United States District Court, D. Nebraska
JEWISH FEDERATION OF LINCOLN, INC., a Nebraska NonProfit Corporation, Plaintiff,
KURT KNECHT AND JENNIFER ROSENBLATT, Defendants.
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant Kurt Knecht's
motion to dismiss (filing 27). That motion will be denied.
complaint must set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2). This standard does not require detailed
factual allegations, but it demands more than an unadorned
accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint need not contain detailed factual
allegations, but must provide more than labels and
conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). For the purposes of a
motion to dismiss a court must take all of the factual
allegations in the complaint as true, but is not bound to
accept as true a legal conclusion couched as a factual
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must also contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. Iqbal, 556 U.S. at 678. 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. Id. Where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but has not shown-that
the pleader is entitled to relief. Id. at 679.
whether a complaint states a plausible claim for relief will
require the reviewing court to draw on its judicial
experience and common sense. Id. The facts alleged
must raise a reasonable expectation that discovery will
reveal evidence to substantiate the necessary elements of the
plaintiff's claim. See Twombly, 550
U.S. at 545. The court must assume the truth of the
plaintiff's factual allegations, and a well-pleaded
complaint may proceed, even if it strikes a savvy judge that
actual proof of those facts is improbable, and that recovery
is very remote and unlikely. Id. at 556.
allegations of the operative complaint are fairly
straightforward. The plaintiff, the Jewish Federation of
Lincoln, engaged defendant Jennifer Rosenblatt as its
treasurer starting in 2009. Filing 23 at 1. According to the
Jewish Federation, Rosenblatt began embezzling funds starting
in 2010. Filing 23 at 1. All told, the Jewish Federation
claims that Rosenblatt took more than $100, 000 between March
2010 and October 2016. Filing 23 at 2.
is Rosenblatt's husband. Filing 23 at 1. The Jewish
Federation alleges that Knecht "was aware" of
Rosenblatt's embezzling, "or in the exercise of
reasonable care should have been aware, and benefitted from
her conduct." Filing 23 at 1. The Jewish Federation
asserts that Rosenblatt converted funds, "and both
defendants benefitted from this conversion." Filing 23
at 2. And the Jewish Federation alleges that both defendants
"conspired to and did embezzle and fraudulently convert
funds from the [Jewish Federation] to their own personal
use." Filing 23 at 2.
moves to dismiss the Jewish Federation's complaint as to
him for failure to state a claim. Specifically, he argues
that the Jewish Federation doesn't allege facts
establishing that he exercised dominion over its funds, or
any concerted action to steal from it. Seefiling 28
Court is not convinced. To begin with, there are
circumstances under which a conversion action may be
maintained against a defendant who received stolen funds.
See Bryant Heating & Air Conditioning Co. v.
U.S. Nat'l Bank, 342 N.W.2d 191, 195 (Neb. 1983);
Talich v. Marvel, 212 N.W. 540, 542 (Neb. 1927);
see also Restatement (Second) of Torts §§
223 cmt. b, 224 cmt. c, 229 cmt. e, & 224 (1965). And
second, while the Jewish Federation's civil conspiracy
allegations are threadbare, the Court will not dismiss that
claim at the pleading stage. There is enough to infer that
Knecht may have agreed with Rosenblatt to embezzle funds, or
at least aided and abetted her conduct. See Salem Grain
Co. v. Consol. Grain & Barge Co., 900 N.W.2d 909,
923-24 (Neb. 2017). Accordingly, IT IS ORDERED that
Knecht's motion to dismiss (filing 27) is denied.