UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Madeleine L. DeClercq, by her 

next friend, Lorri Ann Lair, 

Plaintiff, 

v. 

JPMorgan Chase Bank, N.A.; 

American Diabetes Association, 

Defendants. 

________________________________/

Case No. 14-cv-12817 

Hon. Judith E. Levy 

Mag. Judge David R. Grand 

OPINION AND ORDER GRANTING DEFENDANTS’ 

MOTION TO DISMISS [17] 

 This is a RICO case. Pending is defendants JPMorgan Chase 

Bank, N.A. (“Chase”) and the American Diabetes Association’s (“ADA”) 

motion to dismiss. (Dkt. 17.) 

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I. Background 

Joan Bookmyer, plaintiff’s cousin, established a trust on 

September 29, 1992. Ms. Bookmyer died on June 13, 2013. She had 

one daughter, Constance Bookmyer, who died on January 4, 2012.1

The portion of the trust governing the dispensation of its assets 

states: 

10.4 Amount transferred to RESIDUARY TRUST. If 

Grantor’s daughter, CONSTANCE J. BOOKMYER, or any 

issue of Grantor shall survive the Grantor, then as soon after 

the death of the Grantor as the Trustee determines to be 

practicable, the Trustee shall allocate to the RESIDUARY 

TRUST the remaining body and corpus of the trust property 

to be held, administered and disposed of in accordance with 

the provisions of ARTICLE XI herein. 

10.5 If Grantor is not survived by her daughter, 

CONSTANCE J. BOOKMYER, or any other issue, then upon 

the death of Grantor, the remaining body and corpus of the 

trust property shall be transferred and paid over to the 

AMERICAN DIABETES ASSOCIATION-MICHIGAN 

AFFILIATE in termination of this trust. 

                                                            

1 Although plaintiff does not include a copy of the trust in her 

complaint, the Court may consider documents either referenced in the 

plaintiff's complaint or central to plaintiff's claims in a motion to 

dismiss without converting the motion into one for summary judgment. 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 

All of plaintiff’s claims are based on alleged rights deriving from the 

trust, making it undeniably central to her claims. 

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Article XI sets out the provisions relating to the Residuary Trust. 

It states: 

11.0 All property allocated to the Trustee of the 

RESIDUARY TRUST shall be held and administered as 

follows. 

11.1 Payment of income and principal to children. If 

Grantor’s daughter, CONSTANCE J. BOOKMYER, shall 

survive Grantor, the Trustee shall pay to CONSTANCE J. 

BOOKMYER the entire net income from the trust estate, in 

reasonable installments, during the continuance of the trust. 

[....] 

11.2 Termination of trust for issue. 

(a) Grantor’s daughter, CONSTANCE J. BOOKMYER, 

shall have the right to withdraw any amount or portion up to 

the entire rest, residue and remainder thereof at any time 

after Grantor’s death, free and discharged from the trusts 

hereof. [....] 

(b) If Grantor’s daughter, CONSTANCE J. 

BOOKMYER, shall die leaving issue surviving Grantor, 

then, under such circumstances, all of the rest, residue and 

remainder of the trust property and estate shall be assigned, 

transferred, conveyed, and paid over to such child’s issue by 

right of representation. 

(c) If Grantor’s daughter, CONSTANCE J. 

BOOKMYER, shall die leaving no issue surviving, then, 

under such circumstances, all of the property and estate 

embraced within the trust so held for such deceased child of 

Grantor shall be distributed and paid over to the 

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AMERICAN DIABETES ASSOCIATION-MICHIGAN 

AFFILIATE in termination of this trust. 

 After Joan Bookmyer’s death, plaintiff’s father, Donald DeClercq, 

filed a will dated January 16, 2012, purporting to revoke the trust. The 

ADA contested the purported will in Michigan probate court. The 

parties eventually settled in 2014, and the trust was not revoked. 

Instead, the trust distributed its $5 million balance to the ADA, 

through the successor trustee, Chase. 

 Plaintiff now sues, bringing eight counts against defendants. She 

alleges that defendants violated the Racketeer Influenced and Corrupt 

Organizations Act (“RICO”), 15 U.S.C. § 1962(c) & (d), claims statutory 

and common-law conversion against each defendant and breach of 

fiduciary duty against Chase, and seeks a declaratory judgment that 

would replace the word “issue” with “family” in the trust, and declare 

plaintiff the last surviving member of Joan Bookmyer’s family. 

II. Standard 

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 

the Court must “construe the complaint in the light most favorable to 

the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,

684 F.3d 605, 608 (6th Cir.2012). “To survive a motion to dismiss, a 

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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). A plausible claim need not contain “detailed 

factual allegations,” but it must contain more than “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of 

action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

III. Analysis 

The threshold issue in this case is whether plaintiff is a 

beneficiary under the language of the trust. If she is not, then she has 

no standing to bring any claim in her suit. 

Plaintiff argues that because sections 10.4 and 10.5 of the trust 

use conflicting language to refer to “issue,” the Court should determine 

that the ambiguity makes her an intended beneficiary of the trust. 

Section 10.4 states that, should Constance Bookmyer or “any issue 

of Grantor” survive Joan Bookmyer, then the Trustee will allocate to 

the Residuary Trust the body and corpus of the trust to be used by such 

issue in accordance with Article XI of the trust. Section 10.5 states that 

if neither Constance nor “any other issue” survives Joan Bookmyer, the 

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body and corpus of the trust will be transferred and paid over to the 

ADA. 

At the time Joan Bookmyer established the trust, Michigan trusts 

were governed by the Revised Probate Code (“RPC”). However, effective 

April 1, 2000, the Estates and Protected Individuals Code (“EPIC”) 

replaced the RPC. Under EPIC, “issue” is defined as “an individual’s 

descendant.” M.C.L. § 700.1105(d). “Descendant” means, in relation to 

an individual, all of his or her descendants of all generations, with the 

relationship of parent and child at each generation being determined by 

the definitions of child and parent contained in this act. M.C.L. § 

700.1104(k). 

Plaintiff argues that the phrase “issue of Grantor” refers to Joan 

Bookmyer’s lineal descendants under EPIC, but “any other issue” refers 

to some group of descendants more expansive than lineal descendants, 

which includes her as a collateral descendant. The Court is not 

persuaded by this argument. 

“The role of the . . . court is to ascertain and give effect to the 

intent of the testator as derived from the language of the [trust].” In re 

Woodworth Trust, 196 Mich. App. 326, 327 (1992) (citing In re Norwood 

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Estate, 178 Mich. App. 345, 347 (1989); In re Burruss Estate, 152 Mich. 

App. 660, 663 (1986).) “Where there is no ambiguity [in the language of 

a trust], that intention is to be gleaned from the four corners of the 

instrument.” Woodworth Trust, 196 Mich. App. at 327. 

Section 10.4 unambiguously states Joan Bookmyer’s intent for the 

assets of the trust to pass on to her daughter or Joan Bookmyer’s other 

lineal descendants, such as children or grandchildren. For plaintiff’s 

argument to have credence, the Court would have to create ambiguity 

in Section 10.4 by virtue of Section 10.5’s operation. Despite a clear 

command that the assets of the trust go only to lineal descendants if 

any exist, plaintiff would have the Court read Section 10.5 to state that 

10.4 actually meant for the assets of the trust to go to any descendant 

who survived Joan Bookmyer, even if the descendant is collateral and 

therefore “not strictly a descendant.” Black’s Law Dictionary, 9th ed. 

2009. Plaintiff’s reading of Section 10.5 would thus require the Court to 

determine that the unambiguous language of Section 10.4 meant 

something other than what it means, which the Court will not do. 

The Court’s interpretation is further bolstered by EPIC and 

Article XI. EPIC defines “descendant” as “all of [an individual’s] 

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descendants of all generations.” M.C.L. § 700.1104(k). However, the 

definition of descendant speaks expressly in terms of “the relationship 

of parent and child at each generation,” Id. (emphasis added), and 

defines both parent and child in the act to comport with the concept of 

lineal descendants. See M.C.L. § 700.1104(f) (defining “child”); M.C.L. § 

700.1106(i) (defining “parent”). 

Section 11.2(b) of the trust determines what happens if Constance 

Bookmyer died and left “issue surviving Grantor”: the trust assets are 

assigned to such issue by right of representation. The phrase “issue 

surviving Grantor” parallels “issue of Grantor,” which unambiguously 

means lineal descendants. Section 11.2(c), using the same phrasing 

determines what happens if Constance Bookmyer left “no issue 

surviving”: the trust assets are to be distributed and paid over to the 

ADA. Unlike Sections 10.4 and 10.5, there is no difference in 

phraseology giving rise to any ambiguity; Sections 11.2(b) and (c) 

together unambiguously state that should Joan Bookmyer leave no 

lineal descendants, the trust’s assets are to go to the ADA. 

Plaintiff is not a beneficiary of the trust. Accordingly, plaintiff 

cannot argue invasion of a legally protected interest, and has no 

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standing to bring any claim against defendants in relation the 

distribution of the trust assets. See Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560 (1992).2

IV. Conclusion 

For the reasons stated above, it is hereby ordered that: 

Defendants’ motion to dismiss (Dkt. 17) is GRANTED; and 

Plaintiff’s complaint is DISMISSED. 

IT IS SO ORDERED. 

Dated: October 29, 2014 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

                                                            

2 Plaintiff argues, confusingly, that the Court may not determine 

whether she has standing to pursue her claims at the motion to dismiss 

stage, because it requires determining whether she has a legally 

enforceable right under the trust. That determination, according to 

plaintiff, is a question on the merits that may only be addressed after 

discovery. The Court disagrees. All of plaintiff’s claims derive from her 

ability to assert claims as a purported beneficiary of the trust, which is 

in turn determined by the plain language of the trust unless that 

language is ambiguous. If the Court can determine at the motion to 

dismiss stage that plaintiff is not a beneficiary, it need not reach the 

merits of any claim deriving from an injury she could not have suffered. 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on October 29, 2014. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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