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Parker v. Gelber

United States District Court, D. Oregon, Eugene Division

February 14, 2019

FLORENCE A. PARKER, Plaintiff,
v.
CHARLES GELBER, Defendant.

          OPINION AND ORDER

          Mustafa T. Kasubhai United States Magistrate Judge.

         Plaintiff 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.

         STANDARD OF REVIEW

         A 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 (2007).

         BACKGROUND

         Plaintiff 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.

         Periodic 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.

         In 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.

         Over 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.

         Six 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. Id.

         On June 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.

         DISCUSSION

         Defendant moves this Court to dismiss Plaintiffs' claims for both financial elder abuse and conversion.

         I. Plaintiff's Complaint alleges facts sufficient to maintain a ...


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