Boltz-McCarthy v. Boltz

Filing 11

MEMORANDUM and ORDER denying 5 Motion to Dismiss Defendant's Counterclaim. Counsel shall file a proposed Stipulated Discovery Schedule/Order on or before 5/9/2011. Signed by Senior Judge J. Garvan Murtha on 4/11/2011. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Susan Boltz-McCarthy,

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Plaintiff,
v.
Nancy M. Boltz,
Defendant.

File No. 1:10-cv-00215-jgm

MEMORANDUM AND ORDER
(Doc. 5)
Plaintiff Susan Boltz-McCarthy has moved under Federal Rule
of Civil Procedure 12(b)(6) to dismiss Defendant Nancy M. Boltz’s
Counterclaim.

(Doc. 5.)

For the reasons that follow, the motion

is denied.
Susan Boltz-McCarthy has sued her mother, Nancy Boltz, in
this diversity action for declaratory judgment and damages,
alleging her mother breached her fiduciary duties, converted
monies owed to Boltz-McCarthy from the sale of 59 Estey Street in
Brattleboro, Vermont, and alleging replevin of personal property.
(Doc. 1.)

The Complaint alleges Boltz-McCarthy conveyed 59 Estey

Street, where she lived, to her mother in March 2002.

Id.

In

July 2003, Boltz granted a mortgage on the home to secure a loan
of $109,200 to her daughter.

Id.

In February 2004, Boltz

conveyed the property to herself and Boltz-McCarthy as joint
tenants with right of survivorship.

Id.

In August 2007, Boltz-

McCarthy purported to execute power of attorney to her mother,

but alleges Boltz never signed the power of attorney.

Id.

Later

that month, the mother and daughter executed a limited power of
attorney appointing Boltz agent for the impending sale of the
property.

Id.

According to the Complaint, prior to the sale,

Boltz took possession of her daughter’s personal property,
including crystal, china and sterling silver.

Id.

Following the

sale, Boltz allegedly used the sale proceeds to pay off the
mortgage, pay the sales commission and closing costs, and
retained the remainder.
Boltz answered her daughter’s Complaint and counterclaimed
as follows:
15. Plaintiff, is an adult, who is 46 years old
and the daughter of the Defendant.
16. Plaintiff repeatedly requests that
Defendant pay for Plaintiff’s obligations including
but not limited to living expenses, housing costs,
credit cards, medical obligations, pharmaceutical
prescriptions and furniture.
17. Defendant has paid Plaintiff’s obligations,
as set forth above, for which the Plaintiff is
indebted and obligated to reimburse Defendant.
16. [sic] Plaintiff is indebted to the Defendant
in an amount exceeding $259,000 for expenses incurred
by the Plaintiff and paid for by the Defendant, which
include but are not limited to the items set forth
above.
(Answer, Doc. 4.)
These allegations are sufficient to state a claim for an
unpaid debt.

Federal Rule of Civil Procedure 8(a)(2) requires

only “a short and plain statement of the claim showing that the
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pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Plaintiff’s arguments, that the form of pleading is insufficient
and Defendant must plead facts rebutting Vermont’s presumption
that inter vivos transfers of property from parent to child are
gifts, are unavailing.
“To survive dismissal, the plaintiff must provide the
grounds upon which his claim rests through factual allegations
sufficient ‘to raise a right to relief above the speculative
level.’”

ATSI Commc’ns., Inc. v. Shaar Fund, Ltd.

493 F.3d 87,

88 (2d. Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 545 (2007).

The Counterclaim alleges Plaintiff is indebted

to the Defendant and obligated to reimburse Defendant for living,
housing, credit card, medical, prescription, and furniture
expenses paid on her behalf in an amount exceeding $259,000.
This is sufficient to give Plaintiff fair notice that Defendant
alleges a contract, or mutual understanding, either express or
implied, that Boltz-McCarthy was obligated to repay Boltz for the
described expenses paid on her behalf.
Furthermore, “courts have refused to consider presumptions
in favor of the defendant on a motion to dismiss since
presumptions are evidentiary standards that are inappropriate for
evaluation at the pleadings stage.”
FEDERAL PRACTICE

AND

5B C. WRIGHT & A. MILLER ,

PROCEDURE § 1357 (3d ed. 2006); see also

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (holding

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evidentiary standard should not be transposed into a rigid
pleading standard for discrimination cases).

The Counterclaim

here need not plead additional facts to expressly rebut a state
law presumption that inter vivos transfers of property from
parent to child are gifts.

It is enough that it pleads Plaintiff

had an obligation to reimburse the Defendant.
Therefore, Plaintiff’s Motion to Dismiss Defendant’s
Counterclaim (Doc. 5) is DENIED.

Defendant’s request for costs

associated with her Memorandum in Opposition to Plaintiff’s
Motion to Dismiss Defendant’s Counterclaim (Doc. 6) is DENIED.
Counsel shall file a proposed Stipulated Discovery
Schedule/Order, pursuant to Local Rule 26(a), on or before May 9,
2011.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 11th
day of April, 2011.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
Senior United States District Judge

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