

Motherway,

Motherway

are

Mavis

Motherway,

dismissed

without

prejudice.
3.

against

Summary judgment is granted in favor of plaintiff and
the

defaulted

cross-defendants,

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Joseph

E.

Motherway,

Edward J. Motherway, American Bank, as Temporary Co-Trustee of the
Sally D. Motherway Living Revocable Trust, Melita M. Motherway,
Suzanne M. Murray, and William D. Motherway, who have neither
answered nor

presented

any

claims

to

the

proceeds

at

issue.

Judgment shall enter in favor of plaintiff as to entitlement of
the funds at issue.

Plaintiff is the sole party entitled to the

funds and entitled to instruct as to the distribution of the funds.
4.

The Clerk shall terminate all remaining deadlines and

motions and close the file.
DONE and ORDERED at Fort Myers, Florida, this __11th__ day of
January, 2018.

Copies:
Parties of Record

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