Lepard v. NBD Bank

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Lepard v. NBD Bank, et al. No. 02-1887
ELECTRONIC CITATION: 2004 FED App. 0316P (6th Cir.)
File Name: 04a0316p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Jeffrey D. Meek, JEFFREY D. MEEK &
FOR THE SIXTH CIRCUIT ASSOCIATES, Livonia, Michigan, for Appellant. Thomas
_________________ G. Peck, SIMON, GALASSO & FRANTZ, Troy, Michigan,
George G. Kemsley, BODMAN, LONGLEY & DAHLING,
ROBIN LEPARD , X Detroit, Michigan, for Appellees. ON BRIEF: Jeffrey D.
Plaintiff-Appellant, - Meek, JEFFREY D. MEEK & ASSOCIATES, Livonia,
- Michigan, for Appellant. Thomas G. Peck, Thomas C.
- No. 02-1887 Wisehart, Jr., SIMON, GALASSO & FRANTZ, Troy,
v. - Michigan, George G. Kemsley, BODMAN, LONGLEY &
> DAHLING, Detroit, Michigan, for Appellees. Jeremy H.
, Lepard, Waianae, Hawaii, pro se.
NBD BANK, a Division of -
Bank One; WALTER O. KOCH ; -
_________________
JEREMY H. LEPARD ; and -
PATRICIA C. LEPARD , - OPINION
Defendants-Appellees. - _________________
-
N RONALD LEE GILMAN, Circuit Judge. Robin Lepard,
Appeal from the United States District Court proceeding pro se, brought suit against the defendants based
for the Eastern District of Michigan at Detroit. upon their alleged unlawful interference with the financial
No. 00-72296—George E. Woods, District Judge. assistance that Robin had been receiving from her mother.
The named defendants were the National Bank of Detroit, a
Argued: August 4, 2004 division of Bank One (NBD), Walter Koch, Jeremy Lepard,
and Patricia Lepard. Koch had served as the attorney for
Decided and Filed: September 16, 2004 Lepard’s parents, Cecil and Elizabeth Lepard, and was the
drafter of Dr. Cecil Lepard’s trusts. He later served as
Before: CLAY and GILMAN, Circuit Judges; MATIA, counsel for the trusts’ cotrustees, NBD and Lepard’s mother
Chief District Judge.* Elizabeth. Jeremy Lepard is Robin’s half-brother and Patricia
Lepard is Jeremy’s wife.
The district court dismissed Robin’s ten-count complaint in
its entirety. Counts one and two were dismissed with
prejudice for failure to state a claim under Michigan law,
counts three through seven were dismissed with prejudice as
*
The Honorable Paul R. Matia, Chief United States District Judge for barred by the applicable statute of limitations, and counts
the Northern District of Ohio, sitting by designation.

1
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eight through ten were dismissed without prejudice for lack referred to a magistrate judge for a Report and
of subject matter jurisdiction. Recommendation (R & R). In the R & R, the magistrate
judge noted that “[a]ll of the documents filed by [Robin were]
Robin, now represented by counsel, argues on appeal that handwritten, lengthy, composed in a narrative form, and
the district court committed reversible error with respect to contain[ed] numerous conclusory assertions.” Rule 8(a) of
six of the ten counts in her complaint: count two (alienation the Federal Rules of Civil Procedure specifies that “[a]
of affections), count three (intentional infliction of emotional pleading which sets forth a claim for relief . . . shall contain
distress), count six (theft and extortion), count eight (breach . . . a short and plain statement of the claim showing that the
of fiduciary duty), count nine (theft and undue influence pleader is entitled to relief . . . .” Although “[n]o technical
resulting in theft), and count ten (breach of fiduciary duty and forms of pleading or motions are required[,]” Rule 8(e)
abuse of power). Counts two and three seek relief against all specifies that “[e]ach averment of a pleading shall be simple,
of the named defendants, counts six and eight seek relief concise, and direct.” The magistrate judge concluded that
against NBD only, and counts nine and ten seek relief against Robin’s complaint “fail[ed] to comply with these directives.”
Jeremy and Patricia only. (Robin does not appeal the Because Robin was proceeding pro se, however, the
dismissal of count one (wastage of assets), count four (slander magistrate judge considered her allegations despite her failure
and defamation), count five (discrimination), or count seven to comply with Rule 8.
(attorney malpractice)). For the reasons set forth below, we
AFFIRM the judgment of the district court. The magistrate judge heard oral argument on the motions
in December of 2001. He issued an 18-page R & R later that
I. BACKGROUND month, concluding that all of Robin’s claims should be
dismissed. Robin objected. After review, the district court
As described by Robin in her brief, “[t]he crux of [her] adopted the R & R and dismissed Robin’s complaint. This
allegations is that trust officials from Bank One and Mr. Koch appeal followed. (The district court initially found that Robin
. . . worked with and collaborated with her half-brother, had failed to timely file her notice of appeal. In an order
Jeremy H. Lepard and his wife Patricia, to manipulate and entered on February 10, 2003, however, this court determined
control Ms. Lepard’s elderly mother, Elisabeth F. Lepard, so that Robin’s notice of appeal was in fact timely filed.)
that her mother would discontinue gifting . . . $40,000 per
annum to Robin and her three children.” II. ANALYSIS
Robin filed a 132-page handwritten complaint on May 19, A. The district court did not err in dismissing Robin’s
2000. That complaint was superseded over the following year claim for alienation of affections
by a 97-page “first amended complaint,” an 89-page “final
amended complaint version one,” and a 117-page “final Michigan does not recognize a cause of action for
amended complaint version two.” In July of 2001, Robin alienation of affections. See Mich. Comp. Laws Ann.
designated the “final amended complaint version one” as her § 600.2901 (“The following causes of action are abolished:
operative pleading. (1) alienation of the affections of any person, animal, or thing
capable of feeling affection, whatsoever[.]”). The district
Motions to dismiss were filed by all of the defendants, to court therefore dismissed Robin’s alienation-of-affections
which Robin filed a 20-page response. The matter was then cause of action for failure to state a claim upon which relief
No. 02-1887 Lepard v. NBD Bank, et al. 5 6 Lepard v. NBD Bank, et al. No. 02-1887

can be granted. See Fed. R. Civ. P. 12(b)(6). This court B. Robin’s claims for emotional distress and conversion
conducts a de novo review of complaints dismissed pursuant were time-barred
to Rule 12(b)(6). Mayer v. Mylod, 988 F.2d 635, 637 (6th
Cir. 1993). “All factual allegations are considered to be true.” Regarding Robin’s cause of action for intentional infliction
Id. at 638. “If an allegation is capable of several inferences, of emotional distress, the magistrate judge concluded as
the allegation must be construed in a light most favorable for follows:
the plaintiff.” Id.
Count three, which asserts intentional infliction of
For the first time on appeal, Robin argues that her emotional distress, is governed by a three year statute of
Michigan-law claim for alienation of affections was actually limitations. See Mich. Comp. Laws Ann. § 600.5085(9);
a New Mexico-law claim for tortious interference. As Nelson v. Ho, 564 N.W.2d 482, 484 (Mich. App. 1997).
evidence of this intention, Robin points out that she attached Plaintiff claims that defendants committed intentional
a copy of Doughty v. Morris, 871 P.2d 380 (N.M. Ct. App. infliction of emotional distress “from 1984 and . . .
1994), to her final amended complaint. Doughty is a New throughout the 1990s.” Any claim(s) for emotional
Mexico case that “extend[s] the line of New Mexico cases distress occurring prior to June 4, 1998, three years
acknowledging tortious interference causes of action to before Plaintiff filed this complaint, should be dismissed
include a cause of action against those who intentionally and with prejudice.
tortiously interfere with an expected inheritance.” Id. at 383.
In her brief, Robin argues that the district court erroneously
Robin argues in her appellate brief that the “vast majority adopted the magistrate judge’s mistaken finding that the
of the acts complained about . . . occurred after her mother complaint was filed on June 4, 2001 when, in fact, the action
was moved to New Mexico by the Defendants in late 1991.” was filed on May 19, 2000. But even if May 19, 2000 is the
In the district court, however, she alleged that “[t]he matter operative date, the three-year statute of limitations would still
giving rise to this Complaint occurred first and primarily in bar Robin’s claim. The latest conduct allegedly supporting
Wayne County, Michigan.” And her October 26, 2000 this cause of action occurred in March of 1997, when NBD
response to the defendants’ motions to dismiss flatly asserted purportedly made reservations for Jeremy and Patricia to stay
that “[t]he primary matters raised in the Complaint took place at the same country club as Robin after they returned to
in Michigan and were not in the jurisdiction of the court in Michigan for the funeral of Robin’s mother.
Santa Fe, New Mexico . . . .”
Regarding Robin’s cause of action for conversion, the
This court “has repeatedly held that it will not consider magistrate judge made the following determination:
arguments raised for the first time on appeal unless our failure
to consider the issue will result in a plain miscarriage of Count six, for “extortion and theft,” could be construed
justice.” United States v. Ninety-Three (93) Firearms, 330 to assert a cause of action for conversion. (Extortion is a
F.3d 414, 424 (6th Cir. 2003) (quotation marks omitted). criminal cause of action under Michigan law. See Mich.
Based upon Lepard’s inconsistent positions on this issue, we Comp. Laws Ann. § 750.213.) The tort of conversion
do not believe that a plain miscarriage of justice would occur has a three year statute of limitations pursuant to Mich.
by affirming the district court’s dismissal of her alienation-of- Comp. Laws Ann. § 600.5805(9). See Brennan v.
affections claim. Edward D. Jones & Co., 626 N.W.2d 917, 919 (Mich.
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App. 2001). Accordingly, any claims for conversion judges by conferring exclusive jurisdiction on the probate
which Plaintiff claims to have occurred before June 4, court.” Cenker v. Cenker, 660 F. Supp. 793, 795 (E.D. Mich.
1998, should be dismissed with prejudice. 1987). “Under the so-called ‘probate exception,’ even when
the requirements of diversity jurisdiction have been met – the
The factual bases for this claim were (1) NBD’s threatened parties are diverse and the amount in controversy exceeds the
legal action if Robin did not return funds that she jurisdictional threshold, see 28 U.S.C. § 1332(a)(1) (2004) –
impermissibly withdrew from her mother’s account at the a federal court nonetheless lacks jurisdiction over cases
bank, and (2) NBD’s alerting Robin that her father’s trust involving probate matters.” Storm v. Storm, 328 F.3d 941,
might soon be liquidating one of its assets, a Washington, 943 (7th Cir. 2003); see also Markman v. Allen, 326 U.S. 490,
D.C. apartment occasionally used by one of Robin’s children. 494 (1946) (“[A] federal court has no jurisdiction to probate
Neither of these events occurred within the three-year period a will or administer an estate.”).
preceding the filing of Robin’s suit in May of 2000.
“The standard for determining whether federal jurisdiction
At the hearing before the magistrate judge, Robin claimed may be exercised is whether under state law the dispute
that she did not learn that she had any legal claims against would be cognizable only by the probate court.” McKibben v.
defendants until “recently.” The magistrate judge considered Chubb, 840 F.2d 1525, 1529 (10th Cir. 1988) (quotation
whether any equitable tolling of the applicable statutes of marks omitted). This court applied the “probate exception”
limitations was called for under Michigan law. He concluded in Bedo v. McGuire, 767 F.2d 305 (6th Cir. 1985), holding
that “[t]he record demonstrates that had she exercised that the district court lacked subject matter jurisdiction over
reasonable diligence, and assuming the facts as she presents a claim for breach of fiduciary duty brought by the
them to be true, she should have discovered that she had a beneficiaries of the estate against the executrix because, under
possible cause of action against these defendants nearer to the Ohio law, “exclusive jurisdiction of probate matters,
time when the alleged wrongs occurred.” We find no basis to including breach of fiduciary duty, is vested in the Probate
conclude that this determination by the magistrate judge was Court.” Id. at 306.
clearly erroneous.
As the magistrate judge noted, “Count eight is asserted
C. The district court lacked subject matter jurisdiction against Bank One for breach of fiduciary duty regarding Dr.
regarding Robin’s remaining claims Lepard’s [19]75 and [19]79 trusts.” Claims regarding the
administration of a trust fall squarely within the exclusive
The district court dismissed Robin’s claims in counts eight jurisdiction of the Michigan probate courts. See Mich. Comp.
through ten for lack of subject matter jurisdiction, citing the Laws Ann. § 700.1302 (“The [probate] court has exclusive
“probate exception” to diversity jurisdiction. We review de legal and equitable jurisdiction [over] . . . (b) [a] proceeding
novo a district court’s determination that it lacks subject that concerns . . . the administration . . . of a trust[.]”).
matter jurisdiction. Good v. Ohio Edison Co., 149 F.3d 413,
418 (6th Cir. 1998). Regarding counts nine and ten of the complaint, the
magistrate judge summarized Robin’s claims as follows:
“The probate exception is a practical doctrine designed to
promote legal certainty and judicial economy by providing a Counts nine and ten are asserted against Jeremy and Pat
single forum of litigation, and to tap the expertise of probate Lepard for theft and undue influence resulting in theft
No. 02-1887 Lepard v. NBD Bank, et al. 9 10 Lepard v. NBD Bank, et al. No. 02-1887

and for breach of fiduciary duties and abuses of power. III. CONCLUSION
See Compl. at 80-81. Plaintiff claims that they caused
Mrs. Lepard to give to them and their children assets that For all of the reasons set forth above, we AFFIRM the
Mrs. Lepard wanted to give to Plaintiff, and that they judgment of the district court.
breached their duties as fiduciaries for Mrs. Lepard.
The magistrate judge concluded that these counts were
“connected inextricably with the probate of the estates and
other issues ancillary to probate.” We agree. “The [probate]
exception applies both to purely probate matters, and to
matters ancillary to probate in the practical sense that
allowing it [the case] to be maintained in federal court would
impair the policies served by the probate exception to
diversity jurisdiction.” Cenker, 660 F. Supp. at 795 (quotation
marks omitted); see also Manning v. Amerman, 582 N.W.2d
539, 540 (Mich. Ct. App. 1998) (affirming the trial court’s
ruling that the trust beneficiaries’ claims for “tortious
interference with a prospective advantage/expectancy, tortious
interference with a trust/contractual relationship, intentional
and negligent infliction of emotional distress, legal
malpractice, breach of contract, and unjust enrichment” were
within the exclusive jurisdiction of the probate court).
Robin seeks to avoid the probate exception by claiming an
interest in an annuity allegedly taken out by her mother for
Robin’s benefit. This argument, however, is raised for the
first time on appeal and therefore will not be entertained
“unless our failure to consider the issue will result in a plain
miscarriage of justice.” United States v. Ninety-Three (93)
Firearms, 330 F.3d 414, 424 (6th Cir. 2003) (quotation marks
omitted). We find no miscarriage of justice under these
circumstances because, at the very least, Robin’s annuity
argument is closely related to her other probate and fiduciary
issues. See Rice v. Rice Foundation, 610 F.2d 471, 477-78
(7th Cir. 1979) (holding that abstention is appropriate in cases
on the periphery of the probate exception).