DeClercq v. JPMorgan Chase Bank, N.A. et al

Filing 24

OPINION and ORDER Granting Defendants' 17 MOTION to Dismiss - Signed by District Judge Judith E. Levy. (FMos) (Main Document 24 replaced on 10/29/2014) (FMos).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Madeleine L. DeClercq, by her
next friend, Lorri Ann Lair,
Plaintiff,

Case No. 14-cv-12817
Hon. Judith E. Levy
Mag. Judge David R. Grand

v.
JPMorgan Chase Bank, N.A.;
American Diabetes Association,
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS [17]
This is a RICO case.

Pending is defendants JPMorgan Chase

Bank, N.A. (“Chase”) and the American Diabetes Association’s (“ADA”)
motion to dismiss. (Dkt. 17.)

I.

Background
Joan Bookmyer, plaintiff’s cousin, established a trust on

September 29, 1992. Ms. Bookmyer died on June 13, 2013. She had
one daughter, Constance Bookmyer, who died on January 4, 2012.1
The portion of the trust governing the dispensation of its assets
states:
10.4 Amount transferred to RESIDUARY TRUST. If
Grantor’s daughter, CONSTANCE J. BOOKMYER, or any
issue of Grantor shall survive the Grantor, then as soon after
the death of the Grantor as the Trustee determines to be
practicable, the Trustee shall allocate to the RESIDUARY
TRUST the remaining body and corpus of the trust property
to be held, administered and disposed of in accordance with
the provisions of ARTICLE XI herein.
10.5 If Grantor is not survived by her daughter,
CONSTANCE J. BOOKMYER, or any other issue, then upon
the death of Grantor, the remaining body and corpus of the
trust property shall be transferred and paid over to the
AMERICAN
DIABETES
ASSOCIATION-MICHIGAN
AFFILIATE in termination of this trust.

Although plaintiff does not include a copy of the trust in her
complaint, the Court may consider documents either referenced in the
plaintiff's complaint or central to plaintiff's claims in a motion to
dismiss without converting the motion into one for summary judgment.
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
All of plaintiff’s claims are based on alleged rights deriving from the
trust, making it undeniably central to her claims.  

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Article XI sets out the provisions relating to the Residuary Trust.
It states:
11.0 All property allocated to the Trustee of the
RESIDUARY TRUST shall be held and administered as
follows.
11.1 Payment of income and principal to children. If
Grantor’s daughter, CONSTANCE J. BOOKMYER, shall
survive Grantor, the Trustee shall pay to CONSTANCE J.
BOOKMYER the entire net income from the trust estate, in
reasonable installments, during the continuance of the trust.
[….]
11.2 Termination of trust for issue.
(a) Grantor’s daughter, CONSTANCE J. BOOKMYER,
shall have the right to withdraw any amount or portion up to
the entire rest, residue and remainder thereof at any time
after Grantor’s death, free and discharged from the trusts
hereof. [….]
(b) If Grantor’s daughter, CONSTANCE J.
BOOKMYER, shall die leaving issue surviving Grantor,
then, under such circumstances, all of the rest, residue and
remainder of the trust property and estate shall be assigned,
transferred, conveyed, and paid over to such child’s issue by
right of representation.
(c)
If
Grantor’s
daughter,
CONSTANCE
J.
BOOKMYER, shall die leaving no issue surviving, then,
under such circumstances, all of the property and estate
embraced within the trust so held for such deceased child of
Grantor shall be distributed and paid over to the
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AMERICAN
DIABETES
ASSOCIATION-MICHIGAN
AFFILIATE in termination of this trust.
After Joan Bookmyer’s death, plaintiff’s father, Donald DeClercq,
filed a will dated January 16, 2012, purporting to revoke the trust. The
ADA contested the purported will in Michigan probate court.

The

parties eventually settled in 2014, and the trust was not revoked.
Instead, the trust distributed its $5 million balance to the ADA,
through the successor trustee, Chase.
Plaintiff now sues, bringing eight counts against defendants. She
alleges that defendants violated the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 15 U.S.C. § 1962(c) & (d), claims statutory
and common-law conversion against each defendant and breach of
fiduciary duty against Chase, and seeks a declaratory judgment that
would replace the word “issue” with “family” in the trust, and declare
plaintiff the last surviving member of Joan Bookmyer’s family.
II.

Standard
When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),

the Court must “construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir.2012). “To survive a motion to dismiss, a
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complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed
factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of
action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III.

Analysis

The threshold issue in this case is whether plaintiff is a
beneficiary under the language of the trust. If she is not, then she has
no standing to bring any claim in her suit.
Plaintiff argues that because sections 10.4 and 10.5 of the trust
use conflicting language to refer to “issue,” the Court should determine
that the ambiguity makes her an intended beneficiary of the trust.
Section 10.4 states that, should Constance Bookmyer or “any issue
of Grantor” survive Joan Bookmyer, then the Trustee will allocate to
the Residuary Trust the body and corpus of the trust to be used by such
issue in accordance with Article XI of the trust. Section 10.5 states that
if neither Constance nor “any other issue” survives Joan Bookmyer, the

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body and corpus of the trust will be transferred and paid over to the
ADA.
At the time Joan Bookmyer established the trust, Michigan trusts
were governed by the Revised Probate Code (“RPC”). However, effective
April 1, 2000, the Estates and Protected Individuals Code (“EPIC”)
replaced the RPC. Under EPIC, “issue” is defined as “an individual’s
descendant.” M.C.L. § 700.1105(d). “Descendant” means, in relation to
an individual, all of his or her descendants of all generations, with the
relationship of parent and child at each generation being determined by
the definitions of child and parent contained in this act.

M.C.L. §

700.1104(k).
Plaintiff argues that the phrase “issue of Grantor” refers to Joan
Bookmyer’s lineal descendants under EPIC, but “any other issue” refers
to some group of descendants more expansive than lineal descendants,
which includes her as a collateral descendant.

The Court is not

persuaded by this argument.
“The role of the . . . court is to ascertain and give effect to the
intent of the testator as derived from the language of the [trust].” In re
Woodworth Trust, 196 Mich. App. 326, 327 (1992) (citing In re Norwood
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Estate, 178 Mich. App. 345, 347 (1989); In re Burruss Estate, 152 Mich.
App. 660, 663 (1986).) “Where there is no ambiguity [in the language of
a trust], that intention is to be gleaned from the four corners of the
instrument.” Woodworth Trust, 196 Mich. App. at 327.
Section 10.4 unambiguously states Joan Bookmyer’s intent for the
assets of the trust to pass on to her daughter or Joan Bookmyer’s other
lineal descendants, such as children or grandchildren. For plaintiff’s
argument to have credence, the Court would have to create ambiguity
in Section 10.4 by virtue of Section 10.5’s operation. Despite a clear
command that the assets of the trust go only to lineal descendants if
any exist, plaintiff would have the Court read Section 10.5 to state that
10.4 actually meant for the assets of the trust to go to any descendant
who survived Joan Bookmyer, even if the descendant is collateral and
therefore “not strictly a descendant.” Black’s Law Dictionary, 9th ed.
2009. Plaintiff’s reading of Section 10.5 would thus require the Court to
determine that the unambiguous language of Section 10.4 meant
something other than what it means, which the Court will not do.
The Court’s interpretation is further bolstered by EPIC and
Article XI.

EPIC defines “descendant” as “all of [an individual’s]
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descendants of all generations.” M.C.L. § 700.1104(k). However, the
definition of descendant speaks expressly in terms of “the relationship
of parent and child at each generation,” Id. (emphasis added), and
defines both parent and child in the act to comport with the concept of
lineal descendants. See M.C.L. § 700.1104(f) (defining “child”); M.C.L. §
700.1106(i) (defining “parent”).
Section 11.2(b) of the trust determines what happens if Constance
Bookmyer died and left “issue surviving Grantor”: the trust assets are
assigned to such issue by right of representation. The phrase “issue
surviving Grantor” parallels “issue of Grantor,” which unambiguously
means lineal descendants.

Section 11.2(c), using the same phrasing

determines what happens if Constance Bookmyer left “no issue
surviving”: the trust assets are to be distributed and paid over to the
ADA.

Unlike Sections 10.4 and 10.5, there is no difference in

phraseology giving rise to any ambiguity; Sections 11.2(b) and (c)
together unambiguously state that should Joan Bookmyer leave no
lineal descendants, the trust’s assets are to go to the ADA.
Plaintiff is not a beneficiary of the trust. Accordingly, plaintiff
cannot argue invasion of a legally protected interest, and has no
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standing to bring any claim against defendants in relation the
distribution of the trust assets. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992).2
IV.

Conclusion

For the reasons stated above, it is hereby ordered that:
Defendants’ motion to dismiss (Dkt. 17) is GRANTED; and
Plaintiff’s complaint is DISMISSED.
IT IS SO ORDERED.
Dated: October 29, 2014
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

Plaintiff argues, confusingly, that the Court may not determine
whether she has standing to pursue her claims at the motion to dismiss
stage, because it requires determining whether she has a legally
enforceable right under the trust. That determination, according to
plaintiff, is a question on the merits that may only be addressed after
discovery. The Court disagrees. All of plaintiff’s claims derive from her
ability to assert claims as a purported beneficiary of the trust, which is
in turn determined by the plain language of the trust unless that
language is ambiguous. If the Court can determine at the motion to
dismiss stage that plaintiff is not a beneficiary, it need not reach the
merits of any claim deriving from an injury she could not have suffered.
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 29, 2014.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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