Hill et al v. Clark et al

Filing 59

ORDER DENYING Plaintiffs' 8 Motion to Remand and 12 Motion Assessing Costs. Defendants' 28 , 50 Motions to Strike are DENIED as moot. Defendants' 51 Motion for Leave to File Surreply is DENIED. Plaintiffs' 30 Motion to Substitute Party John Doe is GRANTED and the Clerk is DIRECTED to substitute Kevin Tallant for John Doe. Plaintiffs' 43 Motion to Stay Deadlines is GRANTED nunc pro tunc. Plaintiff shall have 14 days from the date of entry of this Order to file a response to Defendants' 36 MOTION to Dismiss Plaintiffs' Complaint. Signed by Judge Richard W. Story on 06/02/11. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BOBBIE N. HILL and LARRY
GAGE,
Plaintiffs,
v.
WILLIAM RANDY CLARK, G.
KEITH CLARK, THERESA
MICHELLE CLARK, “JOHN
DOE” AS THE
ADMINISTRATOR OF THE
ESTATE OF WILLIAM H.
CLARK, WELLS FARGO BANK
N.A., INC. f.k.a. WACHOVIA
BANK N.A., ALLIANZ LIFE
INSURANCE CO. OF N.
AMERICA, and ALABAMA ONE
CREDIT UNION,
Defendants.

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CIVIL ACTION NO.
2:11-CV-0057-RWS

ORDER
This case comes before the Court on Plaintiffs’ Motion to Remand [8],
Plaintiffs’ Motion Assessing Costs [12], Defendants’ Motion to Strike or,
Alternatively, Motion for Extension of Time and Enlargement of Page
Limitation [28], Defendants’ Motion to Strike Arguments in Support of
Remand [50], Defendants’ Motion for Leave to File Surreply [51], Plaintiffs’

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Motion to Substitute Party John Doe [30], and Plaintiffs’ Motion to Stay
Deadlines Associated with Motion to Dismiss Pending a Jurisdictional Ruling
or, in the alternative, Motion for Extension of Time [43]. After considering the
record, the Court enters the following Order.
Background
Plaintiffs Bobbie Hill (hereinafter “Hill”) and Larry Gage (hereinafter
“Gage”) assert that they have been wrongfully denied access to the estate of
decedent William Clark (hereinafter “Bill Clark”). In 2008, Bill Clark
established accounts at Wachovia Bank (n.k.a. Wells Fargo) in the names of six
individuals, including his four children (William Randall Clark, G. Keith Clark,
Dwight Clark, and Theresa Clark), Gage, and Hill, with each account being
payable on death. (Dkt. [1-1] at ¶ 19). Bill Clark next opened similar accounts at
Alabama One with identical beneficiaries to the Wachovia accounts (his four
children, Gage and Hill) (collectively, the “Accounts”). (Dkt. [1-1] at ¶20). In
2008, Bill Clark granted his son, William Randall Clark, durable power of
attorney. (Dkt. [1-1] at ¶16). In 2010, Bill Clark signed an addendum to his
original grant of power of attorney so as to expressly authorize William Randall
Clark to do the following:

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To do and perform every act or transaction that [Bill Clark] might or could
personally do in reference to any and all securities, certificates of deposit,
cash, annuities, or other property of any kind or nature, now or hereafter
held by any type of financial institution or company in any type of
account or policy in [Bill Clark’s] name regardless of self dealing and
especially, but without in anyway limiting or restricting the foregoing, the
absolute right to transfer, sell, convey, give, assign, designate beneficial
interests in, demand, accept, and receive said property or give instructions
for the transfer, sale, or assignment of any such securities, certificates of
deposit, cash, annuities, or other property now or hereafter in such account
or policy or the income there from.... and to sell, transfer, and to do any
other act concerning any stock or bonds or other securities or other
property which [Bill Clark] may have or possess and to transfer the same
in any manner required by any person, corporation or entity. (Dkt [1-4] at
¶5).
Decedent Bill Clark’s mental and physical health began to decline in
2009. During this period of ailing health, Plaintiffs allege that William Randall
Clark (hereinafter “Randy Clark”), used his power of attorney without express
consent from Bill Clark to alter the beneficiaries of the Accounts to exclude
Gage and Hill. (Dkt. [1-1] p. 4, 5 of 16).
Plaintiffs filed a Complaint for Fraud, Breach of Fiduciary Duty,
Conversion, Injunctive and Other Relief in the Superior Court of Forsyth
County, Georgia against Defendants (Dkt. [1-1] p. 3 of 16). On March 2, 2011,
Defendant G. Keith Clark removed the case to this court pursuant to 28 U.S.C.
§§ 1441 and 1446. (Dkt. [1] p. 1 of 16). Defendant alleges that all necessary
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parties are diverse and the amount in controversy exceeds $75,000, in accord
with 28 U.S.C. § 1332. Defendants Allianz Insurance, Wells Fargo, Dwight A.
Clark, Theresa Michelle Clark, and Randy Clark all consented timely to removal
(Dkt. [3, 9, and 25]).
On March 11, 2011 Plaintiffs filed an Objection to Removal claiming that
the Estate of William Clark (the “Estate”), a Defendant, was a necessary party
and, as such, complete diversity did not exist because the Estate and the
temporary administrator of the Estate were citizens of Georgia (where Hill is
domiciled) and the Estate did not consent to removal. (Dkt. [8] p. 2 of 8).
Defendants allege that removal is appropriate because, for the purposes of
diversity jurisdiction, the Estate’s citizenship is disregarded because it is a
nominal party and has no real stake in the litigation. While the Estate did not
consent to removal, Defendants again claim that because the Estate is a nominal
party it is not necessary that it join the petition for removal. On March 14, 2011
Plaintiffs filed an Order Assessing Costs [12] with respect to the costs of the
removal. In the meantime, Defendants have moved to strike Plaintiffs’ arguments
(Dkt. [28] and [50]) as well as to dismiss (Dkt. [36]).

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Discussion
I.

Motion to Remand [8], Motion Assessing Costs [12], Motions to Strike
[28, 50], and Motion for Leave to File Sur Reply [51]
As an initial matter, Plaintiffs’ claims do not deal exclusively with“the

administration of an estate, the probate of a will, or any other purely probate
matter,” therefore, following Marshall v. Marshall, federal jurisdiction is not
barred under the probate exception. 547 U.S. 293, 296-97 (2006) (“[T]he probate
exception... precludes federal courts from disposing of property that is in the
custody of a state probate court. But it does not bar federal courts from
adjudicating matters outside those confines and otherwise within federal
jurisdiction.”).
Second, the Court must determine whether the Estate is a nominal party. If
the Estate is a nominal party, then the removal will stand. See Navarro Sav. Ass’n
v. Lee, 446 U.S. 458, 461 (1980) (stating the citizenship of nominal parties
should not be considered when determining diversity jurisdiction). “A removing
defendant bears the burden of proving proper federal jurisdiction.” Leonard v.
Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002).

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One test for determining whether a party is nominal is “whether in the
absence of the defendant, the Court can enter a final judgment consistent with
equity and good conscience which would not be in any way unfair or inequitable
to plaintiff.” Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and
Assistants Local 349, 427 F.2d 325, 327 (5th Cir. 1970) (punctuation and citation
omitted). Based on the initial complaint and remedies requested, such a judgment
could be reached in the absence of the Estate as a defendant. Moreover, Tri-Cities
Newspapers also states that a defendant is a nominal party if his role in the
lawsuit is akin to that of a depository or a stakeholder. Id. By definition, the
Estate is a depository. Black’s Law Dictionary 471 (8th ed. 2004) (defining
depository as “a person or institution that one leaves money or valuables with for
safekeeping”). For these reasons, as well as the fact that there appear to be no
actual claims or factual allegations against the Estate, the Court finds that the
Estate is a nominal party, and, as such, Plaintiffs’ Motion to Remand [8] is
DENIED. Furthermore, Plaintiffs’ Motion Assessing Costs [12] is DENIED and
Defendants’ Motions to Strike [28, 50] are DENIED as moot. Defendants’
Motion for Leave to File Surreply [51] is also DENIED.

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II.

Motion to Substitute Party John Doe [30]
Plaintiffs’ Motion to Substitute Kevin Tallant for John Doe [30] is

unopposed. Said motion, appearing proper, is hereby GRANTED, and the Clerk
is DIRECTED to substitute Kevin Tallant for John Doe.
III.

Motion to Stay Deadlines Associated with Motion to Dismiss Pending a
Jurisdictional Ruling, or in the alternative, Motion for an Extension of
Time [43]
Plaintiffs’ Motion to Stay Deadlines [43] is GRANTED nunc pro tunc.

Plaintiff has 14 days from the date of entry of this Order to file a response to
Defendants’ Motion to Dismiss Plaintiffs’ Complaint [36].
Conclusion
Based on the foregoing, Plaintiffs’ Motion to Remand [8] is DENIED;
Plaintiffs’ Motion Assessing Costs [12] is DENIED; Defendants’ Motions to
Strike [28, 50] are DENIED as moot; Defendants’ Motion for Leave to File
Surreply [51] is DENIED; Plaintiffs’ Motion to Substitute Party John Doe [30] is
hereby GRANTED, and the Clerk is DIRECTED to substitute Kevin Tallant for
John Doe; and Plaintiffs’ Motion to Stay Deadlines [43] is GRANTED nunc pro

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tunc. Plaintiff shall have 14 days from the date of entry of this Order to file a
response to Defendants’ Motion to Dismiss Plaintiffs’ Complaint [36].

SO ORDERED, this 2nd day of June, 2011.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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