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Estate of Tolliver v. Regions Bank

United States District Court, N.D. Alabama, Southern Division

June 11, 2019

REGIONS BANK, et al., Defendants.



         This 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 part.

         I. Background[1]

         James 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).[2] 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).

         Sometime 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).

         Tolliver 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).

         Tolliver's estate brought this lawsuit against both Levinson and Regions Bank.[3] 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, ¶¶ 28-30).

         II. Legal Standard

         The 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. 2007).

         In 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.

         III. Analysis

         Regions' 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.

         A. Plaintiff Lacks the Capacity to Sue, But There Should Be an Opportunity to Amend the Complaint

         Regions 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).

         Regions 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.

         B. Dismissal of Plaintiff's Breach-of-Contract Claim ...

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