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Weinbach v. Starwood Hotels and Resorts Worldwide, Inc.

United States District Court, E.D. Missouri, Eastern Division

August 23, 2017

LANA WEINBACH, Plaintiff,
v.
STARWOOD HOTELS AND RESORTS WORLDWIDE, INC., Defendant.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE

         This matter is before the court pursuant to Defendant Starwood Resorts Worldwide, Inc.'s Motion for Judgment on the Pleadings as to Plaintiff's Negligence per se Claim in Plaintiff's Petition (Motion for Judgment on the Pleadings). (ECF 25). The matter is fully briefed and ready for disposition.

         BACKGROUND

         Defendant Starwood Hotels and Resorts Worldwide, Inc., (Starwood) removed this matter from the Circuit Court of the County of St. Louis, Missouri, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.

         As relevant to the pending Motion, the allegations of Plaintiff Lana Weinbach's Complaint are as follows. Plaintiff is the daughter of Ben and Sarah Weinbach. Sarah Weinbach died in 1977, and Ben Weinbach died in 2009. Plaintiff lived at 8720 West Kingsbury Avenue, St. Louis, Missouri, with both of her parents prior to their deaths, and continued to live there through the date the Complaint was filed. During their lives, Ben and Sarah Weinbach purchased shares of stock in ITT Corporation, which, after a merger, became shares of stock in Starwood (the Starwood Shares). Ben and Sarah Weinbach purchased the Starwood Shares jointly with Plaintiff. Upon her father's death, Plaintiff became the sole owner of the Starwood Shares. (ECF 1.1, ¶¶ 9-14).

         Specifically, Plaintiff alleges that, in 2003, Starwood reported the Starwood Shares as abandoned to the State Treasurer (the Treasurer), and that, prior to doing so, Starwood “unquestionably knew the whereabouts of” Plaintiff and Ben Weinbach, and failed to “send any communication of any type” to Plaintiff and Ben Weinbach regarding the Starwood Shares it deemed abandoned. Plaintiff also alleges that as a result of a 2006 transaction between Starwood and Host Hotels & Resorts, Inc., (Host), Plaintiff and Mr. Weinbach received shares in Host (the Host Shares); that, at the time the transaction between Starwood and Host took place, Plaintiff's and Mr. Weinbach's Starwood Shares were in the possession of the Treasurer; and that, therefore, the Host Shares belonging to Plaintiff and Mr. Weinbach were delivered to the Treasurer. Plaintiff also alleges that, in 2009, the Treasurer sold the Starwood Shares and the Host Shares, and that neither Starwood nor the Treasurer published or mailed to Plaintiff or Ben Weinbach notice prior to the Treasurer's doing so. (ECF 1.1, ¶¶ 15-42).

         Plaintiff alleges that Starwood's conduct did not comply with the Missouri Uniform Disposition of Unclaimed Property Act (MDUPA), Mo. Rev. Stat. §§ 447.500-447.595, because “it did not make proper efforts to locate Ben Weinbach and [Plaintiff] and did not provide them proper notice that it deemed their Starwood Shares to be abandoned and transferred to the Treasurer.” Plaintiff alleges that because Starwood did not comply with the MDUPA's notice requirements, it is not entitled to be relieved from liability under MDUPA § 447.545.1.[1] Finally, Plaintiff alleges that Starwood did not comply with the delivery requirement of MDUPA § 447.545.4, [2] and is, therefore, not entitled to be relieved of liability under that statutory provision. (ECF 1.1, ¶¶ 45-47).

         In Count I, Negligence Per Se, Plaintiff alleges that Starwood had obligations under MDUPA § 447.539.5, [3] MDUPA § 447.503(11) (“reasonable and necessary diligence” is consistent with “good business practice”; holders shall send notice regarding unclaimed property first class mail, postage prepaid, and marked “Address Correction Requested”), and the Missouri Code of State Regulations, 15 C.S.R. 50-3.070(3)(C) (requiring “[h]olders to exercise reasonable and necessary diligence as is consistent with good business practice in attempting to locate owners of abandoned property”), and that Starwood violated those obligations by “improperly presuming the Starwood Shares were abandoned, and transferring them to the Treasurer, and by its failure to communicate with Ben Weinbach and [Plaintiff] regarding the Shares and their alleged abandonment.” Plaintiff further alleges that as a result of Starwood's conduct she “would still possess [the] Starwood Shares and the Host Shares or would have been in a position to sell them at some previous time.” (ECF 1.1, ¶¶ 48-57). In Count II, Plaintiff alleges Conversion. Only Count I is the subject of Defendant's Motion for Judgment on the Pleadings.

         JUDGMENT ON THE PLEADINGS STANDARD

         The standard applicable to a motion for judgment on the pleadings is the same standard used to address a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ashley Cnty v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (citing Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990)). Rule 12(b)(6) “requires the court to ‘accept as true all factual allegations set out in the complaint' and to ‘construe the complaint in the light most favorable to the plaintiff[], drawing all inferences in [the plaintiff's] favor.'” Ashley County, 552 F.3d at 665 (quoting Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006)). “‘[W]ell-pleaded facts, not legal theories or conclusions, determine [the] adequacy of [t]he complaint.'” Clemons v. Crawford, 585 F.3d. 1119, 1124 (8th Cir. 2009) (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003) (internal citation omitted). “The facts alleged in the complaint ‘must be enough to raise a right to relief above the speculative level.'” Clemons, 585 F.3d. at 1124 (quoting Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009) (internal citation omitted).

         In a diversity case, such as the matter under consideration, a court must interpret the applicable state law “‘in determining whether the elements of the [alleged] offenses have been pled.'” Ashley County, 552 F.3d at 665 (quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1062 (8th Cir. 2005)).

         LEGAL FRAMEWORK FOR NEGLIGENCE PER SE

         While “negligence in a particular situation depends on whether or not a reasonably prudent person would have anticipated danger and provided against it, ” “[n]egligence per se arises where the legislature pronounces in a statute what the conduct of a reasonable person must be, whether or not the common law would require similar conduct.” Lowdermilk v. Vescovo Bldg. and Realty Co., Inc., 91 S.W.3d 617, 628 (Mo.Ct.App. 2002) (internal citations and quotation marks omitted). When the legislature has done so, “the court [] adopts the statutory standard of care to define the standard of conduct of the reasonable person.” Lowdermilk, 91 S.W.3d at 628 (citing Restatement Torts (Second) §§ 286, 288 (1965)). “Negligence per se ‘is a form of ordinary negligence that results from the violation of a statute.'” Lowdermilk, 91 S.W.3d at 628 (quoting 57A Am. Jur. 2d Negligence ยง 727 (1989)). Where ...


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