CECILIA M. ROMERO, Magistrate Judge.
This matter is referred to the undersigned in accordance with 28 U.S.C. § 636 (b)(1)(B) from Judge Jill Parrish. (ECF 32). Pending before the court are three motions: Plaintiff Richard J. Simpkins, who is proceeding pro se, filed a Motion to Amend/Correct (
Both Plaintiff's Complaint and the proposed Amended Complaint center on events surrounding the death of Richard E. Simpkins, who died intestate in Nicaragua. Richard E. Simpkins (the decedent) is father to Plaintiff Richard J. Simpkins and Defendant Terri Simpkins Wright is Plaintiff's half aunt. The decedent left approximately $80,0000 dollars in a bank account that upon his death transferred to Defendant. The transfer of this money and circumstances surrounding the transfer are at the heart of this case. Having considered the parties' respective motions and the relevant case law, the court recommends that Defendant's Motion to Dismiss be granted and Plaintiff's motions be denied.
Plaintiff filed his original Complaint (
On March 18, 2019, Magistrate Judge Barbara Holmes recommended the court deny Defendant's Motion to Dismiss without prejudice and transfer the case to this district. (
In deciding a motion to dismiss the court must determine whether the factual allegations made in the Complaint, if true, would entitle a plaintiff to a legal remedy. To state a viable claim "[t]he complaint must plead sufficient facts, taken as true, to provide `plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). "Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007). In other words, the complaint must provide "enough facts to state a claim to relief that is plausible on its face." Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 544, 570 (2007)).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109, (10th Cir. 1991). A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594 (1972). "[T]his rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. The court need only accept as true a plaintiff's well-pleaded factual contentions and not their conclusory allegations. See Dunn v. White, 88 F.2d 1188, 1197 (10th Cir. 1989). Finally, often a pro se litigant is given an opportunity to remedy the defects in their pleadings, see, e.g., Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990), but such an opportunity is unnecessary "when it is `patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing . . . an opportunity to amend [the] complaint would be futile." McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991).
Based on either of Plaintiff's Complaints,
Plaintiff argues Defendant has a "fiduciary duty to the rightful and legitimate heirs of [decedent] and has maliciously, recklessly and wantonly breached this fiduciary duty and engaging in tortious interference with expected inheritance." Complaint p. 7. The violations of this duty has caused "catastrophic financial damages in terms of multifaceted lost opportunity cost" to Plaintiff. Id. at p. 8. In construing Plaintiff's Complaints broadly, it appears Plaintiff seeks to bring the following causes of action: tortious interference; a violation of the Fourteenth Amendment, see Complaint p. 10; breach of a fiduciary duty; and negligent or intentional infliction of emotional distress, see Complaint p. 9 (alleging Defendant's actions "caused Plaintiff Richard J. Simpkins great aggravation and emotional distress by complicating his death related grief"). In response to Defendant's motion, Plaintiff withdraws any purported claims for infliction of emotional distress and violations of the Fourteenth Amendment. See Opposition p. 8,
The court finds each of the remaining claims is subject to the federal probate exception because Plaintiff claims to be an intestate heir and requests court intervention to disperse the funds to him. Under the federal probate exception "a federal court has no jurisdiction to probate a will or administer an estate" or "to disturb or affect the possession of property in the custody of a state court." Markham v. Allen, 326 U.S. 490, 494 (1946). The Supreme Court defined the boundaries for this exception in Markham, stating "federal courts of equity have jurisdiction to entertain suits in favor of creditors, legatees and heirs and other claimants against a decedent's estate to establish their 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, 326 U.S. at 494 (internal quotation marks omitted). In Marshall v. Marshall, 547 U.S. 293 (2006), the Supreme Court further clarified the scope of the federal probate exception. The exception "reserves to state probate courts [1] the probate or annulment of a will and [2] the 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. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction." Marshall v. Marshall, 547 U.S. at 296. "Thus, where diversity jurisdiction exists, federal courts retain jurisdiction to decide matters that are probate-related or that may impact the state probate court's performance of the three tasks reserved to it, so long as the federal court itself does not engage in these tasks." Dunlap v. Nielsen, 771 F.App'x 846, 850 (10th Cir. 2019).
Plaintiff's Complaints implicate task number two — the administration of a decedent's estate. Plaintiff asserts he and his three siblings, "would be entitled to all properties and monies of decedent ... under the laws of intestate succession." Complaint p. 5. Therefore, this court should order Defendant to "immediately disgorge herself of all the funds and monies originating" from the bank account. Id. at p. 10. The court finds undertaking such a course of action is an administration of decedent's estate and precluded by the probate exception. Further, Plaintiff's citations to Dunlap v. Nielsen 771 F. App'x 846 and Marshall v. Marshall, 547 U.S. 293, only supports this finding as these cases articulate the principles the court is applying in this decision.
The court construes Plaintiff's Complaint broadly and "if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so" despite certain failings, such as a failure to cite proper legal authority, confusion of various legal theories or an unfamiliarity with pleading requirements. Hall, 935 F.2d at 1110. Even if the court construes Plaintiff's Complaints to overcome the federal probate exception, Plaintiff fails to articulate certain elements of the alleged claims. For example, to recover in a suit for interference with inheritance a plaintiff must show "1) a valid expectancy; (2) intentional interference with that expectancy; (3) independently tortious conduct (such as undue influence, fraud, or duress); (4) reasonable certainty that absent the tortious interference the plaintiff would have received the expectancy; and (5) damages." Lindberg v. United States, 164 F.3d 1312, 1319, (10th Cir. 1999). Here, Plaintiff fails to allege facts establishing the third or fourth elements. Plaintiff states Defendant engaged in malicious, reckless and wanton conduct (Complaint p. 7) and "likely also impeded, cajoled and otherwise influenced" decedent to not leave a written will or trust agreement. (Amended Complaint p. 14). However, these assertions are not supported by factual averments. An alleged unsupported "propensity towards selfdealing" is insufficient without more. Further, to establish a claim for breach of fiduciary duty requires proof of four elements: (1) a fiduciary relationship; (2) breach of a fiduciary's duty; (3) both actual and proximate causation; and (4) damages. See Shaw Resources v. Pruitt, Gushee & Bachtell, 2006 UT App 313, ¶ 22, 142 P.3d 560; Old Republican Nat. Title Ins. Co. v. Home Abstract & Title Co., No. 1:12CV00171, 2014 WL 2918551, at *15 (D. Utah June 27, 2014). Plaintiff fails to allege facts that establish a fiduciary relationship or that Defendant owed some sort of duty toward Plaintiff. Thus, in the alternative, Defendant's Motion to Dismiss should be granted because Plaintiff fails to state a claim upon which relief may be granted.
Plaintiff brings a Motion to Amend (
Finally, the court finds no merit to Plaintiff's Motion to Change Venue. Plaintiff never objected to Magistrate Judge Holmes decision that the case should be transferred to Utah and not Florida. The Tenth Circuit has long held that "unless the evidence and the circumstances of the case are strongly in favor of the transfer the plaintiff's choice of forum should not be disturbed." Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967). By not objecting Plaintiff chose this forum. Further, Defendant lives in Utah and Plaintiff in Tennessee. There is no "convenience of the parties and witnesses," interests of justice, or reduced burden in transferring this case to Florida. 28 U.S.C. § 1404(a). In fact, doing so would only lead to another delay and increased costs for all the parties. See, e.g., 3 form, Inc. v. Sunset Plaza, LLC, No. 2:10-cv-856 TS, 2011 WL 4565797, at *2 (D. Utah Sept. 29, 2011) (rejecting the argument that costs would be lower by transferring the case from Utah to another jurisdiction). Thus, Plaintiff's Motion to Change Venue should be denied.
For the reasons set forth above the undersigned RECOMMENDS that Defendant's Motion to Dismiss be GRANTED and Plaintiff's motions be DENIED.
Copies of this report and recommendation are being mailed to all parties who are hereby notified of their right to object. Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of Court. See 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any objection must be filed within this deadline. Failure to object may constitute a waiver of objections upon subsequent review.
