United States District Court, S.D. Mississippi, Southern Division
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court for a hearing on damages to be
awarded in favor of Counter-Claimant Denise Rubino and
against Counter-Defendant Robert Wiemer. Weimer initiated the
case as a "Complaint for Permanent Restraining Order and
Other Relief' against Dr. Rubino seeking return of items
allegedly taken by Dr. Rubino when their medical practice
business relationship disintegrated. Dr. Rubino brought
multiple counterclaims. After finding that Wiemer had
willfully failed to comply with his discovery obligations,
the Court ordered default judgment in favor of Dr. Rubino in
regard to her counterclaims against Wiemer as a sanction
under Federal Rule of Civil Procedure 37(e)(2). Thereafter,
the Court conducted a hearing on damages, at which both
parties appeared and testified. After consideration of the
pleadings, arguments of counsel, testimony at the hearing,
and the relevant law, the Court assesses damages and enters a
default judgment in favor of Dr. Rubino and against Dr.
a default judgment, the plaintiffs well-pleaded factual
allegations are taken as true, except regarding damages . . .
[and] personal jurisdiction." Jackson v.
FIE Corp., 302 F.3d 515, 525 (5th Cir. 2002) (citations
omitted). A defendant "may not challenge the sufficiency
of the evidence" in the wake of a default judgment.
Wooten v. McDonald Transit Assocs., Inc., 788 F.3d
490, 496 (5th Cir. 2015). But while a default judgment
conclusively establishes a defendant's liability, such
liability exists "only so far as it is supported by
well-pleaded allegations." Leedo Cabinetry v. James
Sales & Distribution, Inc., 157 F.3d 410, 414 (5th
Cir. 1998); Wooten, 788 F.3d at 496. Therefore, the
Court must apply the Federal Rule of Civil Procedure 12(b)(6)
standard to each claim to determine if there can be liability
under that claim. Wooten, 788 F.3d at 500. Under
Rule 12(b)(6), the Court must determine whether Henry's
Complaint contains "sufficient factual matter, accepted
as true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "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.; see also In re Great Lakes Dredge & Dock
Co., 624 F.3d 201, 210 (5th Cir. 2010) ("To be
plausible, the complaint's '[f]actual allegations
must be enough to raise a right to relief above the
speculative level.'") (quoting Twombly, 550
U.S. at 555).
Court previously affirmed its subject-matter jurisdiction in
the  Memorandum Opinion and Order Denying Motion to
Remand, and Dr. Wiemer's Mississippi residence gives this
Court personal jurisdiction over him. Accordingly, the only
remaining question is the damages available for each
 First Amended Answer, Affirmative Defenses and
Counterclaim, Dr. Rubino alleges an elaborate scheme devised
by Wiemer to defraud her out of hundreds of thousands of
dollars and personal property in order to fund his own
personal and professional endeavors.
early 2000s, Dr. Wiemer and Dr. Rubino met and eventually
became romantically involved. Throughout their relationship,
Dr. Wiemer consistently told Dr. Rubino that they would be
married, and, in fact, often called Dr. Rubino his
"wife" throughout their relationship.
about November 11, 2009, Dr. Wiemer filed a voluntary
petition for Chapter 11 Bankruptcy in the United States
Bankruptcy Court for the Eastern District of California
(Petition No. 09-44733). During the time of Dr. Wiemer's
original Bankruptcy proceeding, Dr. Rubino supported Dr.
Wiemer financially in his professional and personal
activities based on his continued and consistent promise that
all investments would be shared by Dr. Wiemer and Dr. Rubino
to and during Dr. Wiemer's Bankruptcy proceeding he owned
two properties: a parcel located at 4490 North Lake Blvd.,
Carnelian Bay, CA 96140 ("Tahoe Property") and a
parcel located at 4732 Illinois Ave., Fair Oaks, California
95628 ("Fair Oaks Property"). During the time of
his Bankruptcy, Dr. Wiemer promised Dr. Rubino that he would
put her name on the title of these properties, if she would
pay the maintenance, utilities and taxes on them. She paid
expenses totaling $17, 009.96.
addition to paying the maintenance, utilities and taxes, Dr.
Rubino furnished both homes, and stored both clothes and
personal property in the Tahoe Property, the Fair Oaks
Property and in various places on the Mississippi Gulf Coast.
Dr. Wiemer has Dr. Rubino's personal property in his
possession and control. Dr. Wiemer has refused to pay for,
return, or allow Dr. Rubino to collect her personal personal
property. The total value of the personal property for which
Dr. Rubino seeks a monetary award is $214, 840.00.
about June of 2012, Dr. Rubino provided $50, 000.00 to Wiemer
on his promise that all properties obtained with said monies
would be owned equally by Dr. Rubino and Dr. Wiemer. Dr.
Wiemer used the $50, 000.00 to pay the Bankruptcy Court for
the privilege of keeping in his possession certain personal
property. Dr. Wiemer never intended that Dr. Rubino would be
an equal owner as to any personal property purchased with the
about June 2, 2011, Dr. Wiemer persuaded Dr. Rubino to become
one of two initial members of Live Oak Beauvoir, LLC. Dr.
Wiemer and Dr. Rubino were equal members, each owning fifty
percent of the LLC. Live Oak Beauvoir, LLC was created in
order to purchase several parcels of land. Those parcels
included Lots 2, 4, and 6 of Lafitte Estates, Lot 28 located
at 128 Lafitte Drive, and 305 N. Beach Blvd, Waveland, MS
(the "Waveland Properties"). The parcels were
purchased through the recently created Live Oak Beauvoir,
LLC. Dr. Wiemer informed Dr. Rubino that in order to obtain
the Waveland Properties, she would need to make an initial
payment of $152, 746.91 to the LLC. Dr. Rubino made this
payment from her own separate funds. Dr. Wiemer promised Dr.
Rubino that he would make an equal payment of $150, 000.00 in
July of 2014 in order to provide his equal share to the LLC.
order to obtain the Waveland Properties, Dr. Wiemer and Dr.
Rubino each signed a Note in favor of private lenders,
Frederick L. and Lavina A. Tomlinson (the "Tomlinson
Note"). This was done at the request of Dr. Wiemer. The
Tomlinson Note required a balloon payment of $150, 000.00 on
July 1, 2014. Dr. Wiemer promised Dr. Rubino that he would
make that payment. Dr. Wiemer did not pay the balloon payment
of $150, 000.00 on July 1, 2014 and never informed Dr. Rubino
that he failed to make the payment. Dr. Wiemer never intended
to make the balloon payment required by the Tomlinson Note
and hid the fact that he had failed to make such a payment
from Dr. Rubino.
the fact the Dr. Wiemer never informed Dr. Rubino of his
failure to make the balloon payment, Dr. Rubino continued to
pay the $8, 129.54 monthly payment. Dr. Rubino contributed a
total of $ 195, 108.98 in monthly payments. Dr. Rubino
learned that despite Dr. Wiemer's assertion that the
Waveland Properties had been appraised, no appraisal had ever
Wiemer never intended to make any payments toward the
Tomlinson Note, nor did he ever intend to maintain Live Oak
Beauvoir, LLC because Dr. Wiemer never intended to share any
portion of the business or Waveland properties with Dr.
Wiemer and Dr. Rubino formed another LLC on or about November
1, 2013 - Georgia Peach Properties, LLC - in which they were
equal partners. Dr. Wiemer asked Dr. Rubino to make the
initial investment payment to Georgia Peach Properties, LLC
in order to obtain certain properties. At this time, Dr.
Rubino declined and stated that she would only agree if Dr.
Wiemer paid an equal share of the initial investment. Dr.
Wiemer agreed to Dr. Rubino's request, but unbeknownst to
her, took funds from another jointly and equally owned
business in order to provide his portion of the payment
rather than take it from his own separate funds as Dr. Rubino
had done. Dr. Wiemer purposefully hid the source of his funds
in order to make Dr. Rubino believe he was contributing an
about November 27, 2013, Georgia Peach Properties, LLC
acquired a parcel of land located at 138 Lafitte Dr.
Waveland, MS 39576 for a total amount of $15, 552.26. On or
about February 27, 2014, Georgia Peach Properties, LLC
acquired a parcel of land located at 136 Lafitte Dr.
Waveland, MS 39576 for a total amount of $12, 545.75.
Wiemer's Bankruptcy was coming to a close, he suggested
to Dr. Rubino that they move to Mississippi or Louisiana
where they could open their own medical practice. Dr. Wiemer
promised that any medical practice would be an equal
partnership. Dr. Wiemer never intended for Dr. Rubino to be
an equal partner in a medical practice but made such promises
so that Dr. Rubino would fund the initial costs and other
certain costs of maintaining a medical practice. Dr. Wiemer
and Dr. Rubino were to be equal partners in Gulf Coast Live
Oak Functional Medicine Institute, LLC and Gulf Functional
Medicine Institute, LLC (collectively, the "Medical
Practice"). Dr. Rubino made all initial investments to
set up the medical practice, including but not limited to
attorney's fees, rental payments for leased business
space, and the purchase of furniture and medical equipment.
Dr. Wiemer over-medicated Dr. Rubino during this time in
order to diminish her capacity to question any business
Wiemer promised Dr. Rubino that he would manage the Medical
Practice and share with her the profits of such Medical
Practice as an equal partner. Dr. Wiemer never intended to
share the profits of the Medical Practice. Dr. Wiemer stole
and/or misappropriated $1, 026, 317.62 (inclusive of 8%
prejudgment interest compounded annually) from the Medical
Practice for his own personal use. Dr. Wiemer was not
entitled to this money.
March of 2015, Dr. Rubino moved back to California in order
to care for her own medical issues. Dr. Wiemer promised that
he would manage the Medical Practice in her absence and
maintain the equal partnership. Dr. Wiemer started a new
company without Dr. Rubino in order to maintain the Medical
Practice to her exclusion. Dr. Wiemer's new company has
all the same patients and employees as the previously shared
Medical Practice. Dr. Wiemer has converted all furniture,
medical equipment and office supplies previously used by the
Medical Practice for use in his new separately owned medical
practice. It was always Dr. Wiemer's intention to have
his own medical practice separate and apart from Dr. Rubino.
Dr. Wiemer knew his promises to maintain the practice as an
equal partnership and manage it accordingly were false.
2011, 2012, 2013, 2014 and some of 2015, Dr. Wiemer and Dr.
Rubino used jointly earned funds to purchase rare coins,
silver, and precious jewelry as investments to share equally.
Dr. Wiemer has hidden these items in order to convert them to
his own personal property and for his own personal use. Dr.
Rubino also purchased a Kubota Tractor and implements for
Live Oak Beauvoir, LLC, all of which has been wrongfully
retained and converted by Dr. Weimer.
ANALYSIS OF THE ALLEGATIONS
9(b) of the Federal Rules of Civil Procedure requires that,
in all averments of fraud, the circumstances constituting
fraud must be stated with particularity. "Pleading fraud
with particularity in this circuit requires time, place and
contents of the false representations, as well as the
identity of the person making the misrepresentation and what
that person obtained thereby." Williams v.
WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997)
(citations and quotation marks omitted). The Fifth Circuit
"interprets Rule 9(b) strictly, requiring the plaintiff
to specify the statements contended to be fraudulent,
identify the speaker, state when and where the statements
were made, and explain why the statements were
fraudulent." Flaherty & Crumrine Preferred
Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th
Cir. 2009) (internal quotation marks omitted).
Live Oak Beauvoir LLC
Rubino's fraud allegations in regard to the Live Oak
Beauvoir LLC are not completely clear. She seems to allege
that Dr. Wiemer promised her that after she paid $150, 000 to
the LLC in order to purchase properties, he would pay an
equal amount to the LLC in July of 2014, also to go toward
purchase of the properties. (Am. Counterclaim 21, ECF No.
49.) Meanwhile, joint funds were used to make the $8129.54
monthly payments on a Note signed by both doctors. Dr. Rubino
alleges that Dr. Wiemer failed to make his promised $150, 000
contribution in July 2014, which appears to have been
earmarked for a balloon payment due on the Note. Dr. Rubino
alleges that she discovered that Dr. Wiemer had not made his
promised $150, 000 payment only when the Note maker informed
her one year later. (Id. at 22.) Dr. Rubino alleges
that the properties purchased through the Live Oak LLC have
been foreclosed upon and Dr. Wiemer allowed the LLC to be
administratively dissolved. She seeks return of her initial
$150, 000 investment in the LLC and the value of her half of
the funds used to make the monthly payments, a total of $336,
Court finds these allegations insufficient under Fed.R.Civ.P.
9(b) to state a claim of fraud against Dr. Wiemer in regard
to the Live Oak Beauvoir LLC. Time and place allegations are
missing, as is any allegation of what Dr. Wiemer obtained by
making the alleged false representations. The properties and
the LLC have been lost to Dr. Wiemer just as they have been
to Dr. Rubino. Accordingly, this claim of fraud fails.
Georgia Peach Properties, LLC
Rubino's fraud allegations in regard to the Georgia Peach
LLC are that when the LLC was formed, Dr. Wiemer promised to
pay an equal share of the initial investment. Dr. Rubino
alleges that Dr. Wiemer did not contribute an equal share
because he used funds from a business he jointly owned with
Dr. Rubino. Dr. Rubino alleges that she therefore has a
seventy-five percent interest in the two properties purchased
by the LLC, with a monetary value of $21, 073.51. (Am.
Counterclaim 24, ECF No. 49.) Dr. Rubino further alleges that
at some point Dr. Wiemer titled the two properties in his own
name only, and allowed Georgia Peach LLC to be
administratively dissolved. Dr. Rubino seeks an award of sole
ownership of the properties. The Court finds these
allegations insufficient under Fed.R.Civ.P. 9(b) to state a
claim of fraud against Dr. Wiemer in regard to the Georgia
Peach LLC, because they fail to establish when or where Dr.
Wiemer made his alleged false promise. This fraud claim also
requires an intent to exercise dominion or control over goods
which is inconsistent with the true owner's right."
Walker v. Brown, 501 So.2d 358, 361 (Miss. 1987).
"Ownership of the property is an essential element of a
claim for conversion." Wilson v. Gen. Motors
Acceptance Corp., 883 So.2d 56, 68 (Miss. 2004).
Conversion applies only to personal property, not real
property. Hopson v. Specialized Loan Servicing, LLC,
No. 3:17cv832-DPJ-FKB, 2018 WL 2449180, *5 (S.D.Miss. May 29,
a claim of conversion cannot be brought to recover money. A
cause of action exists for conversion of money only when
money is earmarked or otherwise identifiable, such as
enclosed in a container like a bag or chest. Hensley v.
Poole, 910 So.2d 96, 101 (Ala. 2005); Blades v.
Countrywide Home Loans, Inc., No. I:06cvl000-LG-JMR,
2007 WL 2746678, at *4 (S.D.Miss. Sep. 18, 2007). Dr. Rubino
specifies physical property that she alleges she owns but
Wiemer is exerting dominion over, such as furniture,
household items, and medical practice items. She therefore
adequately alleges a conversion claim.