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.

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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. No. 02-1887 Lepard v. NBD Bank, et al. 7 8 Lepard v. NBD Bank, et al. No. 02-1887

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).