United States District Court, E.D. Wisconsin
ORDER GRANTING MOTION TO DISMISS DEFENDANT
PREUSSLER'S AMENDED CROSS-CLAIM (DKT. NO. 31)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
dismissing his previous cross-claim for failing to state a
claim, the court allowed defendant Robert Preussler to file
an amended cross-claim. Dkt. No. 28. He did so, dkt. no. 29,
and defendant Eileen Grenfell filed a motion to dismiss that
amended cross-claim, dkt. no. 31. The court deeply regrets
that due to its heavy calendar, it has taken an inexcusably
long time to address that motion; this order resolves it, and
hopefully will get the case back on track.
13, 2016, plaintiff Lincoln Benefit Life Company filed a
complaint for interpleader relief against Eileen Marie
Grenfell and Robert Preussler. Dkt. No. 1. Grenfell filed an
answer and cross-claim against Preussler on September 13,
2016, dkt. no. 7, and Preussler filed an answer and
cross-claim against Grenfell on October 14, 2016. Dkt. No.
10. Once both claimants had answered, the plaintiff filed a
motion for leave to deposit funds and to be dismissed. Dkt.
No. 11. On February 9, 2017 the court granted the motion and
dismissed the plaintiff. Dkt. No. 14.
March 6, 2017, Grenfell filed a motion for judgment on the
pleadings. Dkt. No. 15. After the twenty-one-day response
period had lapsed, Preussler filed a letter request for
extension of time to respond to the motion. Dkt. No. 17. He
reiterated this request in an April 20, 2017 Civil L.R. 7(h)
motion for leave to file paper and extension of time. Dkt.
court set a hearing for May 24, 2017. Before that hearing
could take place, Preussler filed another Civil L.R. 7(h)
motion, this time seeking leave to file an amended
cross-claim. Dkt. No. 23. The court addressed the pending
motions at the May 24, 2017 hearing. Dkt. No. 28. It denied
Grenfell's motion for judgment on the pleadings and
granted Preussler's motion to file an amended
cross-claim. Id. The court agreed with Grenfell that
Preussler's original cross-claim did not state a claim,
but allowed him to file an amended cross-claim by June 7,
2017. Id. On the day of the deadline, Preussler
filed an amended crossclaim and sixteen exhibits. Dkt. No.
29. Two weeks later, Grenfell filed a motion to dismiss the
amended cross-claim, asserting that Preussler did not
adequately allege forgery and undue influence. Dkt. No. 32 at
MOTION TO DISMISS AMENDED CROSS-CLAIM (Dkt. No. 31)
Allegations of Preussler's Amended Cross-Claim
amended cross-claim alleged that on March 1, 2001, Harry C.
Kaufmann (Kaufmann) applied for term life insurance coverage
on his life in the amount of $150, 000. Dkt. No. 29 at
¶6. It alleged that the plaintiff issued a policy in
that amount on April 12, 2001. Id. It asserted that
Kaufmann's March 1, 2001 application designated Eileen
Kaufmann-his wife at the time, now known as Eileen
Grenfell-as the primary beneficiary of the policy.
Id. at ¶7. Preussler asserted that on March 1,
2001, Kaufmann submitted a Change of Beneficiary (CBF) form.
Id. at ¶8. Allegedly, the CBF form listed
Robert Preussler as the primary beneficiary and named
Preussler's wife as a contingent beneficiary.
Id. at ¶8.
amended cross-claim explained that Preussler worked for
Kaufmann in the automotive business. Id. at ¶9.
It stated that prior to applying for the life insurance
policy, Kaufmann had approached Preussler about a life
insurance policy so that Preussler would have “seed
money” to go into business for himself in the event of
Kaufmann's death. Id. at ¶10. The amended
cross-claim said that proposition did not surprise Preussler
because Kaufmann already had applied for a similar life
insurance policy with a different employee as beneficiary.
Id. ¶11. Preussler alleged that he agreed to
become the beneficiary and agreed to make all premium
payments. Id. at ¶12. He asserted that he made
all the premium payments on the policy from 2001 through
Kaufmann's death. Id. at ¶13.
amended cross-claim alleged that Preussler observed
Kaufmann's memory and recall ability declining from 2014
through early 2016. Id. at ¶15. Preussler
stated that in late January 2016, Kaufmann was diagnosed with
brain cancer. Id. at ¶ 17. Preussler alleged
that in early February 2016, Kaufmann underwent exploratory
brain surgery and nearly died; afterward, “Kaufmann was
no longer expected to live very long, and was sent home on
Hospice care.” Id. at ¶¶21-22.
Preussler alleged his belief that after this surgery,
Kaufmann was no longer capable of fully understanding or
making decisions about his finances. Id. at
¶27. Preussler alleged that from the time Kaufmann was
sent home form the hospital until his death on March 27,
2016, his son-Kurt Kaufmann (Kurt)-“handled
Kaufmann's remaining business concerns and had an
opportunity to influence Kaufmann.” Id. at
amended cross-claim stated that Kaufmann and Grenfell were
divorced as of May 4, 2015, but that the divorce case
continued until at least February 1, 2016 (the date on which
Grenfell filed a motion for contempt in the divorce action).
Id. at ¶¶29-30. Preussler stated that the
divorce was contentious from the date filed through at least
February 1, 2016. Id. at ¶31. He also asserted
that he was not aware of Kurt visiting Kaufmann with
regularity; “the two seemed to be estranged since
Kaufmann's divorce.” Id. at ¶32.
Preussler alleged that during Kaufmann's life and after
his divorce from Grenfell, “Kaufmann was not
particularly close to the children he had with
Grenfell.” Id. at ¶33. He also said that
Kaufmann began living with a woman- “his
girlfriend”-after his divorce. Id. at
amended cross-claim alleged that on February 22, 2016, the
plaintiff received a Power of Attorney form (POA) from Kurt.
Id. at ¶35. The POA indicated that Kaufmann had
lost his ability to communicate as a result of a brain bleed.
Id. The amended cross-claim stated that four days
later, the plaintiff received a CBF form signed by Kurt as
power of attorney; that form designated Grenfell as the
primary beneficiary of the policy and Kurt as the contingent
beneficiary. Id. at ¶36. Preussler averred that
by February 22, 2016, Kaufmann could not communicate his
wishes with any reliability and that from the date that the
hospital sent Kaufmann home in February of 2016 until his
death on March 27, 2016, Kurt had the opportunity to
influence Kaufmann. Id. at ¶¶ 37-38.
alleged that two weeks later, the plaintiff sent letters to
Kaufmann denying acceptance of the February 22, 2016 POA form
and the February 26, 2016 CBF form. Id. at ¶40.
Preussler asserted that the plaintiff's letters asked for
the written opinion of a Wisconsin licensed attorney
attesting to the POA form. Id. at ¶41.
Preussler alleged that the plaintiff never received its
requested information and did not accept the February 2016
POA form or the February 2016 CBF form. Id. at
amended cross-claim stated that on March 11, 2016, the
plaintiff received a fully signed and witnessed POA form.
Id. at ¶46. Preussler alleged that this POA
form “was either not properly executed or was executed
after improper influence by Grenfell or Kurt.”
Id. at ¶47. Also on March 11, 2016, the amended
cross-claim asserted that the plaintiff received a CBF form
designating Grenfell as the primary beneficiary and Kurt as
the contingent beneficiary. Id. at ¶48.
Preussler alleged that the signature on the March 11, 2016
CBF form was “an unreadable signature purporting to be
that of [Harry Kaufmann], ” and that “the
signature on the Alleged CBF is not that of [Harry Kaufmann],
as he lacked the manual dexterity to sign his name in March
of 2016.” Id. at ¶¶48-49. Preussler
said that the plaintiff sent two letters to Kaufmann on March
16 and March 17, 2016; the letters accepted the POA form and
confirmed the beneficiary change. Id. at
amended cross-claim stated that Kaufmann died on March 27,
2016. Id. at ¶52. Preussler alleged that in
April 2016, he submitted a letter to the plaintiff stating
the legal basis for his claim to the $150, 000 policy.
Id. at ¶55. He alleged that Kurt also submitted
a statement which asserted that “it had been the
Decedent's intention to take care of his family and
change the beneficiary to his ex-wife on March 10,
2016.” Id. at ¶56. Preussler alleged that
on March 10, 2016, Kaufmann was not competent to make
decision to change his estate plan. Id. at ¶57.
On those facts, Preussler asked the court to declare him the
rightful and lawful beneficiary of the policy and order that
the policy's proceeds be disbursed to him. Id.
Grenfell's Motion to Dismiss (Dkt. No. 31)
now moves to dismiss the amended cross-claim under Federal
Rule of Civil Procedure 12(b)(6). Dkt. No. 32 at 2. Grenfell
notes that-without the amended cross-claims specifically
saying so-Preussler's claims sound in fraud, which means
that he must satisfy the heightened pleading requirement
under Fed.R.Civ.P. 9(b). Id. at 3 (citing Wigod
v. Wells Fargo Bank, N.A., 673 F.3d 547, 569 (7th Cir.
2012)). Grenfell argues that Preussler failed to meet that
heightened pleading standard, because he failed to identify
the “who, what, where, when, and how” of his
claims. Id. (citing Windy City Metal Fabricators
& Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536
F.3d 663, 668 (7th Cir. 2008)).
contends that as to the forgery theory stated in the amended
cross-claim, Preussler fails to allege who participated in
the forgery, and when, where or how the alleged forgery
occurred. Id. at 5. She says he needs to plead more
facts about the alleged forgery in order to state the claim.
Id. (citing Johnson v. Pushpin Holdings,
LLC, 821 F.3d 871, 875 (7th Cir. 2016)). As to the undue
influence allegation stated in the amended cross-claim,
Grenfell asserts that there “is no allegation
concerning how, when, or where the Decedent was
influenced.” Id. at 7. She argues that
Preussler has not plead facts showing undue influence under
either of Wisconsin law's two methods of showing that
claim. Id. Finally, she notes that Preussler's
claim of undue influence concerns the POA form, but not the
CBF form. Id. She argues that ...