Kaplan v. Kaplan

Decision Date20 November 2012
Docket NumberCase No. 2:10–cv–237–UA–SPC.
Citation903 F.Supp.2d 1304
PartiesAlexander KAPLAN, Plaintiff, v. Leon KAPLAN, Defendant.
CourtU.S. District Court — Middle District of Florida


Alexander Lloyd Kaplan, Alexander L. Kaplan, PA, Naples, FL, pro se.

Cathy S. Reiman, Roetzel & Andress, LPA, Christopher Dale Donovan, Roetzel & Andress, LPA, Naples, FL, for Defendant.


STEVEN D. MERRYDAY, District Judge.

Mack Kaplan died testate on July 28, 2006, and probate began a month later in In re Estate of Mack Kaplan, No. 06–843–CP–02–LDM (Fla. 20th Cir. Ct. filed Aug. 28, 2006). After considering competing petitions from Leon, who is Mack's brother, and Alexander, who is Mack's son, the probate court appointed Leon as personal representative. Extensive and contentious litigation ensued; 1 the probate remains open (and remains contentious).

In this action, Alexander sues (Doc. 43) Leon for breach of fiduciary duty, for “negligent retention of counsel,” and for a violation of Florida's “Prudent Investor Rule.” Each wrong alleged by Alexander occurred during Leon's administration of Mack's estate. Leon moves (Doc. 122) for summary judgment.


Alexander began this action in the Fort Myers Division of the Middle District of Florida on April 21, 2010. In a November 22, 2010, motion to dismiss (Doc. 46), Leon argued (1) that res judicata bars the majority of this action, (2) that no diversity of citizenship exists, (3) that the “probate exception” bars federal jurisdiction, and (4) that the district court should abstain. An August 3, 2011, order (Doc. 56) (entered by the predecessor judge, Judge Honeywell) (1) relies on Evans v. Tucker, 101 Fla. 688, 135 So. 305, 309 (1931), and rejects the res judicata argument; (2) compares Huguenor v. Huguenor, 420 So.2d 344 (Fla. 5th DCA 1982), and dispels the personal jurisdiction argument; (3) cites Marshall v. Marshall, 547 U.S. 293, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006), and denies the “probate exception” argument; and (4) reviews Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and discards the abstention argument. The August 3rd order denies the motion to dismiss.

On August 18, 2011, Alexander moved (Doc. 59) to strike Leon's affirmative defenses of res judicata, lack of personal jurisdiction, and lack of subject matter jurisdiction. In response, Leon argued (Doc. 60) that the August 3 order misreads Evans (Leon argued that [the court's] quoted language from Evans is [ ] from [a] description of Florida's common law [before] 1927) and misapplies Huguenor (Leon argued that Huguenor is “a Florida personal jurisdiction case ... ha[ving] nothing to [do] with diversity jurisdiction”). On the one hand, Leon asked for reconsideration of the August 3 order and, on the other hand, Leon asserted that a denial of a motion to dismiss “is not ‘law of the case.’ Relying primarily on Judge Honeywell's August 3 order, an August 29, 2011 order, 2011 WL 3841552 (entered by Magistrate Judge Chappell) (Doc. 62) strikes the affirmative defenses of res judicata, lack of personal jurisdiction, and lack of subject matter jurisdiction. On December 21, 2011, Chief Judge Anne C. Conway issued a standing order (No. 2:11–mc–30–FtM–22) that transferred this action from Judge Honeywell to the Fort Myers “unassigned” docket. On August 22, 2012, this action was transferred to me.

In the motion for summary judgment, Leon again asks for reconsideration of the August 3 denial of the motion to dismiss. Although Leon asks for reconsideration of res judicata only, a review of res judicata, an examination of the motion for summary judgment (Doc. 122), and the reconsideration of Alexander's motion to compel (Doc. 126) require a reconsideration of abstention. Accordingly, an October 11, 2012, order (Doc. 181) directs Alexander to show cause why this action should not be stayed under Colorado River until the conclusion of Mack's probate. Alexander responds (Doc. 182).


Competing federal and state litigations similar to the competing litigations involving Mack Kaplan's estate appear rarely because the “probate exception” typically bars federal jurisdiction.2See, e.g., Mangieri v. Mangieri, 226 F.3d 1, 2–3 (1st Cir.2000) (applying the probate exception because the plaintiff demanded in federal court an intestate share of the estate). Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 90 L.Ed. 256 (1946), defines the “probate exception”:

[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, ... it 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.

Marshall v. Marshall, 547 U.S. 293, 311–12, 126 S.Ct. 1735 (2006), defines “interfere”:

[W]e comprehend the “interference” language in Markham as 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. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.

(citations omitted). Seeking in the federal action to compel a disposition of neither the will, the estate, nor the res in the custody of the probate court, Alexander demands only a money judgment against Leon personally. Marshall, 547 U.S. at 311, 126 S.Ct. 1735;Lefkowitz v. Bank of N.Y., 528 F.3d 102, 106 (2d Cir.2007) ([W]here exercise of federal jurisdiction will result in a judgment that does not dispose of property in the custody of a state probate court, even though the judgment may be intertwined with and binding on those state proceedings, the federal courts retain their jurisdiction.”); Jones v. Brennan, 465 F.3d 304, 307–08 (7th Cir.2006) (Posner, J.) (noting that a breach of fiduciary duty claim accusing the guardians of mismanaging an estate “does not ask the court ... to administer the estate”). Marshall's narrow definition of “interference” permits Alexander's federal pursuit of Leon despite the protection intended by the “probate exception.”

However, Alexander's federal pursuit of Leon presents a demonstrably “exceptional” circumstance that compels a stay under Colorado River until the resolution of Mack's probate. See Ambrosia Coal & Const. v. Morales, 368 F.3d 1320, 1328 (11th Cir.2004) (“Federal courts have a ‘virtually unflagging obligation ... to exercise the jurisdiction given them.’ A policy permitting federal courts to yield jurisdiction to state courts cavalierly would betray this obligation. Thus, federal courts can abstain to avoid duplicative litigation with state courts only in ‘exceptional’ circumstances.”) (quoting Colorado River, 424 U.S. at 817, 96 S.Ct. 1236). Considerations governing the grant of a stay include (1) whether federal or state law governs the action, (2) whether the federal court acquired jurisdiction first, (3) whether the state court can adequately protect the parties' rights, (4) whether simultaneous prosecution invites piecemeal litigation, (5) whether a court has assumed jurisdiction over property, (6) whether the federal forum is inconvenient. Moses H. Cone Mem. Hosp. v. Mercury Constr., 460 U.S. 1, 19–27, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Ambrosia Coal, 368 F.3d at 1332. The factors are applied in “a pragmatic, flexible manner with a view to the realities of the case at hand,” Moses H. Cone, 460 U.S. at 21, 103 S.Ct. 927, and [n]o one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counseling against that exercise is required.” Colorado River, 424 U.S. at 818–19, 96 S.Ct. 1236. Four of the six factors strongly support abstention; the other two factors, the fifth and the sixth factors, are trivial in the circumstances.3

1. State Law Governs Each Claim in the Federal Action

In the federal action Alexander complains about an array of breaches of fiduciary duty allegedly committed by Leon while administering the estate, including (1) Leon's allegedly settling a wrongful death action “for a ridiculously low amount;” (2) Leon's allegedly failing to defend against claims from two attorneys; (3) Leon's allegedly submitting improper bills for travel, hotel, food, etc.;” (4) Leon's allegedly billing “double” for guardianship costs; (5) Leon's allegedly abandoning Mack's “valuable personal property;” (6) Leon's allegedly failing to timely pay Mack's pharmacy bill; (7) Leon's allegedly failing to timely pay a funeral expense; (8) Leon's allegedly paying an attorney to defend an IRS audit instead of obtaining free representation from H & R Block; (9) Leon's allegedly failing to invest estate assets in accord with Florida's “Prudent Investor Rule;” and (10) Leon's allegedly failing to hire a competent attorney. State law governs each claim asserted by Alexander against Leon in the federal action.4

2. The State Court Acquired Jurisdiction First

[T]he order in which jurisdiction was taken is not a mechanical concept automatically favoring the party who files first, but rather a concept that favors the case that is the more advanced.” Elmendorf Grafica, Inc. v. D.S. America (East), 48 F.3d 46, 52 (1st Cir.1995). Certainly “more advanced,” the probate administration was opened six years ago (four years before the federal action) and contains more than 1,020...

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