Butler v. Saunders
| Decision Date | 19 September 2011 |
| Docket Number | Case No. 8:11-cv-1273-T-33MAP |
| Parties | M. ASHLEY BUTLER, PH.D., as Guardian of Claudine B. O'Connor, Plaintiff, v. JEANNE SAUNDERS, ET AL., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court pursuant to Plaintiff's Motion for Remand (Doc. # 8), filed on July 8, 2011. On July 21, 2011, Defendant George Saunders filed a response in opposition to the motion. (Doc. # 10). On July 22, 2011, Defendant Jeanne Saunders filed a response in opposition to the Motion (Doc. # 12). No other Defendant has responded to the Motion.1 For the reasons that follow, the Motion is granted.
Plaintiff M. Ashley Butler, Ph.D., filed suit in the Circuit Court of the Twelfth Judicial Circuit in and forSarasota County, Florida, on May 27, 2011, as court-appointed guardian of Claudine B. O'Connor. (Doc. # 2). Butler states that Mrs. O'Connor and Thomas F. O'Connor executed a prenuptial agreement on January 15, 1998, expressing their desire that their property remain separate. (Id. at ¶ 11). At that time Claudine O'Connor listed assets totaling $17,704,000, and Thomas O'Connor listed assets totaling $1,100,000. (Id.) The O'Connors reaffirmed their prenuptial agreement on August 22, 2002. (Id. at ¶ 15).
The O'Connors each executed and amended multiple revocable trusts at various times before and during their marriage. Butler alleges that, subsequent to the execution of two individual trusts on August 3, 2005, Claudine O'Connor's assets were improperly transferred to Thomas O'Connor, to members of his family and/or to members of the Saunders family. (Id. at ¶ 20, 24, 31, 38). Butler asserts that she has been unable to locate between $6,000,000 and $7,000,000 worth of Claudine O'Connor's assets. (Id. at ¶ 24, 30). Thomas O'Connor's assets, in contrast, appear to have increased. (Id. at ¶ 32). In particular, Thomas O'Connor's 1998 trust contains substantially more assets than he owned at the time of the marriage. (Id. at ¶ 32). Butler states that she does not have a copy of the 1998 trust instrument. (Id. at ¶ 13).
A copy of Thomas O'Connor's 2008 trust instrument is attached to the Complaint. Mr. O'Connor served as trustee, and Jeanne Saunders is named successor trustee. (Id. at ¶ 23, 34). George Saunders is named trust protector with Scolaro as successor trust protector and Mullarney subsequent successor trust protector. (Id. at ¶ 35-37). The Scolaro Law Firm, which served as counsel for Jeanne and George Saunders, has the authority to select successor trust protectors. (Id. at ¶ 19, 36).
Butler states that "[a]fter an investigation as to financial exploitation by Thomas as to Claudine and by Defendants, Jeanne and George, as to Thomas, the Department of Children and Family Services filed petitions for incapacity and for the appointment of plenary guardians for Claudine and Thomas." (Id. at ¶ 15). On April 15, 2011, the state court determined Claudine to be incapacitated and appointed Butler as plenary guardian of her person and property. (Id. at ¶ 28). On May 23, 2011, the state court determined Thomas to be incapacitated and ruled that Lisch should be appointed plenary guardian of his property. (Id. at ¶ 29). With the determination of his incapacity, Thomas O'Connor no longer serves as trustee. (Id. at ¶ 33).
Butler alleges that Claudine O'Connor was unduly influenced in making transfers of assets to Thomas O'Connor, the O'Connor family and the Saunders family, that she lacked capacity, or that the transfers were made without her authorization. (Id. at ¶ 38). She seeks a declaratory judgment with regard to Thomas O'Connor's 1998 trust (Count One). She also seeks suspension of Jeanne Saunders's duties as trustee, appointment of Lisch as special fiduciary and Jeanne Saunders's removal as trustee of the 2008 trust (Count Two)2 . Finally, she seeks a temporary and/or permanent injunction against the Saunderses, Scolaro, the Scolaro Law Firm and Michael Mullarney from transferring or dissipating trust assets (Count Three).
On June 8, 2011, Jeanne and George Saunders removed this action to federal court. (Doc. # 1). The Saunderses state that Scolaro and Mullarney did not join in the removal because they had not yet been served with process. (Id. at ¶ 2). Although Lisch had been served, he did not join in the removal; however, the Saunderses assert that Lisch is an improperdefendant. (Id. at ¶ 13). Scolaro and the Scolaro Law Firm joined in the removal on July 5, 2011 (Doc. # 7).
In their Notice of Removal, the Saunderses contend that this Court has jurisdiction based upon 28 U.S.C. § 1332. Butler is a Florida resident, the Saunderses are New Jersey residents, and Scolaro, Mullarney and the Scolaro Law Firm are citizens of New York. (Id. at ¶ 6-11). Although Lisch is a Florida resident, the Saunderses assert that he is an improper defendant because none of the three counts in the Complaint state a cause of action against him and, as special fiduciary, his interests are aligned with Butler's. (Id. at ¶ 13, 17).
Butler filed her Motion to Remand on July 8, 2011. (Doc. # 8). Butler contends that removal was improper because Lisch is an indispensable party who defeats diversity. (Id. at ¶¶ 16, 20). Furthermore, her allegations that Claudine's assets were improperly transferred to Thomas make Claudine and Thomas adverse. (Id. at ¶ 23-24). As guardian of Thomas's property, Lisch's interests are therefore adverse to Butler as Claudine's guardian. (Id. at ¶ 26, 28).
In his response to the Motion, George Saunders reasserts that Lisch is an improper defendant and argues that Butler has failed to name the proper party -- the unknown trustee of the 1998 trust. (Doc. # 10 at 3-4). He further argues that Butlerhas stated no claim against Thomas O'Connor's assets, only the assets of his trusts, and that Lisch does not hold legal title to the trusts either as special fiduciary or guardian. (Id. at 4-5). Butler's assertion that assets have been wrongfully transferred to Thomas and her statement that she will seek "additional and supplemental relief" to recover all such funds do not create a cause of action against Lisch at the time of removal. (Id. at 6). He further contends that Count One of Butler's Complaint fails because she did not attach a copy of the 1998 trust, and any cognizable claim against Lisch fails as a result. (Id. at 7-8). Finally, he reasserts that Lisch is not adverse to Butler because, among other things, she desired his appointment as special fiduciary (Id. at 8-11).
In her response to the Motion, Jeanne Saunders makes similar contentions, and further asserts that Butler does not have standing to sue on behalf of Claudine O'Connor's trust. (Doc. # 12 at 3, 11). As noted above, no other Defendant has responded to the Motion.
Butler filed a reply addressing the Saunderses' arguments on August 3, 2011. (Doc. # 19). She asserts that Thomas O'Connor, as beneficiary of the trusts at issue, would be an indispensable party had he not been declared incapacitated. (Id. at ¶ 3). Because of Mr. O'Conor's incapacity, Lisch, asguardian, is an indispensable party, and the proper party to defend this lawsuit on Thomas's behalf. (Id.) Butler further argues that she does not know the identity of the trustee of the 1998 trust and that she is not required to attach a copy of it to the Complaint because she does not have it. (Id. at ¶ 5). Finally, Butler argues that she has standing to assert claims on behalf of Claudine O'Connor because Mrs. O'Connor is the lifetime beneficiary of her trusts; a beneficiary has a right to bring claims regarding the trust, and a guardian has a right to bring claims to protect the guardianship estate. (Id. at ¶ 6).
A defendant may remove a case filed in state court to federal court if "the district courts of the United States have original jurisdiction." Pease v. Medtronic, Inc., 6 F. Supp. 2d 1354, 1356 (S.D. Fla. 1998) (citing 28 U.S.C. § 1441(a)). Original jurisdiction may be established if there is complete diversity of citizenship among the parties and the amount in controversy exceeds $75,000. Id. (citing 28 U.S.C. § 1332(a)(1)). In removal cases, the burden of proving any jurisdictional fact rests upon the defendant. Id.
Because removal is a statutory right it "should be construed strictly in favor of state court jurisdiction."Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). "[W]here plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
"In a removal case alleging fraudulent joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citing Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989)). Pacheco de Perez, 139 F.3d at 1380 (citations omitted).
"The determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff's pleadings at the time of removal, supplemented by anyaffidavits and deposition transcripts submitted by the parties." Id. The Court must review the factual allegations in the light most favorable to the plaintiff, and it must resolve uncertainties about the applicable law in favor of the plaintiff. See id.
The fact that the plaintiff may not ultimately prevail against the resident ...
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