Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Resolution Group v. Depew

February 9, 2009

THE RESOLUTION GROUP, AS SUCCESSOR OF INTERNATIONAL INSURANCE COMPANY, ON ITS OWN BEHALF, AND, AS SUBROGEES OF PHILLIP HAMLOW, SUCCESSOR EXECUTOR OF THE ESTATE OF BETTY HAMLOW AND BENEFICIARY OF THE ESTATE OF BETTY HAMLOW, PLAINTIFF,
v.
JAMES R. DEPEW AND DEPEW, GRIMES & DEPEW, DEFENDANTS.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Defendant Depew, Grimes, & Depew's ("DGD") Motion to Dismiss. For the reasons set forth below, the Motion [#12] is DENIED.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, as the parties are of diverse citizenship, and the matter in controversy exceeds $75,000.00.

BACKGROUND*fn1

According to the Complaint, DGD was the law firm representing Betty Hamlow (the "Decedent") prior to her death and prepared her will. On November 30, 1983, International Insurance Co. ("International") issued a surety bond (the "Bond") on behalf of Defendant James R. DePew ("DePew"), a partner in the DGD firm, in connection with the administration of the Decedent's Estate. DGD procured the Bond, which identified DGD as representing the Estate.

The Decedent's Will provided that the residuary of the Estate be deposited with The Peoples Bank of Bloomington (the "Bank") as trustee. The income of the Estate was bequeathed to Phillip Hamlow ("Hamlow") as the beneficiary, and the corpus of the Estate was left to Hamlow's children and descendants. DePew was appointed as executor of the Estate and continued to act as executor after the Bank declined to act as trustee.

The Estate was allegedly invested, and income payments were issued to Hamlow. DGD submitted periodic reports to the Probate Court regarding the alleged investment. Somehow, Hamlow gained knowledge that the residuary estate was never invested by DGD or DePew but rather had been misappropriated. As a result, Hamlow made a claim against the Bond in an unspecified amount. As a result of the claim against the Bond, International suffered losses, costs, and expenses and was assigned all of Hamlow's rights against DePew and DGD.

On September 3, 2008, Plaintiff brought this action alleging claims for common law indemnification against DePew (Count I), common law indemnification against DGD (Count II), subrogation against DePew on behalf of Hamlow (Count III), subrogation against DePew on behalf of the Estate (Count IV), subrogation against DGD on behalf of Hamlow (Count V), subrogation against DGD on behalf of the Estate (Count VI), breach of duty of performance of professional services against DePew (Count VII), and breach of duty of performance of professional services against DGD (Count VIII). Defendant DGD has now moved to dismiss the Complaint. Plaintiff has filed its response, and this Order follows.

DISCUSSION

Courts have traditionally held that a complaint should not be dismissed unless it appears from the pleadings that the plaintiff could prove no set of facts in support of her claim which would entitle her to relief. See Conley v. Gibson, 355 U.S. 41 (1957); Gould v. Artisoft, Inc., 1 F.3d 544, 548 (7th Cir. 1993). Rather, a complaint should be construed broadly and liberally in conformity with the mandate in Federal Rules of Civil Procedure 8(f). More recently, the Supreme Court has phrased this standard as requiring a showing sufficient "to raise a right to relief beyond a speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).

For purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff; its well-pleaded factual allegations are taken as true, and all reasonably-drawn inferences are drawn in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994); Hishon v. King & Spalding, 467 U.S. 69 (1984); Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997); M.C.M. Partners, Inc. V. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 969 (7th Cir. 1995); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir. 1992).

DGD moves to dismiss the Complaint for failure to state a claim upon which relief can be granted. Specifically, DGD argues that Count II alludes to a breach of contract but fails to attach any contract or plead the existence of any contract between Plaintiff and DGD.

With all due respect, DGD is demanding a level of specificity in the complaint that is not required under the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 8(a) does not require a claimant to set forth a detailed statement of the claim, but rather only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 103 (1957). A complaint need not plead legal theory, nor need it match facts to every element of a legal theory. Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998); Kyle v. Morton High School, 144 F.3d 448, 455 (7th Cir. 1988). The Seventh Circuit has emphasized the "limited analysis appropriate on a motion to dismiss under Rule 12(b)(6)." Cook v. Winfrey, 141 F.3d 322 (7th ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.