United States District Court, D. Connecticut
SCOTT L. FENSTERMAKER, Plaintiff,
PNC BANK, NATIONAL ASSOCIATION, et al., Defendants.
ORDER GRANTING MOTIONS TO DISMISS AND FOR SUMMARY
Jeffrey Alker Meyer United States District Judge.
Scott Fenstermaker is a lawyer who has been embroiled in
conflict with his family for many years. His father-who is
still alive-has recently re-written his will and a living
trust to disinherit him. Plaintiff thinks he did so because
of undue influence by plaintiff's sister and
plaintiff's ex-wife. Plaintiff also thinks his father
wrote him out of his will because he did not like the fact
that plaintiff has represented Guantanamo Bay terrorist
defendants and been quoted in the newspaper saying that the
terrorist attacks of 9/11 were “deserved” and
“one of the greatest events in human history.”
has now filed this lawsuit against his father, his sister,
and a bank solely in its capacity as trustee for his
father's inter vivos trust. Defendants have
moved to dismiss and for summary judgment. Because
plaintiff's father is still living, I will grant their
motions in large part on grounds that plaintiff does not yet
have an injury-in-fact from his father's re-writing of
his will and related trust documents and that his challenge
to his father's will and trust is not yet ripe for
decision. As to plaintiff's demand that his father and
sister pay him $2 million for intentional infliction of
emotional distress, I conclude that plaintiff does not allege
plausible grounds for relief.
following facts are drawn unless otherwise noted from the
amended complaint. Doc. #70. In 2012 plaintiff was serving as
the attorney-in-fact and later as the executor of the estate
for his uncle. Id. at 8. According to plaintiff,
various family members, including his sister, defendant
Martha Czymmek, demanded that he illegally transfer money
from his uncle's estate to another relative. Id.
at 8-9. Czymmek allegedly exerted this pressure in order to
“illegally enrich herself.” Id. at 30.
These demands allegedly continued until plaintiff retained an
attorney and threatened legal action. Id. at 9.
alleges that Czymmek's anger at his refusal to transfer
the funds prompted her to begin a campaign to undermine
plaintiff's relationship with their father, defendant
Lloyd Fenstermaker, and to interfere with plaintiff's
expected inheritance from his father. Id. at 10.
Indeed, soon after the 2012 family dispute, Lloyd
Fenstermaker removed plaintiff as the executor of his estate
and replaced him with Czymmek. Id. at 13. This
decision was but the first step in Czymmek's alleged plot
to have Lloyd Fenstermaker disinherit plaintiff. Id.
at 22-23, 32.
the following several years, Lloyd Fenstermaker's health
deteriorated, and Czymmek assumed responsibility to care for
her father and manage his affairs. She obtained a general
power-of-attorney and has attended to his legal and financial
matters. Id. at 13. Her father also appointed her as
a healthcare proxy to make health care decisions for him.
Ibid. Plaintiff views Czymmek's care for her
father as seizing control and part of her “plan to
ingratiate herself” in order to exclude plaintiff from
their father's will. Id. at 31.
further faults Czymmek for the fact that he has not
communicated with Lloyd Fenstermaker since April 21, 2016,
and claims she is still holding their father
“incommunicado.” Id. at
He also alleges that his father's attorney falsely stated
that plaintiff's father did not want plaintiff to know
his address or whereabouts because plaintiff had made threats
against him. Id. at 7. Plaintiff denies that he has
made such threats and claims that Czymmek hired the attorney
to make this false claim. Ibid.
2016, Lloyd Fenstermaker executed a series of wills that
replaced his earlier estate plans. On July 19, 2016, he
executed a new will that excluded plaintiff as a beneficiary.
Doc. #58-1 at 3, 6-16. This will revoked Lloyd
Fenstermaker's earlier will, which had divided his estate
into three equal shares between his three children. Under the
terms of the new will, Lloyd Fenstermaker's estate would
be divided in three equal shares between two of his children,
Martha Czymmek and Stephen Fenstermaker, and plaintiff's
ex-wife, Linda Fenstermaker. This will was updated on October
5, 2016, to correct a misspelling of Martha Czymmek's
last name. Id. at 4, 17-27.
October of 2016, Lloyd Fenstermaker fell and fractured his
hip. Doc. #70 at 12. He was treated at a facility in Delaware
until some point in December of 2016. Ibid. During
this time, he received extensive medical treatment and
appeared to exhibit diminished cognitive capacity.
this incident, Lloyd Fenstermaker executed a third will and
revocable living (inter vivos) trust on November 23,
2016. Doc. #34 at 3. The third will and trust also excluded
plaintiff as a beneficiary. Due to a scrivener's error,
Lloyd Fenstermaker executed a corrected will and trust on
November 28, 2016. Doc. #70 at 14; Doc. #34 at 4; Doc. #36-1
at 2-4, Doc. #36-2 at 2- 21.
updated instruments are the primary subjects of this lawsuit.
Under the terms of the updated will, Lloyd Fenstermaker's
entire estate, absent personal effects, is to be distributed
into the revocable inter vivos trust with defendant
PNC Bank, National Association, acting as trustee. According
to plaintiff, his father's net worth is about $1.5
million. Doc. #70 at 33 n.12. The terms of the trust provide
that it is fully revocable by Lloyd Fenstermaker and that the
income from the trust shall be distributed to Lloyd
Fenstermaker during his lifetime and then only upon his death
shall the trust property be divided in three equal shares for
the benefit of Martha Czymmek, Stephen Fenstermaker, and
Linda Fenstermaker. Doc. #36-2 at 2, 7-8. Both the updated
will and trust explicitly exclude plaintiff as a named
beneficiary. Doc. #70 at 14. Plaintiff was provided notice
pursuant to Delaware law to bring a legal challenge to the
will and trust on January 17, 2017. Id. at 14-15.
alleges that he has represented a number of alleged terrorist
detainees at Guantanamo Bay in Cuba. Id. at 18-19.
According to plaintiff, his father disinherited him to punish
him for his choice to represent these defendants.
Id. at 19-21, 25. He claims his father also intended
to punish him for taking certain positions as part of his
legal defense of alleged terrorists and while running as a
candidate for the U.S. Congress. Id. at 21. Such
positions include plaintiff's stated view as reported in
a New York Daily News article that the 9/11 attack
on the World Trade Center was “deserved” and
“one of the greatest events in human history.”
Id. at 20. According to plaintiff, his father's
decision to disinherit him as a result of his defense of
alleged terrorists and positive view of the 9/11 attacks
amounts to a violation of plaintiff's constitutional
rights under the First and Fourteenth Amendments.
Id. at 21, 25-26, 28-29.
his allegation that the reason that his father purposefully
disinherited him was punishment for his controversial
activities and views, plaintiff also alleges that the reason
that his father disinherited him is because of the undue
influence of Czymmek. He claims that Czymmek is a registered
dietician who has been caring for their father as his health
has declined. Id. at 23. To this end, Czymmek worked
to “cajole” Lloyd Fenstermaker into granting her
“control” over his affairs so she could
“manipulate and incapacitate” him. Id.
at 23-24, 28. She allegedly did this to “punish”
plaintiff for his actions in the 2012 family dispute.
Id. at 24. Although Czymmek's allocation of her
father's estate is the same under both the old and
updated wills (a 1/3 share), plaintiff nonetheless alleges
that she acted to “alienate” him from his father
“in an effort to enrich herself” at
plaintiff's expense. Id. at 34.
further alleges that Lloyd Fenstermaker's decision to
disinherit him was improperly influenced by his ex-wife,
Linda Fenstermaker. Id. at 16. She is not a
defendant in this matter, because plaintiff states he is
already pursuing claims against her in another court for
various alleged wrongdoings, including undue influence.
Ibid. Plaintiff nonetheless accuses his ex-wife at
length of committing fraud and unduly influencing Lloyd
Fenstermaker's estate planning decisions. He essentially
alleges that she told a series of lies in order to obtain an
inheritance that plaintiff views as rightfully his.
Id. at 16-17.
December 10, 2016, Lloyd Fenstermaker moved from Delaware to
Connecticut, where Czymmek presently lives. Id. at
11. He remains in poor health, and Czymmek continues to care
for him and manage his affairs. According to plaintiff's
amended complaint, his father has suffered at least three
strokes and remains hospitalized. Id. at 29.
alleges that the activities of his father and sister have
exacerbated his own anxiety condition for which he takes
medication.Id. at 33. He alleges that as a
result of their actions, he has sought the treatment of a
psychiatrist, doubled the dosage of his medication, and been
hospitalized several times. Id. at 36-37. Plaintiff
reports that he has also been diagnosed with depression and a
mood disorder, which he attributes to the actions of his
father and sister. Id. at 37. He states in an
affidavit that he has received intermittent psychiatric
treatment on an out-patient basis since the 1980s. Doc.
#53-10 at 8. He also alleges that the actions of his father
and sister have directly caused his divorce, strained his