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Fortunato v. CGA Law Firm

United States District Court, M.D. Pennsylvania

July 24, 2017

KATHRYN FORTUNATO, et al., Plaintiffs
v.
CGA LAW FIRM, and MARGARET DRISCOLL, Defendants

          MEMORANDUM

          Kane Judge.

         Before the Court is Defendants CGA Law Firm and Margaret Driscoll's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the Court will grant in part and deny in part the motion.

         I. BACKGROUND

         This case concerns the estate planning of Wallace Fremont. At the time of his death in September 2015, Wallace Fremont was survived by his daughter Kim Fortunato, his son Peter Fremont, and three grandchildren, Alexander Fortunato, Elizabeth Fortunato and Kathryn Fortunato. (Doc. No. 1 ¶¶ 7, 26.) Prior to his death, Wallace Fremont transferred his financial accounts to Saly Ann Glassman at Merrill Lynch. (Id. ¶ 8.) The Merrill Lynch accounts were previously valued at approximately $1.1 million. (Id. ¶ 16.)

         In 2014, Glassman allegedly recommended that Wallace Fremont contact the CGA Law Firm and Attorney Margaret Driscoll (“Attorney Driscoll”) to discuss estate planning. (Id. ¶¶ 4-5, 12.) During the meeting with Attorney Driscoll, Wallace Fremont reportedly informed her that he wanted his son Peter Fremont's share of the estate reduced. (Id. ¶ 17.) At that time, Wallace Fremont's will left his entire estate to his two children, Kim Fortunato and Peter Fremont. (Id. ¶ 13.) On October 17, 2014, Wallace Fremont executed a revised Last Will and Testament (the “Will”) that provided Kim Fortunato with one-hundred percent of his real property and fifty percent of the residue of the estate, Peter Fremont with twenty percent of the estate's residue, and his three grandchildren collectively with thirty percent of the estate's residue. (Id. ¶ 23.) Attorney Driscoll allegedly assured Wallace Fremont and Kim Fortunato that the Merrill Lynch accounts were included in the residue of the estate. (Id. ¶ 25.)

         However, following Wallace Fremont's death, Merrill Lynch informed Kim Fortunato that the accounts were designated as “transfer on death” accounts and that Peter Fremont and Kim Fortunato were designated beneficiaries of the Merrill Lynch accounts. (Id. ¶ 27.) As a consequence, the residue provision of the Will did not include the Merrill Lynch accounts. (Id. ¶ 28.) Rather, the Merrill Lynch accounts were designated 50% to Peter Fremont and 50% to Kim Fortunato. (Id. ¶ 27.) According to the complaint, Attorney Driscoll unsuccessfully attempted to persuade Peter Fremont to disclaim “30% of his 50% share” in the Merrill Lynch accounts to satisfy Wallace Fremont's intent to leave his three grandchildren with thirty percent of the Merrill Lynch assets. (Id. ¶ 29.)

         On February 2, 2017, the three grandchildren, Kathryn Fortunato, Elizabeth Fortunato and Alexander Fortunato (“Plaintiffs”), filed a complaint against CGA Law Firm and Margaret Driscoll (collectively, “the CGA Defendants”). (Doc. No. 1.) In their complaint, Plaintiffs assert claims of legal malpractice and breach of contract against the CGA Defendants. (Id.) On March 29, 2017, the CGA Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 7.) The motion has been fully briefed and is ripe for disposition.

         II. LEGAL STANDARD

         A. Federal Rule of Civil Procedure 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of a complaint on the grounds that a court lacks subject-matter jurisdiction over the claims. A motion to dismiss a case for lack of standing is properly brought under Rule 12(b)(1), because standing is a jurisdictional matter. Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007). When evaluating a Rule 12(b)(1) motion, a court must first determine whether the movant presents a facial or factual attack. In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.2012) (citation omitted). A facial challenge contests the sufficiency of the pleadings, meaning a court must consider the allegations of the complaint in the light most favorable to the plaintiff. Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). By contrast, when reviewing a factual attack, a court may consider evidence outside the pleadings. Id. (citation omitted).

         The Court construes the CGA Defendants' standing challenge to be a facial attack given that they provide no evidence outside the pleadings and that they maintain “Plaintiffs have failed to allege any basis whatsoever for standing.” (Doc. Nos. 8 at 7; see Doc. No. 7 ¶ 8) (emphasis added). Pursuant to Rule 12(b)(1), the Court must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the non-moving party. Ballentine, 486 F.3d at 810 (citations omitted). When evaluating whether a complaint adequately pleads the elements of standing, a court applies the same standard of review as on a Rule 12(b)(6) motion to dismiss for failure to state a claim. In re Schering Plough, 678 F.3d at 243 (citation omitted). Accordingly, a plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the rights he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

         B. Federal Rule of Civil Procedure 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Although Federal Rule of Civil Procedure 8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled to relief, ” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it “fail[s] to state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6).

         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). A court must accept as true all factual allegations in the complaint and all reasonable inferences that ...


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