United States District Court, D. Oregon, Eugene Division
FLORENCE A. PARKER, Plaintiff,
CHARLES GELBER, Defendant.
OPINION AND ORDER
Mustafa T. Kasubhai United States Magistrate Judge.
Florence Parker, a resident of the state of Oregon, brings
this diversity action against Defendant Charles Gelber, a
resident of the state of Connecticut, alleging elder abuse
and conversion. Plaintiff's claims arise out of a
transaction involving two antique guitars. This Court has
jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).
Defendant now moves this Court to dismiss Plaintiff's
Complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons
set forth herein, Defendant's motion is DENIED.
Defendant may move to dismiss under Fed R. Civ. P. 12(b)(6)
when the Plaintiff fails to state a claim upon which relief
can be granted. When reviewing such a motion, the Complaint
is construed in favor of the Plaintiff, and the
Complaint's factual allegations are taken as true.
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010). However, this Court need not accept
as true “conclusory” allegations or unreasonable
inferences. Id. Thus, “for a complaint to
survive a motion to dismiss, the nonconclusory factual
content, and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to
relief.” Moss v. U.S. Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009) (internal quotation marks omitted).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563
formerly owned a 1959 or 1960 Gibson ES-335T guitar and
Fender Stratocaster guitar. Complaint at ¶ 3. Plaintiff
employed Brian Lambertson who maintained plaintiff's real
property as well as assisted with plaintiff's personal
matters. Id. at ¶ 4. Lambertson assisted
Plaintiff by finding buyers for certain personal effects, and
then Plaintiff would handle the sale transaction.
Id. In March 2015, Lambertson contacted Defendant to
inform him that Plaintiff intended to sell the aforementioned
guitars. Id. at ¶ 5. On or around March 18,
2015, Defendant made an offer of $17, 000 for the Gibson
guitar. Id. Two days later, Defendant offered
Lambertson $35, 000 for both guitars. Id. at ¶
6. Defendant communicated to Lambertson that he would beat
any other offer to purchase both guitars. Id. at
¶ 7. Lambertson informed Defendant that Lambertson was
only an intermediary and that the decision to sell was
ultimately that of the Plaintiff. Id. Lambertson
told Defendant on different occasions that Plaintiff was
elderly, eighty-seven years old, not computer savvy, and
attached to the guitars. Id. at ¶¶ 7, 9.
In May 2015, Defendant contacted Lambertson again and offered
Lambertson a $1, 000 “finder's fee” if
Defendant was able to ultimately purchase the guitars from
Plaintiff. Id. at ¶ 10.
communications between Defendant and Lambertson over the next
year discussed Defendant's desire to purchase the guitars
and Plaintiff's unwillingness to sell. Id. at
¶¶ 11-15. In October 2016, Defendant contacted
Lambertson and raised his offer to $40, 000 for both guitars
and increased Lambertson's finder's fee to $2, 000.
Id. at ¶ 16.
January 2017, Plaintiff suffered a stroke and experienced
“difficulty with written and verbal communication,
difficulty with comprehension and memory, and loss of motor
skills, and mild dementia that impairs her judgment.”
Id. at ¶ 17. Later that same month, Defendant
offered Lambertson $42, 000 for both guitars and continued to
offer the $2, 000 finder's fee. Id. at ¶
18. Lambertson informed Defendant of Plaintiff's stroke
earlier in the month. Id. Defendant stated that he
would come to Oregon to work with Plaintiff's daughter
and pay cash for the guitars. Id.
the next month, Lambertson and Defendant communicated about
Plaintiff and about making the deal work, but, in early
March, Lambertson told Defendant that Plaintiff was going to
give the guitars to her daughter and not sell them.
Id. at ¶ 22. Defendant reiterated to Lambertson
that he was still willing to buy the guitars and would still
come to Oregon to pay cash. Id.
months later in late September, Lambertson told Defendant
that the guitars were for sale again; Lambertson told
Defendant that Plaintiff wanted $41, 000 for both guitars.
Id. at ¶ 23. Defendant accepted the offer.
Id. On October 7, 2017, Defendant flew to Oregon to
pick up the Gibson guitar, and made arrangements to ship the
other guitar back. Id. at ¶¶ 25-26.
Defendant wrote a check to Lambertson for the two guitars and
paid Lambertson the finder's fee he had promised.
Id. at ¶ 26. The following day, Plaintiff
expressed concern to Lambertson that she wanted more than
$41, 000 for the guitars. Id. at ¶ 27.
Lambertson informed Defendant of Plaintiff's wish of more
money for the guitars, but in the meantime, Defendant already
resold the Gibson ES-335T to a buyer in London, England, for
$62, 000. Id. at ¶¶ 27-28. Soon after,
Plaintiff's niece attempted to have the guitars returned
to Plaintiff. Id. at ¶ 29. Both Defendant and
Lambertson expressed frustration with the niece's
involvement; Defendant encouraged Lambertson to keep his
finders fee confidential from Plaintiff and her niece.
14, 2018, Plaintiff filed this action in Douglas County
Circuit Court seeking damages resulting from the sale of the
two guitars. Defendant removed that case to this Court
pursuant to 28 U.S.C. § 1441(a), and subsequently filed
this Motion to Dismiss under Fed R. Civ. P. 12(b)(6). Both
parties have consented to Magistrate Jurisdiction.
moves this Court to dismiss Plaintiffs' claims for both
financial elder abuse and conversion.
Plaintiff's Complaint alleges facts sufficient to
maintain a ...