United States Court of Appeals

For the First Circuit

No. 21-1761

GEORGIA GLASSIE,

Plaintiff, Appellant,

v.

PAUL DOUCETTE; JOHN TAFT; and THOMAS GLASSIE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges,

and Laplante,* District Judge.

Jeffrey K. Techentin, with whom Adler Pollock & Sheehan P.C. 

was on brief, for appellant.

Christine K. Bush, with whom Gerald J. Petros, Laurel M. 

Gilbert, and Hinckley Allen & Snyder LLP were on brief, for 

appellee Doucette.

Keith B. Kyle, Catherine A. Shaghalian, and Orson and Brusini 

Ltd. on brief for appellee Taft.

Harris K. Weiner on brief for appellee Glassie.

December 5, 2022

* Of the District of New Hampshire, sitting by designation.
- 2 -

KAYATTA, Circuit Judge. This case arises out of a 

prolonged and acrimonious family dispute over the property of the 

late hotelier Donelson Glassie, whose estate remains in probate in 

Rhode Island eleven years after his death. The question here is 

whether plaintiff has managed to drag the federal courts into the 

fray. For the following reasons, we must answer "yes." 

I.

A.

Donelson Glassie was a successful, twice-married

hotelier.1 His first marriage produced two children, Elizabeth 

and Thomas Glassie.2 His second marriage produced three more, 

including Georgia (the plaintiff in this case).3 Georgia alleges 

that the children of the second marriage are looked down upon by 

the children of the first marriage, and referred to derisively as 

"the Jamestown clan."

Donelson executed a will in 1999, naming as executor 

Elizabeth's husband, Paul Doucette. Rather than allocating equal 

interests in Donelson's assets to each child, the will divvies up 

certain businesses and the estate residuum among the children of

1 We draw these facts from the operative complaint and accept 

them as true for purposes of this appeal.

2 We follow the parties' briefs and refer to certain parties 

by first names to avoid confusion. We mean no disrespect.

3 Donelson later had another child who is not mentioned in 

the will.
- 3 -

both marriages and Donelson's former business partner, John Taft, 

in varying percentages. As a result, transactions that reallocate 

value among the Donelson businesses and the estate residuum can 

affect the relative value of the parties' bequests differently. 

According to Georgia, Doucette, with the assistance of Taft and 

Thomas, has exploited that reallocation potential by engaging in 

transactions involving the Donelson businesses and the estate that 

effectively transfer value from the interests held by Georgia and 

her siblings to the benefit of the others, namely Elizabeth, 

Thomas, and Taft (the so-called "favored beneficiaries"). 

B.

Georgia brought suit in the federal district court for 

the District of Rhode Island. Her complaint advances the following 

claims: 

First, she alleges that Doucette, Taft, and Thomas are 

liable to her under the federal Racketeer Influenced and Corrupt 

Organizations ("RICO") laws, 18 U.S.C. § 1962. In support of that 

claim, she alleges that those defendants formed an enterprise that 

engaged in a pattern of fraudulent interstate communications in 

negotiating and obtaining bank loans. As an example, she points 

to a $50 million loan from M&T Bank to Mid-Manhattan Hotel 

Associates LLC, an entity wholly owned by a company in which the 

estate holds a 58% interest. The favored beneficiaries' interests 

in Mid-Manhattan are greater than Georgia's. Georgia alleges that, 
- 4 -

using Doucette's power as executor, the enterprise fraudulently 

took out a loan on behalf of Mid-Manhattan that was guaranteed by

the estate and which was used to collect interest payments from 

the estate. Georgia alleges that these acts essentially 

transferred value from the remainder of the estate -- in which 

Georgia has a 10% interest -- to Mid-Manhattan and, by extension, 

its parent company, in which Georgia has only a 4% interest (and 

in which defendants hold larger interests). Georgia also points 

to a $22 million loan from OceanFirst Bank, guaranteed by the 

estate, to fund Historic Inns of New York, LLC. The estate owns 

a controlling 61% interest in Historic Inns; favored beneficiaries 

own a significant portion of the remaining interest, while Georgia 

holds only a 2% interest. Georgia contends that to obtain both

loans, the defendants lied to Georgia and to the banks. 

Second, Georgia alleges that in their capacity as 

managing members of Historic Inns, all defendants breached 

fiduciary duties owed to her as a minority member of the LLC by 

surreptitiously entering a loan transaction that effectively 

transferred value away from Georgia and to the favored 

beneficiaries. 

Third, Georgia alleges that Doucette (as executor)

breached fiduciary duties owed to Georgia (as a beneficiary) by 

engaging in transactions designed to favor other beneficiaries to 
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her detriment and by concealing and misrepresenting facts 

concerning his actions as executor. 

Fourth, Georgia alleges that all defendants breached the 

Operating Agreement for Historic Inns by causing Historic Inns to 

borrow money without following the proper procedures, and by 

amending the Operating Agreement without a meeting or consent of 

non-managing members. 

Fifth, Georgia alleges that all defendants negligently 

omitted and/or misrepresented information regarding the actions 

they took in securing the Historic Inns loan and amending the 

Historic Inns Operating Agreement. 

Sixth, Georgia alleges that all defendants committed 

fraud by failing to disclose the actions they took in securing the 

Historic Inns loan and amending the Historic Inns Operating 

Agreement. 

Seventh, Georgia alleges that all defendants engaged in 

a civil conspiracy to unlawfully benefit themselves by taking 

actions that harmed Georgia's interest in the estate but increased 

the value of businesses in which defendants and the favored 

beneficiaries held a greater interest. 

As relief, Georgia seeks monetary damages against 

Doucette, Thomas, and Taft, all in their personal capacities, plus 

attorneys' fees in connection with the RICO claim under 18 U.S.C. 

§ 1964(c). 
- 6 -

The district court dismissed all of Georgia's claims as 

barred by the probate exception to federal court jurisdiction. 

The court reasoned that determining the harm Georgia suffered from 

the defendants' wrongful acts would require an accounting of the 

estate, and that granting her relief on some of her claims would 

require replacing the executor. 

II.

We first consider a question of abstention about which 

the parties filed supplemental briefs at our request. Under the 

doctrine established in Colorado River Water Conservation District

v. United States, 424 U.S. 800 (1976), a federal court may abstain 

in certain instances where there is a parallel state court 

proceeding, "based on 'considerations of wise judicial 

administration' that counsel against duplicative lawsuits." 

Jiménez v. Rodríguez-Pagán, 597 F.3d 18, 27 (1st Cir. 2010)

(quoting Colorado River, 424 U.S. at 817). As mentioned,

Donelson's estate remains in Newport probate court. According to 

the parties, Georgia and her mother filed a petition with the 

probate court to remove Doucette as executor based on his breach 

of fiduciary duty; that petition was denied by the probate court, 

and the denial was appealed to the Rhode Island Superior Court. 

The probate court also denied a petition filed by Georgia and her 

mother to adjudge Doucette in contempt for failing to render 

inventory and account, leading to another appeal to the superior 
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court. The probate court also found unripe a petition Georgia 

filed to prohibit the disbursement of estate funds to pay Doucette 

and the favored beneficiaries' legal fees. Thomas, a defendant in 

this case, has also filed petitions in the probate court seeking 

a distribution of estate assets to him. 

This federal lawsuit clearly covers much ground in 

common with these ongoing state court proceedings. But some 

duplication alone is not enough to justify a stay of this federal 

action; "[t]he crevice in federal jurisdiction that Colorado River

carved is a narrow one," and abstention must be approached with 

"caution" and granted only where there is the "clearest of 

justifications." Id. (internal quotations omitted). As a 

threshold matter, a stay or dismissal of a federal lawsuit under 

Colorado River "necessarily contemplates that the federal court 

will have nothing further to do in resolving any substantive part 

of the case." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 

460 U.S. 1, 28 (1983). For this reason, "it would be a serious 

abuse of discretion to grant [a] stay or dismissal at all" "[i]f 

there is any substantial doubt" "that the parallel state-court 

litigation will be an adequate vehicle for the complete and prompt 

resolution of the issues between the parties." Id. In short, to

create the possibility of abstention under Colorado River, the 

federal- and state-court cases must be "sufficiently parallel," 

Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d 529, 
- 8 -

533 (1st Cir. 1992); that is, the state action must resolve all of 

the claims in the federal case.

Here, there is substantial doubt that the state-court 

actions will resolve all of Georgia's federal claims. For example, 

even if Georgia were to lose in state probate court on all of her 

claims relating to Doucette's conduct as executor, that would not 

dispose of her claim that some or all of the defendants breached 

duties owed to her as managers of Historic Inns, since that 

corporate governance dispute is based on her status as a member of 

the LLC rather than as a beneficiary of the estate. Likewise,

even if Georgia prevails on all claims in the state courts, it is 

unlikely that any state court in so ruling will have occasion to 

consider whether a RICO enterprise existed, or whether the three 

defendants committed bank fraud as alleged in Georgia's federal 

RICO claim.

Indeed, not even the defendants contend that the statecourt claims will resolve all the federal-court claims. Doucette 

argues, instead, that we should abstain because Georgia could bring 

her RICO claim in state court. But if that were sufficient to 

invoke abstention, abstention could become the rule, rather than 

the exception, except in actions impacting exclusive federal 

jurisdiction. See Jiménez, 597 F.3d at 29 ("The 'piecemeal 

litigation' to be avoided is something more than just the 

repetitive adjudication that takes place in all cases implicating 
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Colorado River doctrine . . . . [O]therwise, courts could abstain 

in any diversity action that overlapped with a state-court 

action."). Taft's claim that the state-court actions "are likely 

to moot, or at the very least inform, Georgia's federal claims," 

does not convince us that a federal court would have "nothing 

further to do" after the state-court actions. Thomas concedes 

that "the preclusive effect of the final probate action cannot at 

this time be predicted." 

In sum, we have substantial doubt that resolution of the 

state-court actions will provide a vehicle for the "complete" 

resolution of the issues between the parties. We therefore find 

that the case for Colorado River abstention does not get to first 

base.4

III.

We turn now to application of the probate exception to 

federal court jurisdiction.5 We review a district court's 

dismissal for lack of subject matter jurisdiction de novo. Murphy

4 For this reason, we have no need to consider the additional 

factors drawn from Colorado River and its progeny, see Jiménez, 

597 F.3d at 27–28, that are employed to identify those instances 

of parallel federal-state litigation in which abstention is 

justified. 

5 Georgia did not argue in the district court that the 

probate exception applies only to state law claims, so we consider 

that claim unpreserved in this civil action. See, e.g., 

Evangelista v. Sec'y of Health & Hum. Servs., 826 F.2d 136, 144 

(1st Cir. 1987).
- 10 -

v. United States, 45 F.3d 520, 522 (1st Cir. 1995). In doing so, 

we take all well-pleaded facts as true and draw all inferences in 

Georgia's favor. Id.

A.

The probate exception to federal jurisdiction is a 

judicially created doctrine. Born of notions regarding the 

boundaries of jurisdiction of English chancery courts, it 

precludes the assertion of federal jurisdiction in certain probate 

matters.

In Markham v. Allen, 326 U.S. 490 (1946), the Supreme

Court stated that a federal court cannot "interfere with the 

probate proceedings or assume general jurisdiction of the probate 

or control the property in the custody of the state court." Id.

at 494. Sixty years later in Marshall v. Marshall, 547 U.S. 293 

(2006), the Supreme Court revisited that formulation of the 

exception, deeming it to be "not a model of clear statement." Id.

at 311. The Court reasoned that the "interference" language in 

Markham was "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." Id. The Marshall Court emphasized that Markham in fact 

"described a probate exception of distinctly limited scope." Id. 

It further clarified that "the probate exception reserves to state 

probate courts [1] the probate or annulment of a will and [2] the 
- 11 -

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." Id. at 311–12. But the 

exception "does not bar federal courts from adjudicating matters 

outside those confines and otherwise within federal jurisdiction." 

Id. at 312.

The Court also observed that Markham's lack of clarity 

had led some lower courts "to block federal jurisdiction over a 

range of matters well beyond probate of a will or administration 

of a decedent's estate." Id. at 311. As examples of matters "well 

beyond" the probate exception, it cited three cases -- including 

one from this circuit, Mangieri v. Mangieri, 226 F.3d 1, 2–3 (1st 

Cir. 2000) -- in which federal courts found the probate exception 

barred jurisdiction over breach of fiduciary duty claims against 

executors or trustees. 547 U.S. at 311. 

Finally, in determining whether the narrowed exception 

applied to Marshall's case -- a tortious interference with 

inheritance claim -- the Court found the probate exception 

inapplicable. Id. at 312–14. Marshall sought an in personam

judgment, and did not seek to reach a res in the custody of a state 

court. Id. at 312. Moreover, "no 'sound policy considerations'

militate[d] in favor of extending the probate exception," since 

both state and federal trial courts often addressed conduct of 

this type and the probate court possessed no "special proficiency" 
- 12 -

in handling these issues. Id. (quoting Ankenbrandt v. Richards, 

504 U.S. 689, 703, 704 (1992)). 

B.

1.

In finding the probate exception applicable to this 

case, the district court reasoned that any attempt to calculate 

damages in this action would entail "precisely the kind of 

valuation and accounting that is within the exclusive province of 

the probate court." See Glassie v. Doucette, 559 F. Supp. 3d 52, 

61 (D.R.I. 2021). Reasoned the district court, "[a]n accounting 

runs squarely into the probate exception." Id.

How this conclusion fits within the Marshall formulation 

of the probate exception (which makes no mention of an accounting), 

the district court did not say. Defendants presume that the 

district court had in mind Marshall's reference to "administration 

of a decedent's estate." We agree. See Glassie, 559 F. Supp. 3d 

at 59 (noting "[t]he essence of the claim" to be, in part, "alleged 

mismanagement of the administration of the estate.") So the first 

question posed is whether the need to determine damages constitutes 

a form of estate administration because it entails valuing estate 

assets.

Doucette claims that we need not consider this question 

because Georgia has failed to make argument in her brief that 

calculating damages would not require the federal court to 
- 13 -

administer her father's estate. But Georgia stated multiple times 

in her opening brief that her claims do not seek to administer an 

estate, and she argued consistently both below and in this court 

that the relief she seeks does not run afoul of any of the three 

prongs of the exception specified in Marshall. Moreover, Georgia's

relatively greater focus on the third prong made sense, given the 

district court's discussion of the actual effect the relief she 

requested would have on the estate. In short, we see no waiver; 

so we turn to the merits of the issue. 

2.

While we disagree with the district court's conclusion 

that the probate exception applies to this case, we acknowledge 

the lack of helpful precedent on point and the difficulty of 

applying Marshall. See Jiménez, 597 F.3d at 24 ("[S]tating the 

probate exception has proven easier than applying it." (quoting 

Umsted v. Umsted, 446 F.3d 17, 20 n.2 (1st Cir. 2006))). The 

probate exception has been called "one of the most mysterious and 

esoteric branches of the law of federal jurisdiction." Id. at 23 

(quoting Dragan v. Miller, 679 F.2d 712, 713 (7th Cir. 1982)). We 

simply see the issue differently than did the district court. Our 

reasoning follows.

a.

First, we do not agree that any potential need to value 

estate assets in order to calculate damages necessarily requires 
- 14 -

an accounting, much less estate administration. It is true that 

calculating damages in this civil action could well involve the 

jury's consideration of how much damage Georgia suffered as a 

result of defendants' alleged misconduct that lowered the value of 

her eventual inheritance. And that calculation of damages might 

include considering whether and to what extent the value of the 

estate residuum decreased. But such a calculation is hardly a 

probate accounting. Under Rhode Island probate law, an account is 

given to the probate court at the end of administration of the 

estate, or at other times if so ordered by the probate court. R.I. 

Gen. Laws § 33-14-1. The account must include information about 

the estate's assets, money it has received (whether from sales or 

rents), losses, charges, payments, and distributions. Id. § 33-

14-2. Specifically:

Accounts . . . shall charge . . . the amount 

of the inventory, or, instead the amount of 

the balance of the last account rendered, as 

the case may be, and all income, all gains 

from the sale of personal property, and all 

other property received by [the executor or 

administrator], although not inventoried, and 

all rents and proceeds of the sale of real 

estate received by the executor or 

administrator; the accounts shall credit all 

charges, losses and payments, including 

legacies, distribution, and specific personal 

property delivered, and shall also show the 

investments of the balance of the account, if 

any, and changes of investments, along with 

such documentation verifying such investments 

as the court may request.
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Id. The account may also include charges for funeral expenses; 

money reasonably spent by the executor or administrator, including 

attorneys' fees paid to defend the appeal of the will; and a 

reasonable fee for the executor or administrator. Id. §§ 33-14-6

to -8. The settlement of the account by the probate court is 

"final and conclusive on all parties concerned." Id. § 33-14-11. 

"The accepting and allowing of . . . accounts" of executors or 

administrators is part of the general jurisdiction of Rhode Island 

probate courts. Id. § 8-9-9.

Calculating damages in a civil action falls short of the 

foregoing. Although Georgia alleges that information regarding 

the estate's assets is "not currently available to" her, the 

district court crossed a bridge too far when it concluded that 

Georgia could not "attach a value to her loss without a complete 

accounting." Glassie, 559 F. Supp. 3d at 61. The most that can 

be said is that calculating damages in this civil action may 

intertwine with some determinations made in performing an

accounting. R.I. Gen. Laws § 33-14-2 (accounting includes

ascertaining losses to the estate). But as we said in Jiménez, 

the probate exception does not apply merely because a judgment in 

the federal-court action "may be intertwined with and binding 

on . . . state proceedings." 597 F.3d at 24 (quoting Lefkowitz v. 

Bank of N.Y., 528 F.3d 102, 106 (2d Cir. 2007)). Moreover, any 

damages calculation will not preclude the probate court from 
- 16 -

approving a final accounting, nor will it determine the 

distribution Georgia will receive from the estate itself.6 

More generally, a rule that any need to value estate 

assets triggers the probate exception would lead to an expansive

understanding of the exception that runs against Marshall's 

cautionary explanation. 547 U.S. at 311–12. A simple example 

highlights this point. Imagine that the executor of an estate 

misrepresented to a bank the value of estate property put forward 

as collateral for a loan. Clearly an action by the bank against 

the executor for fraud would likely involve valuing estate 

property. But we doubt that many would deem the probate exception 

to swallow up such an action by the bank. And in this case itself, 

Georgia rests her RICO claim partially on allegations that the 

defendants procured bank loans by fraud. 

Defendants rely on several out-of-circuit and district 

court cases finding that any claim requiring the valuation of 

assets requires a premature accounting and thus is barred by the 

probate exception. E.g., Stuart v. Hatcher, 757 F. App'x 807 (11th 

Cir. 2018); Junco Mulet v. Junco De La Fuente, 228 F. Supp. 2d 12 

(D.P.R. 2002). These cases draw on Turton v. Turton, 644 F.2d 344 

6 Because an accounting would not be required in this federal 

lawsuit, we are likewise not concerned that the federal court would 

risk "improperly assum[ing] general probate jurisdiction." 

Lebrón-Yero v. Lebrón-Rodríguez, No. 20-1443, 2022 WL 611589, at 

*2 (1st Cir. Mar. 2, 2022).
- 17 -

(5th Cir. 1981), a pre-Marshall case where the Fifth Circuit held 

that the federal courts could not adjudicate the dollar value of 

a plaintiff's share of the estate. Id. at 347–48. The district 

court there had valued assets still within the estate and ordered 

that the plaintiff be paid a specific dollar value of those assets, 

and the Fifth Circuit held that the probate exception prohibited 

it from taking those actions. Id.

Turton has limited relevance to the problem at hand, 

even apart from the fact that it predates Marshall. The plaintiff 

in Turton sought to obtain estate assets, rather than in personam

damages. The district court in Turton sought to act directly upon 

the estate itself, because it ordered property to be distributed 

to the plaintiff from the estate. 644 F.2d at 346–47. Thus, 

Turton was a case in which the court attempted to dispose of 

property in the custody of a probate court. Marshall, 547 U.S. at 

311–12. Here, Georgia seeks only in personam damages to be paid 

by the defendants. She does not seek to act upon the estate. More 

generally, determining whether Georgia suffered damages due to any 

defendant's acts is not a matter in which a probate court has 

unique expertise.

In sum, we are not persuaded that calculating the damages 

on plaintiff's claim would constitute administration of the estate

as Marshall uses that term. Nor do we see how Georgia's complaint 

would otherwise require the federal court to administer Donelson's 
- 18 -

estate. Doucette argues that the federal court will need to review 

various documents and plans before the probate court, but we do 

not see how simply reviewing documents regarding the estate 

constitutes administration of the estate. Taft argues that 

Georgia's suit seeks to effectively undo specific actions taken by 

Doucette in administering the estate, but Georgia asks for no 

relief that would reverse or otherwise affect any of the 

transactions she discusses in her complaint. We conclude that 

Georgia's lawsuit does not seek administration of Donelson's 

estate, and cannot be barred by the probate exception on that 

basis.

b.

Defendants alternatively rest on the fact that among the 

breaches of duty alleged by Georgia are breaches by Doucette as 

executor. Some federal courts have concluded that the probate 

exception bars claims, including breach of fiduciary duty claims,

based on the executor's actions regarding the estate. See, e.g.,

Stuart, 757 F. App'x at 810; Carroll v. Hill, 559 F. Supp. 3d 645, 

654–55 (N.D. Ohio 2021). But, as explained above, the conclusion 

that claims of fiduciary breach by the executor necessarily trigger 

the probate exception was rejected in Marshall itself. 547 U.S. 

at 311. 

In Marshall's wake, several of our sister circuits have 

found that the probate exception does not bar claims for breach of 
- 19 -

fiduciary duty against an executor simply because the underlying 

conduct involves estate assets. In Lefkowitz, for example, the 

Second Circuit found that the probate exception did not bar claims 

for breach of fiduciary duty, aiding and abetting breach of 

fiduciary duty, fraudulent concealment, and fraudulent 

misrepresentation which sought in personam damages, since those 

claims did not require the court to reach or control a res. 528 

F.3d at 107–08. Similarly, in Jones v. Brennan, 465 F.3d 304 (7th 

Cir. 2006), the Sixth Circuit found that a breach of fiduciary 

duty claim against guardians and guardians ad litem who were 

managing estate assets would likely not be barred by the probate 

exception after Marshall. Id. at 307–08. The Sixth Circuit has 

also twice found the probate exception did not bar breach of 

fiduciary duty claims where the plaintiff sought in personam

damages, did not seek to reach a res in the custody of a state 

court, and did not simply seek the equivalent value of probate

distributions. Osborn v. Griffin, 865 F.3d 417, 435–37 (6th Cir. 

2017); Wisecarver v. Moore, 489 F.3d 747, 750–51 (6th Cir. 2007). 

The Ninth Circuit, too, has found that breach of fiduciary duty 

claims brought under California probate law were not barred by the 

probate exception after Marshall. Chrictlow v. Chrictlow, 617 F. 

App'x 664, 665 (9th Cir. 2015).

Where fiduciary duty claims seek to reach or distribute 

property within the custody of a state probate court, however, the 
- 20 -

probate exception may well apply. Three Keys Ltd. v. SR Utility 

Holding Co., 540 F.3d 220, 229–30 (3d Cir. 2008). Similarly, the 

exception may apply when a plaintiff seeks the restoration of money 

previously distributed to a testamentary trust. Mercer v. Bank of 

N.Y. Mellon, N.A., 609 F. App'x 677, 679–80 (2d Cir. 2015). 

Georgia, though, makes no such requests in her federal suit. She 

does not ask that the court exercise in rem jurisdiction over 

estate property. Nor, finally, does she challenge the will or 

seek to order the probate judge to do or not do anything. See

Marshall, 547 U.S. at 311–12. So we see no basis for invoking the 

probate exception merely because Georgia alleges breaches of 

fiduciary duty by Doucette.

Doucette also argues that Georgia's RICO claim should be

barred because some of the conduct she alleges involved Doucette's 

actions with respect to the estate. But Georgia's RICO claim does 

not ask the probate court to do anything, or ask the federal court 

to act on estate property. So as with the breach of fiduciary 

duty claim, we see no basis to apply the probate exception to the 

RICO claim. 

c.

Defendants more generally complain that Georgia's foray 

into federal court will interfere with the probate proceedings, 

because many legal and factual issues are common to the two 

proceedings. But this type of "interference" is present whenever 
- 21 -

overlapping lawsuits are filed. Nor after Marshall can it support

abdication of federal jurisdiction. As explained above, Marshall

made clear that the "interference" language in Markham is to be 

necessarily read as "essentially a reiteration of the general 

principle that . . . a second court will not assume in rem

jurisdiction over the same res." 547 U.S. at 311–12; see Mojtabai

v. Mojtabai, 4 F.4th 77, 82 n.2 (1st Cir. 2021) (finding that 

probate exception did not apply where "relief sought would not 

require the court to probate or annul a will, administer a 

decedent's estate, or 'dispose of property that is in the custody 

of a state probate court'" (quoting Marshall, 547 U.S. at 312)); 

Jiménez, 597 F.3 at 24 (noting that Marshall limited Markham's

language regarding interference); see also Goncalves ex rel.

Goncalves v. Rady Children's Hosp. San Diego, 865 F.3d 1237, 1252 

(9th Cir. 2017) (recognizing that Marshall refined the probate 

exception's scope, and accepting "reformulation" of the test that 

did not include interference language); Lefkowitz, 528 F.3d at 106 

(stating that previous test including interference language was 

"overly-broad and has now been superseded by Marshall's limitation 

of the exception"). 

Of course, Georgia's federal claims may raise issues in 

common with those before the probate court. Most likely to be 

among these common issues are those requiring a determination that 

Doucette did or did not breach fiduciary duties owed to Georgia as 
- 22 -

a beneficiary. It will be for the probate court to decide what 

effect, if any, a determination of this issue by the federal court

has on the probate proceedings.7 The federal court may also need 

to consider the potentially preclusive effect of any decisions of 

the probate court on the federal lawsuit, including the denial of 

the petition to remove Doucette as executor. As the record now 

stands, we see in this overlap only a need for coordination between 

related lawsuits, such as arises in all sorts of contexts that 

have nothing to do with probate proceedings. So we place little 

weight on such an overlap in deciding whether the narrow probate 

exception should apply to bar suit altogether. 

Nor are federal courts without tools to manage 

overlapping litigation with state probate proceedings. They may

certify questions of state law to state high courts. They may 

coordinate with state courts to administer closely related cases

so as to minimize duplicative discovery or proceedings. See

James G. Apple et al., Manual for Cooperation Between State and 

Federal Courts (1997). They will pay close attention to the state 

court's construction of state law. Kunelius v. Town of Stow, 588 

7 This is similar to what happens in Rhode Island state court 

when a superior court of general jurisdiction makes a ruling that 

may overlap with a probate proceeding. See Tyre v. Swain, 946 

A.2d 1189, 1198 (R.I. 2008) ("Once the Superior Court has made a 

declaration under the UDJA . . . it is then within the province of 

the probate court to determine what effect, if any, that 

declaration has on the distribution of the decedent's assets under 

a will or other instrument.").
- 23 -

F.3d 1, 9 (1st Cir. 2009). And plaintiffs who run to federal court 

may, of course, be precluded from relitigating claims or issues 

decided by a probate court. E.g., Giragosian v. Ryan, 547 F.3d 

59, 63 (1st Cir. 2008). 

d.

The ongoing nature of the probate proceedings also does 

not by itself support an assertion of the probate exception. 

Marshall emphasized that the probate exception is focused largely 

on the effect of the federal court's actions on the res of the 

estate itself. Naturally there is a greater risk that a claim 

will reach property in the custody of a state court when the estate 

is still open in that state court. But the pendency of state court 

proceedings alone cannot mean that a federal court has no 

jurisdiction. 

For the same reason, it is not dispositive that the 

conduct here occurred after Donelson's death. Although Doucette 

points out that the allegedly tortious conduct in Marshall occurred 

before the decedent passed away, none of the reasoning or 

conclusions in Marshall pivots on this distinction. See 547 U.S. 

at 312.

e.

Finally, Historic Inns LLC's agreement to indemnify its 

managers for breaches of fiduciary duty also does not render the 

probate exception applicable. It is possible that a federal court 
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judgment against the defendants for breaches of duties owed as 

managing members of Historic Inns would trigger this requirement, 

thus reducing the value of Historic Inns including the 61% share 

owned by the estate. But the same can be said of any claim against 

any entity that happens to be owned at least in part by an estate. 

Certainly if Doucette ran into Georgia's car, her claim against 

him need not be brought in state probate court merely because he 

was at the time of his actions acting in a capacity that might 

warrant indemnification by the estate. Here too, we see no reason 

why Georgia cannot pursue a claim in federal court alleging 

breaches of defendants' duties in managing Historic Inns, with the 

probate court to determine the effect (if any) of a federal court 

ruling on such a claim. 

IV.

One could argue as a policy matter that Georgia's claims 

would be best left to the state courts. However, the lines of 

federal jurisdiction are not so drawn.8 The probate exception, as 

the Supreme Court admonished in Marshall, is a narrow one, and 

federal courts must take care not to enlarge its boundaries by 

8 Of course, nothing in this opinion suggests that Congress 

could not redraw those lines should it wish to do so. 
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declining to take jurisdiction over claims such as those brought 

in this action.

For the foregoing reasons, we reverse the judgment of 

the district court and remand for further proceedings.9

9 In light of our ruling, we have no need to decide whether 

the probate exception can be applied to federal causes of action 

in federal court. Compare Jones, 465 F.3d at 306–07 (finding 

exception applies to federal question cases), with In re Goerg, 

844 F.2d 1562, 1565 (11th Cir. 1988) (stating probate exception 

"has no bearing on federal question jurisdiction").