United States District Court, S.D. Alabama, Southern Division
DAVID LEACH, Personal Representative of the Estate of Henry S. Lockett, Plaintiff,
MARY WEHLING, et al,, Defendants.
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE.
action is before the Court on the Motion for Leave to File
Amended Complaint filed by Plaintiff David Leach, Personal
Representative of the Estate of Henry S. Lockett; the
response in opposition filed by Defendant Regions Bank; and
the response in opposition filed by Defendants Mary Wehling
and Eugene Wehling (docs. 31, 33, 34).
stage in the litigation, and absent Defendants' written
consent, Rule 15(a)(2) instructs the Court that it
“should freely give leave” to amend “when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Therefore,
“unless a substantial reason exists to deny leave to
amend, the discretion of the district court is not broad
enough to permit denial[.]” City of Miami v. Bank
of America Corp., 800 F.3d 1262, 1286 (11th Cir. 2015)
(citation omitted). The Court “may consider several
factors when deciding whether to grant a motion to amend,
including ‘undue delay, bad faith or dilatory motive
[on the part of the movant], repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1340-1341 (11th Cir.
2014) (citing Equity Lifestyle Properties, Inc. v.
Florida Mowing & Landscape Services, Inc.,
556 F.3d 1232, 1241 (11th Cir. 2009) (quoting Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962));
Donley v. City of Morrow, Georgia, 601 Fed.Appx.
805, 810 (11th Cir. 2015) (same).
argue that allowing the amendment would be futile. Since
futility is a factor consideration, the Court “may deny
leave to amend a complaint if it concludes that the proposed
amendment would be futile, meaning that the amended complaint
would not survive a motion to dismiss.” Christman
v. Walsh, 416 Fed.Appx. 841, 844 (11th Cir. 2011);
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.
2007); Burger King Corp. v. Weaver, 169 F.3d 1310,
1320 (11th Cir. 1999) (if the proposed amended complaint
could not survive scrutiny under Rule 12(b)(6), then allowing
the amendment would be futile and the motion for leave to
amend should be denied); Hatcher v. Alabama Dep't of
Human Services, - - - Fed.Appx. - - -, 2018 WL 4151171,
at *2 (11th Cir. Aug. 29, 2018) (“‘a district
court may properly deny leave to amend the complaint under
Rule 15(a) when such amendment would be futile,' such as
‘when the complaint as amended is still subject to
dismissal'....”) (citations omitted).
reach a decision, the Court must accept “the
allegations in the complaint as true and constru[e] them in
the light most favorable to the plaintiff.” Nunez
v. J.P. Morgan Chase Bank, 2016 WL 1612832, at *1 (11th
Cir. Apr. 22, 2016) (quoting Ironworkers Local Union 68
v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th
Cir.2011)). “To survive a motion to dismiss, a
complaint need only contain sufficient facts, accepted as
true, to ‘state a claim to relief that is plausible on
its face' and must ‘raise a right to relief above
the speculative level.'” Id., (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 555,
127 S.Ct. 1955, 1974 (2007).
alleges that Henry S. Lockett, was a citizen of Baldwin
County, Alabama, who granted Durable Power of Attorney to his
step-daughter Mary Wehling (doc. 1-2). Lockett also made a
Last Will and Testament wherein his nephew Plaintiff David
Leach is nominated as the Personal Representative. Leach and
Mary Wehling share equally all assets of the estate after
payment of debts, etc. (doc. 1-1). Lockett died and Plaintiff
was issued Letters Testamentary. At the time of his death,
Locket owned certain assets that were held in bank accounts
and a safe deposit box at Regions Bank. In the complaint and
proposed amended complaint, Plaintiff claims violation or
breach of the Alabama Uniform Power of Attorney Act against
the Wehlings for improperly transferring Lockett's
assets. He also alleges fraud by suppression and wantonness
under Alabama law against Regions Bank on basis that Lockett
relied on the bank to protect his assets.
sued as Personal Representative of Lockett's estate (doc.
1). He alleged diversity jurisdiction because he is a citizen
of Ohio and the Wehlings and Regions Bank are citizens of
Alabama (doc. 1). Regions Bank moved to dismiss, in part, on
basis of lack of diversity subject matter jurisdiction
(12(b)(1). Regions argued that Plaintiff is deemed a citizen
of the same state as Lockett, and therefore, there is no
diversity of citizenship and this Court lacks jurisdiction.
See 28 U.S.C. § 1332(c)(2) (“the legal
representative of the estate of a decedent shall be deemed to
be a citizen only of the same State as the
decedent…”). The Magistrate Judge entered a
Report and Recommendation recommending dismissal of this
now seeks leave to amend to clarify that, while he is the
Personal Representative of the Lockett Estate, he does not
represent the Estate in this action, but rather sues in his
individual capacity to recover assets that belong to him that
were not part of the Estate. Plaintiff “seeks to
correct any notion to the contrary” (doc. 31, p. 2;
“Nowhere in the complaint does Plaintiff state ‘I
(David Leach - Pro Se) represent the Henry Lockett Estate in
this complaint'”.) In the proposed amended
complaint, Plaintiff names himself as the pro se plaintiff
and that his address is in Ohio (doc. 31-1, p. 1). He states
that “Plaintiff, David Leach - Pro Se, is not
represent(ing) the Estate, but rather representing
himself.” (Id., p. 3).
response, Defendants correctly argue that under Alabama law
only the Personal Representative of an estate has standing to
sue to recover assets of an estate, and therefore, allowing
the amendment would be futile, because the proposed amended
complaint would be subject to dismissal. Defendant Regions
Bank argues that in the proposed amended complaint, Plaintiff
alleges that the Wehlings “acted in concert, to
transfer assets outside of [Lockett's] estate” and
that “it is clear that Plaintiff is seeking to recover
assets purportedly missing from Lockett's estate.”
(doc. 33, p. 6).
parties do not dispute that the assets in the bank account
and safe deposit box at Regions Bank belonged to Lockett at
the time of his death or that Plaintiff is the Personal
Representative of Lockett's Estate, as well as a devisee
under the Will. However, under Alabama law, the Personal
Representative, not a devisee under the Will acting his
individual capacity, has the authority to take possession or
control of the decedent's property, and to
“maintain an action to recover possession of
property” of the decedent. Ala. Code. § 43-2-837
(. . . every personal representative has a right to, and
shall take possession or control of, the decedent's
property . . . The personal representative may maintain an
action to recover possession of property[.]”).
Additionally, under Alabama law, at Lockett's death, his
“personal property devolve[d] to the personal
representative to be distributed to: (1) Those persons to
whom it is devised by the testator's last will[.]”
Ala. Code § 43-2-830(b)(1). Thus, until the property is
distributed it is not the property of a devisee. Moreover,
although Plaintiff claims that the property was not part of
the Estate, the property must be declared part of the Estate
before Plaintiff has the right to have the property
distributed to him under the terms of Lockett's Will.
Otherwise Plaintiff has no known, free-standing right to the
for the reasons set forth herein and as set forth in Regions
Bank's response, the motion for leave to amend is DENIED
 Plaintiff also alleged that this Court
has federal question jurisdiction, 28 U.S.C. § 1331,
because there are “questions of federal banking
law” (doc. 1, doc. 31-1). “Whether a claim
‘arises under' federal law ‘is governed by
the “well-pleaded complaint rule, ” which
provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.'” Moni v. Volusia
Cty., Corp., 717 Fed.Appx. 976, 977 (11th Cir. 2018)
(quoting Dunlap v. G&L Holding Grp., Inc., 381
F.3d 1285, 1290 (11th Cir. 2004)). Plaintiff's conclusory
allegation is not sufficient to show that a federal question
properly plead. Instead, the ...