Leo Brynes Trust et al v. Brynes et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
LEO BRYNES TRUST d/b/a MANTON )
INDUSTRIES, BIG TOP FLEA 	)
MARKET, and HOWARD BRYNES, 	)
)
v. 	)
)
KEITH BRYNES, ATLANTIC 	)
ABATEMENT & CONSTRUCTION, 	) 	C.A. No. 19-509 WES
INC., and ATLANTIC ABATEMENT 	)
CORPORATION 	)
)
v. 	)
)
MARK CARLSON, AMERICAN PRIDE 	)
INSULATION CO., INC., FRANCIS )
and JOCELYNNE DUBUQUE and 	)
SANTANDER BANK, N.A. 	)
)
______________________________)
MEMORANDUM AND ORDER
On 	March 	1, 	2021, 	Magistrate 	Judge 	Lincoln 	D. 	Almond 	issued
a 	Report 	and 	Recommendation 	(“First 	R.&R.”), 	ECF 	No. 	74, 	which
recommended 	granting 	Plaintiffs’ 	Motion 	to 	Dismiss 	Count 	I 	of
Defendants’ 	First 	Amended 	Counterclaim, 	ECF 	No. 	50, 	filed 	by
Plaintiffs 	and 	Counterclaim 	Defendants 	Leo 	Brynes 	Trust 	d/b/a
Manton 	Industries, 	Big 	Top 	Flea 	Market, 	and 	Howard 	Byrnes
(“Plaintiffs and Counterclaim Defendants”). 	On May 25, 2021, Judge
Almond issued a second Report and Recommendation (“Second R.&R.”),
ECF 	No. 	84, 	recommending 	that 	Third-Party 	Defendant 	Santander
Bank, N.A.’s Motion to Dismiss, ECF No. 59, be granted, that Third-
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Party 	Defendant 	Mark 	Carlson’s 	Motion 	to 	Dismiss, 	ECF 	No. 	60, 	be
denied, and that Third-Party Defendants American Pride Insulation
Co., 	Inc. 	and 	Francis 	and 	Jocelynne 	Dubuque’s 	Motion 	to 	Dismiss,
ECF 	No. 	61, 	be 	denied. 	Counterclaim 	Plaintiffs 	Keith 	Brynes,
Atlantic Abatement and Construction, Inc., and Atlantic Abatement
Corporation 	(collectively, 	“Counterclaim 	Plaintiffs”), 	filed 	a
limited 	Objection, 	ECF 	No. 	78, 	to 	Judge 	Almond’s 	First 	R.&R. 	No
other 	objections 	were 	filed 	in 	response 	to 	either 	R.&R. 	After
reviewing 	the 	relevant 	papers, 	the 	Court 	DENIES 	the 	First 	R.&R.,
as it is rendered moot by the granting of the Motion to Amend First
Amended Counterclaim (“Motion to Amend”), ECF No. 77, as discussed
below. 	The 	Court 	ACCEPTS 	the 	Second 	R.&R. 	and 	ADOPTS 	the
recommendations and reasoning set forth therein.
This 	dispute 	centers 	around 	the 	Leo 	Brynes 	Trust, 	which 	was
formed 	in 	1965. 	First 	Am. 	Counterclaim 	2, 	ECF 	No. 	35. 	Keith
Brynes 	asserts 	that 	he 	is 	a 	beneficiary 	of 	the 	Trust 	and 	that
Howard 	Brynes, 	his 	father, 	is 	the 	Trustee. 	Id. 	at 	13-14. 	Keith
Brynes represents that he has requested and been denied access to
“Trust 	documents, 	a 	financial 	accountant 	and 	statements 	of 	the
Trust 	assets.” 	Id. 	at 	13. 	In 	the 	First 	R.&R., 	Judge 	Almond
recommended that Count I of the Counterclaim be dismissed, as the
Leo 	Brynes 	Trust 	is 	not 	subject 	to 	the 	Rhode 	Island 	Uniform
Custodial Trust Act, which was enacted decades after the creation
of 	the 	trust. 	First 	R.&R. 	5. 	The 	Counterclaim 	Plaintiffs’ 	sole
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objection to Judge Almond’s First R.&R. was to “any and all finding
that 	the 	granting 	of 	the 	Motion 	to 	Dismiss 	shall 	be 	with
prejudice.” 	Obj. 3. 	The Counterclaim Plaintiffs accordingly filed
the Motion to Amend. 	Plaintiffs and Counterclaim Defendants filed
an Objection, ECF No. 81, to the Motion to Amend. 	The Counterclaim
Plaintiffs seek to amend their complaint to include a claim under
the 	common 	law 	that 	Keith 	Brynes 	is 	entitled 	to 	accounting
information and trust documents. 	Mot. to Amend 2-3.
A motion to amend may be denied if there is “undue delay, bad
faith[,] dilatory motive . . . [or] futility of amendment.” 	Kader
v. 	Sarepta 	Therapeutics, 	Inc., 	887 	F.3d 	48, 	60 	(1st 	Cir. 	2018)
(quotations 	omitted). 	The 	amended 	complaint 	is 	futile 	if 	it
“fail[s] 	to 	state 	a 	claim 	upon 	which 	relief 	could 	be 	granted.”
Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).
Plaintiffs 	and 	Counterclaim 	Defendants 	argue 	that 	the
amendment 	would 	be 	futile, 	as 	there 	“is 	no 	requirement 	in 	Rhode
Island 	that 	trustees 	file 	an 	accounting 	in 	the 	Court 	with
jurisdiction 	over 	trusts.” 	Obj. 	to 	Mot. 	to 	Amend 	4 	(quoting
Sargent v. Sargent, No. PC08-1429, 2009 R.I. Super. LEXIS 109, at
*61-62 	(R.I. 	Super. 	Ct. 	July 	31, 	2009). 	While 	that 	may 	be 	true,
“it 	is 	well-settled 	that 	the 	trustee 	is 	under 	a 	duty 	to
beneficiaries to give, at their reasonable request, ‘complete and
accurate 	information 	as 	to 	the 	nature 	and 	amount 	of 	the 	trust
property,’ 	and 	to 	permit 	inspection 	of 	the 	subject 	matter 	of 	the
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trust, the accounts, and other related documents.” 	Sargent, 2009
R.I. 	Super. 	Lexis 	109, 	at 	*62 	(quoting 	Restatement 	(Second) 	of
Trusts 	§ 	173). 	This 	Court 	therefore 	finds 	that 	the 	amendment 	is
not futile.
Accordingly, 	Plaintiffs’ 	Motion 	to 	Dismiss 	Count 	I 	of
Defendants’ 	First 	Amended 	Counterclaim, 	ECF 	No. 	50, 	is 	DENIED 	as
moot, 	Third 	Party 	Defendant 	Santander 	Bank, 	N.A.’s 	Motion 	to
Dismiss, 	ECF 	No. 	59, 	is 	GRANTED, 	Third 	Party 	Defendant 	Mark
Carlson’s 	Motion 	to 	Dismiss, 	ECF 	No. 	60, 	is 	DENIED, 	Third-Party
Defendants 	American 	Pride 	Insulation 	Co., 	Inc. 	and 	Francis 	and
Jocelynne Dubuque’s Motion to Dismiss, ECF No. 61, is DENIED, and
Counterclaim 	Plaintiffs’ 	Motion 	to 	Amend 	First 	Amended
Counterclaim, ECF No. 77, is GRANTED.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: June 22, 2021
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