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McDevitt v. Wellin

United States District Court, District of South Carolina, Charleston Division

December 15, 2014

LARRY McDEVITT, as Trustee of the Wellin Family 2009 Irrevocable Trust, Plaintiff,
v.
PETER J. WELLIN, et. al., Defendants.

ORDER

DAVID C. NORTON, United States District Judge.

By this order, the court sua sponte reconsiders its April 17, 2014 order pursuant to Federal Rule of Civil Procedure 54(b). Specifically, the court reconsiders its ruling on a motion to dismiss filed by defendants Peter J. Wellin, Cynthia Wellin Plum, Marjorie Wellin King, and Friendship Management LLC (collectively, “the Wellin Defendants”).[1]Because a portion of the April 17 order was not necessary to the court’s ultimate decision that then-plaintiff Lester S. Schwartz (“Schwartz”) was not a real party in interest, the court amends that order as it relates to the motion to dismiss and replaces it with the following, which is substantially identical except for the deletion of section III.B.2 and minor revisions reflecting progress in the case since the April 17 order. This order does not disturb the court’s ultimate ruling the Schwartz is not a real party in interest and therefore is not a proper plaintiff in this case.

I. BACKGROUND

The court adopts the factual background laid out in its April 17 order.

On January 17, 2014, the Wellin Defendants filed the present motion to dismiss. Schwartz opposed that motion on February 3, 2014, the Wellin Defendants filed a reply on February 13, 2014, and the court had the benefit of the parties’ oral argument at a hearing held on February 28, 2014. On April 17, 2014, the court granted the motion. Schwartz filed a motion to amend or correct the April 17 order on May 15, 2014, which the court denied on August 14, 2014. On May 2, 2014, Larry S. McDevitt (“McDevitt”) filed a motion to be substituted as plaintiff. The court granted McDevitt’s motion on October 9, 2014.

The Wellin Defendants’ motion to dismiss has been fully briefed and is ripe for the court’s reconsideration.

II. STANDARDS

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, the court must accept the plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

On a motion to dismiss, the court’s task is limited to determining whether the complaint states a “plausible claim for relief.” Id. at 679. A complaint must contain sufficient factual allegations in addition to legal conclusions. Although Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief, ” “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

B. Reconsideration

Federal Rule of Civil Procedure 54(b) provides that any order that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

An interlocutory order can be “reviewed by the district court, on motion or sua sponte, at any time prior to the entry of a final judgment.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991). “[R]eview of an interlocutory order under Rule 54 is not subject to the restrictive standards of motions for reconsideration of final judgments under Rule 60, ” and it is “within the ...


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