United States Court of Appeals For the First Circuit No. 21-1761

GEORGIA GLASSIE,

Plaintiff, Appellant,

v.

PAUL DOUCETTE; JOHN TAFT; and THOMAS GLASSIE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and Laplante,* District Judge.

Jeffrey K. Techentin, with whom Adler Pollock & Sheehan P.C. was on brief, for appellant. Christine K. Bush, with whom Gerald J. Petros, Laurel M. Gilbert, and Hinckley Allen & Snyder LLP were on brief, for appellee Doucette. Keith B. Kyle, Catherine A. Shaghalian, and Orson and Brusini Ltd. on brief for appellee Taft. Harris K. Weiner on brief for appellee Glassie.

December 5, 2022

* Of the District of New Hampshire, sitting by designation. KAYATTA, Circuit Judge. This case arises out of a

prolonged and acrimonious family dispute over the property of the

late hotelier Donelson Glassie, whose estate remains in probate in

Rhode Island eleven years after his death. The question here is

whether plaintiff has managed to drag the federal courts into the

fray. For the following reasons, we must answer "yes."

I.

A.

Donelson Glassie was a successful, twice-married

hotelier.1 His first marriage produced two children, Elizabeth

and Thomas Glassie.2 His second marriage produced three more,

including Georgia (the plaintiff in this case).3 Georgia alleges

that the children of the second marriage are looked down upon by

the children of the first marriage, and referred to derisively as

"the Jamestown clan."

Donelson executed a will in 1999, naming as executor

Elizabeth's husband, Paul Doucette. Rather than allocating equal

interests in Donelson's assets to each child, the will divvies up

certain businesses and the estate residuum among the children of

1 We draw these facts from the operative complaint and accept them as true for purposes of this appeal. 2 We follow the parties' briefs and refer to certain parties by first names to avoid confusion. We mean no disrespect. 3 Donelson later had another child who is not mentioned in the will.

- 2 - both marriages and Donelson's former business partner, John Taft,

in varying percentages. As a result, transactions that reallocate

value among the Donelson businesses and the estate residuum can

affect the relative value of the parties' bequests differently.

According to Georgia, Doucette, with the assistance of Taft and

Thomas, has exploited that reallocation potential by engaging in

transactions involving the Donelson businesses and the estate that

effectively transfer value from the interests held by Georgia and

her siblings to the benefit of the others, namely Elizabeth,

Thomas, and Taft (the so-called "favored beneficiaries").

B.

Georgia brought suit in the federal district court for

the District of Rhode Island. Her complaint advances the following

claims:

First, she alleges that Doucette, Taft, and Thomas are

liable to her under the federal Racketeer Influenced and Corrupt

Organizations ("RICO") laws,

. In support of that

claim, she alleges that those defendants formed an enterprise that

engaged in a pattern of fraudulent interstate communications in

negotiating and obtaining bank loans. As an example, she points

to a $50 million loan from M&T Bank to Mid-Manhattan Hotel

Associates LLC, an entity wholly owned by a company in which the

estate holds a 58% interest. The favored beneficiaries' interests

in Mid-Manhattan are greater than Georgia's. Georgia alleges that,

- 3 - using Doucette's power as executor, the enterprise fraudulently

took out a loan on behalf of Mid-Manhattan that was guaranteed by

the estate and which was used to collect interest payments from

the estate. Georgia alleges that these acts essentially

transferred value from the remainder of the estate -- in which

Georgia has a 10% interest -- to Mid-Manhattan and, by extension,

its parent company, in which Georgia has only a 4% interest (and

in which defendants hold larger interests). Georgia also points

to a $22 million loan from OceanFirst Bank, guaranteed by the

estate, to fund Historic Inns of New York, LLC. The estate owns

a controlling 61% interest in Historic Inns; favored beneficiaries

own a significant portion of the remaining interest, while Georgia

holds only a 2% interest. Georgia contends that to obtain both

loans, the defendants lied to Georgia and to the banks.

Second, Georgia alleges that in their capacity as

managing members of Historic Inns, all defendants breached

fiduciary duties owed to her as a minority member of the LLC by

surreptitiously entering a loan transaction that effectively

transferred value away from Georgia and to the favored

beneficiaries.

Third, Georgia alleges that Doucette (as executor)

breached fiduciary duties owed to Georgia (as a beneficiary) by

engaging in transactions designed to favor other beneficiaries to

- 4 - her detriment and by concealing and misrepresenting facts

concerning his actions as executor.

Fourth, Georgia alleges that all defendants breached the

Operating Agreement for Historic Inns by causing Historic Inns to

borrow money without following the proper procedures, and by

amending the Operating Agreement without a meeting or consent of

non-managing members.

Fifth, Georgia alleges that all defendants negligently

omitted and/or misrepresented information regarding the actions

they took in securing the Historic Inns loan and amending the

Historic Inns Operating Agreement.

Sixth, Georgia alleges that all defendants committed

fraud by failing to disclose the actions they took in securing the

Historic Inns loan and amending the Historic Inns Operating

Agreement.

Seventh, Georgia alleges that all defendants engaged in

a civil conspiracy to unlawfully benefit themselves by taking

actions that harmed Georgia's interest in the estate but increased

the value of businesses in which defendants and the favored

beneficiaries held a greater interest.

As relief, Georgia seeks monetary damages against

Doucette, Thomas, and Taft, all in their personal capacities, plus

attorneys' fees in connection with the RICO claim under

(c).

- 5 - The district court dismissed all of Georgia's claims as

barred by the probate exception to federal court jurisdiction.

The court reasoned that determining the harm Georgia suffered from

the defendants' wrongful acts would require an accounting of the

estate, and that granting her relief on some of her claims would

require replacing the executor.

II.

We first consider a question of abstention about which

the parties filed supplemental briefs at our request. Under the

doctrine established in Colorado River Water Conservation District

v. United States,

(1976), a federal court may abstain

in certain instances where there is a parallel state court

proceeding, "based on 'considerations of wise judicial

administration' that counsel against duplicative lawsuits."

Jiménez v. Rodríguez-Pagán,

(1st Cir. 2010)

(quoting Colorado River,

). As mentioned,

Donelson's estate remains in Newport probate court. According to

the parties, Georgia and her mother filed a petition with the

probate court to remove Doucette as executor based on his breach

of fiduciary duty; that petition was denied by the probate court,

and the denial was appealed to the Rhode Island Superior Court.

The probate court also denied a petition filed by Georgia and her

mother to adjudge Doucette in contempt for failing to render

inventory and account, leading to another appeal to the superior

- 6 - court. The probate court also found unripe a petition Georgia

filed to prohibit the disbursement of estate funds to pay Doucette

and the favored beneficiaries' legal fees. Thomas, a defendant in

this case, has also filed petitions in the probate court seeking

a distribution of estate assets to him.

This federal lawsuit clearly covers much ground in

common with these ongoing state court proceedings. But some

duplication alone is not enough to justify a stay of this federal

action; "[t]he crevice in federal jurisdiction that Colorado River

carved is a narrow one," and abstention must be approached with

"caution" and granted only where there is the "clearest of

justifications."

(internal quotations omitted). As a

threshold matter, a stay or dismissal of a federal lawsuit under

Colorado River "necessarily contemplates that the federal court

will have nothing further to do in resolving any substantive part

of the case." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,

(1983). For this reason, "it would be a serious

abuse of discretion to grant [a] stay or dismissal at all" "[i]f

there is any substantial doubt" "that the parallel state-court

litigation will be an adequate vehicle for the complete and prompt

resolution of the issues between the parties."

In short, to

create the possibility of abstention under Colorado River, the

federal- and state-court cases must be "sufficiently parallel,"

Villa Marina Yacht Sales, Inc. v. Hatteras Yachts,

,

- 7 - 533 (1st Cir. 1992); that is, the state action must resolve all of

the claims in the federal case.

Here, there is substantial doubt that the state-court

actions will resolve all of Georgia's federal claims. For example,

even if Georgia were to lose in state probate court on all of her

claims relating to Doucette's conduct as executor, that would not

dispose of her claim that some or all of the defendants breached

duties owed to her as managers of Historic Inns, since that

corporate governance dispute is based on her status as a member of

the LLC rather than as a beneficiary of the estate. Likewise,

even if Georgia prevails on all claims in the state courts, it is

unlikely that any state court in so ruling will have occasion to

consider whether a RICO enterprise existed, or whether the three

defendants committed bank fraud as alleged in Georgia's federal

RICO claim.

Indeed, not even the defendants contend that the state-

court claims will resolve all the federal-court claims. Doucette

argues, instead, that we should abstain because Georgia could bring

her RICO claim in state court. But if that were sufficient to

invoke abstention, abstention could become the rule, rather than

the exception, except in actions impacting exclusive federal

jurisdiction. See Jiménez,

("The 'piecemeal

litigation' to be avoided is something more than just the

repetitive adjudication that takes place in all cases implicating

- 8 - Colorado River doctrine . . . . [O]therwise, courts could abstain

in any diversity action that overlapped with a state-court

action."). Taft's claim that the state-court actions "are likely

to moot, or at the very least inform, Georgia's federal claims,"

does not convince us that a federal court would have "nothing

further to do" after the state-court actions. Thomas concedes

that "the preclusive effect of the final probate action cannot at

this time be predicted."

In sum, we have substantial doubt that resolution of the

state-court actions will provide a vehicle for the "complete"

resolution of the issues between the parties. We therefore find

that the case for Colorado River abstention does not get to first

base.4

III.

We turn now to application of the probate exception to

federal court jurisdiction.5 We review a district court's

dismissal for lack of subject matter jurisdiction de novo. Murphy

4 For this reason, we have no need to consider the additional factors drawn from Colorado River and its progeny, see Jiménez, 597 F.3d at 27–28, that are employed to identify those instances of parallel federal-state litigation in which abstention is justified. 5 Georgia did not argue in the district court that the probate exception applies only to state law claims, so we consider that claim unpreserved in this civil action. See, e.g., Evangelista v. Sec'y of Health & Hum. Servs.,

(1st Cir. 1987).

- 9 - v. United States,

(1st Cir. 1995). In doing so,

we take all well-pleaded facts as true and draw all inferences in

Georgia's favor.

A.

The probate exception to federal jurisdiction is a

judicially created doctrine. Born of notions regarding the

boundaries of jurisdiction of English chancery courts, it

precludes the assertion of federal jurisdiction in certain probate

matters.

In Markham v. Allen,

(1946), the Supreme

Court stated that a federal court cannot "interfere with the

probate proceedings or assume general jurisdiction of the probate

or control the property in the custody of the state court."

. Sixty years later in Marshall v. Marshall,

(2006), the Supreme Court revisited that formulation of the

exception, deeming it to be "not a model of clear statement."

. The Court reasoned that the "interference" language in

Markham was "essentially a reiteration of the general principle

that, when one court is exercising in rem jurisdiction over a res,

a second court will not assume in rem jurisdiction over the same

res."

The Marshall Court emphasized that Markham in fact

"described a probate exception of distinctly limited scope."

It further clarified that "the probate exception reserves to state

probate courts [1] the probate or annulment of a will and [2] the

- 10 - administration of a decedent's estate; it also [3] precludes

federal courts from endeavoring to dispose of property that is in

the custody of a state probate court."

at 311–12. But the

exception "does not bar federal courts from adjudicating matters

outside those confines and otherwise within federal jurisdiction."

.

The Court also observed that Markham's lack of clarity

had led some lower courts "to block federal jurisdiction over a

range of matters well beyond probate of a will or administration

of a decedent's estate."

. As examples of matters "well

beyond" the probate exception, it cited three cases -- including

one from this circuit, Mangieri v. Mangieri,

, 2–3 (1st

Cir. 2000) -- in which federal courts found the probate exception

barred jurisdiction over breach of fiduciary duty claims against

executors or trustees.

.

Finally, in determining whether the narrowed exception

applied to Marshall's case -- a tortious interference with

inheritance claim -- the Court found the probate exception

inapplicable.

at 312–14. Marshall sought an in personam

judgment, and did not seek to reach a res in the custody of a state

court.

. Moreover, "no 'sound policy considerations'

militate[d] in favor of extending the probate exception," since

both state and federal trial courts often addressed conduct of

this type and the probate court possessed no "special proficiency"

- 11 - in handling these issues.

(quoting Ankenbrandt v. Richards,

(1992)).

B.

1.

In finding the probate exception applicable to this

case, the district court reasoned that any attempt to calculate

damages in this action would entail "precisely the kind of

valuation and accounting that is within the exclusive province of

the probate court." See Glassie v. Doucette,

,

61 (D.R.I. 2021). Reasoned the district court, "[a]n accounting

runs squarely into the probate exception."

How this conclusion fits within the Marshall formulation

of the probate exception (which makes no mention of an accounting),

the district court did not say. Defendants presume that the

district court had in mind Marshall's reference to "administration

of a decedent's estate." We agree. See Glassie, 559 F. Supp. 3d

at 59 (noting "[t]he essence of the claim" to be, in part, "alleged

mismanagement of the administration of the estate.") So the first

question posed is whether the need to determine damages constitutes

a form of estate administration because it entails valuing estate

assets.

Doucette claims that we need not consider this question

because Georgia has failed to make argument in her brief that

calculating damages would not require the federal court to

- 12 - administer her father's estate. But Georgia stated multiple times

in her opening brief that her claims do not seek to administer an

estate, and she argued consistently both below and in this court

that the relief she seeks does not run afoul of any of the three

prongs of the exception specified in Marshall. Moreover, Georgia's

relatively greater focus on the third prong made sense, given the

district court's discussion of the actual effect the relief she

requested would have on the estate. In short, we see no waiver;

so we turn to the merits of the issue.

2.

While we disagree with the district court's conclusion

that the probate exception applies to this case, we acknowledge

the lack of helpful precedent on point and the difficulty of

applying Marshall. See Jiménez,

("[S]tating the

probate exception has proven easier than applying it." (quoting

Umsted v. Umsted,

, 20 n.2 (1st Cir. 2006))). The

probate exception has been called "one of the most mysterious and

esoteric branches of the law of federal jurisdiction."

at 23

(quoting Dragan v. Miller,

(7th Cir. 1982)). We

simply see the issue differently than did the district court. Our

reasoning follows.

a.

First, we do not agree that any potential need to value

estate assets in order to calculate damages necessarily requires

- 13 - an accounting, much less estate administration. It is true that

calculating damages in this civil action could well involve the

jury's consideration of how much damage Georgia suffered as a

result of defendants' alleged misconduct that lowered the value of

her eventual inheritance. And that calculation of damages might

include considering whether and to what extent the value of the

estate residuum decreased. But such a calculation is hardly a

probate accounting. Under Rhode Island probate law, an account is

given to the probate court at the end of administration of the

estate, or at other times if so ordered by the probate court. R.I.

Gen. Laws § 33-14-1. The account must include information about

the estate's assets, money it has received (whether from sales or

rents), losses, charges, payments, and distributions. Id. § 33-

14-2. Specifically:

Accounts . . . shall charge . . . the amount of the inventory, or, instead the amount of the balance of the last account rendered, as the case may be, and all income, all gains from the sale of personal property, and all other property received by [the executor or administrator], although not inventoried, and all rents and proceeds of the sale of real estate received by the executor or administrator; the accounts shall credit all charges, losses and payments, including legacies, distribution, and specific personal property delivered, and shall also show the investments of the balance of the account, if any, and changes of investments, along with such documentation verifying such investments as the court may request.

- 14 - Id. The account may also include charges for funeral expenses;

money reasonably spent by the executor or administrator, including

attorneys' fees paid to defend the appeal of the will; and a

reasonable fee for the executor or administrator. Id. §§ 33-14-6

to -8. The settlement of the account by the probate court is

"final and conclusive on all parties concerned." Id. § 33-14-11.

"The accepting and allowing of . . . accounts" of executors or

administrators is part of the general jurisdiction of Rhode Island

probate courts. Id. § 8-9-9.

Calculating damages in a civil action falls short of the

foregoing. Although Georgia alleges that information regarding

the estate's assets is "not currently available to" her, the

district court crossed a bridge too far when it concluded that

Georgia could not "attach a value to her loss without a complete

accounting." Glassie, 559 F. Supp. 3d at 61. The most that can

be said is that calculating damages in this civil action may

intertwine with some determinations made in performing an

accounting. R.I. Gen. Laws § 33-14-2 (accounting includes

ascertaining losses to the estate). But as we said in Jiménez,

the probate exception does not apply merely because a judgment in

the federal-court action "may be intertwined with and binding

on . . . state proceedings."

(quoting Lefkowitz v.

Bank of N.Y.,

(2d Cir. 2007)). Moreover, any

damages calculation will not preclude the probate court from

- 15 - approving a final accounting, nor will it determine the

distribution Georgia will receive from the estate itself.6

More generally, a rule that any need to value estate

assets triggers the probate exception would lead to an expansive

understanding of the exception that runs against Marshall's

cautionary explanation. 547 U.S. at 311–12. A simple example

highlights this point. Imagine that the executor of an estate

misrepresented to a bank the value of estate property put forward

as collateral for a loan. Clearly an action by the bank against

the executor for fraud would likely involve valuing estate

property. But we doubt that many would deem the probate exception

to swallow up such an action by the bank. And in this case itself,

Georgia rests her RICO claim partially on allegations that the

defendants procured bank loans by fraud.

Defendants rely on several out-of-circuit and district

court cases finding that any claim requiring the valuation of

assets requires a premature accounting and thus is barred by the

probate exception. E.g., Stuart v. Hatcher,

(11th

Cir. 2018); Junco Mulet v. Junco De La Fuente,

(D.P.R. 2002). These cases draw on Turton v. Turton,

6 Because an accounting would not be required in this federal lawsuit, we are likewise not concerned that the federal court would risk "improperly assum[ing] general probate jurisdiction." Lebrón-Yero v. Lebrón-Rodríguez, No. 20-1443,

, at *2 (1st Cir. Mar. 2, 2022).

- 16 - (5th Cir. 1981), a pre-Marshall case where the Fifth Circuit held

that the federal courts could not adjudicate the dollar value of

a plaintiff's share of the estate.

at 347–48. The district

court there had valued assets still within the estate and ordered

that the plaintiff be paid a specific dollar value of those assets,

and the Fifth Circuit held that the probate exception prohibited

it from taking those actions.

Turton has limited relevance to the problem at hand,

even apart from the fact that it predates Marshall. The plaintiff

in Turton sought to obtain estate assets, rather than in personam

damages. The district court in Turton sought to act directly upon

the estate itself, because it ordered property to be distributed

to the plaintiff from the estate. 644 F.2d at 346–47. Thus,

Turton was a case in which the court attempted to dispose of

property in the custody of a probate court. Marshall, 547 U.S. at

311–12. Here, Georgia seeks only in personam damages to be paid

by the defendants. She does not seek to act upon the estate. More

generally, determining whether Georgia suffered damages due to any

defendant's acts is not a matter in which a probate court has

unique expertise.

In sum, we are not persuaded that calculating the damages

on plaintiff's claim would constitute administration of the estate

as Marshall uses that term. Nor do we see how Georgia's complaint

would otherwise require the federal court to administer Donelson's

- 17 - estate. Doucette argues that the federal court will need to review

various documents and plans before the probate court, but we do

not see how simply reviewing documents regarding the estate

constitutes administration of the estate. Taft argues that

Georgia's suit seeks to effectively undo specific actions taken by

Doucette in administering the estate, but Georgia asks for no

relief that would reverse or otherwise affect any of the

transactions she discusses in her complaint. We conclude that

Georgia's lawsuit does not seek administration of Donelson's

estate, and cannot be barred by the probate exception on that

basis.

b.

Defendants alternatively rest on the fact that among the

breaches of duty alleged by Georgia are breaches by Doucette as

executor. Some federal courts have concluded that the probate

exception bars claims, including breach of fiduciary duty claims,

based on the executor's actions regarding the estate. See, e.g.,

Stuart, 757 F. App'x at 810; Carroll v. Hill,

,

654–55 (N.D. Ohio 2021). But, as explained above, the conclusion

that claims of fiduciary breach by the executor necessarily trigger

the probate exception was rejected in Marshall itself.

.

In Marshall's wake, several of our sister circuits have

found that the probate exception does not bar claims for breach of

- 18 - fiduciary duty against an executor simply because the underlying

conduct involves estate assets. In Lefkowitz, for example, the

Second Circuit found that the probate exception did not bar claims

for breach of fiduciary duty, aiding and abetting breach of

fiduciary duty, fraudulent concealment, and fraudulent

misrepresentation which sought in personam damages, since those

claims did not require the court to reach or control a res. 528

F.3d at 107–08. Similarly, in Jones v. Brennan,

(7th

Cir. 2006), the Sixth Circuit found that a breach of fiduciary

duty claim against guardians and guardians ad litem who were

managing estate assets would likely not be barred by the probate

exception after Marshall.

at 307–08. The Sixth Circuit has

also twice found the probate exception did not bar breach of

fiduciary duty claims where the plaintiff sought in personam

damages, did not seek to reach a res in the custody of a state

court, and did not simply seek the equivalent value of probate

distributions. Osborn v. Griffin,

, 435–37 (6th Cir.

2017); Wisecarver v. Moore,

, 750–51 (6th Cir. 2007).

The Ninth Circuit, too, has found that breach of fiduciary duty

claims brought under California probate law were not barred by the

probate exception after Marshall. Chrictlow v. Chrictlow,

(9th Cir. 2015).

Where fiduciary duty claims seek to reach or distribute

property within the custody of a state probate court, however, the

- 19 - probate exception may well apply. Three Keys Ltd. v. SR Utility

Holding Co.,

, 229–30 (3d Cir. 2008). Similarly, the

exception may apply when a plaintiff seeks the restoration of money

previously distributed to a testamentary trust. Mercer v. Bank of

N.Y. Mellon, N.A.,

, 679–80 (2d Cir. 2015).

Georgia, though, makes no such requests in her federal suit. She

does not ask that the court exercise in rem jurisdiction over

estate property. Nor, finally, does she challenge the will or

seek to order the probate judge to do or not do anything. See

Marshall, 547 U.S. at 311–12. So we see no basis for invoking the

probate exception merely because Georgia alleges breaches of

fiduciary duty by Doucette.

Doucette also argues that Georgia's RICO claim should be

barred because some of the conduct she alleges involved Doucette's

actions with respect to the estate. But Georgia's RICO claim does

not ask the probate court to do anything, or ask the federal court

to act on estate property. So as with the breach of fiduciary

duty claim, we see no basis to apply the probate exception to the

RICO claim.

c.

Defendants more generally complain that Georgia's foray

into federal court will interfere with the probate proceedings,

because many legal and factual issues are common to the two

proceedings. But this type of "interference" is present whenever

- 20 - overlapping lawsuits are filed. Nor after Marshall can it support

abdication of federal jurisdiction. As explained above, Marshall

made clear that the "interference" language in Markham is to be

necessarily read as "essentially a reiteration of the general

principle that . . . a second court will not assume in rem

jurisdiction over the same res." 547 U.S. at 311–12; see Mojtabai

v. Mojtabai,

, 82 n.2 (1st Cir. 2021) (finding that

probate exception did not apply where "relief sought would not

require the court to probate or annul a will, administer a

decedent's estate, or 'dispose of property that is in the custody

of a state probate court'" (quoting Marshall,

));

Jiménez, 597 F.3 at 24 (noting that Marshall limited Markham's

language regarding interference); see also Goncalves ex rel.

Goncalves v. Rady Children's Hosp. San Diego,

(9th Cir. 2017) (recognizing that Marshall refined the probate

exception's scope, and accepting "reformulation" of the test that

did not include interference language); Lefkowitz,

(stating that previous test including interference language was

"overly-broad and has now been superseded by Marshall's limitation

of the exception").

Of course, Georgia's federal claims may raise issues in

common with those before the probate court. Most likely to be

among these common issues are those requiring a determination that

Doucette did or did not breach fiduciary duties owed to Georgia as

- 21 - a beneficiary. It will be for the probate court to decide what

effect, if any, a determination of this issue by the federal court

has on the probate proceedings.7 The federal court may also need

to consider the potentially preclusive effect of any decisions of

the probate court on the federal lawsuit, including the denial of

the petition to remove Doucette as executor. As the record now

stands, we see in this overlap only a need for coordination between

related lawsuits, such as arises in all sorts of contexts that

have nothing to do with probate proceedings. So we place little

weight on such an overlap in deciding whether the narrow probate

exception should apply to bar suit altogether.

Nor are federal courts without tools to manage

overlapping litigation with state probate proceedings. They may

certify questions of state law to state high courts. They may

coordinate with state courts to administer closely related cases

so as to minimize duplicative discovery or proceedings. See

James G. Apple et al., Manual for Cooperation Between State and

Federal Courts (1997). They will pay close attention to the state

court's construction of state law. Kunelius v. Town of Stow, 588

7 This is similar to what happens in Rhode Island state court when a superior court of general jurisdiction makes a ruling that may overlap with a probate proceeding. See Tyre v. Swain,

(R.I. 2008) ("Once the Superior Court has made a declaration under the UDJA . . . it is then within the province of the probate court to determine what effect, if any, that declaration has on the distribution of the decedent's assets under a will or other instrument.").

- 22 - F.3d 1, 9 (1st Cir. 2009). And plaintiffs who run to federal court

may, of course, be precluded from relitigating claims or issues

decided by a probate court. E.g., Giragosian v. Ryan,

(1st Cir. 2008).

d.

The ongoing nature of the probate proceedings also does

not by itself support an assertion of the probate exception.

Marshall emphasized that the probate exception is focused largely

on the effect of the federal court's actions on the res of the

estate itself. Naturally there is a greater risk that a claim

will reach property in the custody of a state court when the estate

is still open in that state court. But the pendency of state court

proceedings alone cannot mean that a federal court has no

jurisdiction.

For the same reason, it is not dispositive that the

conduct here occurred after Donelson's death. Although Doucette

points out that the allegedly tortious conduct in Marshall occurred

before the decedent passed away, none of the reasoning or

conclusions in Marshall pivots on this distinction. See

.

e.

Finally, Historic Inns LLC's agreement to indemnify its

managers for breaches of fiduciary duty also does not render the

probate exception applicable. It is possible that a federal court

- 23 - judgment against the defendants for breaches of duties owed as

managing members of Historic Inns would trigger this requirement,

thus reducing the value of Historic Inns including the 61% share

owned by the estate. But the same can be said of any claim against

any entity that happens to be owned at least in part by an estate.

Certainly if Doucette ran into Georgia's car, her claim against

him need not be brought in state probate court merely because he

was at the time of his actions acting in a capacity that might

warrant indemnification by the estate. Here too, we see no reason

why Georgia cannot pursue a claim in federal court alleging

breaches of defendants' duties in managing Historic Inns, with the

probate court to determine the effect (if any) of a federal court

ruling on such a claim.

IV.

One could argue as a policy matter that Georgia's claims

would be best left to the state courts. However, the lines of

federal jurisdiction are not so drawn.8 The probate exception, as

the Supreme Court admonished in Marshall, is a narrow one, and

federal courts must take care not to enlarge its boundaries by

8 Of course, nothing in this opinion suggests that Congress could not redraw those lines should it wish to do so.

- 24 - declining to take jurisdiction over claims such as those brought

in this action.

For the foregoing reasons, we reverse the judgment of

the district court and remand for further proceedings.9

9 In light of our ruling, we have no need to decide whether the probate exception can be applied to federal causes of action in federal court. Compare Jones, 465 F.3d at 306–07 (finding exception applies to federal question cases), with In re Goerg,

(11th Cir. 1988) (stating probate exception "has no bearing on federal question jurisdiction").

- 25 -