Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 20-1443

FÉLIX ALBERT LEBRÓN-YERO,

Plaintiff, Appellant,

v.

FILIBERTO LEBRÓN-RODRÍGUEZ; MARÍA ELENA LEBRÓN-RODRÍGUEZ; JOHN DOE; CONJUGAL PARTNERSHIP DOE-LEBRÓN; ANICRUZ LEBRÓN-RODRÍGUEZ; JOHN ROE; CONJUGAL PARTNERSHIP ROE-LEBRÓN; ANA MARÍA RODRÍGUEZ DE LEBRÓN; JOHN DOES 1, 2, AND 3; CORPORATIONS A THROUGH Z; UNKNOWN INSURANCE COMPANIES A THROUGH H,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Raúl M. Arias-Marxuach, Chief U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Barron, Circuit Judges.

David Efron, with whom Law Offices David Efron, PC was on brief, for appellant. Roberto A. Cámara-Fuertes, with whom René J. Avilés-Garcia, Suleicka Tulier-Vázquez, and Ferraiuoli, LLC were on brief, for appellees Filiberto Lebrón-Rodríguez, María Elena Lebrón- Rodríguez, and Anicruz Lebrón-Rodríguez. Gabriel R. Avilés-Aponte, with whom Avilés-Aponte, LLC was on brief, for appellee Ana María Rodríguez de Lebrón. March 2, 2022 PER CURIAM. Plaintiff-appellant Felix Alberto Lebrón-

Yero ("Lebrón-Yero") filed a four-count complaint in the U.S.

District Court for the District of Puerto Rico against his half-

siblings and stepmother, among others, alleging that they had

fraudulently appropriated assets from the estate of Lebrón-Yero's

father and thereby diminished Lebrón-Yero's inheritance of one-

sixth of his father's estate. In turn, those defendants,

appellees here, filed a motion to dismiss Lebrón-Yero's complaint.1

Applying the probate exception to diversity

jurisdiction, the district court granted the motion to dismiss

Counts I through III of the complaint for lack of subject matter

jurisdiction, pursuant to Federal Rule of Civil Procedure

12(b)(1). The district court also dismissed Count IV for failure

to state a claim upon which relief can be granted, pursuant to

Federal Rule of Civil Procedure 12(b)(6).

We review a district court's grant of a motion to dismiss

de novo. See Ali Abdisamad v. City of Lewiston,

(1st Cir. 2020). The "probate" exception is a judicially created

doctrine "stemming in large measure from misty understandings of

1 In the same action, Lebrón-Yero also sued the following defendants: (1) "John Doe," a spouse of one of his half-siblings; (2) "John Roe," the spouse of another of his half-siblings; (3) "John Does 1, 2, and 3 and Corporations A through Z," which allegedly "caused or contributed" to his damages "by their negligent acts or omissions"; and (4) "Unknown Insurance Companies A through H" which he alleged "insured the [] defendants" and were "jointly responsible . . . for the damages claimed."

- 3 - English legal history." Marshall v. Marshall,

(2006). "Under the probate exception to diversity jurisdiction,

'a federal court may not probate a will, administer an estate, or

entertain an action that would interfere with pending probate

proceedings in a state court or with a state court's control of

property in its custody.'" Mangieri v. Mangieri,

(1st Cir. 2000)(quoting Ashton v. Josephine Bay Paul & C. Michael

Paul Found., Inc.,

, 1071 (2d Cir. 1990), cert.

denied,

(2001)), abrogated on other grounds by

Marshall,

(clarifying that the prohibition against

"interfer[ing] with [] probate proceedings" is "in part

redundant," and proscribes "disturb[ing] or affect[ing] the

possession of property in the custody of a state court") (quoting

Markham v. Allen,

(1946)).

For substantially the same reasons as those set forth by

the district court, Lebrón-Yero v. Lebrón-Rodríguez, No. 18-1665

(RAM),

(D.P.R. Mar. 24, 2020), we conclude that

the court properly applied the probate exception to Count III and

also properly dismissed Count IV. We comment briefly on the

dismissals of Counts I and II, but we ultimately conclude that

Lebrón-Yero has waived any of the arguments that might have helped

him prevail on those counts.

In his briefing on Counts I and II, Lebrón-Yero almost

exclusively focuses on the fact that "there is no active probate

- 4 - estate opened," but we have explained that this fact alone does

not prevent application of the probate exception. See Mangieri,

(listing "interfere[nce] with pending probate

proceedings" as merely one category under which the probate

exception applies). Lebrón-Yero also fails to highlight the

potentially significant distinction, as we discuss below, between

assets appropriated from an estate prior to, versus subsequent to,

a decedent's passing. The only portion of his briefing in which

he addresses the probate exception in any meaningful way is with

respect to Count IV, which alleged tortious interference, fraud,

and unjust enrichment, and which the district court properly found

did not fall within the probate exception (in Lebrón-Yero's favor).

Turning to Lebrón-Yero's complaint, Count I of the

complaint requested that the district court "order Defendants to

render true and complete accounts of the operations, transactions,

income and expenses, assets and liabilities from the time they

came in possession of the assets of their father until the present

date." Finding that the probate exception applied, the district

court reasoned that "granting Plaintiff's request for a complete

accounting . . . of the [d]ecedent's property would entail

'prematurely enter[ing] into an accounting and assessment before

the local probate court has had an opportunity to rule on these

very matters.'" Lebrón-Yero,

, at *3 (quoting

Junco Mulet v. Junco De La Fuente,

(D.P.R.

- 5 - 2002)). The district court concluded that this would improperly

assume general probate jurisdiction and that such an accounting

would exclusively be a matter for the probate court having

jurisdiction over the estate. See

(citing Markham,

and quoting Ellis v. Stevens,

(D. Mass.

1941), aff'd,

(1st Cir. 1942)).

Lebrón-Yero's requested relief, however, necessarily

implicates what the defendants allegedly did with the decedent's

property prior to the decedent's passing, not just afterward. For

example, the complaint alleges that "[p]rior to the death of [the]

decedent . . . the defendant half-siblings . . . in just one of

several other suspected transactions, purportedly purchased shares

of corporations . . . from the decedent and his wife, codefendant

herein, for the amount of $53,900,000.00, which defendants never

paid to decedent nor to his estate." At least this portion of his

action, therefore, might be viewed as an equitable one in aid of

his fraud claim.

In somewhat analogous circumstances, the court in

Wisecarver v. Moore,

(6th Cir. 2007), explained

that it "would not implicate the probate exception" for a plaintiff

to "seek an accounting of assets received during the last two years

of [the decedent's] life" and that the "removal of these assets

from [the decedent's] estate during his lifetime removes them from

the limited scope of the probate exception." See also Osborn v.

- 6 - Griffin,

(6th Cir. 2017) ("The reasoning for

this rule is simple: property that a party removes from a

decedent's estate prior to his death is not part of the res that

is distributed by the probate court."). But Lebrón-Yero does not

address these cases, both of which postdate and refer to the

Supreme Court's most recent pronouncement on the probate exception

in Marshall v. Marshall,

(2006) (narrowing the probate

exception).

Count II requested that the district court "order the

restitution of all income, monies, properties and securities to

the estate of [the decedent], with interest." The district court

understood Lebrón-Yero's request that "the [d]ecedent's heirs

return property that should belong to the estate" as a "purely

probate matter that would require this Court to validate the will

as well as oversee and administer property of the estate." Lebrón-

Yero,

, at *4. The district court relied on our

court's explanation in Jiménez v. Rodríguez-Pagán that "[w]hile

divvying up an estate falls squarely within the probate exception,

merely increasing it does not."

(1st Cir. 2010)

(citing Gustafson v. zumBrunnen,

(7th Cir.

2008)).

It is not entirely clear to us that Lebrón-Yero's

requested relief involves divvying up an estate rather than merely

increasing it. At least a portion of his requested relief seeks

- 7 - to add to the estate certain assets appropriated prior to the

decedent's passing, which would be merely increasing the estate.

The Sixth Circuit addressed this scenario as well. In Osborn v.

Griffin, that court further explained that because property

removed from the decedent's estate prior to his death is not part

of the res, "ordering a defendant to disgorge the profits acquired

from such property does not require either setting aside the

decedent's will, or redistributing assets that were parceled out

by the probate court," and thus such relief fell outside the scope

of the probate exception.

. See also Capponi v.

Murphy,

(S.D.N.Y. 2009) ("Where a

plaintiff seeks to recover assets allegedly in a defendant's

possession so that they may be returned to the estate, the probate

exception does not apply." (quotation and alteration omitted)).

These out-of-circuit authorities are of course not

binding on us, and we have not yet had occasion to decide whether

seeking an accounting and restitution of assets removed from the

estate prior to a decedent's passing falls outside the probate

exception. We note, however, that a colorable argument could be

advanced in the other direction: namely, that application of the

Sixth Circuit's approach to this case might overlook the issue

that Lebrón-Yero's requested accounting and restitution would

essentially require a federal district court to determine what is

within and what is without a decedent's estate, potentially

- 8 - implicating the core functions of the probate court and assuming

general probate jurisdiction. See Markham,

.

We express no view as to the merits of these arguments

because, on appeal, Lebrón-Yero does not make an argument along

the lines of Wisecarver or Osborn, much less develop an argument

along those lines. The argument is therefore waived. See United

States v. Zannino,

(1st Cir. 1990). We were not

briefed on that specific issue, and "it is not our job to do the

parties' homework for them." United States v. Rivera-

Carrasquillo,

(1st Cir. 2019). Nor are we required

to "search[] sua sponte for issues that may be lurking in the

penumbra of the motion papers." United States v. Slade,

(1st Cir. 1992). Finding waiver here, we need not proceed

any further.2

Affirmed.

2 As a final note about Count IV, the district court found that Lebrón-Yero failed to state a claim upon which relief could be granted; we agree with the district court for largely the same reasons as it laid out. However, the district court went a step further and explained that it is well-established in Puerto Rico law that the undue enrichment doctrine is not applicable where there is a legal precept that excludes application of that doctrine without cause, pointing to decedent's will as the legal precept. Lebrón-Yero,

, at *5. We are not so certain about that additional justification, as the parties have not represented that the will purports to govern transactions occurring prior to the decedent's passing. But because that additional justification was superfluous (and because an argument addressing that justification has not been made by Lebrón-Yero and is therefore waived), we need not say more.

- 9 -