Scolieri et al v. John Hancock Life Insurance Company (U.S.A.) et al
Filing
53
ORDER granting 40 Defendants John Hancock Life Insurance Company (U.S.A.)'s, and First Insurance Funding Corp.'s Motions to Dismiss 41 . The Amended Complaint (Doc. 26) is DISMISSED without prejudice. Plaintiffs may file a Second Amended Complaint on or before March 7, 2017. Signed by Judge Sheri Polster Chappell on 2/22/2017. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANGELO SCOLIERI, individually and as
Trustee of the Angelo Scolieri
Revocable Insurance Trust UTA August
23, 2007, and KATHLEEN SCOLIERI,
Plaintiffs,
v.
Case No: 2:16-cv-690-FtM-38CM
JOHN HANCOCK LIFE INSURANCE
COMPANY (U.S.A.) and FIRST
INSURANCE FUNDING CORP.,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on review of Defendants John Hancock Life
Insurance Company (U.S.A.)’s (“John Hancock”) and First Insurance Funding Corp.’s
(“First Insurance”) Motions to Dismiss (Doc. 40, 41), filed on November 10, 2016 and
November 14, 2016. Plaintiffs Angelo Scolieri (“Scolieri”) and Kathleen Scolieri submitted
their Response in Opposition (Doc. 44) on December 27, 2016, to which John Hancock
and First Insurance filed Replies (Doc. 49, 50) on January 11, 2017 and January 12, 2017.
This matter is ripe for review.
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BACKGROUND
This case centers on allegations of a fraudulent scheme to induce Scolieri to
purchase a universal life insurance policy (the “Policy”) that he could not afford. The
Amended Complaint alleges that in April 2007, Scolieri was 67 years old, in good health,
had an illiquid net worth of around $16,000,000.00, and had an additional life expectancy
of 15.8 years. (Doc. 26 at ¶¶ 13, 26). Around that time, he was approached by Bradley
Wasserman, an agent of John Hancock, who implored him to purchase the Policy to resell
it on a secondary market at a discount from the amount otherwise paid upon death. (Doc.
26 at ¶ 11).
The Policy provided a $16,000,000.00 death benefit, but required annual premium
payments of $432,511.00 to be submitted each year for 34 years. (Doc. 26 at ¶ 18, 26-3
at 3). Wasserman allegedly represented that if Scolieri purchased the Policy, he could
arrange for it to be resold within two (2) years for $3,200,000.00, which represented a
profit of more than $1,500,000.00. (Doc. 26 at ¶¶ 12, 33). Even if the Policy could not
be resold in two years, Wasserman represented that he could sell it before Scolieri’s funds
to pay the premiums had been depleted. (Doc. 26 at ¶ 12).
Scolieri then elected to purchase the Policy and borrow the funds to cover the
annual premium payments. (Doc. 26 at ¶ 14). Wasserman informed Scolieri he should
borrow the funds from A.I. Credit Corp., John Hancock’s exclusive lending partner. (Doc.
26 at ¶ 14). Defendants then allegedly advised Scolieri he should establish a trust to act
as an artificial third party to borrow the funds. (Doc. 26 at ¶ 15).
Upon this advice, Scolieri formed the Angelo Scolieri Revocable Insurance Trust
UTA August 23, 2007 (“Trust”), and took out a loan (the “Loan Agreement”) with A.I. Credit
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Corp., which he and Kathleen Scolieri personally guaranteed. (Doc. 26 at ¶ 21). Scolieri
and Kathleen Scolieri also posted a certificate of deposit of $750,000.00 on the Loan
Agreement. (Doc. 26 at ¶ 21). The money advanced under the Loan Agreement was
used to pay the Policy premiums. (Doc. 26 at ¶ 15). The Loan Agreement required,
however, that for all funds advanced, Plaintiffs would have to supply additional collateral.
(Doc. 26 at ¶ 22).
Though Scolieri purchased the Policy and received coverage, the contemplated
resale was never executed. (Docs. 26 at ¶ 23, 26-3 at 3). On July 28, 2009, First
Insurance acquired a majority of A.I. Credit Corp.’s assets and obligations, including the
Trust’s account. (Doc. 26 at ¶ 7). Nearly eight (8) years later, John Hancock informed
Plaintiffs it could not resell the Policy. (Doc. 26 at ¶ 39).
On August 10, 2016, Plaintiffs filed a Complaint in the Twentieth Judicial Circuit in
and for Collier County, bringing claims against John Hancock and First Insurance in the
stead of A.I. Credit Corp. for intentional misrepresentation, negligent misrepresentation,
and civil conspiracy. (Docs. 1 at ¶ 1, 2 at 1-10). First Insurance removed the case to this
Court. (Doc. 1). After First Insurance filed a Motion to Dismiss (Doc. 17), Plaintiffs filed
an Amended Complaint that alleged the same three counts. (Doc. 26)
The Amended Complaint alleges that Defendants had a long history of working
together, and knew that Scolieri lacked the assets to pay future premiums without first
borrowing funds. (Doc. 26 at ¶¶ 17, 20). Moreover, the Amended Complaint states that
Defendants knew that when Scolieri posted his assets as collateral for the loan, they were
insufficient to cover premiums the duration of his life expectancy. (Doc. 26 at ¶ 17). On
this basis, the Amended Complaint alleges that John Hancock intentionally
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misrepresented the marketability of the Policy on a secondary market, and that
Defendants intentionally failed to inform Plaintiffs of the risks of purchasing the Policy or
entering into the Loan Agreement. (Doc. 26 at ¶¶ 32-33, 36-37). It also alleges that
Defendants acted in concert to persuade Plaintiffs to purchase the Policy and enter into
the Loan Agreement on credit from A.I. Credit Corp. (Doc. 26 at ¶¶ 53, 36-37). Now,
Defendants move to dismiss the Amended Complaint. (Doc. 40, 41).
STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a Complaint
for failure to state a claim upon which relief can be granted. In deciding a Rule 12(b)(6)
motion to dismiss, the Court limits its consideration to well-pleaded factual allegations,
documents central to, or referenced in, the complaint, and matters judicially noticed. La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). The Court must
accept all factual allegations in a plaintiff's complaint as true and take them in the light
most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). Conclusory allegations, however, are not entitled to a presumption of truth. See
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
The Court employs the Twombly–Iqbal plausibility standard when reviewing a
complaint subject to a motion to dismiss. A claim is plausible if the plaintiff alleges facts
that “allow[ ] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. The plausibility standard requires that a
plaintiff allege sufficient facts “to raise a reasonable expectation that discovery will reveal
evidence” that supports the plaintiff's claim. Twombly, 550 U.S. at 556. Thus, “the-
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defendant-unlawfully harmed me accusation” is insufficient. Iqbal, 556 U.S. at 677. “Nor
does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (internal modifications omitted). Further, courts are not “bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986).
When alleging fraud or mistake in federal court, Federal Rule of Civil Procedure
9(b) requires that “a party must state with particularity the circumstances constituting
fraud. . . .” This means “a plaintiff must plead facts as to time, place and substance of the
defendant’s alleged fraud, specifically the details of the defendant’s allegedly fraudulent
acts, when they occurred, and who engaged in them.” United States v. McInteer, 470
F.3d 1273, 1278 (11th Cir. 2006). Stated differently, “[t]his means who, what, when,
where, and how: the first paragraph of any newspaper story.” Garfield v. NDC Health
Corp., 466 F.3d 1255, 1262 (11th Cir. 2006).
DISCUSSION
Defendants’ Motions to Dismiss are multifaceted.
First, they argue that the
Amended Complaint fails to state a claim upon which relief can be granted and should be
dismissed in total. Second, First Insurance argues that the counts within the Amended
Complaint do not meet Rule 9(b)’s particularity threshold. Third, Defendants argue that
the Amended Complaint should be dismissed because its claims are time-barred. Fourth,
John Hancock argues that Kathleen Scolieri’s claims should be dismissed because there
are no allegations that fraudulent statements were made to her. To the extent laid out
herein, the Court agrees.
A. Intentional Misrepresentation
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The elements of an intentional misrepresentation claim in Florida are “(1) a false
statement concerning a material fact; (2) the representor's knowledge that the
representation is false; (3) an intention that the representation induce another to act on it;
and (4) consequent injury by the party acting in reliance on the representation.” Butler v.
Yusem, 44 So. 3d 102, 105 (Fla. 2010). However, “[a]n action for fraud generally may
not be predicated on statements of opinion or promises of future action, but rather must
be based on a statement concerning a past or existing fact.” Mejia v. Jurich, 781 So.2d
1175, 1177-78 (Fla. 3d DCA 2001). There is, however, an exception when “the person
expressing the opinion is one having superior knowledge of the subject of the statement
and the plaintiff can show that said person knew or should have known from facts in his
or her possession that the statement was false.” Id.
In addition, “Florida law recognizes that [intentional misrepresentation] can occur
by omission.” Woods v. On Baldwin Pond, LLC, 634 F. App'x 296, 297 (11th Cir. 2015)
(citing ZC Ins. Co. v. Brooks, 847 So.2d 547, 551 (Fla. 4th DCA 2003); Berg v. Capo, 994
So.2d 322, 327 (Fla. 3d DCA 2007) (“Fraud may be established by either an intentional
misrepresentation or omission of a material fact.”)).
Even so, “[i]n an arms-length
transaction . . . there is no duty imposed on either party to act for the benefit or protection
of the other party, or to disclose facts that the other party could, by its own diligence have
discovered.” Maxwell v. First United Bank, 782 So. 2d 931, 934 (Fla. 4th DCA 2001); see
also Watkins v. NCNB Nat. Bank of Fla., N.A., 622 So. 2d 1063, 1065 (Fla. 3d DCA 1993).
Mere “nondisclosure of material facts in an arm's length transaction is not actionable
misrepresentation unless [some] . . . artifice or trick [is employed] to prevent an
independent investigation.” Taylor Woodrow Homes Fla,. Inc. v. 4/46-A Corp., 850 So.
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2d 536, 541 (Fla. 5th DCA 2003); see also Ramel v. Chasebrook Const. Co., 135 So. 2d
876, 882 (Fla. 2d DCA 1961).
Here, the Amended Complaint alleges that John Hancock intentionally and
affirmatively misrepresented its ability to resell the Policy on a secondary market for a
profit. (Doc. 34). John Hancock argues this claim must be dismissed because any
representations regarding resale were non-actionable opinions that focused on conditions
in the future. In contrast, Plaintiffs argue that the claim is proper because John Hancock’s
statements pertained to the then-current marketability of the Policy. Plaintiffs’ argument
is untenable.
Notably, the Amended Complaint does not explicitly allege that John Hancock or
Wasserman provided Plaintiffs with any false statements of fact or why that is the case.
Because falsity is an element of intentional misrepresentation, such an exclusion would
normally result in the immediate failure of Plaintiffs’ claim. Butler, 44 So. 3d at 105. But
Florida carves out an exception for opinion statements where an entity has superior
knowledge of a subject and knows or should know that the statement is untrue. Mejia, 781
So.2d at 1177-78. “Scienter, or guilty knowledge, is an element of intentional misconduct,
which can be established by showing actual knowledge, or that the defendant was
reckless or careless as to the truth of the matter asserted.” Ocean Bank of Miami v. InvUni Inv. Corp., 599 So. 2d 694, 697 (Fla. 3d DCA 1992).
Against this backdrop, Plaintiffs’ argument that their intentional misrepresentation
claim was not based on then-current facts is undermined by the plain text of the Amended
Complaint.
It does not allege that Wasserman stated he could resell the Policy
immediately, but rather within two (2) years and at a specific price of $3,200,000.00 or at
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least before Scolieri’s ability to pay the premiums had been depleted. (Doc. 26 at ¶¶ 12,
33). Because it would have been impossible for Wasserman to foretell the future, the
viability of his statement was tethered to several external economic factors including the
desired price of resale, the duration and progression of the policy at the time of resale,
the overall economic climate at the time of resale, the size of the secondary market, the
ability to reach members of the secondary market, and the skills of the particular
salesman. These factors are constantly in flux, and as a result any statement about the
Policy’s future marketability would be inherently subjective.2 Hence, John Hancock’s
statements are properly viewed as manifestations of opinion.
While the Amended Complaint states that Wasserman, and thereby John
Hancock, opined about marketability with reckless disregard for the truth, it does not
allege that he had superior knowledge of the Policy’s marketability, or provide any factual
support for the allegation that the statement was reckless. The Court cannot overlook
these inadequacies. Absent a superior knowledge of the matter asserted, Plaintiffs
cannot avail themselves of the opinion carve-out. See Mejia, 781 So.2d at 1177-78. And,
while the Amended Complaint alleges that Wasserman provided marketability opinions
as John Hancock’s agent in reckless disregard of the truth, it does not elaborate on why
that is the case. As a result, the claim fails to satisfy the heightened pleading threshold
of Rule 9(b) and must be dismissed as it pertains to John Hancock’s alleged affirmative
misrepresentations.
It is perhaps pertinent to note that the Policy was purchased in late 2007, only months
before the major effects of the Great Recession were felt. In the years that followed, well
over 10 trillion dollars was lost in investment markets and across the United States. As
a result, it is reasonable that any projection based on the economic forecasts in 2007
would change only a few months later.
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Even if John Hancock did not make actionable misstatements, the Amended
Complaint alleges that Defendants intentionally omitted an accurate description of the risk
assumed by Plaintiffs when they purchased the Policy on credit, especially in light of the
fact that they had insufficient funds and insufficient borrowing power to pay premiums for
a time that would exceed Scolieri’s life expectancy. Defendants argue this portion of the
intentional misrepresentation claim must also be dismissed because they owed Plaintiffs
no duty to disclose information for their benefit. The Court agrees.
Plaintiffs rely on Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), to argue
Defendants owed them a duty to disclose the full financial risks of purchasing the Policy
and entering into the Loan Agreement. In Johnson, home purchasers sued the home’s
former owners alleging that they affirmatively misrepresented the home’s characteristics
and intentionally failed to disclose defects prior to sale. Id. at 627. The Supreme Court
of Florida held that “where the seller of a home knows of facts materially affecting the
value of the property which are not readily observable and are not known to the buyer,
the seller is under a duty to disclose them to the buyer.” Id. at 629. The Supreme Court
continued that “[t]his duty is equally applicable to all forms of real property, new and used.”
Id. Turning back to the matter at hand, neither the Policy nor the Loan Agreement can
be viewed as real property. Consequently, Johnson is inapposite here.
Another manner in which an elevated duty would be imposed on Defendants would
be if they bore a fiduciary duty. Such a duty must be based on either an express
arrangement or an implication provided by the relationship between the parties. See
Maxwell, 782 So. 2d 931, 933-34 (Fla. 4th DCA 2001). Where there is no express
arrangement, it may be established by implication where there is both an allegation of
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dependency by one party and a voluntary assumption of a duty by the other party to
“advise, counsel and protect the weaker party.” Watkins v. NCNB Nat. Bank of Florida,
N.A., 622 So. 2d 1063, 1065 (Fla. 3d DCA 1993). The analogue to this rule, is that the
mere fact that one party places its trust in the other does not create a fiduciary relationship
absent some manifestation of recognition, acceptance, or undertaking of fiduciary duties
by of the other party. See Bankest Imports, Inc. v. ISCA Corp., 717 F. Supp. 1537, 1541
(S.D. Fla. 1989) (citing Harris v. Zeuch, 103 Fla. 183, 189 (1931)); see also Motorcity of
Jacksonville, Ltd. by and through Motorcity of Jacksonville, Inc. v. Southeast Bank, N.A.,
83 F.3d 1317, 1339 (11th Cir. 1996).
The Amended Complaint alleges that Plaintiffs placed their trust in Defendants to
provide them with financial information regarding the purchase of the Policy and the
execution of the Loan Agreement. (Doc. 26 at 40).
The issue is whether Defendants
manifested their acceptance of fiduciary duties. The Amended Complaint does not allege
that they did. As a result, the Court will assume that the transactions took place at arm’slength.
From this standpoint, Defendants owed no enhanced duty to act for Plaintiffs’
protection when they purchased the Policy and executed the Loan Agreement. See
Maxwell, 782 So. 2d at 934. This is particularly true for First Insurance because Florida
courts have explicitly found that a lender does not have a duty to act for the benefit of a
borrower. See Capital Bank v. MVB, Inc., 644 So. 2d 515, 518 (Fla. 3d DCA 1994).
Moreover, the Loan Agreement also contains an exculpatory disclaimer that states
“Borrower acknowledges and agrees that Lender has not and will not provide any advice
or recommendations in connection with the loans . . . . ” (Doc. 26-1 at 8).
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Plaintiffs attempt to rebut the application of the Loan Agreement’s exculpatory
disclaimer by relying on Oceanic Villas Inc. v. Godson, 148 Fla. 454 (1941). There,
Florida’s Supreme Court found that where there is fraud in the procurement of a contract,
such activity forms a basis for recession and cancellation. Id. at 459. Oceanic Villas,
however, provides no shelter because the Amended Complaint does not request those
forms of relief and instead seeks monetary damages.
Florida law states that where an exculpatory clause is used in a contract, a claim
may still be brought in intentional tort, except where such clauses make their intention
clear and unequivocal. See Fuentes v. Owen, 310 So. 2d 458, 459 (Fla. 3d DCA 1975).
In the same regard, it is well established that “[a] party cannot recover for alleged false
misrepresentations that are adequately dealt with or expressly contradicted in a later
written contract.” TRG Night Hawk Ltd. v. Registry Dev. Corp., 17 So. 3d 782, 784 (Fla.
2d DCA 2009). Here, any expectations Plaintiffs may have for advice from A.I. Credit
Corp. were expressly and unequivocally disclaimed by the Loan Agreement. Thus,
because Defendants did not owe a duty to act for Plaintiffs’ benefit or protection, and
especially because A.I. Credit Corp. disclaimed any advice-related obligations in the Loan
Agreement, the Amended Complaint has failed to allege any actionable omissions.
In addition, Plaintiffs allege no artifice or trick to prevent them from making further
independent inquiries regarding the Policy or the Loan Agreement.
Unlike the
Defendants, Plaintiffs were in the apex position to understand the extent of their finances.
If they had taken reasonable investigative measures, they likely could have discovered
that they had insufficient collateral to cover Loan Agreement’s and Policy’s obligations if
Scolieri were to live out his life expectancy and the Policy was not resold. Florida law is
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clear on this point. Not only did Defendants have no duty to disclose facts that Plaintiffs
could have otherwise discovered on their own, see Maxwell, 782 So. 2d at 934, but even
affirmative statements regarding a loan’s affordability are non-actionable opinions
involving facts more readily accessible to debtors than to lenders. See Thompson v. Bank
of N.Y., 862 So. 2d 768, 771 (Fla. 4th DCA 2003). It carries that the same rule can be
applied where a party elects against advising on the propriety of a loan.
In sum, the Court finds that the Amended Complaint fails to plead an actionable
misrepresentation or omission.
Because of this finding, the Court need not decide
whether the remaining elements of intentional misrepresentation have been met.3
B. Negligent Misrepresentation
Defendants next argue that the Amended Complaint fails to state a claim for
negligent misrepresentation. Under Florida law, to establish negligent misrepresentation,
a plaintiff must prove
(1) [a] misrepresentation of material fact; (2) the representor .
. . ma[d]e the representation without knowledge as to its truth
or falsity, or . . . under circumstances in which he ought to
have known of its falsity; (3) the representor . . . intend[ed] that
the misrepresentation induce another to act on it; (4) injury
must result to the party acting in justifiable reliance on the
misrepresentation.
Souran v. Travelers Ins. Co., 982 F.2d 1497 (11th Cir.1993) (quoting Hoon v. Pate Constr.
Co., Inc., 607 So.2d 423, 427 (Fla. 4th DCA1992)). Notably, an action for negligent
misrepresentation cannot be maintained if an investigation by the recipient of the
information would have revealed the falsity of the information. Gilchrist Timber Co. v. ITT
3
Although the intentional misrepresentation claim fails on the first element, the Court
notes concerns regarding the satisfaction of Rule 9(b)’s heightened particularity threshold
in the Amended Complaint’s claim-specific description of Defendants’ alleged omissions.
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Rayonier, Inc., 696 So. 2d 334, 339 (Fla. 1997). In other words, a recipient of an
erroneous representation cannot “hide behind the unintentional negligence of the
misrepresenter when the recipient is likewise negligent in failing to discover the error.”
Butler, 44 So. 3d at 105 (citations omitted). The Complaint does not allege an actionable
misrepresentation or omission.
Moreover, Plaintiffs were, at worst, equally able to
uncover information related to the financial advisability of purchasing the Policy and
entering into the Loan Agreement.
Consequently, the first element of negligent
misrepresentation has not been satisfied and the Count II is dismissed.
C. Civil Conspiracy
Last, Defendants argue that Count III, which sounds in Civil Conspiracy, must be
dismissed. To plead an actionable civil conspiracy claim, a plaintiff must allege “(a) an
agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by
unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d)
damage to plaintiff as a result of the acts done under the conspiracy.” Cordell Consultant,
Inc. Money Purchase Plan & Trust v. Abbott, 561 F. App’x. 882, 886 (11th Cir.
2014) (citing Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997). An actionable
conspiracy also requires an actionable underlying tort or wrong. Raimi, 702 So. 2d at
1284.
Here, the Amended Complaint fails to allege the existence of any underlying wrong
that could form the basis for a civil conspiracy claim. The Amended Complaint alleges
that Defendants “acted in concert . . . to persuade Plaintiffs to purchase the [P]olicy on
credit by means of fraud as alleged in [p]aragraph 36 and 37 . . . . ” (Doc. 26 at ¶ 10).
However, paragraphs 36 and 37 are allegations for the intentional misrepresentation
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claim. Because that claim does not pass Rule 12(b)(6) muster, Defendant’s alleged
conduct cannot support Plaintiffs’ civil conspiracy claim. See Rebman v. Follett Higher
Educ. Grp., Inc., 575 F.Supp.2d 1272, 1280 (M.D. Fla. 2008) (dismissing civil conspiracy
claim where underlying claim was defeated); Heath v. Estate of Heath, No. 2:14–cv–610–
JHH, 2014 WL 4792283, at *3 (N.D. Ala. Sept. 24, 2014) (“[B]ecause the underlying claim
of breach of contract fails . . . the claim for civil conspiracy must also necessarily fail.”).4
Accordingly, it is now
ORDERED:
1. Defendants John Hancock Life Insurance Company (U.S.A.)’s, and First
Insurance Funding Corp.’s Motions to Dismiss (Docs. 40, 41) are GRANTED.
The Amended Complaint (Doc. 26) is DISMISSED without prejudice.
2. Plaintiffs may file a Second Amended Complaint on or before March 7, 2017.
DONE and ORDERED in Fort Myers, Florida this 22nd day of February, 2017.
Copies: All Parties of Record
Because the Court dismisses each Count of the Amended Complaint, it need not
address Defendants’ remaining arguments.
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