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Diamond Evans v. Diamond

United States District Court, D. Utah

May 20, 2019

HILLARY ANN DIAMOND EVANS, as Executor of the Estate of Gregory C. Diamond and Trustee of the Gregory C. Diamond Family Living Trust, THE ESTATE OF GREGORY C. DIAMOND, and THE GREGORY C. DIAMOND FAMILY LIVING TRUST, Plaintiffs,
v.
BETTY EILEEN DIAMOND, Defendant.

          MEMORANDUM DECISION & ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          CLARK WADDOUPS UNITED STATES DISTRICT COURT JUDGE

         Introduction

         Before the court is Defendant Betty Eileen Diamond's Motion to Dismiss Plaintiffs' Complaint, (ECF No. 3). As explained below, the court grants the Motion for failure to state a claim upon which relief can be granted.

         Factual History

          Gregory Diamond (Gregory) was previously married to Defendant Betty Diamond (Betty). (See 2nd Am. Compl. ¶ 8, ECF No. 3-1 at 2.) “During her marriage to Gregory, Betty was the listed beneficiary of record of Gregory's government Thrift Savings Plan (TSP) retirement account.” (2nd Am. Compl. ¶ 9, ECF No. 3-1 at 3.) Gregory and Betty divorced and a state court entered “the Divorce Decree dissolving [their] marriage . . . on November 22, 2013.” (2nd Am. Compl. ¶ 8, ECF No. 3-1 at 2.) The Divorce Decree provided, in part, that Betty “waived her interest in [Gregory's] retirement accounts. Therefore, [Gregory] is awarded any and all interest in his retirement accounts, free and clear of any claim of [Betty].” (ECF No. 3-1 at 20.)

         “Gregory passed away in August 2017.” (2nd Am. Compl. ¶ 11, ECF No. 3-1 at 3.) At the time of his death, Betty was still listed “as the beneficiary of Gregory's TSP retirement account.” (See ECF No. 8 at 4.)

         Procedural History

         On August 8, 2018, Hillary Ann Diamond Evans, Whitney Elizabeth Diamond Evans, Joel Curtis Diamond, and Lauren Arianne Diamond Shepherd filed a Complaint against Defendant Federal Retirement Thrift Investment Board and Defendant Thrift Savings Plan. (1:18-cv-98, ECF No. 2.) That case was assigned to Judge Parrish on that day. (1:18-cv-98, ECF No. 2.) On August 14, 2018, Judge Parrish recused, and the case was assigned to Judge Kimball. (1:18-cv-98, ECF No. 5.) In the Complaint filed in that case, the Plaintiffs alleged that Gregory “executed a TSP-3 change of beneficiary form identifying Plaintiffs as the new beneficiaries of his TSP retirement account.” (1:18-cv-98, Compl. ¶ 17, ECF No. 2 at 3.)

         Hillary Diamond Evans, the Estate of Gregory C. Diamond, and The Gregory C. Diamond Living Family Trust filed their Second Amended Complaint against Betty on or after August 16, 2018, in the District Court of the Third Judicial District in and for Salt Lake County, State of Utah. (ECF No. 2 at 2.) On September 13, 2018, Betty filed a Notice of Removal, removing the case that Hillary Diamond Evans and others had originally filed in state court. (ECF No. 2.) This case was given case number 2:18-cv-722 and was assigned to the undersigned on that day. (ECF No. 1.) Betty filed a Motion to Dismiss on that day as well. (ECF No. 3.) On October 9, 2018, Plaintiffs filed their Opposition. (ECF No. 8.) In their Opposition, Plaintiffs provided that “[f]or purposes of this litigation, Plaintiffs do not dispute Betty is the beneficiary of the TSP retirement account.” (ECF No. 8 at 11.) But Plaintiffs also provided that they “believe Gregory attempted to change his beneficiary designation to his children prior to his death, and a separate suit (No. 1:18-cv-00098) is pending against the TSP with respect to that issue.” (ECF No. 8 at 11 n. 2.)

         On December 28, 2018, the parties filed a stipulated motion to consolidate No. 1:18-cv-00098 into 2:18-cv-722. (See ECF No. 14 at 1.) On January 2, 2019, the court granted the stipulated motion. (ECF No. 15.)

         Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a claim when the plaintiff fails to state a claim upon which relief can be granted. The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties may present at trial but to “assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, ...


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