Harder v. Rafferty, 88-1334-CIV-T-17(B).

• Decision Date: 28 March 1989
• Docket Number: No. 88-1334-CIV-T-17(B).,88-1334-CIV-T-17(B).
• Citation: 709 F. Supp. 1111
• Parties: Charles E. HARDER, etc., Plaintiff, v. J. Thomas RAFFERTY, etc., Defendant.
• Court: U.S. District Court — Middle District of Florida

709 F. Supp. 1111

Charles E. HARDER, etc., Plaintiff, v. J. Thomas RAFFERTY, etc., Defendant.

No. 88-1334-CIV-T-17(B).

United States District Court, M.D. Florida, Tampa Division.

March 28, 1989.

Anthony P. Valente Jr., Knaust & Byrne, St. Petersburg, Fla., for plaintiff.

Donald E. Hemke, Carlton, Fields, Ward, Emmanuel Smith & Cutler, Tampa, Fla., for defendant.

ORDER ON MOTIONS

KOVACHEVICH, District Judge.

The cause is before the Court on Defendant's motion to dismiss or in the alternative motion for summary judgment, filed November 2, 1988; Plaintiff's response, filed November 23, 1988; and court-ordered joint memorandum of law, filed February 16, 1989.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1947).

This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.

The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),

In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.

The Court also said, "Rule 56(e) therefore requires that nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp., at p. 323, 106 S.Ct. at p. 2553, 91 L.Ed.2d at p. 274.

The complaint in this cause of action was filed on September 6, 1988, by Plaintiff Charles E. Harder, as personal representative of the estate of Mildred V. Rafferty, f/k/a Mildred V. Harder and against J. Thomas Rafferty, as personal representative of the estate of Charles Phillip Rafferty. The complaint alleges the following facts as relevant to the claim raised by the complaint:

1. Charles Phillip Rafferty (C.P. Rafferty), as husband of Mildred Rafferty/Harder (Rafferty/Harder), had a duty to provide adequate medical attention to Rafferty/Harder, to refrain from neglecting her medical needs, to refrain from preventing others from providing her adequate medical attention, and to refrain from acting in such a manner as to cause her harm or worsen her medical health. C.P. Rafferty breached his duty to Rafferty/Harder by neglecting her medical need, preventing others from providing adequate medical attention and by acting in a manner as to cause her harm and worsen her medical health.

2. Rafferty/Harder died on September 26, 1986, at St. Joseph's Hospital, Tampa, Florida. The death was directly and proximately caused by the wrongful acts, negligence, abuse, carelessness, and neglect of C.P. Rafferty.

3. Charles E. Harder (C.E. Harder) is the sole survivor of Rafferty/Harder.

4. C.P. Rafferty was a resident of the State of Florida at the time of his death. However, the estate of C.P. Rafferty is being probated in the Putnam County Circuit Court, Greencastle Indiana, Probate Case No. 67CO01-9901-ES 2-1.

5. On or about June 27, 1968, C.P. Rafferty and Rafferty/Harder entered into a Antenuptial Agreement.

6. During the course of the marriage, C.P. Rafferty took for his own use and enjoyment funds of Rafferty/Harder in excess of $10,000.00, forged her signature to gain access to her private funds, and immediately preceding and following her death converted property and funds of Rafferty/Harder, including household furnishings, jewelry, money, and an automobile.

The complaint contained the following counts: 1) wrongful death, 2) conversion, and 3) prayer for injunctive relief.

At the time of the filing the court-ordered joint memorandum of law, the parties agreed to the following as undisputed facts relevant to the pending motions:

1. At the time of her death on September 24, 1986, Rafferty/Harder was married to C.P. Rafferty, the decedent whose Indiana estate is the defendant herein.

2. C.E. Harder, sole survivor of Rafferty/Harder was appointed personal representative of her estate. During his tenure as personal representative C.E. Harder chose not to file an action against C.P. Rafferty, then alive and a resident of Florida. On November 16, 1987, C.E. Harder was discharged from his duties as personal representative of his mother's estate by the Circuit Court for Pinellas County, Florida, Probate Division.

3. On December 25, 1987, C.P. Rafferty died in the State of Florida. At the time of death, he owned an interest in the assets of a farm located in Putnam County, Indiana.

4. On January 18, 1988, the Rafferty estate was opened in the circuit court of Putnam County, Indiana. (C.E. Harder filed an individual claim, as only heir at law of Rafferty/Harder, against the estate on June 9, 1988. Exhibit B to memorandum in support of motion to dismiss).

5. On August 9, 1988, the Rafferty/Harder estate was reopened in Pinellas County and C.E. Harder was renamed personal representative. On motion of C.E. Harder to amend the Indiana claim, the circuit court granted the motion to reflect the claimant to be C.E. Harder as personal representative of Rafferty/Harder.

6. The Rafferty Estate moved for reconsideration of the amendment on August 23, 1988, and on August 25, 1988, the Putnam County circuit court denied the motion for leave to amend claim. C.E. Harder objected on September 14, 1988.

7. On September 16, 1988, the circuit court entered an order granting the motion of the estate for summary judgment and dismissing the claim of C.E. Harder, individually, against the estate with prejudice. Harder filed motion for rehearing/to correct error in that judgment, which were denied.

8. C.E. Harder filed a praecipe for record on appeal, pre-appeal statement, and the record of proceedings between October and December of 1988. Subsequently, he filed two motions for extension of time to file appellate brief, in January, 1989.

DOCTRINE OF PRIOR EXCLUSIVE JURISDICTION

Defendant's initial argument for dismissal or summary judgment is that under the doctrine of prior exclusive jurisdiction it is inappropriate for this Court to exercise jurisdiction. If two suits, one in state court and one in federal court, are suits in rem or quasi in rem:

... so that the court, or its officer, has possession or must have control of the property which is the subject of the litigation in order to proceed with the cause and grant the relief sought the jurisdiction of the one court must yield to that of the other ... The court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other ...

Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939).

A federal court may exercise its jurisdiction to "adjudicate rights in such property where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946). The jurisdiction of the federal court includes adjudicating the rights of a party in the res though the res is in the jurisdiction of the state court, i.e. adjudicating "a claim against an estate in federal court where the assets of the estate are under the control of a state court," 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. Markham, 326 U.S. at 494, 66 S.Ct. at 298; 1st National Credit Corp. v. Von Hake, 511 F.Supp. 634 (D.Utah 1981). The debt established by the money judgment in federal court must "take its place and share of the estate as administered by the probate court, and it cannot be enforced by process directly against the property of the decedent." Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80 (1909).

The complaint in this cause seeks relief for claims of wrongful death and conversion (Counts I and II). These claims do not require this Court to possess or control the res which is within the jurisdiction of the Indiana probate court. Plaintiff seeks a money judgment against the defendant estate. The motion to dismiss based on prior exclusive jurisdiction is denied.

ABSTENTION

Defendant next requests, if the Court determines that there is jurisdiction, that the Court abstain from exercising its jurisdiction. Defendant asserts that abstention is justified on three individual doctrines as found in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); and Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).

A federal court should abstain from a case, brought in an equity situation, wherein a state's sovereign...