Campbell v. Transamerica Life Insurance Company et al

Filing 116

Order Adopting Report and Recommendation re 115 . The Court GRANTS IN PART, and DENIES, IN PART the Motions of the Parties to Enforce Settlement. (Doc. 103 & 107 ). Court grants the motions finding the parties entered into an enforceabl e settlement agreement but denies the requests for attorneys' fees. Payment shall be made within 21 days of the entry of this Order. Within five days of receipt of payment, the parties shall file a Stipulation of Dismissal of all Claims in the Lawsuit. Judge Christopher A. Boyko on 3/13/2020. (D, I)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ALLEN F. CAMPBELL,
Plaintiff,
vs.
JESSIE GARCIA, ET AL.,
Defendants.

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CASE NO. 1:18CV162
JUDGE CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendants’ Joint Motion to Enforce Settlement and
Motion for Award of Attorney Fees (ECF # 103) and Plaintiff’s Cross Motion to Enforce
Settlement Agreement and for Award of Attorney Fees. (ECF # 107).

The Court referred the

pending Motions to Magistrate Judge David A. Ruiz for a Report and Recommendation. On
February 20, 2020, the Magistrate Judge issued his Report and Recommendation, finding an
enforceable settlement agreement. No party objected to the Report and Recommendation.
Background Facts
Donald Campbell and Margaret Campbell were married and had two sons: Allen
Campbell and Frederick Campbell. Frederick Campbell was married to Defendant Jessie Garcia.
Both Allen and Frederick have children. Donald and Margaret had a complex estate plan. Both
had a Last Will and Testament as well as inter vivos Living Trusts. They also created a limited
partnership called the Campbell Family Limited Partnership with each inter vivos trust as an

equal partner. Margaret and Donald acted as Trustees for each other’s Trust and each named the
other as successor Trustee and beneficiary upon their deaths. Allen alleges he is a residual
beneficiary and a Trustee of Margaret’s Trust upon the death of both Donald and Margaret.
Donald and Margaret were long-time clients of Merrill Lynch in Cleveland, Ohio. Over
the course of this relationship, the Campbells maintained several accounts with Merrill Lynch,
including the Campbell Family Limited Partnership, the Donald Campbell Trust and the
Margaret Campbell Trust. Each of the Trusts and the limited partnership were funded with
multiple brokerage accounts, annuities and IRA’s, all managed by Merrill Lynch. Upon Mr.
Campbell’s death, Mrs. Campbell became the Trustee of the Donald Campbell Trust and
received all assets held by Mr. Campbell at Merrill Lynch. Mrs. Campbell then became the sole
partner of the Campbell Family Limited Partnership. Mrs. Campbell executed numerous
agreements with Merrill Lynch, each containing an agreement to arbitrate any and all
controversies that may arise with Merrill Lynch. Plaintiff did not sign these agreements. Donald
died in 2010 making Margaret Trustee and beneficiary of Donald’s Trust along with her own
Trust. Margaret also became the sole controlling agent of the limited partnership. Defendant
Transamerica provided life insurance policies and annuities owned either by the Trusts or the
limited partnership of Donald and Margaret individually.
Plaintiff’s brother Frederick died in 2013. His brother’s widow, Defendant Jessie Garcia,
then moved in with Margaret for a period of time. At this time Margaret was in her nineties and
had severely impaired vision. Plaintiff had Power of Attorney for Margaret. When Margaret
died in 2015, Plaintiff was named Executor of her estate and Successor Trustee of the Margaret
Trust.

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During the course of his duties as Trustee, Plaintiff alleges he discovered several
irregularities in the accounts of the Trusts and the limited partnership.

He discovered that the

financial statements for the two trusts and the limited partnership appeared to be combined,
making it difficult to distinguish the assets of the particular Trusts and limited partnership.
Furthermore, assets appeared to have been transferred, greatly diminished, or disappeared
entirely with no explanation or paperwork evidencing what occurred. His inquiries to Merrill
Lynch and Transamerica went unanswered.
Plaintiff alleges Defendants improperly transferred assets from the Trusts and between
the Trusts and improperly disposed of non-trust assets without the authority to do so; with some
of assets improperly distributed to Garcia. Plaintiff seeks restoration of the assets wrongfully
transferred to Defendant Garcia.
Facts Pertinent to Settlement
On August 12, 2019, the parties filed a Joint Motion to Vacate Amended Case
Management Order and Stay Case Proceedings. According to that Motion, the parties had
reached a settlement. The Motion was signed by counsel for Plaintiff and Defendants. The
Motion requested a stay of all case management deadlines to allow for the filing of a Stipulation
of Dismissal. On September 3, 2019, the Court granted the Joint Motion to Vacate and ordered
the parties to submit their Stipulation of Dismissal by September 24, 2019, or the Court would
enter its own dismissal entry. The parties failed to file their Stipulation of Dismissal by
September 24, 2019, and did not request more time to file the Stipulation.
On October 29, 2019, Defendants filed their Joint Motion to Enforce the Settlement
contending Plaintiff had failed to timely respond to Defendants’ last revision of a Settlement

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Agreement. Defendants presented the Court with emails purporting to show an agreement by the
parties. In response to a show cause order from the Court ordering the parties to show cause
why dismissal should not be entered, Plaintiff filed his own motion to enforce settlement. The
motions were referred to the Magistrate Judge on November 27, 2019.
Report and Recommendation
In his well-reasoned Report and Recommendation, the Magistrate Judge considered the
parties’ Motions, Oppositions and supporting evidence and concluded that the parties entered
into an enforceable agreement, the material terms of which are not unclear or ambiguous. This
agreement and its material terms are laid out in the emails dated August 7 and August 8 of 2019.
After a hearing, the Magistrate Judge found that the only material term in dispute was the scope
of a release. Upon his review of the relevant emails, the Magistrate Judge determined that: the
parties agreed to settle the case and stipulated to its dismissal with prejudice; Plaintiff agreed to
release all his claims whether asserted or not against Defendants Garcia, Merrill Lynch and or
Transamerica with the only exception being Plaintiff’s claims pending as of August 7, 2019, in
Cuyahoga County Probate Court, relating to the Campbell Family Limited Partnership, which
are preserved and not dismissed. The Magistrate Judge further found that in exchange for the
above release, Defendants Garcia, Merrill Lynch and Transamerica agreed to pay Campbell the
total sum of $100,000. The payment is due per the parties’ agreement within twenty-one days
of the final, approved settlement agreement.
The Magistrate Judge further recommends that the Court deny the parties’ request for
attorneys’ fees because both parties’ positions were reasonable.
Standard of Review

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A district court reviews de novo any finding or recommendations of the magistrate
judge’s report and recommendation to which specific objections are made. 28 U.S.C.
§ 636(b)(1)(c); 28 U.S.C. § 2254, Rule 8(b); Loc. R. 72.3(b). A party may not file a general
objection to the entirety of the magistrate’s report. Ayers v. Bradshaw, 2008 WL 906100, at*1
(N.D. Ohio Mar. 31, 2008) (citing Howard v. Sec’y of Health & Human Servs., 932 F.2d505,
508-09 (6th Cir. 1999)). “For an objection to be sufficiently specific, the petitioner must direct
‘the district judge’s attention to specific issues decided by the magistrate contrary to [the
petitioner’s] position.’” Ayers, at *2 (quoting Neuman v. Rivers, 125 F.3d 315, 323 (6th Cir.
1997)).
Federal Rule of Civil Procedure 72 provides that objections to a report and
recommendation must be filed within fourteen days after service. FED. R. CIV. P. 72(b). Neither
party has filed an objection. Therefore, the Court must assume that the parties are satisfied with
the Magistrate Judge’s recommendation. Any further review by this Court would be duplicative
and an inefficient use of the Court’s limited resources. Thomas v. Arn, 728 F.2d 813 (6th Cir.
1984), aff’d 474 U.S. 140 (1985); Howard v. Sec’y of Health & Human Serv., 932 F.2d 505 (6th
Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Therefore, the Court ADOPTS the Magistrate Judge’s Report and Recommendation and
GRANTS IN PART, and DENIES, IN PART the Motions of the Parties to Enforce Settlement.
(ECF #’s 103 & 107). The Court finds the parties entered into an enforceable settlement
agreement as outlined by the Magistrate Judge as follows:
1. Plaintiff Allen Campbell has agreed to settle all his claims;
2. Campbell stipulates to dismissal of all claims with prejudice;

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3. The settlement includes Campbell’s release of:
a. All claims Campbell has,
b. Whether asserted or not,
c. Against Garcia, Merrill Lynch, and/or Transamerica,
d. with the only exception being that:
i. Campbell’s claims pending as of August 7, 2019,
ii. in the Cuyahoga County Probate Court,
iii. relating to the Campbell Family Limited Partnership,
iv. are preserved and not dismissed; and
4. In exchange for which the defendants (Garcia, Merrill Lynch, and Transamerica) have
agreed to pay, and Campbell has agreed to accept, the total sum of $100,000.
Payment shall be made within twenty-one days of the entry of this Order. Within five
days of Plaintiff’s receipt of the settlement payment the parties shall file a Stipulation of
Dismissal of All Claims in the Lawsuit. The Court retains jurisdiction to enforce the terms of the
settlement. The Court denies the award of attorneys’ fees and orders each party to bear its own
costs.
IT IS SO ORDERED.

Date: March 13, 2020

/s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge

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