IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

PAUL FLETCHER, )

)

Plaintiff, )

) Cause No. 2:14-CV-231

vs. )

)

HOEPPNER WAGNER & EVANS, )

LLP, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Defendant’s Motion to

Dismiss Counts II-IV of Plaintiff’s First Amended Complaint, filed

by Defendant, Wayne Golomb, on April 20, 2015 (DE #46). For the

reasons set forth below, the motion to dismiss (DE #46) is DENIED. 

DISCUSSION

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to

be dismissed if it fails to “state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). Allegations other than fraud

and mistake are governed by the pleading standard outlined in

Federal Rule of Civil Procedure 8(a), which requires a “short and

plain statement” that the pleader is entitled to relief. However,

fraud and constructive fraud claims are subject to the heightened

Rule 9(b) pleading standards. Cincinnati Life Ins. Co. v.
Grottenhuis, No. 2:10-cv-00205-LJM-WGH, 2011 WL 1107114, at *8

(S.D. Ind. Mar. 23, 2011) (it is “undisputed that the constructive

and actual fraud claims are subject to heightened Rule 9(b)

pleading standards.”).

In order to survive a Rule 12(b)(6) motion, the complaint

“must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face’.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must

be accepted as true, and all reasonable inferences from those facts

must be resolved in the plaintiff’s favor. Pugh v. Tribune Co.,

521 F.3d 686, 692 (7th Cir. 2008). However, plaintiffs may plead

themselves out of court if the complaint includes allegations that

show they cannot possibly be entitled to the relief sought. 

McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

Facts

Plaintiff, Paul Fletcher (“Fletcher”), and Scott Taylor

(“Taylor”) were life-long close friends, who shared a common in

interest in automobiles. (DE #38, First Am. Compl. ¶¶ 11, 13.) 

Taylor was a mechanic who had performed automobile restoration work

for Defendant, Wayne Golomb (“Golomb”). (Id. ¶ 19.) Taylor did not

marry, and had no children. (Id. ¶ 12.) In 1998, Taylor

designated Fletcher as the sole beneficiary for all of Taylor’s

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investment accounts held at Fidelity Brokerage Services (“Fidelity

Accounts”). (Id. ¶ 16.) Those accounts totaled approximately

$337,000. (Id. ¶ 34.) In addition to the Fidelity Accounts,

Fletcher has alleged that Taylor also owned other investments held

in “certificates of deposit or otherwise.” (Id. ¶¶ 15, 18.) 

In 2001, Taylor was diagnosed with cancer. (Id. ¶ 14.) In

April 2007, Taylor’s health worsened. (Id. ¶ 17.) Around that

time, Fletcher alleges Taylor told him Fletcher was the beneficiary

of his investment/retirement accounts. (Id.) Taylor did not want

the funds going to Fletcher to be a part of his probate estate

because he thought the funds would go mostly to attorneys and the

Government. (Id.) Fletcher alleges that Taylor told him and

several other friends that the total value of his investments was

just under $1,000,000, and that Fletcher was the sole beneficiary

thereto. (Id. ¶¶ 15, 18.) 

Prior to his death, Taylor entrusted Golomb, a long-term

client of Taylor and an attorney who was then retired, to manage

his financial accounts including the Fidelity accounts and other

investments which Fletcher alleges Taylor had told Fletcher he was

going to receive when Taylor died. (Id. ¶ 20.) While Fletcher

alleges upon information and belief that Golomb controlled Taylor’s

Fidelity accounts plus about $500,000 in maturing certificates of

deposit belonging to Taylor, and alleges Golomb had “full” and or

“trading authority” on the Fidelity Accounts, he also concedes he

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does not know the location of the funds or have any documentary

evidence supporting his allegation that Golomb is holding any such

funds. (Id. ¶¶ 21, 89.) 

Taylor died on September 23, 2008. (Id. ¶ 11.) After

Taylor’s death, Fidelity notified Fletcher that a change of

beneficiary had been executed on August 2, 2008, and Mark Zupan, a

childhood acquaintance, was now the beneficiary on Taylor’s

Fidelity Accounts. (Id. ¶ 33.) 

Fletcher believes that Taylor’s change of beneficiary to the

Fidelity Account was obtained under fraudulent circumstances. (Id.

¶ 35.) Plaintiff alleges Zupan had placed calls to Golomb and

Fidelity Investment around the time the beneficiary was changed. 

(Id. ¶ 29.) At first, Golomb denied any communications with Zupan,

but Fletcher later learned Golomb was not truthful with him - and

that Golomb indeed had been communicating with Zupan around the

time the beneficiary change was made. (Id. ¶ 37.) Plaintiff

believes that Zupan and Golomb somehow induced, or acted in

collaboration with, a branch of Fidelity Brokerage Services LLC to

create and/or forge the change of beneficiary form governing

Taylor’s Fidelity Accounts without Taylor’s knowledge. (Id.) 

Fletcher alleges he and his wife called Golomb, and Golomb

“affirmed to both Plaintiff and his wife that he understood

Plaintiff was to be Taylor’s beneficiary.” (Id. ¶ 36.) 

Fletcher notified Fidelity he believed the beneficiary change

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was obtained fraudulently, and Fidelity denied any fraudulent

activity. (Id. ¶¶ 35, 38.) Fletcher filed suit against Fidelity

and Zupan in state court in Crown Point, Indiana, Cause No. 45D11-

0902-PL-00024, captioned Paul Fletcher v. National Financial

Services d/b/a Fidelity Investments and Mark Zupan (hereinafter

“state court action”). (Id. ¶ 38.) Plaintiff alleges Golomb had

access to and was managing Taylor’s financial accounts, which

Plaintiff believes included the Fidelity accounts as well as the

$500,000 in maturing certificates of deposits belonging to Taylor. 

(Id. ¶¶ 21, 43.) Fletcher’s attorney in the state court action 

sent Golomb a letter inquiring about the accounts, but Fletcher

claims the letter went unanswered. (Id. ¶¶ 44, 92.) 

Fletcher alleges Golomb is withholding information about the

investment accounts. (Id. ¶ 89.) Fletcher claims Golomb has a

duty to communicate with him since the funds were entrusted to him

by Taylor, and because he was the intended beneficiary of the

funds. (Id. ¶¶ 89, 90.) Based on these allegations, Plaintiff has

asked the Court to find Golomb guilty of constructive fraud, and

subject to equitable remedies including the imposition of a

constructive trust, accounting and turnover. (Id., Counts II-IV.) 

The instant motion to dismiss seeks to dismiss Counts II-IV of the

First Amended Complaint. 

Indiana Dead Man’s Statute

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Defendant Golomb argues that the Indiana Dead Man’s Statute

bars Fletcher from using his alleged dealings/conversations with

Taylor to support the allegations contained in his first amended

complaint. 

The general purpose of the Dead Man’s Statute, Ind. Code § 34-

45-2-4, is to protect a decedent’s estate from spurious claims. 

Gabriel v. Gabriel, 947 N.E.2d 1001, 1009 (Ind. Ct. App. 2011). 

Before the statute will apply, “the party whose testimony is to be

excluded must be one ‘whose interest is adverse to the estate.’” 

Id. (quoting Ind. Code § 34-45-2-4(d)(2).) At this stage of the

proceedings, on a motion to dismiss, the Court cannot definitively

say that Fletcher has an interest “adverse to the estate.” Indeed,

Fletcher claims in his complaint that Taylor did not want the funds

he was leaving Fletcher to go through a probate estate, and that

the funds were intended to pass to Fletcher outside of probate. 

(DE #38 ¶ 17). Because at this stage it is unclear who is the

“estate,” and who might have an adverse interest to the estate, at

this point in the litigation, the Court will not bar allegations in

the complaint based on the Dead Man’s Statute. 

Constructive Fraud

For constructive fraud, Plaintiff must plead: (1) a duty owing

by the party to be charged to the complaining party due to their

relationship; (2) violation of that duty by the making of deceptive

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material misrepresentations of past or existing facts or remaining

silent when a duty to speak exists; (3) reliance thereon by the

complaining party; (4) injury to the complaining party as a

proximate result thereof; and (5) the gaining of an advantage by

the party to be charged at the expense of the complaining party. 

Demming v. Underwood, 943 N.E.2d 878, 892 (Ind. Ct. App. 2011)

(citing Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996)). The

plaintiff has the burden of proving the first and last of these

elements. Demming, 943 N.E.2d at 892. In other words, to prove

constructive fraud, Plaintiff must show the existence of a duty

owed by Golomb to him because of their relationship, and that

Golomb gained an advantage. See Morfin v. Estate of Martinez, 831

N.E.2d 791, 802 (Ind. Ct. App. 2005). To survive a motion to

dismiss, Plaintiffs’ complaint must include “either direct or

inferential allegations respecting all” five of the elements. See

Twombly, 550 U.S. at 562. 

First, Golomb claims that Fletcher has failed to plead

sufficient factual allegations to show he is entitled to receive

any funds upon Taylor’s death. (DE #47, pp. 10-13.) Rule 9(b)

requires that, when pleading a claim sounding in fraud, “a party

must state with particularity the circumstances constituting

fraud.” Fed. R. Civ. P. 9(b). Although “particularity” is

somewhat flexible, a plaintiff usually must identify the person who

made the misrepresentation, the time, place, and content of the

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misrepresentation, and the way in which it was communicated to the

plaintiff. Gen. Elec. Corp. v. Lease Resolution Corp., 128 F.3d

1074, 1078 (7th Cir. 1997). Fraud may be based “on information and

belief . . . so long as (1) the facts constituting the fraud are

not accessible to the plaintiff and (2) the plaintiff provides the

grounds for his suspicions.” Pirelli Armstrong Tire Corp. Retiree

Med. Benefits Trust v. Walgreen Co., No. 10-1686, 2011 WL 183163,

at *4 (7th Cir. 2011) (citing Uni *Quality, Inc. v. Infotronx,

Inc., 974 F.2d 918, 924 (7th Cir. 1992); see also Bankers Trust Co.

v. Old Republic Ins. Co., 959 F.2d 677, 684 (7th Cir. 1992)). 

Turning to the allegations in the complaint, this Court

believes the first amended complaint comports with Rule 9(b) by

putting Golomb on notice as to a specific misrepresentation or

omission. Fletcher alleges that Golomb was entrusted by Taylor to

hold and manage almost $1,000,000, and to pass the funds on to

Fletcher outside of probate after his death. (DE #38, ¶¶ 17, 20-

21.) That instead of giving the funds to Fletcher after Taylor’s

death, Golomb has retained a significant portion of the funds, has

refused to provide any information to Fletcher about the funds

(despite Fletcher’s attempts to obtain information), and “affirmed

to both Plaintiff and his wife that he understood Plaintiff was to

be Taylor’s beneficiary.” (Id. ¶¶ 36, 44, 87, 90, 96.) At this

stage of the proceedings, and because Plaintiff alleges Golomb has

refused to turn over information about the funds or communicate

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about the funds (thus additional facts are not accessible to

Plaintiff), the allegations are sufficient to survive a motion to

dismiss. See Pirelli, 2011 WL 183163, at *4.

Second, Golomb argues that Plaintiff has failed to allege the

first element, a duty owed by Golomb to Plaintiff. Such a duty

results from a “confidential or fiduciary” relationship between the

parties. McKibben v. Hughes, No. 34A02-1311-PL-988, 2014 WL

7212858, at *5 (Ind. Ct. App. Dec. 19, 2014). The relationship may

arise “by operation of law,” such as when parties share a

relationship like attorney and client, guardian and ward, or

principal and agent; or, the relationship may arise when

“confidence is reposed by one party in another with resulting

superiority and influence exercised by the other.” Id. 

In this case, construing all inferences which may be

reasonably drawn from the facts in the light most favorable to

Plaintiff, as this Court must, MDG Int’l, Inc. v. Australian Gold,

Inc., No. 1:07 CV 1096-SEB-TAB, 2008 WL 3982072, at *2 (S.D. Ind.

Aug. 22, 2008), the Court finds Fletcher has adequately pled that

Golomb owed Taylor a fiduciary duty in managing the funds at issue. 

Because Plaintiff has alleged that he was the intended third-party

beneficiary of those funds, he has pled facts establishing a cause

of action for constructive fraud. See, e.g., Flaherty & Collins,

Inc. v. BBR-Vision 1, LP, 990 N.E.2d 958, 971 (Ind. Ct. App. 2013)

(“the promisor has a legal interest in performance in favor of the

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third party and in which the performance of the terms of the

contract between two parties must necessarily result in a direct

benefit to a third party which was so intended by the parties.”). 

CONCLUSION

For the reasons set forth above, the motion to dismiss (DE

#46) is DENIED. 

DATED: July 29, 2015 /s/ RUDY LOZANO, Judge

United States District Court

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