FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER D. SILK, 

Plaintiff-Appellant,

 v. 

BARON BOND; HOWARD B. 

MILLER, in their capacity as Personal 

Representatives of the Estate of Frank 

Bond, 

Defendants-Appellees.

No. 21-56286 

D.C. No. 

2:21-cv-03977-

ODW-JPR 

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright II, District Judge, Presiding

Argued and Submitted January 10, 2023

Pasadena, California

Filed April 10, 2023

Before: Paul J. Watford, Michelle T. Friedland, and Mark 

J. Bennett, Circuit Judges.

Opinion by Judge Bennett
2 SILK V. BOND

SUMMARY*

Personal Jurisdiction

The panel reversed the district court’s judgment 

dismissing for lack of personal jurisdiction Roger Silk’s suit 

alleging breach of contract.

Silk provided Frank Bond tax- and estate-planning 

services. When Bond died, Silk filed a claim in Baltimore 

County Orphans’ Court against Bond’s Estate for fees 

allegedly due under contracts. After the Estate disallowed 

the claim, Silk sued in federal court.

Following the U.S. Supreme Court’s decision in 

Marshall v. Marshall, 547 U.S. 293 (2006), this Court held 

that the probate exception bar to federal jurisdiction was 

limited to cases in which the federal courts would be called 

on to “(1) probate or annul a will, (2) administer a decedent’s 

estate, or (3) assume in rem jurisdiction over property that is 

in the custody of the probate court.” Goncalves v. Rady 

Children’s Hosp. San Diego, 865 F.3d 1237, 1252 (9th Cir. 

2017).

The panel held that none of the Goncalves categories 

applied to Silk’s suit against the Estate. First, neither party 

contends that Silk was seeking to annul or probate Bond’s 

will. Second, this suit does not require the federal courts to 

administer Bond’s Estate. Valuing an estate to calculate 

contract damages is not administering an estate. Third, this 

suit does not require the federal courts to assume in rem 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
SILK V. BOND 3

jurisdiction over property in the custody of the probate 

court. If Silk were to prevail at trial, he would be awarded 

an in personam judgment for money damages. Also, the fact 

that assets under control of the Orphans’ Court might 

ultimately have to satisfy a federal court judgment or a 

federal court order to pay court expenses does not mean that 

any such judgment or order is an order disposing of assets 

under the control of the Orphans’ Court. Finally, this 

decision is consistent with authority from other circuits.

The panel held that Silk made out a prima facie case of 

personal jurisdiction. Under California’s long-arm statute 

for the exercise of personal jurisdiction, the Estate had 

“minimum contacts” with California. During his life, Frank 

Bond established purposeful contact with California via his 

contacts with Silk, then a California resident, for services. In 

doing so, Bond created a muti-year business relationship 

with Silk in California. The panel held that it was reasonable 

for California courts to exercise specific personal 

jurisdiction over Bond’s Estate. The panel rejected the 

Estate’s challenges to the exercise of personal jurisdiction.

The panel held that the district court erred in holding that 

Silk’s suit was barred by the probate exception to federal 

jurisdiction. Because at this stage of the proceedings Silk 

has made a prima facie case for personal jurisdiction over 

the Estate, the panel reversed and remanded for further 

proceedings.
4 SILK V. BOND

COUNSEL

Paul Fattaruso (argued), Adina Levine, and Jason Cyrulnik, 

Cyrulnik Fattaruso LLP, New York, New York; Sara Colón 

and Ethan J. Brown, Brown Neri Smith Khan LLP, Los 

Angeles, California; for Plaintiff-Appellant.

Jeffrey E. Nusinov (argued), Nusinov Smith LLP, 

Baltimore, Maryland; Gary A. Nye and Joseph C. Gjonola, 

Roxborough Pomerance Nye & Adreani LLP, Woodland 

Hills, California; for Defendants-Appellees.

OPINION

BENNETT, Circuit Judge:

As the Supreme Court has reminded us, “[i]t is most true 

that this Court will not take jurisdiction if it should not: but 

it is equally true, that it must take jurisdiction if it should . . 

. We have no more right to decline the exercise of 

jurisdiction which is given, than to usurp that which is not 

given.” Marshall v. Marshall, 547 U.S. 293, 298–99 (2006) 

(ellipsis in original) (quoting Cohens v. Virginia, 19 U.S. 

264, 404 (1821)). 

Plaintiff-Appellant Roger Silk provided Frank Bond taxand estate-planning services. Under contracts between Silk 

and Bond, part of Silk’s compensation was to be based on 

savings realized by Bond’s Estate. These “incentive fees” 

were intended to align Silk’s financial interests with Bond’s, 

and due to their nature, could be paid only after Bond’s 

death. When Bond died, Silk filed a claim in a Maryland 
SILK V. BOND 5

probate court1 against Bond’s Estate for fees he contended 

were due to him under the contracts. After the Estate 

disallowed the claim, Silk sued in federal court.

2 The district 

court dismissed Silk’s suit for lack of subject matter 

jurisdiction, finding that the suit was barred by the “probate 

exception” to federal court jurisdiction. But because the 

probate exception does not strip federal court jurisdiction 

over this routine contract dispute, and because at this stage 

of the proceedings Silk has made a prima facie case for 

personal jurisdiction over the Estate, we reverse and remand 

for further proceedings.

BACKGROUND

For more than two decades, Roger Silk provided tax- and 

estate-planning services to Frank Bond.3 Bond, who died in 

July 2020, had approximately $40 million in liquid assets at 

the time he retained Silk―monies he amassed by launching 

a health and fitness business, U.S. Health, Inc., which he 

later sold.

Bond hated paying income taxes, and he retained Silk for 

various financial services, including to legally shield his 

assets from the taxing authorities. From approximately 1991 

to 1995, Silk worked exclusively for Bond, supervising his 

investment portfolio, addressing issues regarding insurance 

1 Baltimore County Orphans’ Court (“Orphans’ Court”).

2 No argument has been made on appeal that the determination of the 

Orphans’ Court is somehow entitled to preclusive effect as to the merits 

of Silk’s claim for fees.

3 As the Estate brought a facial challenge to jurisdiction, we accept all 

plausibly pleaded facts in the Complaint as true. See Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009); Wolfe v. Strankman, 392 F.3d 358, 362 (9th 

Cir. 2004).
6 SILK V. BOND

and philanthropic entities, and “quarterbacking the team” of 

professionals who also advised Bond on tax issues. In the 

early 1990s, Silk developed a private variable annuity for

Bond, which would lead to tax savings for Bond through 

deferral. In exchange for the creation of the annuity, Bond 

agreed to pay Silk 15% of tax savings attributable to the 

annuity strategy. The two agreed that the incentive payment 

would be paid at the earlier of the end of the tax deferral 

period, or Bond’s death.4 

Silk and Bond also made other deals involving incentive 

fees. In 1998, Silk provided Bond with tax planning 

involving an existing Grantor Retained Interest Trust 

(GRIT) related to Bond’s interest in a shopping center 

limited partnership. In June 1999, Bond and Silk signed a 

contract that set out the work Silk was to do. The contract

provided that the incentive fee would “only become payable 

upon [Bond’s] death,” and, based on the formula in the 

contract, would be “computed in good faith” by a named 

accounting firm “or any other independent accounting firm 

selected by [Bond’s] personal representatives.” The contract 

also provided that the incentive fee would “constitute a valid 

and binding obligation on [Bond’s] estate,” and Bond agreed 

to “alert [his] personal representatives to” the agreement. 

In the same year, Silk and Bond also signed a contract 

concerning certain apartments. Silk, again, provided tax 

planning services, and, again, his compensation was to be an 

incentive fee based on a contractual formula. And again, the

incentive fee would only “become payable upon [Bond’s] 

death.” This fee, too, was to be “computed in good faith” by 

the same named accounting firm “or any other independent 

4 Bond’s death occurred prior to the end of the tax deferral period. 
SILK V. BOND 7

accounting firm selected by [Bond’s] personal 

representatives.” The contract also provided that the 

incentive fee was a “valid and binding obligation of [Bond’s] 

estate,” and that Bond would alert his personal 

representatives to the agreement.5

After Bond died in 2020, Silk filed a $3.1 million claim 

against the Estate in Orphans’ Court. The Estate disallowed 

the claim, and the notice of disallowance stated that Silk’s 

claim would “be forever barred unless within 60 days after 

the mailing of this notice you file a petition for allowance of 

the disallowed amount in the Orphans’ Court or a suit 

against the personal representative.” 

Silk sued Baron Bond (Bond’s son) and Howard Miller, 

the personal representatives of the Bond Estate.

6 Silk sought 

breach of contract damages based on the unpaid incentive 

fees arising from the three contracts described above. The 

suit alternatively sought damages based on unjust 

enrichment and promissory estoppel. Under all theories, 

Silk also sought an accounting sufficient to calculate the 

incentive fees. 

The Estate moved to dismiss under Federal Rule of Civil

Procedure 12(b)(1), arguing that the suit was barred, in its 

entirety, by the probate exception. The district court granted 

the motion and dismissed the case. The court held that, 

5 The copy of the contract appended to the Complaint contains a 

handwritten notation reading: “Explained 8/26/99 Howard B. Miller.” 

Howard Miller was Bond’s longtime attorney and is one of the personal 

representatives of Bond’s Estate.

6 Because Silk does not seek relief from the defendant personal 

representatives in their personal capacities, we refer to them as the 

Estate.
8 SILK V. BOND

because the claim “cannot be resolved without first 

determining the value of the Estate,” the court would be 

required to take control of the appraisal process, which 

“would amount to the administration of Decedent’s Estate—

a right reserved to the state probate court.” It also held that 

as the contracts required the Estate to pay the cost of any 

appraisal, ordering an appraisal would “improperly interfere 

with the probate court’s authority and dispose of estate assets 

in its control.” While the district court did not apply the 

doctrine of “prior exclusive jurisdiction,”7 it noted that “Silk 

acknowledged the probate court’s jurisdiction by first filing 

his claim in the Baltimore County Orphans’ Court.” Silk 

appeals from the district court’s grant of a motion to dismiss 

for lack of subject matter jurisdiction, which we review de 

novo. See U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 

792 F.3d 1121, 1126 (9th Cir. 2015) (en banc). 

I.

In Marshall v. Marshall, the petitioner sought review in 

the Supreme Court of a decision from our court dismissing 

an action under the probate exception. We had held that 

although tortious interference claims arising out of the death 

of J. Howard Marshall, II did “not involve the administration 

of an estate, the probate of a will, or any other purely probate 

matter,” the probate exception still applied because the 

7 The “prior exclusive jurisdiction doctrine holds 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.” Chapman v. Deutsche Bank Nat’l

Tr. Co., 651 F.3d 1039, 1043 (9th Cir. 2011) (internal quotation marks

omitted) (quoting Marshall, 547 U.S. at 311). Because we conclude that

the federal district court would not be required to assume in rem 

jurisdiction were Silk’s case to proceed, we hold that the prior exclusive 

jurisdiction doctrine does not apply.
SILK V. BOND 9

claims raised “questions which would ordinarily be decided 

by a probate court in determining the validity of the 

decedent’s estate planning instrument.” In re Marshall, 392 

F.3d 1118, 1133 (9th Cir. 2004), rev’d sub nom. Marshall v. 

Marshall, 547 U.S. 293 (2006). The Supreme Court 

reversed. The Court first emphasized the narrowness of the

probate exception, 547 U.S. at 305, and then held that while 

“the probate exception reserves to state probate courts the 

probate or annulment of a will and the administration of a 

decedent’s estate” and “precludes federal courts from 

endeavoring to dispose of property” in the custody of the 

state probate court, “it does not bar federal courts from 

adjudicating matters outside those confines and otherwise 

within federal jurisdiction,” id. at 311–12. The Court also 

stated: “We hold that the Ninth Circuit had no warrant from 

Congress, or from decisions of this Court, for its sweeping 

extension of the probate exception.”8

 Id. at 299–300. 

Following Marshall, we have since held that the probate 

exception is limited to cases in which the federal courts 

would be called on to “(1) probate or annul a will, (2) 

administer a decedent’s estate, or (3) assume in rem

jurisdiction over property that is in the custody of the probate 

court.” Goncalves v. Rady Children’s Hosp. San Diego, 865 

F.3d 1237, 1252 (9th Cir. 2017) (quoting Three Keys Ltd. v. 

SR Util. Holding Co., 540 F.3d 220, 227 (3d Cir. 2008)). 

None of the Goncalves categories applies to Silk’s suit 

against the Estate. 

8 Justice Stevens, concurring in part, and concurring in the judgment, 

referred to the “so-called” probate exception and wrote: “I do not believe 

there is any ‘probate exception’ that ousts a federal court of jurisdiction 

it otherwise possesses.” 547 U.S. at 315, 318. 
10 SILK V. BOND

A. Probate or Annul a Will

Neither party contends Silk is seeking to annul or probate 

Bond’s will. 

B. Estate Administration

This suit does not require the federal courts to administer

Bond’s Estate. Yet the district court reasoned that hearing 

Silk’s claim would require it to “assume control over an 

estate appraisal” in order to “determine what portion of the 

Estate” is due to Silk under the incentive fee agreements. 

The court reasoned that taking “control of the appraisal 

would amount to the administration of [the] Decedent’s 

Estate.” On appeal, the Estate likewise argues that Silk’s 

lawsuit would require the district court to administer Bond’s 

estate. But valuing an estate to calculate contract damages

is not administering an estate.

The Estate urges us to repeat the mistake we made in 

Marshall. It argues that by valuing estate property, the 

district court would be interfering with the Maryland probate 

proceedings.9 This so-called interference allegedly occurs 

because “Maryland’s Estates & Trusts Article establishes a 

comprehensive framework for estate appraisals.” According 

to the Estate, the fact that the contracts would obligate it to 

also pay for an independent appraisal to calculate Silk’s fees 

9 The Estate’s brief claims that “in contrast to Marshall where the 

adjudication of a tortious interference claim implicated no special 

proficiency available in state court, the case at bar entails operations for 

which the probate court is emphatically the best suited forum.” We 

disagree that the probate court is the “best suited forum” for resolving a 

contract dispute like the one here. But even were that not so, just like 

there is no “interference” category of the probate exception, there is 

similarly no “best suited forum” category.
SILK V. BOND 11

moves this case into the province of estate administration. 

And as noted above, the district court adopted the Estate’s 

view, finding that entertaining this action would “improperly 

interfere with the probate court’s authority.” 

Although appraisal is a component of estate

administration, Maryland’s regulation of appraisals as part 

of the probate process has no legal bearing on whether a 

federal district court may order an appraisal as part of a 

contract action. And in the context of this case, an appraisal 

is specifically contemplated by the contract between the 

parties. For purposes of Silk’s breach of contract action, an 

appraisal of the Estate’s value is a matter of contract 

interpretation, purely incidental to the task of the probate 

court in administering the estate. To be sure, there is an

overlap between any Orphans’ Court estate appraisal and 

any other estate appraisal. But the Supreme Court in 

Marshall rejected the notion that such factual overlap 

implicates the probate exception. 

As the Supreme Court stated: 

In the Ninth Circuit’s view, a claim falls 

within the probate exception if it raises 

“questions which would ordinarily be 

decided by a probate court in determining the 

validity of the decedent’s estate planning 

instrument,” whether those questions involve 

“fraud, undue influence, or tortious 

interference with the testator’s intent.”

547 U.S. at 304 (alterations omitted). Indeed, we had held 

that the exercise of federal jurisdiction over tortious 

interference claims would “interfere with the Texas probate 
12 SILK V. BOND

court proceedings.” In re Marshall, 392 F.3d at 1134. But 

the Supreme Court made clear that our view was wrong:

In short, [courts should] comprehend the 

“interference” language in Markham [v.

Allen, 326 U.S. 490 (1946)] 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.

547 U.S. at 311. 

So the question is not whether we would somehow be 

duplicating the function of the probate court, or deciding a 

question the probate court will (or might) need to decide. 

And as the Supreme Court has also told us, the question is 

not whether we would be “interfer[ing]” with the probate 

court. See id. If the district court would neither be probating 

or annulling a will (it wouldn’t be here), or administering a 

decedent’s estate (and again, it wouldn’t be here), the only 

question is whether it would be assuming in rem jurisdiction 

over property that is in the custody of the probate court, 

including by endeavoring to dispose of such property. See

Goncalves, 865 F.3d at 1252.

C. In Rem Jurisdiction/Disposal of Property

1. In Rem Jurisdiction

This suit does not require the federal courts to assume in 

rem jurisdiction over property in the custody of the probate 

court. Though “[w]e recognize that the distinction between 

in rem and in personam is often as elusive as the boundary 

lines of the probate exception,” Three Keys Ltd., 540 F.3d at

229, this suit involves the standard exercise of in personam 
SILK V. BOND 13

jurisdiction over the personal representatives of Bond’s 

Estate. Accordingly, the third Goncalves category does not 

apply.

“An action is in rem when it determines interests in 

specific property as against the whole world.” Goncalves, 

865 F.3d at 1254 (internal quotation marks and alteration 

omitted). If the action seeks “merely to determine the 

personal rights and obligations of the parties,” on the other 

hand, it is in personam. Id. (cleaned up). In assessing 

whether an action is in rem or in personam, courts “look 

behind the form of the action to the gravamen of a complaint 

and the nature of the right sued on.” State Eng’r v. S. Fork 

Band of the Te-Moak Tribe of W. Shoshone Indians of Nev., 

339 F.3d 804, 810–11 (9th Cir. 2003) (internal quotation

marks omitted). 

The “nature of the right sued on” here is purely 

contractual. Silk’s claims against the Estate are for breach 

of contract or, in the alternative, unjust enrichment and 

promissory estoppel. The “gravamen” of Silk’s complaint is 

that Bond breached a series of contracts, and Bond’s Estate 

now owes him money. Actions for breach of contract are in 

personam claims because they are, by their nature, claims 

between discrete entities and not between individuals and the 

world at large. See 20 Am. Jur. 2d Courts § 80 (2d ed. 2023) 

(“When the cause of action is based on a contract and the 

action seeks damages on the ground of breach of contract, 

the action is transitory in nature and may be adjudicated by 

any court which has jurisdiction in personam of the 

defendant . . . .”); see also In Personam, Black’s Law 

Dictionary (11th ed. 2019) (“A normal action brought by one 

person against another for breach of contract is a common 

example of an action in personam.”). Thus, even though an 

estate is a res, see Marshall, 547 U.S. at 310–11, and even 
14 SILK V. BOND

though the Estate is in the process of probate administration, 

Silk’s claims that Bond breached their contracts are not 

claims against the world: They are claims against Bond as a 

contracting party who has now died. 

The Estate argues that Silk’s suit would “require[] the 

district court to assume core probate functions” were it to 

calculate the damages Silk seeks. But the limited accounting 

called for in the contracts does not somehow transform an in 

personam action into an in rem action, nor otherwise bring a 

suit within the ambit of the probate exception, particularly 

when the accounting is contemplated by the very contracts 

Silk is trying to enforce.

As noted in Goncalves, Commonwealth Trust Co. of 

Pittsburgh v. Bradford, 297 U.S. 613, 619 (1936), held that 

an action for determination of rights to trust funds was an 

action in personam, not in rem, because it sought “only to 

establish rights” rather than to “deal with the property and 

other distribution.” 865 F.3d at 1254. In Bradford, the 

defendant argued that “no adjudication was possible in the 

absence of an accounting” of the trust and that “to enforce 

the remedy sought would necessarily interfere with 

possession and control of the res in the custody of the 

Orphans’ Court.” 297 U.S. at 618. Unpersuaded, the

Supreme Court reasoned that whatever control the Orphans’

Court had over the trust

did not materially differ from that exercised 

by probate courts over such fiduciaries as 

guardians, administrators, executors, etc. 

The jurisdiction of federal courts to entertain 

suits against the latter is clear, when instituted 

in order to determine the validity of claims 

against the estate or claimants’ interests 
SILK V. BOND 15

therein. Such proceedings are not in rem;

they seek only to establish rights; judgments 

therein do not deal with the property and 

order distribution; they adjudicate questions 

which precede distribution.

Id. at 619 (emphasis added). 

If Silk were to prevail at trial, he would be awarded an in 

personam judgment for money damages. As Goncalves

notes, a “federal court may proceed to judgment in 

personam, adjudicating rights in the res and leaving the in 

personam judgment to bind as res judicata the court having 

jurisdiction of the res.” 865 F.3d at 1254 (internal quotation

marks omitted) (quoting Jackson v. U.S. Nat’l Bank, 153 F. 

Supp. 104, 110 (D. Or. 1957)); 10 see also Action, Black’s 

Law Dictionary (11th ed. 2019) (defining an “action in 

personam” as one “brought against a person rather than 

property” that “can be enforced against all the property of 

the judgment-debtor”). Silk obtaining an in personam 

judgment against the Estate does not by itself get Silk any 

money. If Silk were to prevail in federal court, he would 

“need to present, in a probate court, any judgment obtained, 

if he desired payment from the assets under” that court’s 

control. Pufahl v. Est. of Parks, 299 U.S. 217, 226 (1936); 

see also Byers v. McAuley, 149 U.S. 608, 620 (1893) (“A 

citizen of another state may establish a debt against the 

estate, but the debt thus established must take its place and 

10 For the same reason, the Estate’s concern about “warring appraisals” 

is misplaced. See also Ashton v. Josephine Bay Paul & C. Michael Paul 

Found., Inc., 918 F.2d 1065, 1072 (2d Cir. 1990) (“[T]he . . . probate 

court will be obliged to give full faith and credit to the district court’s 

adjudication.”). 
16 SILK V. BOND

share of the estate as administered by the probate court . . . .”

(citation omitted)). The “marshaling of that claim with 

others, its priority, if any, in distribution, and all similar 

questions [would be] for the probate court upon presentation 

to it of the judgment or decree of the federal court.” Pufahl, 

299 U.S. at 226; see also Dan B. Dobbs & Caprice L. 

Roberts, Law of Remedies § 1.4 (3d ed. 2018) (“Ordinary 

money judgments reflect an adjudication of liability but they 

do not enter any command to defendant.”).

2. Disposal of Property

As discussed above, the Court in Marshall held that the 

probate exception precludes federal courts from endeavoring 

to dispose of property in the custody of a state probate court. 

547 U.S. at 311–12. The district court here found that 

because the contracts at issue require the Estate to pay for 

the relevant appraisals, ordering such appraisals (which was, 

in the court’s view, a prerequisite to determining damages), 

would be the same as the court disposing of estate assets 

under the control of the Orphans’ Court. And the Estate 

suggests that entering a damages judgment against it would 

do the same. But neither ordering an appraisal nor entering 

a money judgment against the Estate would “dispose” of 

assets in the control of the Orphans’ Court any more than 

defending a lawsuit—something no one contends the Estate

is disallowed from doing.

11

11 Similarly, when the Tax Court must decide what an estate is worth, it 

too is obviously not “disposing” of the property it values. See, e.g., Est. 

of Kollsman v. Comm’r, 113 T.C.M. (CCH) 1172 (T.C. 2017) 

(determining fair market value of estate’s paintings). Mere valuation is 

not disposal.
SILK V. BOND 17

The fact that assets under the control of the Orphans’

Court might ultimately have to satisfy a federal court 

judgment or a federal court order to pay court expenses does 

not mean that any such judgment or order is an order 

disposing of assets under the control of the Orphans’ Court. 

See 13E Wright & Miller, Federal Practice and Procedure § 

3610 (3d ed. 2022) (“[T]he federal courts will entertain suits 

by claimants to establish a right to a distributive share of an 

estate . . . or a debt due from the decedent.”); Hess v. 

Reynolds, 113 U.S. 73, 77 (1885) (noting that while “[i]t may 

be convenient” for “all debts to be paid out of the assets of a 

deceased man’s estate” to be established in probate court, 

that convenience does not deprive federal courts of 

jurisdiction merely “because the judgment may affect the 

administration or distribution in another forum of the assets 

of the decedent’s estate”). To hold otherwise would have us 

commit the same mistake we committed in Marshall—

authoring a “sweeping extension of the probate exception,” 

with no “warrant” from either Congress or the Supreme 

Court. 547 U.S. at 299–300. 

D. Supporting Out-of-Circuit Authority

Our decision is consistent with authority from other 

circuits. In Glassie v. Doucette, 55 F.4th 58 (1st Cir. 2022), 

Glassie sued “favored beneficiaries” of her father’s will and 

the executor of his estate under, among other things, federal 

RICO laws, 18 U.S.C. § 1962. 55 F.4th at 62. Glassie’s 

primary allegation was that, in concert with other favored 

beneficiaries, the executor of her father’s estate fraudulently 

obtained a loan guaranteed by the estate which was used to 

collect interest payments from the estate, and this loan had 

the effect of transferring estate assets to the favored 

beneficiaries. Id. at 62–63. The district court dismissed 
18 SILK V. BOND

Glassie’s suit pursuant to the probate exception, and the First 

Circuit reversed. Id. at 71. 

Rejecting the executor’s argument that the probate 

exception applied because the federal action would require 

an accounting of the estate, the First Circuit held that “the 

probate exception does not apply merely because a judgment 

in the federal-court action ‘may be intertwined with and 

binding on . . . state proceedings.’” Id. at 67 (alterations in 

original) (quoting Jimenez v. Rodriguez-Pagan, 597 F.3d 18, 

24 (1st Cir. 2010)). “[A]ny damages calculation will not 

preclude the probate court from approving a final 

accounting, nor will it determine the distribution Georgia 

will receive from the estate itself.” Id. 

Likewise, in Chevalier v. Estate of Barnhart, 803 F.3d 

789 (6th Cir. 2015), Chevalier and Barnhart were married, 

and “[t]hroughout the course of their marriage, Chevalier 

made a series of loans to Barnhart, which Barnhart never 

repaid.” Id. at 791. Chevalier sued in federal court alleging 

contract and tort claims to recover her loans. Id. The district 

court dismissed Chevalier’s action pursuant to the 

“domestic-relations exception to federal diversity 

jurisdiction” which “deprives federal courts of jurisdiction 

to adjudicate ‘only cases involving the issuance of a divorce, 

alimony, or child custody decree.’” Id. at 791–92 (quoting 

Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992)); see 

also Marshall, 547 U.S. at 308 (describing the probate 

exception as “kin to the domestic relations exception”). 

Chevalier appealed, and while the appeal was pending, 

Barnhart died. Chevalier, 803 F.3d at 792. The Sixth Circuit 

reversed the district court, holding that neither the domesticrelations exception nor the probate exception stripped the 

federal court of jurisdiction over Chevalier’s claims. Id. at 

804. 
SILK V. BOND 19

In addressing the applicability of the probate exception, 

the Sixth Circuit used the test relevant here: “whether 

Chevalier seeks to reach the res over which the state court 

had custody.” Id. at 801 (cleaned up). It held she did not, as 

“[h]er first four claims—for breach of contract, default, 

unjust enrichment, and fraud—are in personam actions.” Id. 

at 802.

Finally, in Lefkowitz v. Bank of New York, 528 F.3d 102, 

104 (2d Cir. 2007), the plaintiff asserted claims against 

estate administrators for the administrators’ own alleged 

wrongful conduct. Unlike here, no claims were based on the 

actions of the decedent. The district court, relying on law 

preceding Marshall, held that the claims were barred by the 

probate exception. Id. at 106–07. The Second Circuit, based 

on Marshall, reversed in part, distinguishing claims 

including breach of fiduciary duty, aiding and abetting 

breach of fiduciary duty, fraudulent misrepresentation, and 

fraudulent concealment—which it held were not barred by 

the probate exception—from claims including conversion, 

unjust enrichment, and payment for monies allegedly owed, 

specific performance, and declaratory relief confirming 

entitlement to estate assets, which it held were barred. Id. at 

104, 107. The court reasoned that in the former category of 

claims, the plaintiff “s[ought] damages from Defendants 

personally rather than assets or distributions from [an] 

estate.” Id. at 107–08. In the latter category of claims,

however, the plaintiff sought, “in essence, disgorgement of 

funds that remain under the control of the Probate Court” and 

that she was attempting “to mask in claims for federal relief 

her complaints about the maladministration of her parent’s 

estates, which have been proceeding in probate courts.” Id.

at 107. 
20 SILK V. BOND

To the extent that Lefkowitz suggests that the prospect of 

a damages award paid by an estate itself rather than the 

personal representative of an estate deprives the federal 

courts of jurisdiction, see id. at 107–08, that suggestion is 

incompatible with Marshall and Goncalves for the reasons 

explained above.

12 The question under Marshall and 

Goncalves is not whether a money judgment would need to 

come from an estate; it is whether a case requires a court to 

annul or probate a will, administer an estate, or assume in 

rem jurisdiction over property within the custody of a state 

probate court. Marshall, 547 U.S. at 311–12; Goncalves, 

865 F.3d at 1252. This case does not require the court to 

perform any such impermissible function.

II.

The Estate also moved to dismiss for lack of personal 

jurisdiction. The district court did not reach this argument, 

but the Estate advances it on appeal as an alternative ground 

for affirmance. As “[w]e may affirm the district court’s 

dismissal on any ground that is supported by the record, 

whether or not the district court relied on the same ground,” 

we exercise our discretion to reach this argument.13 

12 The Eleventh Circuit’s opinion in Fisher v. PNC Bank, 2 F.4th 1352 

(11th Cir. 2021), likewise suggests that federal jurisdiction would be 

inappropriate were damages to be paid by an estate rather than by a 

defendant in its individual capacity. Like the claims the Second Circuit 

held were not barred in Lefkowitz, the claims in Fisher sought damages 

from a defendant personally, rather than from an estate. Id. at 1357. To 

the extent that Fisher implies that seeking damages from an estate would 

be inconsistent with federal jurisdiction, it is similarly at odds with 

Marshall and Goncalves.

13 The Estate submitted declarations and affidavits to the district court in 

support of its motion to dismiss. Silk submitted a declaration in 
SILK V. BOND 21

Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 

1121 (9th Cir. 2013). 

During the relevant period, Silk lived in California and 

Bond lived in Maryland. Bond did not travel to California 

to do business with Silk; the two instead conducted business 

by phone, email, fax, and mail. Under the agreements at 

issue here, Silk supervised the liquid portion of Bond’s 

investment portfolio from California, and when Silk worked 

for Bond, he did so primarily from California. According to 

Silk, Bond paid into Silk’s California bank account for his 

work, and Bond mailed Silk “substantial paper copies of his 

portfolio” for review “every month until he died.” Silk also 

declares that he “retained California counsel on behalf of 

Bond in connection with some of his investments,” that 

Bond “sometimes sent his son” to California to discuss 

business on his behalf with Silk, and that at one particular 

meeting between Silk and Bond’s son in 2013, the two 

opposition. The Estate suggests in its briefing that some facts are 

disputed. When a district court acts on a defendant’s motion to dismiss 

without first holding an evidentiary hearing, “the plaintiff need only 

make a prima facie showing of jurisdiction to avoid the defendant’s 

motion to dismiss.” Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & 

Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). And “conflicts 

between the facts contained in the parties’ affidavits must be resolved in 

[the plaintiff’s] favor for purposes of deciding whether a prima facie case 

for personal jurisdiction exists.” Id. (internal quotation marks omitted). 

We conclude that Silk has made a prima facie showing of personal 

jurisdiction and leave any further proceedings on this issue to the district 

court.
22 SILK V. BOND

discussed “sensitive aspects” of Silk’s tax- and estateplanning services.14

As “California’s long-arm statute allows the exercise of 

personal jurisdiction to the full extent permissible under the 

U.S. Constitution,” Daimler AG v. Bauman, 571 U.S. 117, 

125 (2014), the question is whether the Estate had 

“minimum contacts” with California “such that the 

maintenance of the suit does not offend traditional notions 

of fair play and substantial justice.” Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 316 (1945) (internal quotation 

marks and citation omitted). The answer is yes. Our court 

has “set forth a three-part test, derived from the Due Process 

Clause, that examines the defendant’s purposeful conduct 

towards the forum, the relation between his conduct and the 

cause of action asserted against him, and the reasonableness 

of the exercise of jurisdiction.” S.E.C. v. Ross, 504 F.3d 

1130, 1138 (9th Cir. 2007). 

As discussed above, during his life, Frank Bond15

established purposeful contact with California via his 

contracts with Silk, then a California resident,16 for services. 

14 The Estate disputes this allegation, stating that when Baron Bond met 

with Silk in California, they merely “discussed shared interests including 

weight lifting, science fiction, and classical liberal political philosophy 

and religion.” 

15 A court may exercise personal jurisdiction over the representatives of 

an estate if it could have done so over the decedent. Mitsui 

Manufacturers Bank v. Tucker, 199 Cal. Rptr. 517, 519 (Ct. App. 1984). 

16 Silk declares that he lived in California during the relevant time period, 

but Howard Miller, one of the co-personal representatives of the Estate, 

declares that Silk lived in Maryland from 1991 to 1995. As factual 

conflicts from affidavits are resolved in the plaintiff’s favor at this stage, 
SILK V. BOND 23

In doing so, Bond created a multi-year business relationship 

“that envisioned continuing and wide-reaching contacts” 

with Silk in California. Burger King Corp. v. Rudzewicz, 

471 U.S. 462, 480 (1985). Moreover, by contracting with 

Silk, Bond created “continuing obligations” to Silk. See 

Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 

1474, 1478 (9th Cir. 1986). That conduct gives rise to this 

action: When Silk performed financial services for Bond he 

did so from California, and the relevant contracts list Silk’s 

California address. Claims arising out of the alleged breach 

of those contracts therefore arise out of forum-based 

activities. See id. at 1480. Finally, even though Bond did 

not travel to California to conduct business with Silk, it is 

still reasonable for California courts to exercise specific 

personal jurisdiction over his Estate given Bond’s retention 

of a California-based financial advisor who performed all the 

contracted-for services from California. Cf. Burger King, 

471 U.S. at 476 (recognizing that the absence of physical 

contacts does not alone defeat personal jurisdiction, as “it is 

an inescapable fact of modern commercial life that a 

substantial amount of business is transacted solely by mail 

and wire communications across state lines, . . . obviating 

the need for physical presence within a State”). 

The Estate contests the exercise of personal jurisdiction. 

It first argues that “a contract alone does not automatically 

establish minimum contacts in the plaintiff’s home forum.” 

Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008) 

(citation omitted). While this is true, the contacts here go 

beyond the “lone transaction for the sale of one item” at issue 

in Boschetto. Id. Moreover, Boschetto confirms that 

we treat Silk as a California resident. See Harris Rutsky, 328 F.3d at 

1129.
24 SILK V. BOND

business activity constitutes purposeful availment when that 

activity reaches out and creates “continuing relationships 

and obligations” in the forum state. Id. (quoting Travelers 

Health Ass’n v. Commonwealth of Va., 339 U.S. 643, 647 

(1950) (emphasis in original)). The yearslong business 

relationship between Silk and Bond was significantly more 

extensive than the purchase of a single item in Boschetto. 

Indeed, the Complaint alleges that Silk worked for Bond for 

“over two decades.” A decades-long business relationship17

with a California-based service provider clearly constitutes 

purposeful availment of the privilege of doing business in 

California. The Estate’s arguments that payments for a 

contract alone do not constitute “the deliberate creation of a 

substantial connection with California,” and that unlike in 

Burger King, the contracts at issue “did not require Bond to 

subjugate his business affairs to a California operation,” do 

not change our analysis. 

The Estate next argues that Silk’s focus on his own 

California ties is misplaced because it is Bond’s contacts 

with California that matter for the purpose of personal 

jurisdiction. This misses the mark. No party contends that 

California has general personal jurisdiction over the Estate 

by virtue of Bond establishing residence or property 

ownership in California. Instead, Silk argues that Bond 

availed himself of Silk’s California-based services in a 

manner “sufficient to establish the required minimum 

17 While the Estate argues that Silk’s suit is for “two discrete contracts 

for tax planning allegedly performed in 1998 and 1999,” this ignores that 

Count One of the Complaint alleges breach of contract for the private 

variable annuity incentive fee Silk alleges he earned from 1991 to 1993. 

The Complaint also alleges decades of work related to, but not 

constituting, the relevant breaches of contract. 
SILK V. BOND 25

contacts for specific personal jurisdiction.” Silk’s focus on 

his own California address and bank account are relevant 

because it is Bond’s contacts with him that support the 

exercise of personal jurisdiction. 

Finally, the Estate argues that even if Silk has made a 

prima facie case for the exercise of personal jurisdiction in 

California, exercise of that jurisdiction would be 

unreasonable. We disagree. 

We employ a multi-factor balancing test to determine the 

reasonableness of exercising personal jurisdiction over a 

non-resident defendant, assessing:

1) the extent of the defendant’s purposeful 

interjection into the forum state’s affairs; 2) 

the burden on the defendant; 3) conflicts of 

law between the forum and defendant’s home 

jurisdiction; 4) the forum’s interest in 

adjudicating the dispute; 5) the most efficient 

judicial resolution of the dispute; 6) the 

plaintiff’s interest in convenient and effective 

relief; and 7) the existence of an alternative 

forum.

Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir. 1991) 

(citations omitted). No single factor is dispositive. Id. And 

as we conclude that at this stage of the proceedings, Silk has 

established that Bond purposefully availed himself of the 

privilege of doing business in California and that this suit 

arises out of that contact with California, the Estate “must 

come forward with a ‘compelling case’ that the exercise of 

jurisdiction would not be reasonable.” Boschetto, 539 F.3d 

at 1016 (quoting Burger King, 471 U.S. 476–78).
26 SILK V. BOND

The Estate has not presented a compelling case that the 

exercise of jurisdiction would be unreasonable. See Caruth 

v. Int’l Psychoanalytical Ass’n, 59 F.3d 126, 129 (9th Cir. 

1995) (“Neither party is clearly favored in the final balance. 

However, given the closeness of the factors, we conclude 

that [defendant] has not presented a ‘compelling case’ that 

exercising jurisdiction over it would be unreasonable.”). 

First, Bond’s interjection into California is analogous to 

his purposeful availment and, accordingly, the first factor 

favors jurisdiction. See Sinatra v. Nat’l Enquirer, Inc., 854 

F.2d 1191, 1199 (9th Cir. 1988). Next, although defending 

a lawsuit in California is surely burdensome to the Estate, 

the Estate has not “presented evidence that the 

inconvenience is so great as to constitute a deprivation of due 

process,” and so this factor just “barely” weighs against the 

exercise of personal jurisdiction. Freestream Aircraft 

(Bermuda) Ltd. v. Aero L. Grp., 905 F.3d 597, 608 (9th Cir. 

2018) (internal quotation marks omitted). 

The Estate speculates that Silk filed in California instead 

of Maryland to avoid Maryland’s “Dead Man’s Act,” which 

prevents interested parties in civil actions from testifying 

about conversations or transactions with the deceased. Even 

if true, and even if California wouldn’t apply a similar rule, 

this does not by itself render the exercise of jurisdiction in 

California unreasonable. Different forums have different 

rules, and parties often pick the one they perceive to be most 

favorable to them. We reject the Estate’s contention that 

exercising jurisdiction would conflict with Maryland’s 

“sovereign prerogatives,” because, as we have previously 

observed, “any clash between a forum’s law with the 

fundamental substantive social policies of another state may 

be resolved through choice of law rules, not jurisdiction.” 

Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 
SILK V. BOND 27

784 F.2d 1392, 1401–02 (9th Cir. 1986). The fact that 

“California might apply its own law against the [Estate] 

should not complicate or distort the jurisdictional inquiry.” 

Id. at 1402. 

As for the remaining factors, although California has an 

interest in providing an effective means of redress for its 

residents, Silk is no longer a California resident. Efficient 

judicial resolution of the controversy is neutral, as it focuses 

on the location of the evidence and witnesses, see Harris 

Rutsky, 328 F.3d at 1133, which are split between Nevada 

and Maryland. And, in any event, “this factor is no longer 

weighed heavily given the modern advances in 

communication and transportation.” Id. (internal quotation 

marks and citation omitted). California also serves Silk’s 

interest in convenient and effective relief: Even though Silk 

now lives in Nevada, California is a more convenient forum 

for him than Maryland, and he was a California resident 

when he entered the contracts and did the work at issue in 

this dispute. Finally, “[w]hether another reasonable forum 

exists becomes an issue only when the forum state is shown 

to be unreasonable,” and the Estate has made no such 

showing here. CollegeSource, Inc. v. AcademyOne, Inc., 

653 F.3d 1066, 1080 (9th Cir. 2011) (quoting Bauman v. 

DaimlerChrysler Corp., 644 F.3d 909, 929 n.19 (9th Cir. 

2011), rev’d on other grounds, 571 U.S. 117 (2014)). 

For the foregoing reasons, we hold that Silk has made 

out a prima facie case of personal jurisdiction. 

CONCLUSION

Because federal jurisdiction over this case is not barred 

by the probate exception, and because at this stage of the 

proceedings Silk has made a prima facie case for personal 

jurisdiction over the Estate, we reverse the judgment of the 
28 SILK V. BOND

district court and remand for further proceedings.

REVERSED and REMANDED.