United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on United States Magistrate
Judge Carol Mirando's Report and Recommendation (Doc.
112) dated January 31, 2017. Judge Mirando recommends denying
Seminole Tribe of Florida, Inc.'s Motion to Intervene as
Defendant, Reopen Interpleader, and Set Aside Judgment (Doc.
Seminole has filed timely objections to the Report and
Recommendation. (Doc. 115). Interpleader Plaintiff Federated
Life Insurance Company and Interpleader Defendants Fifth
Third Bank and Evans Energy Partners, LLC have responded to
Seminole's objections. (Doc. 116; Doc. 117; Doc. 118).
Thus, the Report and Recommendation is ripe for review.
case started as a statutory interpleader action to resolve
potential claims to life insurance policies (hereinafter, the
“Policies”). It commenced in September 2014 and
resolved thirteen months later with Evans Energy and Fifth
Third splitting the Policies' proceeds.
played no role in the interpleader action. The reason for its
non-action is disputed. According to Seminole, it is the
victim of a conspiracy headed by certain interpleader
defendants and other participants to deprive it of the
Policies' proceeds. Seminole maintains that the
conspirators colluded to keep it in the dark about the
interpleader because they knew Seminole had the sole interest
in the Policies. The opposing view is that Seminole's
former chief financial officer, Michael Ulizio, knew of the
interpleader action during its pendency, and he elected not
to make a claim on Seminole's behalf because he
determined that it had no claim to the Policies. The plot
thickens, however, because Seminole maintains that Ulizio
participated in the conspiracy. It also points an accusatory
finger at Christopher Lombardo, Esq., who not only
represented Evans Energy in this action and other related
matters, but also Seminole in another case.
been left out of the interpleader, Seminole wants the Court
to set aside the judgment and reopen the case. Seminole
charts this course because, now that the money has been
disbursed, it wants to assert cross-claims against the named
defendants and bring a third-party complaint against
non-parties Ulizio and Kousay Askar, who controlled Evans
Energy. Seminole's proposed causes of action are
conversion, civil theft, breach of the duty of loyalty,
breach of fiduciary duty, and conspiracy. (Doc. 69-1; Doc.
115-1). Against this backdrop, the Court will outline the
facts pertinent to the issues at hand.
Life initially issued the Policies to Evans Oil Company, LLC
to insure the life of its sole owner, Randy Mural Long. Evans
Oil assigned its rights to the Policies to Fifth Third as
collateral for a loan. When Evans Oil petitioned for
bankruptcy months later, Florida Petroleum Company, LLC
purchased certain assets of Evans Oil. That tenure did not
last long, as Florida Petroleum assigned its interests in the
assets to Evans Energy, KC Transportation, LLC, E2 Real
Estate, LLC, and Evans Okeechobee, LLC. Askar controlled all
thereafter purchased assets from Evans Energy and KC
Transportation. (Doc. 69-2). At that time, Evans Energy owed
Fifth Third $5.625 million. Thus, as part of Seminole's
consideration for the assets, it gave Fifth Third a Term Note
for $5.625 million, eliminating Evans Energy's debt.
the Policies were included in the above assignments and asset
purchases was - and still is - disputed. Indeed, in the
months following Long's death, Federated Life received
inquiries regarding the Policies. Unsure of who had valid
claims to the Policies, Federated Life filed this statutory
interpleader action against Fifth Third, Florida Petroleum,
and Robert E. Tardif, as trustee for the bankruptcy estate of
Randy Mural Long. (Doc. 1). Federated Life amended its
pleading, adding Evans Energy, KC Transportation, E2 Real
Estate, and Evans Okeechobee as named defendants. (Doc. 20).
January 2015, the Court found interpleader to be appropriate.
(Doc. 35). Thus, Federated Life deposited the Policies'
proceeds into the Court's Registry,  and the
interpleader defendants made their claims. (Doc. 37; Doc.
38). Nine months later, Fifth Third, Evans Energy, KC
Transportation, E2 Real Estate, Evans Okeechobee, and Florida
Petroleum resolved their claims and agreed that Fifth Third
and Evans Energy would split the Policies' proceeds.
(Doc. 64). Consequently, the Court directed the Clerk of
Court to release the proceeds and close the
case. The Clerk entered judgment on October 22,
2015. (Doc. 68).
the above events, Ulizio served as Seminole's CFO. He
held that position from 2012 until January 29, 2016. Ulizio
worked for Seminole when it purchased Evans Energy's
assets in May 2013. (Doc. 84 at ¶ 7). At that time,
Ulizio claims that neither Seminole nor he knew that Evans
Energy had purchased the Policies. (Id. at ¶
8). According to Ulizio, Seminole did not purchase the
Policies from Evans Energy - a fact that Seminole now
disputes. (Id. at ¶ 10; Doc. 69-5 at ¶ 7).
And Ulizio alleges that he did not learn of the Policies
until after Long died. (Doc. 84 at ¶ 9).
here, Ulizio also claims that he learned of the interpleader
action in late February 2015. (Doc. 84 at ¶ 12). As CFO,
Ulizio avers that he “investigated the facts of the
interpleader action and determined that [Seminole] did not
maintain an interest in the [Policies'] proceeds.”
(Id. at ¶¶ 15, 21). Ulizio states that he
told Seminole's president and board member of the
interpleader and Seminole's non-interest in the proceeds.
(Id. at ¶¶ 16-17). Despite Seminole's
disinterest, he assisted Evans Energy and Fifth Third in
settling their claims to the Policies. (Id. at
¶ 18). Ulizio also instructed Lombardo, on behalf of
Seminole, to disburse the settlement proceeds to Evans
Energy. (Id. at ¶ 20; Doc. 69-11).
to Tena Grandit, Seminole's former financial controller
and current executive director of finance, Ulizio told her in
“mid-2015” that Long had died and “possibly
had an insurance policy on his life which might benefit
[Seminole].” (Doc. 69-9 at 9). Grandit maintains that
Ulizio told her that “he would follow up on the matter
and let [her] know if anything was discovered. Ulizio did not
discuss the matter with [her] again.” (Id. at
¶ 7). Grandit says that Ulizio never followed up with
February 11, 2016, approximately four months after judgment
had been entered, Seminole held a Board meeting in which
Long's death was mentioned. (Doc. 69-5 at ¶ 8).
Grandit advised the Board of her conversation with Ulizio.
(Doc. 69-9 at ¶ 9). Upon this information, the Board
discussed “whether any insurance existed on his life
which could inure to the benefit of [Seminole].” (Doc.
69-5 at ¶ 8). From there, the Board tasked Marc Solomon,
Seminole's general counsel, to investigate the matter.
(Id. at ¶ 10).
days after the Board meeting, Solomon emailed Lombardo
requesting all correspondence and documents relating to the
interpleader action. (Id. at ¶ 11). Lombardo
responded with copies of the wire transfer of the proceeds
and an email from Ulizio that directed him to release the
proceeds to Askar. (Id.). According to Solomon, this
was his first notice of the interpleader. (Id. at
¶ 12). On February 22, 2016, Solomon sent a demand
letter to Lombardo, ...