Selton et al v. U.S. Bank Trust National Association, S.D. et al

Filing 57

ORDER denying as moot 56 Motion to Continue; denying without prejudice 13 motion to dismiss; denying without prejudice 14 motion to dismiss; denying without prejudice 15 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 3/12/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CYNTHIA J. SELTON; and
MICHAEL J. PAULUCCI,
Plaintiffs,
v.

Case No. 6:14-cv-1278-Orl-37KRS

U.S. BANK TRUST NATIONAL
ASSOCIATION, S.D.; HOWARD J.
RUBIN; RICHARD IHRIG; LINDQUIST
& VENNUM, P.L.L.P.; and GINA J.
PAULUCCI,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Motion to Dismiss Complaint on Behalf of Defendant Howard J. Rubin
(Doc. 13), filed August 19, 2014;

2.

Motion to Dismiss the Complaint (Doc. 14), filed August 19, 2014;

3.

Motion to Dismiss the Complaint (Doc. 15), filed August 19, 2014;

4.

Consolidated

Response

to

Motions

to

Dismiss

(Doc.

30),

filed

September 22, 2014;
5.

Motion to Take Judicial Notice of State Court Filings and Other Public
Records and Memorandum of Law in Support of Same (Doc. 31), filed
September 22, 2014;

6.

Defendants’ Consolidated Reply to Plaintiffs’ Consolidated Response to the
Motions to Dismiss and Response to Plaintiffs’ Motion to Take Judicial
Notice of State Court Filings and Other Public Records (Doc. 39), filed

October 15, 2014;
7.

Notice of Supplemental Authority Establishing That the Court Cannot
Exercise Jurisdiction over the Res of the Subject Trust or the Administration
of the Trust (Doc. 55), filed March 9, 2015; and

8.

Unopposed Motion to Continue Hearing (Doc. 56), filed March 10, 2015.

Currently pending before the Court are Defendants’ three related motions to
dismiss this action for lack of personal jurisdiction and as barred by the res judicata effect
of a South Dakota court’s order. (Docs. 13–15.) Those motions prompted Plaintiffs’
consolidated response and related motion for the Court to take judicial notice of filings
from other state-court proceedings (Docs. 30, 31), which, in turn, prompted Defendants’
consolidated reply in opposition (Doc. 39). The Court set a March 19, 2015 hearing on
the matters (see Doc. 53), after which Defendants notified the Court of their intent to
additionally move to dismiss this action for lack of subject-matter jurisdiction
(see Doc. 55). In response, Plaintiffs moved to continue the hearing until Defendants file
and Plaintiffs respond to the subject-matter jurisdiction motion. (See Doc. 56.)
Upon consideration, the Court finds that it would benefit from consolidation of the
matters presented. Accordingly, for administrative efficiency, the Court will deny all of
Defendants’ pending motions without prejudice. Defendants may reassert their previous
arguments (see Docs. 13–15), together with the noticed subject-matter jurisdiction
argument (see Doc. 64), in a single consolidated motion to dismiss, to which Plaintiffs
may file a single consolidated response. The Court will cancel the March 19, 2015
hearing. If the Court determines that it would benefit from oral argument after reviewing
the consolidated motion to dismiss and response, it will set a new hearing.

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Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Motion to Dismiss Complaint on Behalf of Defendant Howard J. Rubin
(Doc. 13), Motion to Dismiss the Complaint (Doc. 14), and Motion to Dismiss
the Complaint (Doc. 15) are DENIED WITHOUT PREJUDICE.
a.

On or before March 27, 2015, Defendants may file a single
consolidated motion to dismiss not exceeding thirty-five (35) pages
in length. 1

b.

If Defendants file a timely consolidated motion, then, on or before
April 13, 2015, Plaintiffs shall file a single consolidated response not
exceeding thirty-five (35) pages in length. Failure to file a timely
response may result in the Court considering the motion unopposed.

2.

The hearing set for March 19, 2015 (see Doc. 53) is CANCELED.

3.

Motion to Take Judicial Notice of State Court Filings and Other Public
Records and Memorandum of Law in Support of Same (Doc. 31) and
Unopposed Motion to Continue Hearing (Doc. 56) are DENIED AS MOOT.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 12, 2015.

1

If Defendants reassert their res judicata arguments, then they are DIRECTED to
address American Steel Building Company, Inc. v. Davidson & Richardson Construction
Company, 847 F.2d 1519, 1521 (11th Cir. 1988), and Rash v. Rash, 173 F.3d 1376, 1381
(11th Cir. 1999).

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Copies:
Counsel of Record

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