Federal Trade Commission v. Damian Shomers, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 6, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-10158
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D. C. Docket No. 1:08-cv-22664-JEM
FEDERAL TRADE COMMISSION,
Intervenor-Appellee,
versus
DAMIAN SHOMERS, etc., et al.,
Defendant-Cross Defendant-
Cross Claimant,
MIRIAM SOFIA ANDREONI,
Defendant-Cross Defendant-
Cross Claimant-Appellant,
NADIA SMOLYANSKI,
Co-Trustee of the Anthony Andreoni Irrevocable Trust,
PETER SMOLYANSKI,
Co-Trustee of the Anthony Andreoni Irrevocable Trust,
Defendants-Cross Claimants-
Cross Defendants-Appellants.

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No. 11-10495
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D.C. Docket No. 1:08-cv-22664-JEM
FEDERAL TRADE COMMISSION,
Intervenor-Appellee,
DAMIAN SHOMERS,
a.k.a. David Shomers,
MIRIAM SOFIA ANDREONI, et al.,
Defendant-Cross Defendants-
Cross-Claimants,
BRUCE E. WARNER,
as personal representative of the
Estate of Damian Shomers,
Defendant-Cross Claimant
Cross Defendant-Appellant,
DSG HOLDING CO., INC.,
Cross Claimant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(March 6, 2012)
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Before DUBINA, Chief Judge, FAY, and KLEINFELD, Circuit Judges.*
PER CURIAM:
These cases stem from an interpleader action brought by Reassure America
Life Insurance Company (“Reassure”) to determine the proper beneficiary of a $2
million life insurance policy. The Federal Trade Commission (“FTC”) moved to
intervene in the action to protect its ability to recover on a then potential and now
final judgment against Miriam Sofia Andreoni (“Miriam”), the wife of the
deceased whose life was insured. Upon the entry of a consent decree in that
parallel litigation in which Miriam assigned the FTC her rights as beneficiary to
the policy, the FTC was substituted for Miriam as a party in the interpleader
lawsuit. The district court then granted the FTC’s motion for summary judgment ,
finding that Miriam was the true beneficiary to the life insurance policy. Miriam,
Nadia Smolyanski, Peter Smolyanski, and Bruce Warner, as executor of David
Shomers’s (“Shomers”) estate, appeal the district court’s grant of the FTC’s
motion for intervention. Miriam and the Smolyanskis appeal the district court’s
grant of the FTC’s motion for summary judgment.
Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting*
by designation.
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After reviewing the record, reading the parties’ briefs and having the benefit
of oral argument, we affirm.
First, the intervention issue is moot due to the Federal Rule of Civil
Procedure 25 (c) substitution of the FTC as a party.
Second, we conclude from the record that the district court properly granted
summary judgment.
Miriam was the last valid beneficiary under the policy. The FTC was
properly substituted in Miriam’s place to satisfy the $19 million judgment in Case
No. 11-10150. The Trust failed to produce any evidence that Shomers ever signed
the December 2007 transfer of ownership form nor that he authorized anyone to
sign it on his behalf. Without a valid transfer of ownership, the Trust had no right
to name itself as beneficiary. Accordingly, we affirm the district court’s grant of
summary judgment in favor of the FTC.
AFFIRMED.
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