United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant Regions Bank's
motion to dismiss. (Doc. # 2). For the reasons explained
below, the motion is due to be granted in part and denied in
Henry Tolliver, Jr. had two daughters. (Doc. # 1-1 at 52). In
April 2017, Tolliver apparently executed a power of attorney
naming one of his daughters, Tangela Tolliver Levinson, as
his agent. (Doc. # 3-1 at 2-8). The power of attorney bears the
signature and seal of a notary public who certified that
Tolliver acknowledged before her that he knowingly and
voluntarily executed the power of attorney. (Id. at
6). The power of attorney was filed in the Jefferson County
Probate Court on April 24, 2017. (Id. at 2). Like
most powers of attorney, this one grants broad authority to
the agent over the principal's affairs, including
“Banks and Other Financial Institutions.”
(Id. at 3).
after the power of attorney was executed, Regions Bank added
Levinson as a co-owner on Tolliver's account. (Doc. # 1-1
at 54, ¶ 9). Regions also issued Levinson a debit card
for the account and “changed
survivorship/ownership” on the account. (Id.).
Levinson then went on quite a spending spree, withdrawing
thousands of dollars from ATMs, purchasing luxury items
everywhere from Louis Vuitton in New York to Moncler in
Beverly Hills, and writing thousands of dollars' worth of
checks from the account. (Id. at 55, ¶ 13).
During this time, Regions sent account statements only to
Levinson, not to Tolliver. (Id. at 54, ¶ 10).
later died on August 29, 2018. (Id. at 54-55, ¶
12). Tolliver's other daughter, Ashley Jackson, was
appointed as personal representative of his estate in the
Jefferson County Probate Court. (Id. at 52, ¶
1). Regions has refused to refund to the estate funds spent
from Tolliver's account by Levinson. (Id. at 54,
¶ 11). Plaintiff also alleges that Regions has refused
to provide requested documents and information to the estate
(id. at 55, ¶¶ 14-15), though Regions
maintains it has fully complied with all subpoenas it has
received and even offered to provide bank statements for
Tolliver's account, an offer it claims remains open (Doc.
# 3 at 14-15).
estate brought this lawsuit against both Levinson and Regions
Bank. As relevant to the pending motion to
dismiss, Plaintiff has asserted three claims against Regions:
(1) breach of contract, (2) a claim under the federal
Electronic Funds Transfer Act (“EFTA”), and (3) a
claim for declaratory relief. The breach-of-contract claim
asserts that, by adding Levinson to the account, Regions
breached its initial bailment agreement with Tolliver to
safeguard his assets and prevent unauthorized access to and
transactions on the account. (Doc. # 1-1 at 64-65,
¶¶ 38-39). Plaintiff claims Regions violated the
EFTA by (1) permitting unauthorized electronic fund transfers
by Levinson; (2) failing to send periodic account statements
to Tolliver from April 2017 onward; (3) failing to
investigate and respond to Plaintiff's inquiries into
potential unauthorized electronic fund transfers; and (4)
failing to refund the money spent from Tolliver's account
by Levinson. (Id. at 55, ¶ 14; 62-63, ¶
33). And finally, Plaintiff's count for declaratory
relief asserts that Regions has refused to turn over
documents relating to Tolliver's account and requests
“an accounting of said funds and a declaration of the
parties' rights.” (Id. at 61-62,
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The complaint must include enough facts
“to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Pleadings that contain nothing more than
“a formulaic recitation of the elements of a cause of
action” do not satisfy Rule 8, and neither do pleadings
that are based merely upon “labels and
conclusions” or “naked assertion[s]”
without supporting factual allegations. Id. at 555,
557. In deciding a Rule 12(b)(6) motion to dismiss, courts
view the allegations in the complaint in the light most
favorable to the nonmoving party. Watts v. Fla.
International Univ., 495 F.3d 1289, 1295 (11th Cir.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 Fed.Appx. 136, 138 (11th
Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context
specific, and to survive the motion, the allegations must
permit the court, based on its “judicial experience and
common sense . . . to infer more than the mere possibility of
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). If the court determines that well-pleaded facts,
accepted as true, do not state a claim that is plausible, the
claims must be dismissed. Twombly, 550 U.S. at 570.
motion to dismiss requires the court to decide two basic
issues. The first is whether Tolliver's estate has the
capacity to bring this lawsuit. The second is whether any of
the counts in Plaintiff's complaint state a plausible
claim for relief. The court address each issue in turn.
Plaintiff Lacks the Capacity to Sue, But There Should Be an
Opportunity to Amend the Complaint
first argues that Tolliver's estate lacks the capacity to
bring this lawsuit under Alabama law. Federal Rule of Civil
Procedure 17(b) provides that an estate's
“[c]apacity to sue or be sued is determined . . . by
the law of the state where the court is located.” Under
Alabama law, “[a]n action filed on behalf of the estate
must be brought by the executors.” Douglass v.
Jones, 628 So.2d 940, 941 (Ala. Civ. App. 1993) (citing
Stone v. Jones, 530 So.2d 232 (Ala. 1988)); see
also 34 C.J.S. Executors and Administrators § 847
(“An estate is not a person or a legal entity and
cannot sue or be sued; an estate can only act by and through
a personal representative and therefore any action must be
brought by or against the executor or representative of the
estate.”). For this reason, the complaint as currently
pleaded names the wrong party as Plaintiff. (Doc. # 1-1 at
52) (naming “the Estate of James Henry Toliver,
Jr” as plaintiff rather than Ashley Jackson, the
estate's personal representative).
argues the entire lawsuit should be dismissed on this basis,
but the proper course is to permit an amendment of the
complaint to name the correct plaintiff. See Fed. R.
Civ. P. 15(a)(2) (“The court should freely give leave
[to amend a pleading] when justice so requires.”).
Thus, the court will require counsel for plaintiff to file an
amended complaint on or before June 21, 2019, naming the
correct party (Ashley Jackson, as personal representative of
Tolliver's estate) as Plaintiff.
Dismissal of Plaintiff's Breach-of-Contract Claim ...