American United Life Insurance Company et al v. Mays et al

Filing 52

MEMORANDUM OPINION AND ORDER: The Court GRANTS the Plaintiffs' Motion to Deposit, provided that the Benefits are deposited with the court's registry within fourteen (14) days of the date of entry of this Memorandum Opini on and Order, after which deposit the Plaintiffs are DISMISSED from this action. The court GRANTS IN PART AND DENIES IN PART Defendant Mays's Motion to Strike. Specifically, the court FINDS that Defendant Whitney has insufficiently pled duress and undue influence and STRIKES those defenses, but GRANTS leave to amend thereto. Any amended pleading shall be filed with the court within twenty-one days of the date of entry of this Memorandum Opinion and Order. The co urt FINDS Defendant L. Veale has insufficiently pled duress and undue influence under a confidential relationship theory and STRIKES those defenses, but GRANTS leave to amend thereto. Any amended pleading shall be filed with the court within twenty-one days of the date of entry of this Memorandum Opinion and Order. The court DENIES Defendant Mays's request for a determination that interpleader is not appropriate. Defendant Lentz is DISMISSED from this action. Signed by Chief District Judge Rebecca Beach Smith on 7/31/17. (Copies distributed as directed 7/31/17)(afar)

FiLED
JUL 3 1 2017

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division
CLERK, US DiSTRlCT COURT

NORFOLK, VA
AMERICAN UNITED

LIFE

INSURANCE COMPANY
AND
THE

STATE

LIFE

INSURANCE COMPANY,

Plaintiffs,
CIVIL ACTION NO.

V.

SAHDE Z. MAYS,

2;17cv99

Individually

and as Trustee of

the

Restated Robert Veale

Living Revocable Trust,
TIMOTHY E.
LLOYD T.

WHITNEY,

JR.,

VEALE,

AND

STEPHEN LENTZ,
Defendants.

MEMORANDUM OPINION AND ORDER

This

for

matter

Receipt

Deposit"),
Life

and

Insurance

The

Deposit

Company

of

the

court

Defendants'

argument

and

time

in

this

to

on

the

Interpleader

The

the "Plaintiffs")

response was received.
oral

before

and accompanying Memorandum,

(collectively,
20.

comes

Life

on March 31,

Additionally,
matter.

Funds"

ECF

Motion

("Motion

to

filed by American United

State

respond

"Renewed

has

Insurance
2 017.

now

Company

ECF Nos.

expired,

and

19,
no

the Plaintiffs have waived
No.

Motion to Deposit is now ripe for review.

30.

Accordingly,

the

Also

before

Affirmative
Veale"

Defenses

("Motion

Support,

the

filed

on

May

was

Defendant

filed

Lloyd

34,

subject

Veale

to

by

Jr.

and

the

Lloyd

T.

Memorandum

in

Sahde

Mays

Defendant Timothy Whitney

37,

38.

defect,

("Defendant

Strike

Defendant

Response

ECF Nos.

to

accompanying

35.

his

"Motion

Whitney,

2017,

filed

2017.

E.

and

4,

ECF Nos.

Whitney")

the

Timothy

Strike"),

Support on May 15,

Strike

of

is

to

("Defendant Mays").
{"Defendant

court

L.

and

Memorandum

However,

in

the Motion to

regard

Veale"),

in

to

se

failure

for

pro

to

include a notice consistent with the requirements of Roseboro v.
Garrison,

528

F.2d

7 (K) . ECF No. 39.

309

(4th

Cir.

file

a

and

Local

Civil

Rule

The defect was corrected by Defendant Mays on

May 26, 2017. S^ ECF Nos. 43,
not

1975),

44. Defendant L. Veale still did

response to the Motion to Strike.

Accordingly,

the

Motion to Strike is now ripe for review,
I.

In October of

2014,

Robert

H.

Veale

("Robert")

life insurance policies from the Plaintiffs,
collectively worth
Ex.

1,

ECF

beneficiaries
daughter;
Veale,
No.

$700,000.

No. 1-1;
of

Defendant

Whitney,

1-2;

Ex.

4,

ECF

Am.

No.

which policies are

Am.

Compl.

12-25,

ECF

1-3.

The

original

Defendant

Mays,

Robert's

policies

Robert's brother.

two

3,

Ex.

these

bought

No.

were

Robert's

cousin;

Compl.

17-18,

1-4.

On

December

ECF No.

and Defendant
24-25;
18,

Ex.

2015,

2,

29;

L.
ECF

Robert

established
"Trust"),

the

for

Robert

H.

Veale

which Robert

served

for which Robert's attorney,
Lentz"),

Am.

tn

26-29;

the

Trust
trustee

original

(the
and

Defendant Stephen Lentz

("Defendant

transfer

ownership

5,

ECF No. 1-5.

On July

submitted

purportedly

change

as

Living

would serve as the successor trustee on Robert's death.

Compl.

Robert

Revocable

Ex.

documentation

attempting

of

the

two

the beneficiaries of

policies

to

the policies

the

25,

2016,
to

and

Trust

to the Trust.

(1)
(2)

Neither

change was recorded by the Plaintiffs on the basis that "proper
and

complete
30-37;

No.

1-8;

Ex.
Ex.

On

documentation"
6,

9,

23,

trust

instrument
dated

replace

1-6;

2016,

the

Am.
is

not

Ex.

7,

submitted.
ECF

No.

Am.

1-7;

Compl.

Ex.

8,

ECF

1-9.

"Declaration of

restated the Trust.
("This

No.

ECF No.

November

issued a

ECF

was

six

days

Trust,"

Compl.

a

18th,

original

trust

HI

2015,
and

his

death,

Robert

which purportedly amended and

complete

December

before

38-39;

Ex.

10,
of

restatement
and

any

is

the

intended

subsequent

the original trust."). On this same day,

ECF No. 1-10
original

to

totally

restatements

to

Robert also purportedly

signed and submitted another form to the Plaintiffs changing the

beneficiaries of

to

the

Trust.

the

life

Am. Compl.

insurance

40-41;

policies

Ex.

11,

to be

ECF No. 1-11.

beneficiary change was recorded by the Plaintiffs,
was

sent to Robert notifying him of such.

transferred

Am.

and a

Compl.

This

letter
42-43;

Ex.

12,

ECF

change

No.

1-12.

Both

the

restated

Trust

document

and

in beneficiary form were purportedly signed at Robert's

request by another individual.^ Am. Compl. HH 44-45; Ex. 13, ECF
No. 1-13;
Robert

Ex.

23,

ECF No.

1-23.

and Mavis McKinley,

with AMG National

Trust

The

restated Trust

in her capacity as

Bank

a

Trust Officer

{or any other trust

company with

which she may be employed),

as primary co-trustees.

H 49;

1-10.

Ex. 10,

trustee,

at 2,

Am.

Compl.

If Robert ceased to serve as

AMG National Trust Bank was designated to serve as the

sole trustee.

could

ECF No.

designated

serve

Financial

Ex.

as

10,

at 2,

trustee,

Group

("AFG")

ECF No.

the

to

1-10.

restated

select

a

If none of

Trust

these three

required

professional

Anchor

successor

trustee. Am. Compl. H 49; Ex. 10, at 2-3, ECF No. 1-10.

^ Another of Robert's attorneys, Veronica Williams, drafted
the restated Trust document, "presided over the execution of his
trust based estate plan, and .
. . served as notary public
during the bedside execution of his documents." Ex. 13, at 1,
ECF No. 1-13. In a "[1]egal opinion letter" to the Plaintiffs,
Ms.
Williams explains
that
"another individual"
signed the
restated

Trust

direction.
name

this

Id.

document

at

2.

individual,

on

Robert's

Although
it

Ms.

indicates

behalf

and

Williams's
the

at

letter

restated Trust

Robert's

does

not

document

was signed by the agent "newly appointed" under the "Financial
Power of Attorney" form, also signed by another individual on
Robert's behalf and at Robert's direction, id., which implies
that

it

was

Robert's

friend,

James

Battle.

See

infra

at

5-6.

Ms. Williams's letter does not specifically explain how the
change in beneficiary form was executed, but i t states that
"each of
[Robert's] estate planning documents" were executed
using this "alternative method" as authorized under Virginia
law.

Ex.

13,

at 2,

ECF No.

1-13.
4

Robert

Ex.

19,

died on November 29,

ECF No.

Battle

1-19.

("Battle")

same day.

life

the

"Interim

Compl.

policies.

Am.

Compl.

2016,

9,

64-65;

AFG appointed James

Successor

HI 52-53;

Battle submitted a

insurance

No. 1-20.

On December 5,

as

restated Trust. Am.

2016.

Ex. 15,

Trustee"

ECF No.

of

the

1-15. The

claim for the proceeds of the two

Am.

Battle also provided

Compl.
the

HH 66-67;

insurance

Ex.

20,

companies

with a

signed "Trust Affidavit" form.

Am. Compl.

No. 1-21.

AMG National Trust Bank declined

On December 6,

2016,

68-69; Ex.

ECF

21,

ECF

to serve as trustee of the restated Trust. Am. Compl.

tl 50-51;

Ex.

8,

14,

Battle

ECF

No.

1-14.

requested

Trust's

name.

December

nil 54-55;

15,

the

Am.

later,

December

wired

be

on

to

an

75-76;

Battle

16,

days

proceeds

Compl.

2016,

Ex.

Two

ECF

Ex.

resigned

No. 1-16.

24,

as

account

ECF

No.

trustee.

AFG

and

2016,

in

the

1-24.

Am.

On

Compl.

Defendant

Mays

subsequently executed the Non-Judicial Settlement Agreement and
the

Certificate

of

Successor Trusteeship,

appointing Defendant

Mays as the successor trustee of the restated Trust. Am. Compl.
nn 57-59; Ex. 26, ECF No. 29-1; Ex. 27, ECF No. 29-2.
Overlapping
the

Trust

are

these

changes

documents

with different

vesting

individuals.

"Durable Power of Attorney"
Attorney-in-Fact

and

with

the

power

On June

insurance policies and
of

14,

attorney

2016,

for

Robert

Robert

signed a

appointing Defendant Whitney as his

Defendant

L.

Veale

as

successor

should

Defendant
Ex. 17,

Whitney

ECF No.

be

unable

1-17.

to

serve.

On November 23,

Am.

Compl.

flU

60-61;

2016—the same day Robert

purportedly had another individual sign the documents restating
the Trust and changing the beneficiaries of
policies

to

the

Trust—he

allegedly

the life insurance

signed

another

"Durable

Financial General Power of Attorney," which named Battle as his

Power

of

Attorney

and

"revoke[d]

financial powers of attorney,
Ex.

18,

ECF No.

all

previously

of any sort." Am.

executed

Compl.

62-63;

1-18.

Defendants L.

Veale and Whitney challenge the validity of

the change in beneficiary form purportedly executed at Robert's
behest on November 23,

2016.

See Am.

Answer of Defendant Whitney

[hereinafter "Whitney Am. Answer"]
of Defendant L.
No.

9;

Am.

Am. Answer"]

Veale

Answer

10-11,

[hereinafter "L.

of Defendant L.

ECF No.

31; Answer

Veale Answer"]

Veale

[hereinafter

at 1,
"L.

ECF

Veale

flU 3-4, ECF No. 47. Accordingly, both Defendants L.

Veale and Whitney claim they are entitled to their shares of the

proceeds of the insurance policies. Am. Compl. tl 77-78; Ex. 25,
ECF No. 1-25; Whitney Am. Answer ^ 12. Defendant Lentz,
initial
policies

trustee
at

.

.

.

issue."

"Lentz Answer"]

makes

no

claim

to

Answer

of

Defendant

the

proceeds

Lentz

"as the
of

the

[hereinafter

H 5, ECF No. 40-1. Defendant Mays also initially

questioned the validity of the change in beneficiary form signed
on

November

23,

2016.

See

Am.

Compl.
6

71-72;

Ex.

22,

ECF

No. 1-22.

However,

relating

to

[Robert's]

Mays

the

she

has

since

execution

attorney,

of

Veronica

the[]

"denies that

^ 7,

"the

documents

Williams."

[hereinafter "Mays Answer"]

Defendant Mays

accepted

provided

Answer

ECF No.

explanation

of

by

Defendant

32. Accordingly,

the plaintiffs need the assistance

of this court to pay out the benefits under their policies." Id.

H 8. Based on these claims and disputes,

the Plaintiffs brought

this action in interpleader.
II.

The Motion to Deposit^ requests leave to deposit with the
court

the

policies

proceeds
(the

Deposit

"Benefits").

also

prejudice

owed by

contains

the

the
Mot.

an

Plaintiffs

from

action

against

the

or

[the

court

proceeding

Plaintiffs]

grants

under

to Deposit at 1.

implied

injunction prohibiting any of
any

Plaintiffs

this

the

request
case

and

Defendants

in

any

state

for

the

recovery of

the Motion

to Deposit

or

the

The Motion to

to

dismiss

enter

from

United

insurance

a

with

permanent

"instituting
States

court

the Benefits,"

and on payment

of

if

the

Benefits into the court's registry. See ECF No. 20-1 at 2-3.

^ The Motion to Deposit was previously granted by the court.
See ECF No. 21. However, on reassignment of this case to the
undersigned,
the
order
was
vacated
as
premature
as
the
Defendants' time to respond to the Motion to Deposit had not yet
expired and the Plaintiffs had a motion seeking leave to file an
amended complaint before the court. ECF No. 24.

A.

"Interpleader

is

a

disinterested stakeholder
or more adverse claimants

Hartford v.

Arcade

Cir.

An equitable

2002).

protect

the

inconsistent

procedural
to bring a
to a

Textiles,

Inc.,

disinterested

that

allows

fund."

40

F.

Sec.

App'x

Ins.

767,

769

stakeholder
relieve

from

it of

the

interpleader

"rule"

interpleader under

under

Federal

Rule

28

U.S.C.

of

Civil

of

(4th

is

to

"multiple,
obligation of
Id.

are two distinct methods for invoking interpleader in a

"statutory"

Co.

interpleader's purpose

determining which claimant is entitled to the fund."

court,

a

single action joining two

single

remedy,

judgments and to

device

§

There

federal

1335,

Procedure

and
22,

and each has its own jurisdictional requirements.
Here,

the

Plaintiffs

have

invoked

both

statutory

interpleader and rule interpleader on the basis of diversity of
citizenship.

Am.

Compl.

7-8.

In

regard

to

statutory

interpleader,
district
courts
have
original
jurisdiction
actions if:
(1) the amount in dispute exceeds
(2)

over
$500;

there are two or more adverse claimants of diverse

citizenship; and {3} the plaintiff deposits the money
or property in dispute into the registry of the court
or posts an adequate bond. 28 U.S.C. § 1335. Section
1335 has been "uniformly construed to require only
'minimal diversity,' that is, diversity of citizenship
between two or more claimants, without regard to the
circumstance
that
other
rival
claimants
may
be
co-citizens."

Tashire,

State

386 U.S.

523,

Farm

530

Fire

(1967).

&

Cas.

Co.

v.

Allstate Life

at

.

*2

.

(E.D.

.

is

Ins.

Va.

a

Co.

Feb.

v.

Ellett,

4,

2015).

procedural

No.

"By contrast,

device

therefore be proper under

28

2:14cv372,

only,

U.S.C.

and

§

2015 WL 500171,

rule

interpleader

jurisdiction

1331

must

(federal question

jurisdiction) or § 1332 {diversity jurisdiction)Id.
Regardless of the mechanism used to invoke interpleader,

interpleader
the

court

invoked

action generally proceeds

must

determine

interpleader,

whether

threatened with

equitable

double

concerns

the

including

jurisdiction over the suit,

is

{6th Cir.

appropriate,

the

or multiple

further liability,'
claimants

from

court."

I^

F.3d at

641).

"Once a

court

stages.

plaintiff

'has

the

the

liability,

use

of

and

(citing 28

"may

interpleader.'"

Prods.,

Inc.,

discharge

related actions

U.S.C.

§ 2361;

In the second stage,

No. WDQ-10-2809,

whether

any

Id.

497 F.3d 637,

the

plaintiff

from

and may enter an injunction restraining the

litigating

and

has

court determines that interpleader

'normal litigation processes,

motions,

properly

court

in

state

trial.'"

2011

Metro.

WL 2133340,

9

or

High Tech.

federal

Prods.,

497

"the case continues between

the claimants to determine their respective rights

the

"First,

whether the stakeholder is actually

prevent

2007)).

two

whether

(quoting United States v. High Tech.
641

in

an

.

including pleading,
Life

at

*2

Ins.

{D.

Co.

Md.

May

.

.

[via]

discovery,
v.

25,

Vines,

2011)

(quoting High Tech.
Ins.

Co.,

Prods.,

2015 WL 500171,

497 F.3d at 541);

see Allstate Life

at *2.
B.

Here,

the

invoking

both

Benefits

$500
the

Plaintiffs

statutory

and

$75,000

diversity

interpleader:

Mays

is

a

of

of

for

First,

the

which exceeds both the

statutory

statutory

interpleader and
that

applies

of

§

1332

interpleader

and

that

to

The Plaintiffs are citizens of

residents

Plaintiffs

interpleader.

for

for

requirement

resident

requirements

to

diversity is satisfied under both the

standard

resident of Florida,
are

the

jurisdiction requirement

rule interpleader. Second,

complete

all

$700,000,

requirement

diversity

diversity

met

rule

in controversy total

jurisdictional

minimal

have

New

Jersey,

applies

Indiana;

Defendant

L.

the
rule

Defendant

Veale

is

a

and Defendant Whitney and Defendant Lentz

Virginia.

Am.

have asserted that

Compl.

1-7.

Third,

they stand ready to deposit

the

the

Benefits with the court, as is required under statutory, but not
rule,

interpleader.
Moreover,

potential

the

Plaintiffs

conflicting

conflicting

claims."

legitimately

claims,

Allstate

but

Life.

actual,
Ins.

Co.,

fear
and
2015

"not

just

colorable,
WL

500171,

at *3. The Plaintiffs have received letters staking claim to all
or

some

case. Am.

of

the

Compl.

Benefits

66,

from

at

least

two

Defendants

in

this

77. Although this stage does not require
10

inquiry into the merits of each claim,
Co.,

2015 WL 500171,

court

should

claimants
claims

determine

had

must

at *3

both

not

at

the

first

stage

"'valid'

so wanting

in

whether

substance

to

232 F.2d 811,
Strike

Benefits

does

813

not

{9th Cir.

justified.

two

the

that

interpleader

Life Ins.

Co.

v.

1956). Defendant Mays's Motion

demonstrate

are so wanting

the

claims"),

competing

under the statute may not be justified," N.Y.

Lee,

Ins.

(rejecting claimant's assertion that

presented

"be

see Allstate Life.

that

all

in substance

See infra Parts III-IV.

other

to

the

interpleader

that

claims

is

not

Accordingly,

the Plaintiffs'

fear of multiple lawsuits is legitimate.

Finally,
equitable

there are no facts to suggest that there are any

concerns

Accordingly,

the

weighing

Plaintiffs

against

have

properly

and the court GRANTS the Plaintiffs'

that

Opinion

(14)
and

days
Order,

of

the

a

date

$700,000 plus accrued interest

until

the

date

of

deposit

represent

the

Benefits

deposit,

the

Defendants

prosecuting

any

judicial

of

certified

in

from

with

dispute

are

interpleader.

invoked

interpleader

court's registry,
entry

check

of
in

within

this

Memorandum

the

amount

of

the date of Robert's death

the
in

ENJOINED

proceeding

of

Motion to Deposit provided

the Plaintiffs deposit with this

fourteen

use

court,
this

action.

from

against

which

the

proceeds
Upon

such

instituting
Plaintiffs

or
in

any State or United States court pertaining to the Benefits in
11

dispute

in

this

action.

Additionally,

upon

such

deposit,

the

Mays

argues

that

sufficiently

pled

Plaintiffs are DISMISSED from this matter.
III.

In

the

Defendants

duress,

Motion

L.

Veale

undue

Virginia

to

Strike,

and

Whitney

influence,

law

to

Defendant

and

challenge

have

lack

the

not

of

mental

validity

capacity

of

the

under

change

in

beneficiary form dated November 23, 2016. Mot. to Strike IIH 1-4;
Mem.

Supp.

identify
which

Mot.

the

she

to

Strike

particular

moves

the

and

court

language,

under Rule

from

a

12(f),

pleading

immaterial,

4-5.

to

Defendant

Rule

Federal

Defendants Whitney and L.
title

at

of

strike

the

court

Procedure

answers

construes
that

insufficient

impertinent,

Civil

does

and

the

under
of

By its

Motion

to

Strike

court

may

strike

"[t]he

defense

not

defenses

Veale for being insufficient.

which provides

an

the

Mays

or

any

or scandalous matter."

Fed.

redundant,
R.

Civ.

P.

12(f) .
The

12(f)
No.

district

motions.

2:14cv373,

court

has

"broad

Certusview

discretion"

Techs.,

2014 WL 12591937,

at *4

When reviewing a motion to strike,

LLC
{E.D.

to

v.
Va.

Seidel,

(E.D. Va. Oct.

26,

P.A.,

2009)

No.

Dec.

15,

LLC,
2014).

the court views the pleading

I:09cv833,

Law Offices

2009 WL 3583606,

(quoting Clark v. Milam,
12

Rule

Usic,

in the light most favorable to the pleader. Kalos v.
of Eugene A.

decide

at *3

152 F.R.D.

66,

71

(S.D.W.

typically
Charles

Va.

1993)).

grant

leave

Alan Wright

Procedure

§ 1381

to

If

amend

& Arthur

(3d

ed.

the

motion

the

R.

Id.

Federal

see Fed.

("The court should freely give leave

granted,

pleading.

Miller,

2004));

is

R.

(citing
Practice

Civ.

[to amend]

courts

P.

5C
and

15(a)(2)

when justice so

requires.").

Additionally,
on diversity

of

because this court's
citizenship

and rule interpleader,
the

adequacy of

the

jurisdiction here rests

under both

statutory

interpleader

the court applies Virginia law to assess

substantive

elements

of

the

defenses,

but

employs federal procedural law to weigh the sufficiency of the

factual
V.

allegations supporting the defenses.

Jobar Int'l,

Va. Apr. 16,

Inc.,

No.

3:14cv50,

See,

2014 WL 1513289,

e.g.,

Fields

at *1

(E.D.

2014).
IV.

The court addresses separately the sufficiency of Defendant
Whitney and Defendant L. Veale's pleadings.
A. Defendant Whitney

Defendant Whitney pleads as follows:
10.

The

Plaintiffs

should not

release

the

funds

to

the

Restated
Robert
H.
Veale
Living
Revocable
Trust
because
Robert
H.
Veale
was
subject
to
undue
influence,
duress and constraints by James Battle,
Barry Farr and representatives of Anchor Financial
Group at the time that Robert H. Veale allegedly
signed the designation of Beneficiary Change form
(Exhibit 10 to Plaintiffs' Complaint), purporting to

13

name the Restated Robert
Trust as the beneficiary.
11.

The

Robert

Plaintiffs
H.

Veale

H.

Veale

should not
Trust

Living

release

because

the

Robert

Revocable

funds

H.

to

the

Veale

was

terminally ill, was under the influence of narcotic
pain medication and did not possess sufficient mental
capacity
to
execute
the
signed
designation
of
Beneficiary Change form
(Exhibit 10 to Plaintiffs'
Complaint) purporting to name the Restated Robert H.
Veale Living Revocable Trust as the beneficiary.

Whitney Am. Answer ^
Response that

"[p]aragraph 10 sets forth the legal claims while

[p]aragraph 11 sets
.

.

.

10-11. Defendant Whitney clarifies in his

rel[ies]."

forth some of

Mem.

Supp.

the

Resp.

facts

at 10.

upon which Whitney

Accordingly,

the only

defenses pled by Defendant Whitney and challenged by Defendant
Mays are duress and undue
and,

consequently,

Rule

of

Civil

the

influence.

heightened pleading

Procedure

particularity requirement,

84 F.

Supp.

2d 736,

Both are species of fraud

739

9 (b) ,

apply.

(W.D.

Va.

as

See

standard of

well

King v.

2000)

as

Virginia's

Donnkenny,

fraud,

Eng'q

with particularity."

Servs.,

OneWestBank,

(E.D.
fraud.'

Va.
As

467

F.S.B.,

Feb.
such,

Tabb V. Willis,

12,

S.E.2d
No.

(citing Mortarino v.

778,

782

3:09cv699,

2010)

("'Undue

(Va.

2010

a

1996)));

WL

influence

538760,

is

a

563

14

(Va.

species

Consultant
Davis
at

*4

species

i t must be pled with particularity."

156 S.E 556,

Inc.,

("Federal Rule of Civil

Procedure 9 requires that the Plaintiff plead duress,
of

Federal

v.
n.3

of

(quoting

1931))). Defendant Whitney

requests

leave

to

amend

should

the

court

strike

any

of

his

party

to

the

defenses. Mem. Supp. Resp. at 12.

In

Virginia,

duress

is

present

when

"one

transaction is prevented from exercising his free will by reason
of threats made by the other and .
by reason of such f a c t . . . .

of

Soc.

App.

(Va. Ct.

Servs.

1986)

omitted);

Nelson

1943248,

at *2

has

pled

not

particularity
Specifically,

v.

(Va.
all

the

has

App.

Record

Aug.

by

failed

Father,

quotation

elements

required
he

Unknown

Nelson,

Ct.

the contract is obtained

to constitute duress."

{internal

v.

.

Authorities are in accord that the

threatened act must be wrongful
Div.

.

of

16,

9(b)

allege

individuals he claims exerted duress,

S.E.2d

marks

533,

and

541

citations

0603-05-2,

2005).

duress,

Rule
to

No.

345

Norfolk

2005

WL

Defendant Whitney

let

alone

and

with

Virginia

any wrongful

namely Battle,

act

the
law.

by

the

Barry Farr

("Farr"),^ or APG's representatives, that destroyed Robert's free
will. Although Defendant Whitney now states in his Response that
the

narcotic medication destroyed Robert's

Supp.
AFG's

Resp.

at 10,

participated

administering this medication.
or a

in

Furthermore,

any

15

Farr,

decisions

stead,

friend of Robert's.

1.

see Mem.

or
for

under Virginia law,

party bringing suit in his

^ Farr appears to be a
Answer a t

will,

he makes no allegation that Battle,

representatives

only Robert,

free

can assert

See L.

Veale

duress.

See Norfolk Div.

of Soc.

Servs.,

345 S.E.2d at 541

("The

general rule is that duress must have been exercised upon him or

her who sets it up as a defense,
of the contract,

knowledge."

by him who claims the benefit

or by someone acting in his behalf or with his

(internal quotation marks

and citations omitted)).

Even if Defendant Whitney could assert duress on Robert's behalf

under some exception to
any

such

exception.

this

general

he does

{stating

See id.

rule,
the

not

"general

allege

rule"

for

pleading duress as a defense to a contract).

Virginia law also requires that the person pleading duress
(here,

Whitney)

also

duress

(here,

exerted

allege

how

Battle,

the

party

Farr,

or

purported

AFG's

not

alleged.

See

alleged that Battle,

id.

Alternatively,

Farr,

or AFG's

have

representatives)

benefitted from the change in beneficiary—which,

has

to

again,

Whitney

Whitney

could

have

representatives put Robert

under duress on Defendant Mays's behalf or with her knowledge,
and

pled

Because

how

she

Whitney

benefitted

did

not

from

make

the

any

change

such

in

beneficiary.

allegations,

he

has

insufficiently pled duress as a defense. See generally id.
Under
that

the

destroyed."

Virginia
free

agency

Parfitt v.

Acknowledging

difficult

law,

to

that

"undue
of

influence

the

Parfitt,

contracting

672 S.E.2d 827,

829

a

party

"[d]irect proof

produce,"

requires

Virginia
16

of

undue

courts

has
(Va.

influence

have

showing
been
2009).

is

identified

often

two

situations

that

are

deemed

"[w]here

great

weakness

concurs with gross inadequacy of consideration,
of

suspicion,

the

brought

about

Turnbow,

639

person

cannot

so

by

undue

in

as

a

to

accept

293

such

an

to the

nature

connection,

their

obtained."

Id.

(citing

be

Id.

of

habitual

risk,

a

of

of

mind

have
Bailey

v.

"[w]here

one

confidence

influence

been

towards

over him,

benefit

he

without

degree proportioned to the

having

Bailey,

Second,

personal

in a

to

{citing

special

once

or circumstances

presumed

2007)).

person

exposing himself
of

(Va.

relationship
acquire

from

will

influence."

S.E.2d 291,

stands

another,

transaction

and,

a

shift the burden of production to the proponent of
First,

destroyed,

that

established,

Id.

was

show

party's

contract."

agency

to

contracting

the

free

"sufficient

it

639

set

aside

S.E.2d

at

as

293).

unduly

"These

principles apply to gratuitous transfers as well as contracts."
Id.

Defendant Whitney has also insufficiently pled the elements

of undue influence,

Rule

9 (b)

and

let alone with the particularity required by

Virginia

law.

In

the

first

instance,

Defendant Whitney has alleged weakness of mind,

Answer H 11
insufficient
facts

that

suspicious

although

see Whitney Am.

(alleging influence of narcotic pain medication and
mental
would

capacity),

he

suggest

gross

circumstances.

With
17

has

not

inadequacy

respect

alleged
of

to

any

other

consideration or

the

confidential

relationship

Whitney
those

has

that

theory

named

of

undue

Battle,

exerted

the

influence,

Farr,

undue

although

and AFG's

influence

Defendant

representatives

over

Robert,

see

as
id.

H 10, he has not alleged that any of these individuals stood in
a

relationship

identified

of

the

special

nature

Defendant Whitney does

of
not

confidence
such

towards

Robert

relationship.

allege how Battle,

nor

Additionally,

Farr,

and AFG's

representatives benefitted from the change in beneficiary.
Defendant

Whitney

claims

that

his

Amended

Answer

pleads

that "parties around Robert Veale destroyed the free will of the

terminally ill Robert Veale and/or that it had been destroyed by
the

medication

Defendant

was

Whitney's

See Whitney Am.
Answer

he

had

so

under."

Amended

Answer

Mem.

Answer

10-11.

explicitly

Supp.

stated,

does

Second,
the

this

court

cannot

find

a

Defendant Whitney pointed to any,

at

not

even

Amended

allege how the parties around Robert
Third,

Resp.

10.

First,

state

this.

if

the Amended

Answer

destroyed his

does

free

single Virginia case,

not

will.

nor has

holding that the influence of

narcotic pain medication on its own is sufficient to destroy the
free will of an individual so as to give rise to a

presumption

of undue influence. Defendant Whitney also now claims that undue
influence

presumptively

exists

due

to

Defendant

Mays's

relationship with her father and her role as the trustee of the
restated

Trust.

Mem.

Supp.

Resp.
18

at

10-11.

However,

Defendant

Whitney's Amended Answer makes no such allegations with respect
to Defendant Mays,
Whitney Am.

and that is the pleading at issue here.

Answer

10-11.

Therefore,

Defendant

See

Whitney has

insufficiently pled undue influence as a defense.
B.

In

determining

pleads duress,
court

Defendant L.

whether

Defendant

undue influence,

refers

to

both

Order of June 6,

his

2017,

Veale

L.

Veale

sufficiently

or lack of mental capacity,

Answer

at 2-3,

and

his

ECF No.

Amended

46

Answer.

the
See

(stating his Amended

Answer incorporates by reference his original Answer); L. Veale

Am.

Answer

t

principles

by

change

Veale

pled

which

his

decisions."
is

Fed.

R.

articulated

sufficiently
act(s)

3;

mind
L.

also

Virginia law,

as

Battle

unable

Answer
to

10(c).

Applying

Defendant

he

fails

and

concerning

Veale

P.

above.

duress
''Mr.

Civ.

Mr.

Trust
at

assert

1.

to

L.

and

Veale

allege

Farr"

property

on

legal

has

the

"caused

Additionally,

duress

the

not

wrongful
Robert

management

Defendant

Robert's

to

behalf

L.

under

and/or has not identified any applicable exception

to that general rule.^
Defendant

L.

Veale

has,

however,

sufficiently

pled

undue

influence by alleging with particularity great weakness of mind
and

suspicious

circumstances.

See supra at 14-16.
19

First,

Defendant

L.

Veale

discusses

in

detail

his

concerns

for

Robert's

decision-making

abilities;

On

two

occasions

Williams

I

approached

and advised her

that

I

lawyer

felt

that

[Veronica]
Robert

could

not make rational and sound decisions concerning his
estate/trust and his physical care and wellbeing.
Robert was in extreme pain,
on strong medication,
refused to hire a 24-hour health care provider (would
only pay for 8-hour care even though his insurance
would pay for 24-hour care), would not provide me with
sound guidance on paying his bills and taxes and spoke
to myself and others about his committing suicide.
L.

Veale Answer at 1.

He also alleges suspicious circumstances,

asserting that the signatures on the restated Trust document and

change in beneficiary form,
to be forgeries,

see id.,

both dated November 23,

[with]

letter

of

2016.

See id.

which lawyer Williams removed me,
resignation,

appear

and questioning the last-minute nature

of the documents dated November 23,

speed

2016,

as

Trustee

and

("Based on the

without a

replaced

formal

me

with

Mr. Battle suggests that lawyer Williams was not willing to have
Robert evaluated to determine his mental and physical competency

to make independent decisions."); L. Veale Am. Answer t
did Mr.

Gonzalez

death,

when

[of AFG]

Robert

was

physically incapacitated

wait until Robert was a
heavily

medicated,

("Why

few days from

when

(could not sign own name)

3

Robert

was

to bring the

change of beneficiary document/s to Robert and then have someone
else sign Robert's name? Mr.
to

bring

any

oversight

on

Gonzalez had more than enough time
Robert [']s

20

part

to

me

(the

acting

CO-trustee)

and/or

Robert

in

a

timelier

questions the disposition of the assets.

H 4

manner.")

See L.

He

Veale Am.

also

Answer

("At one of the meetings I had with Robert in the Sept/Oct

2016

period,

in

the

presence

of

Lawyer Williams,

Mr.

Gonzalez

and others,

Robert stated that he absolutely did not want Sahde

Z.

Mays

to

benefit

in

created

to

support

any way

his

from

his

granddaughter

Trust.

and

his

The

Trust

was

granddaughter's

offspring.").
Further,

that

Defendant

appear to

communicating
see Ex. 1,

support
with

ECF

L.

Veale

these

Gonzalez

(renewing

insurance policies on November 5,

Veronica Williams
(discussing

and

Defendant

Robert[']s

are

Veale,

stating

maneuvering/persuading

examined

competent

estate,"

by

enough

a

and

make

for

include emails
of

copies

his

5,

22,

at 11,

2016

AFG,

of

all

belief

to

make

determine

independent/life

ECF No. 9-5

between Williams

that

"because

of

so called friends

unsound

"strongly suggest[ing]
to

documents

2016); with Robert's attorney,

condition his

him

physic [ian]

to

These

request

November

physical and mental

concerning his
be

L.

exhibits

("Gonzalez")

("Williams"),® see Ex.

conversation of

as

allegations.

Dimingo

No. 47-1

attaches

if

and

he

decisions
that

is

death

Robert

mentally

impacting

decisions"); as well as a note purportedly signed by Robert that

^ See supra note 1.
21

states

that

Defendant

death when i t occurs,

Mays

is

see Ex.

not

4,

to

be

ECF No.

informed

of

Robert's

9-4.

Finally, Defendant L. Veale introduces new complications in
the

timeline

insurance
exhibits

of

Robert's

policies
are

a

and

decision-making

Trust:

"Certificate

of

Two

of

Trust"

regarding

Defendant

and

a

his

L.

"Durable

life

Veale's
Financial

General Power of Attorney," both executed on September 10,
Ex.

5,

at 1-10,

ECF No.

9-5.

2016.

The Certificate of Trust indicates

that the Trust was restated on September 10,
that there was an attempt to do so.

2016,

or at least

Id. at 1. Williams served as

the notary for both of these documents.

Id. at 2,

10.

No other

party or filing has mentioned the events of September 10,
Thus,

Defendant

by advancing a

L.

Veale has

sufficiently pled undue

2016.

influence

theory of great weakness of mind and suspicious

circumstances, and pleading particular facts in support thereof.
To

the

alternative,
influence,
to

Battle,

Veale

the

Farr,

L.

Veale

advances,

relationship

in

theory

of

the

undue

insufficiently pled such theory with respect
Williams,

that

occasions

Defendant

confidential

he has

alleges

several

extent

or

Gonzalez.

Battle and Farr,

caused Robert

to

as

Although Defendant
friends

change

Trust and property management decisions

his

of

mind

Robert,

L.
"on

concerning

that Robert and I

made

together," L. Veale Answer at 1, mere friendship is not the kind

of

confidential

relationship

that
22

can

give

rise

to

the

presumption

of

undue

influence

under Virginia

law.

Rather,

in

Virginia,
the party asserting [undue influence] must establish
. . . an agency relationship in which one party is
bound

to

act

for

the

benefit

of

another

and

can

take

no advantage himself, or between family members when
one member bears also an attorney-client relationship
to another member, or "when one family member provides
financial

advice

or

handles

the

finances

of

another

family member."

Bailey,
V.

639 S.E.2d at 293-94

Beckner,

597

S.E.2d

34,

{quoting Friendly Ice Cream Corp.
40

{Va.

2004)

(emphasis

omitted)).

With respect to Williams and Gonzalez,

to the extent he alleges

an

individuals

agency

relationship

between

these

and

Robert,

Defendant L. Veale does not allege how they benefitted from the
change in beneficiary.

not

sufficiently

For these reasons, Defendant L. Veale has

pled

undue

influence

under

the

confidential

relationship theory.
Defendant

L.

Veale

has

capacity on November 23,

also

pled

Robert

2016. As a preliminary matter,

mental capacity is not a species of fraud,
ex

rel.

Cash v.

(Cir.

Ct.

fraud

as

Aug.

Fitzgerald,

31,

separate

requirements

of

1992)

28

Va.

(listing

grounds

each),

and,

Cir.

court

must

determine

the

548,

1992

lack of mental

for

relief

and

thus.

Rule

9(b)'s

standard

23

mental

lack of

see generally Garland

pleading with particularity does not apply to
the

lacked

by

WL 12024795

capacity and

discussing
requirement

it.

which

the
of

Accordingly,
to

judge

the

sufficiency of this pleading.
for

the

may

Fourth

be

pleaded

sufficient

(4th

omitted)
with

held

general

as

long as

2004)

(second

and

Clem v.

(internal

of

"[a]n

Bell Atl.

Iqbal,
Inc.

(E.D.
were

Corp.

556

V.

U.S.

V.

in

the

Va.

Jan.

662,

decided,

5,

be

defense

held

to

be

98

quotation

marks

original).

This

United

States
forth

F.

App'x 197,

and

was

Supreme

citations

in

accord

Court

with

in Federal Rule of

prior to the Supreme Court's decisions in

Twombly,

Dollar Gen.

will

Corbeau,

respect to the pleading standards set

Civil Procedure 8(a)

affirmative

it gives plaintiff fair notice of

alteration

decisions

that

terms

the defense."

Cir.

the

has

in

...

the nature of
203

Circuit

The United States Court of Appeals

677

(2009) .

Corp..

2016)

however,

550 U.S.

No.

(2007),

Info.

J.).

Fourth

and Ashcroft v.

Planning

2:15cv206,

(Jackson,
the

544

& Mgmt.

2016 WL 69902,

Serv.

at *3-4

Since Twombly and Iqbal

Circuit

has

not

addressed

whether the heightened pleading standard of Twombly/Iqbal—that

alleged facts,

taken as

true,

plausibly support an entitlement

to relief—applies to the pleading of affirmative defenses,

district

courts

are

divided on

the

the Eastern District of Virginia.

Inc.,

2016

WL 69902,

District of Virginia,

in the Fourth Circuit,
LLC,

2014 WL 12591937,

at

*4

question,

Info.

including within

Planning & Mgmt.

(collecting cases

and

from

Serv.

the Eastern

as well as from the other district courts

and discussing split); Certusview Techs.,
at *4-5

(same).
24

The

majority

support

the

pleading

of

view

of

the

that

decisions

Twombly/ Iqbal

affirmative

defenses

Rule of Civil Procedure 8(b)(1)(A)

pleading of defenses,

from

this

does

because
and

court,

not

the

(c)(1),

apply

text

LLC,

language

of

2014

Rule

Twombly/Iqba1
defenses) .

at this time,

12591937,

8(b)(1)(A)
not

However,

of

the

Federal

"does not track the text of Rule 8(a)(2),"

WL

does

to

which governs the

which governs the pleading of a claim to relief.
Techs.,

however,

at

and

apply

*5

(discussing

(c)(1)
to

See Certusview

and

the

plain

determining

pleading

of

affirmative

this court need not weigh in on this

as here.

Defendant L.

that

issue

Veale has sufficiently pled

lack of mental capacity even under the heightened Twombly/Iqbal
standard.

In
person,
person

Virginia,
capacity
claiming

"the
to
an

law

presumes

contract

and

exemption

that

that

under

there

the
this

is,

burden
rule

is

1961

Chesapeake

WL

66110,

& 0.

Ry.

at
v.

*1

(Cir.

Mosby,

24

Ct.

Mar.

14,

S.E.

916

(Va.

reasoning,

or mere

absence

of

experience

or

1961)

incapacity,
incapacity."

but additional facts,
Id.

(internal

if proven,

citations
25

Cir.

(citing

1896)).

It

is

immaturity

skill upon

matter under contract affords per se no ground for a

the

establish

17 Va.

further "well established that mere weakness of mind,

of

every

upon

to

incapacity." Cent. Nat'l Bank of Richmond v. Warner,
444,

in

the

claim of

may establish such

omitted).

There

is

no

bright-line defining capacity; rather,
and

requires

time,

a

determination of

sufficient

consequences
S.E.2d 56,

of

60

the

whether

capacity

to

transaction.

the

party had,

understand

Id.;

Bailey

v.

the

nature

the

at

and

Bailey,

677

(Va. Ct. App. 2009).

Defendant

Robert's

mental

the test is fact-specific

L.

capacity,

Veale

alleges

that

he

had

questions

about

arising from Robert being in "extreme pain"

and "on strong medication," for some time,

including the day the

change of beneficiary form was signed. See L. Veale Answer at 1;
Ex.
he

5,

at 11,

ECF No.

questioned

decisions,"

9-5.

Robert's

those

He

alleges

capacity

being

to

Robert's

specific instances where

"make

refusal

rational

and

to

a

hire

sound

24-hour

health care provider,

despite his insurance covering such care,

and Robert's

to

failure

bills and taxes."

L.

provide

''sound guidance

Veale Answer at 1.

on paying

Therefore,

his

Defendant L.

Veale has sufficiently pled lack of mental capacity.
V.

In

summary,

Deposit,

the

provided

court

that

the

GRANTS

Benefits

court's registry within fourteen
of

this

The

court

Motion

GRANTS

to

IN

Strike.

Plaintiffs'

are

(14)

Motion

deposited

with

to

the

days of the date of entry

Memorandum Opinion and Order,

P l a i n t i f f s are DISMISSED from

Mays's

the

after which deposit

the

t h i s action.

PART

AND

DENIES

Specifically,
26

the

IN

PART

court

Defendant

FINDS

that

Defendant

Whitney

has

insufficiently

pled

duress

and

undue

influence and STRIKES

those defenses,

but GRANTS leave to amend

thereto.

pleading

be

within

Any

amended

twenty-one

(21)

days

shall

of

the

filed

date

with

of

the

entry

court

of

this

Memorandum Opinion and Order.® In regard to Defendant L. Veale,
the court FINDS

under

a

theory

circumstances,
court

that he has

FINDS

of

great

weakness

Defendant

those

amended

L.

defenses,

pleading

twenty-one {21)

Veale

mind

and

of

for

a

suspicious

However,

the

insufficiently pled duress

but GRANTS leave

shall

days

has

influence,

confidential relationship theory and

be
the

Opinion and Order.' Further,
request

of

as well as lack of mental capacity.

and undue influence under a
STRIKES

sufficiently pled undue

filed
date

to

amend

with
entry

of

the
of

thereto.

court
this

Any

within

Memorandum

the court DENIES Defendant Mays's

determination

that

interpleader

is

not

appropriate.
Defendant

Lentz

seeks

dismissal

from

this

suit

on

the

grounds that he makes no claim to the proceeds of the policies
at

issue

in

his

Lentz Answer at

status

2.

No

as

the

initial

tirustee

other party objected

to

of

this

the

Trust.

dismissal.

Accordingly, Defendant Lentz is DISMISSED from this action.

® If

facts

are developed during discovery to support an

affirmative defense,
Answer to add such a

leave of court may be
defense.

See Fed.

' See supra note 6.
27

R.

sought

Civ.

P.

to amend the

15(a).

The

Clerk

is

DIRECTED

to

send a

copy of

this

Opinion and Order to all parties.
IT

IS

SO ORDERED.

Isl
Rebecca Beach Smith
Chief Judge
REBECCA BEACH SMITH
CHIEF JUDGE

July 31,

2017

28

Memorandum