United States District Court, S.D. Florida
OMNIBUS ORDER ON DEFENDANTS' MOTIONS TO
N. Scola, Jr. United States District Judge
matter is before the Court on Defendants Three Angels
Broadcasting Network (“3ABN), Roy Hunt, James Gilley,
and Danny Shelton's (the “3ABN Defendants”)
motion to dismiss the Plaintiff's Second Amended
Complaint. (ECF No. 135.) Also before the Court is Defendant
Benton's motion to dismiss the Second Amended Complaint.
(ECF No. 90.) Both motions are fully briefed and ripe for the
Court's review. Upon review of the record and the
relevant legal authority, the Court grants in part
and denies in part the Defendants' motion
(ECF No. 135) and grants
Defendant Benton's motion in its entirety. (ECF
case involves a dispute over a trust prepared in 2011. (ECF
No. 68 at ¶ 5.) According to the allegations in the
complaint, Plaintiff Adderley owned over 400 acres of vacant
land in The Bahamas. (Id. at ¶ 13.) As a devout
member of the Seventh Day Adventist Church, Adderley wished
to donate a small portion of his property in The Bahamas to
the Seventh Day Adventist Church to build a sanctuary and for
other religious purposes. (Id. at ¶ 14.)
Adderley is legally blind. (Id. at ¶ 3.)
worked with 3ABN, a charitable organization, to facilitate
and structure his donation. (Id. at ¶15.) 3ABN
retained Defendant Benton, a Georgia attorney, to prepare a
charitable remainder unitrust (the “Trust”) for
3ABN's benefit, rather than the intended purpose.
(Id. at ¶ 19.) On August 22, 2011, Adderley
signed the Trust. The Trust transferred Adderley's
property to the Trust and identifies 3ABN as the charity that
will receive 100% of the charitable distribution upon his
death. (Id. at ¶ 25.) The 3ABN Defendants and
Benton did not disclose to Adderley the true contents of the
Trust. According to the complaint, Adderley did not know that
he was signing an irrevocable Trust or any trust instrument.
(Id. at ¶ 23.) Based on 3ABN's
misrepresentations, Adderley also signed three indentures of
conveyance which conveyed part of his property to the Trust
in exchange for $150, 000. (Id. at ¶ 41.)
Adderley's property is valued at $22.9 million.
(Id. at ¶ 41.) Adderley never received $150,
000 for his property. (Id.)
did not discover the Defendants' fraud until 2016 when he
hired a Florida attorney to review the Trust documents
because he was interested in selling his property.
(Id. at ¶ 62.) On August 17, 2018, Adderley
filed a 20-count complaint against the Defendants for various
counts of fraud, misrepresentation, negligence, and to undo
the Trust documents. (ECF No. 1.) The Plaintiff's
28-count Second Amended Complaint is now before this Court.
(ECF No. 68.)
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all the
complaint's allegations as true, construing them in the
light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A
pleading must only contain “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss
under Rule 12(b)(6) challenges the legal sufficiency of a
complaint. See Fed. R. Civ. P. 12(b)(6). In
assessing the legal sufficiency of a complaint's
allegations, the Court is bound to apply the pleading
standard articulated in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint
“must . . . contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1289 (11th Cir. 2010) (quoting
Twombly, 550 U.S. at 570). “Dismissal is
therefore permitted when on the basis of a dispositive issue
of law, no construction of the factual allegations will
support the cause of action.” Glover v. Liggett
Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)
(internal quotations omitted) (citing Marshall Cnty. Bd.
of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171,
1174 (11th Cir. 1993). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. “The plausibility standard is not akin to
a ‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. A court must dismiss a
plaintiff's claims if he fails to nudge his “claims
across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
pleading that offers mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action” will not survive
dismissal. See Id. at 555. “Rule 8 marks a
notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing
more than conclusions.” Iqbal, 556 U.S. at
Subject Matter Jurisdiction
August 29, 2019, this Court ordered jurisdictional discovery
as to the citizenship of Defendant Gilley. “Federal
courts are courts of limited jurisdiction.” Word v.
U.S. Commodity Future Trading Comm., 924 F.3d 1363, 1366
(11th Cir. 2019). Here, this Court's subject matter
jurisdiction is premised on diversity pursuant to 28 U.S.C.
§ 1332(a). Diversity must be complete, meaning that all
plaintiffs to an action must be of different citizenship than
all defendants. See Underwriters at Lloyd's, London
v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010)
(“For federal diversity jurisdiction to attach, all
parties must be completely diverse . . . .”);
Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1557
(11th Cir. 1989) (stating same). The party commencing suit in
federal court has the burden of establishing, by a
preponderance of the evidence, facts supporting the existence
of federal jurisdiction. Underwriters, 613 F.3d at
1085; see also Banci v. Wright, 44 F.Supp.2d 1272,
1274 (S.D. Fla. 1999). “[A]nd if the diversity
jurisdiction is properly challenged, that party also bears
the burden of proof.” Mas v. Perry, 489 F.2d
1396, 1399 (5th Cir. 1974). “Diversity is determined
when the suit is instituted, not when the cause of action
arose.” Jones v. Law Firm of Hill and Ponton,
141 F.Supp.2d 1349, 1354-55 (M.D. Fla. 2001).
To be a
citizen of a state within the meaning of the diversity
provision, a natural person must be both a citizen of the
United States and a domiciliary of a state. A person is not
necessarily a citizen of, or domiciled in, the state in which
he resides at any given moment.” Id. at 1355.
Domicile is determined by two factors: (1) residence and (2)
intent to remain. Id. In determining domicile, a
court should consider both positive evidence and
presumptions. One such presumption is that the state in which
a person resides at any given time is also that person's
domicile. McDonald v. Equitable Life Ins. Co. of
Iowa, 13 F.Supp.2d 1279, 1281 (M.D. Ala. 1998).
“But because changes in residence are so common in this
country, courts also refer to another presumption: once an
individual has established a domicile, he remains a citizen
there until he satisfies the mental and physical requirements
of domicile in a new state.” Id.
individual's entire course of conduct determines domicile
for diversity jurisdiction purposes. “Facts frequently
taken into account include but are not limited to: current
residence; residence of family and dependents; place of
employment and name of business; voting registration and
voting practices; location of personal and real property;
location of brokerage and bank accounts; membership in
church, clubs, and business organizations; driver's
license and automobile registration; and payment of taxes.
No. single factor is conclusive; instead, a ‘totality
of evidence' approach is necessary.” Id.
Courts generally “give little weight” to a
party's declaration of domicile because “these
declarations are often self-serving.” Travaglio v.
Am. Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013).
on the record before jurisdictional discovery, Gilley's
citizenship was in dispute. If Gilley were found to be a
Florida citizen, he would defeat complete diversity. The
Plaintiff claims that at the time of the filing of this
lawsuit, Gilley was a citizen of California. Upon review of
the record, the parties' ...