DiTinno v. DiTinno, Civ. A. No. 82-2788-G.

• Decision Date: 10 January 1983
• Docket Number: Civ. A. No. 82-2788-G.
• Citation: 554 F. Supp. 996
• Parties: Dennis F. DiTINNO, Alexander J. DiTinno and David J. DiTinno, Plaintiffs, v. Betty Ann DiTINNO, as Executrix of the Estate of Felix P. DiTinno, and Betty Ann DiTinno, Individually, Defendant.
• Court: U.S. District Court — District of Massachusetts

554 F. Supp. 996

Dennis F. DiTINNO, Alexander J. DiTinno and David J. DiTinno, Plaintiffs, v. Betty Ann DiTINNO, as Executrix of the Estate of Felix P. DiTinno, and Betty Ann DiTinno, Individually, Defendant.

Civ. A. No. 82-2788-G.

United States District Court, D. Massachusetts.

January 10, 1983.

Austin, Philbin, Stephen J. Philbin, Clinton, Mass., for plaintiffs.

Thomas F. McEvilly, McEvilly & Curley, Leominster, Mass., for defendant.

MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION TO DISMISS

GARRITY, District Judge.

This is an action seeking a declaratory judgment pursuant to 28 U.S.C.A. §§ 2201 and 2202 and Massachusetts General Laws Chapter 231A, § 1. The facts relevant to this motion are not in dispute; the plaintiffs have adopted the defendant's statement of the case. The defendant is the wife of the decedent. The plaintiffs are three sons of the decedent by a former marriage. The plaintiffs are emancipated adults of legal age who were not living in the decedent's household at the time of his death.

The decedent, Felix P. DiTinno, died on June 24, 1977 while operating a forklift vehicle at his place of employment. On June 23, 1980 his wife, Betty Ann DiTinno, brought suit in state court against the manufacturer and the distributor of the forklift for wrongful death pursuant to Massachusetts General Laws Chapter 229, § 2. That statute provides that actions to recover damages pursuant to § 2 shall be brought by the executor or administrator of the deceased. Mrs. DiTinno is the Executrix of the decedent's estate.

Mrs. DiTinno entered into a settlement agreement with the manufacturer and distributor of the forklift on August 9, 1982. The plaintiffs made a demand on Mrs. DiTinno for what they claim to be their share of the damages paid or payable to Mrs. DiTinno under the settlement agreement. Mrs. DiTinno refused to pay the plaintiffs the amount to which they believed they are entitled and no settlement agreement could be reached between the parties.

On September 22, 1982 the plaintiffs filed this action in federal court, seeking a declaratory judgment of the amount of the damages paid or payable to Mrs. DiTinno under the settlement agreement to which they are entitled under the Massachusetts Wrongful Death Statutes. On October 5, 1982 Mrs. DiTinno filed a Petition for Instructions with the Worcester County Probate Court, asking that court to determine the share of the various statutory beneficiaries in the net amount recovered from the forklift manufacturer and distributor for the decedent's wrongful death.

The defendant filed a motion to dismiss this case for lack of subject matter jurisdiction on October 8, 1982. The plaintiffs filed an opposition to that motion and responded by filing a motion on October 14, 1982 asking this court to stay proceedings in the Probate Court for Worcester County.

The defendant argues that because the wrongful death action specifically provides that the damages shall be recovered in an action of tort brought by the executor or administrator, this is a probate matter and the federal courts are without jurisdiction over the action or the proceeds of the settlement agreement, which defendant claims constitutes property in the custody of the state court. The plaintiffs respond that this court has jurisdiction and contend that there exist "no reasons of comity or otherwise" for this court to refuse to hear this matter.

Jurisdiction in this case is based upon diversity of citizenship under 28 U.S.C. § 1332. It is undisputed that the plaintiffs are citizens of Florida and the Canal Zone and the defendant is a citizen of Massachusetts, and that the amount in controversy exceeds $10,000. Therefore, the requirements for diversity jurisdiction have been established. The action also meets all of the requirements of the declaratory judgment act, 28 U.S.C. § 2201.¹ Therefore, federal jurisdiction has been established.

There is, however, a judicially created exception which places probate matters outside of the jurisdiction of the federal courts. See, e.g., Markham v. Allen, 1946, 326 U.S. 490, 494, 66 S.Ct. 296, 298, 90 L.Ed. 256; 13 Wright, Miller & Cooper, Federal Prac. & Proc. § 3610. However, while it is clear that "pure" probate matters are outside federal jurisdiction, Waterman v. Canal-Louisiana Bank & Trust Co., 1909, 215 U.S. 33, 44, 30 S.Ct. 10, 12, 54 L.Ed. 80, federal courts interpret this exception very narrowly. Federal courts exercise jurisdiction over probate-related claims "so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." Markham v. Allen, supra 326 U.S. at 494, 66 S.Ct. at 298.

This is not a "pure probate" suit, so the question is whether resolving the suit will involve federal court interference with the state probate proceedings or will require this court to assume control of property in a state court's custody. See Rice v. Rice Foundation, 7 Cir.1979, 610 F.2d 471, 475-476; 13 Wright, Miller & Cooper, supra § 6310 at 680-681. There are several different tests federal courts have employed to determine whether a federal action will interfere with a state probate court. One test looks to the nature of the plaintiffs' claim and the other main test looks to whether the action brought in the federal court would have been cognizable in a state court of general jurisdiction or whether exclusive state court jurisdiction is vested in the state probate courts. Rice v. Rice Foundation, supra at 476. This action is basically an action asking this court to interpret a state tort statute to determine the share of a tort settlement that the three plaintiffs are entitled to as statutory beneficiaries. Therefore, under these tests, resolving this suit will not involve federal court interference in state probate proceedings.

The more difficult question is whether issuing a declaratory judgment in this case will require this court to assume control of property in a state court's custody:

The cases thus endeavor to distinguish between direct interferences with or control of the res and adjudication of the rights of individuals who have an interest in the res. This line of distinction is not always clear.

Starr v. Rupp, 6 Cir.1970, 421 F.2d 999, 1005. The statute does require that the wrongful death action be brought by the executor or administrator, so the proceeds are held by Mrs. DiTinno in her position as executrix of the estate, a position which makes her an officer of the Worcester County Probate Court. Mass. G.L. c. 215, § 3. In Byers v. McAuley, 1893, 149 U.S. 608, 615, 13 S.Ct. 906, 908, 37 L.Ed. 867, the Supreme Court stated:

An administrator appointed by a state court is an officer of that court; his possession of the decedent's property is a possession taken in obedience to the orders of that court; it is the possession of the court, and it is a possession which cannot be disturbed by any other court.

See also Sullivan v. Sullivan, 1949, 323 Mass. 671, 672, 84 N.E.2d 32; Koutoudakis v. Great American Indemnity Co., 1934, 285 Mass. 466, 468, 189 N.E. 621. On the other hand, the plaintiffs have not asked this court to take custody of the property, but have merely asked this court to render a judgment concerning their respective interests in the settlement proceeds. Although it is a close question, this court has jurisdiction under the authorities previously cited.

Finally, however, we turn to the question of whether this court, in the exercise of its discretion, should entertain this suit or should abstain. See Markham v. Allen, supra at 495, 66 S.Ct. at 299; Bassler v. Arrowwood, 8 Cir.1974, 500 F.2d 138, 142, cert. denied, 1975, 419 U.S. 1116, 95 S.Ct. 796, 42 L.Ed.2d 815. The fact that this federal action might proceed without directly interfering with the state probate proceedings permits this court to exercise jurisdiction, but it does not require it. Rice v. Rice Foundation, supra at 477. This court recognizes its "virtually unflagging obligation ... to exercise the jurisdiction given" it. Colorado River Water Conservation District v. United States, 1976, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483. However, this is an appropriate case for abstention for several reasons.

First, as plaintiffs point out, there are no cases construing disbursement under Massachusetts General Laws Chapter 229, § 2, the statute upon which plaintiffs' claim is based. See Louisiana Power & Light v. Thibodaux, 1959, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; Colorado River Water Conservation District v. United States, supra at 814, 96 S.Ct. at 1244. This...