UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LACREASHA A. KENNEDY-JARVIS; LAWSHAWN D. LEWIS; DEREK JARVIS, Plaintiffs ,

v. CALVIN REGINALD WELLS, Administrator of the Estate of Rose E. Walker , Defendant

. Civil Action No. 13-1596 (RDM)

MEMORANDUM OPINION This case is the latest chapter in a series of protracted dispu tes over the estates of a District of Columbia resident , James Jarvis, who died in 2003, and his mother, Rose Walker, who died in 2000. The plaintiffs, w ho are among Jarvis’s heirs , argue that Jarvis was denied his fair share of Walker’s estate a nd that, as a res ult, they recei ved less than they should have when Jarvis’s estate was distribut ed. They allege, in particular, t hat Calvin Reginald Wells—Jarvis’s nephew, the administrator of the Walker estate, and the defenda nt in this action—engaged in various forms of misconduct rela ting to the Walker estate. Amo ng other things, they claim that Wells either fraudulently or through undue coercion obtained pa rtial title to one of Walker’s properties in the weeks immediatel y before her death; that he f raudulently induced Jarvis to waive his rights to his inherita nce under the te rms of Walker’s will; and that, as administrator of Walker’s estate, he breached hi s duties by misappropriating est ate assets for his personal use or benefit.2 In an earlier case brought in D.C . Superior Court, the plaintif fs sought to wrest control of the administration of the Jarvis estate from a set of court-app ointed representatives on numerous grounds, including for failure to pur sue claims against Wells. They subsequently filed suit in this Court, seeking to obtain compe nsation from the estate admi nistrators for failing to pursue or to protect assets of the estate . Having failed in those effort s, the plaintiffs brought this action directly against Wells, alleg ing claims for fraud, conversion, and breach of fiduciary duty. The case is before the Court on t he parties’ cross-motions for summary judgment. Dkts. 57, 67. Because the Court concludes the plaintiffs’ claims are time-barred, it will grant Wells’s motion for summary judgment and de ny the plaintiffs’ cross-moti on for summary judgment.
I. BACKGROUND A. Walker’s Death and Probate Proceedings The plaintiffs—LaCreasha Kenne dy-Jarvis, LaShawn Lewis, and Der ek Jarvis—are the heirs of James Jarvis, a Washi ngton, D.C., resident who died on June 3, 2003. Compl. ¶¶ 3, 7–9. The present lawsuit arises out of events that occurred in and around March 2000, when Jarvis’s mother, Rose Walker, died of can cer at age 77 in Plainfield, Ne w Jersey. See id. ¶¶ 2–3. Upon Walker’s death, a dispute broke out between Jarvis and Wells re garding who would administer her estate. Walker had named United National Bank as the execu tor of her estate, Dkt. 57-3 at 3 (Pls.’ MSJ, Ex. C), but, for reas ons that are disputed by the p arties and are not relevant here, the bank declined to serve as executo r, Dkt. 67-3 at 2 (Def.’s MSJ, Ex. C, ¶ 4) (“Wells Aff.”). Both Jarvis and Wells sought the posit ion of estate administrator, a nd, after a hearing, the New Jersey probate court appointed Wells as administrator of Walker’s estate. Id. (Wells Aff. ¶ 7); Dkt. 57- 8 at 2 (Pls.’ MSJ, Ex. H).3 The allegations of fraud, conversion, and breach of fiduciary d uty at the heart of this case concern Wells’s management of Walker’s estate. Walker’s will, which the plaintiffs filed as an exhibit to their motion for sum mary judgment, provided specific directions to the administrator of the estate regarding the dist ribution of the estate’s assets . As relevant here, t he will instructed the administrator “to sell all real estate and all other items of value” as soon “after [her] death as may be practicable” and provided that “the net proceeds of the sale” of those assets should be made part of the residuary est ate. Dkt. 57-3 at 2 (Pls.’ MSJ, Ex. C). The will further directed the estate administrator to establis h a trust for the benefit of th ree people: Jarvis, Wells, and Wells’s brother Alvin. Id. at 3. The trust, consisting of the remaining assets in the es tate, was to be paid out over the course of five years (20 percent each year) to the beneficiaries “i n equal shares.” Id. The plaintiffs allege that W ells, over a period of time beginni ng in March 2000—shortly before Walker’s death—and continuing t o today, has “engaged in a serie s of fraudulent or improper acts designed to deprive [Jarvis] of a substantial portion of his sh are of the estate.” Kennedy-Jarvis v.
Wells , 113 F. Supp. 3d 144, 148 (D.D.C. 2015). Wells contests the t hrust of the allegations made by the plaintiffs, but the Court will describe them for the sak e of completeness. First, the plaintiffs allege, Wells coerced Walker—eleven days before her death—into executing a document that transfe rred ownership of her residenc e to herself, Wells, and Wells’s brother Alvin, thereby shielding t wo-thirds of the value of the property from Walker’s estate.
See Dkt. 57 at 6–7. The plaintiffs, r elying in part on expert rep orts attached to their reply in support of their motion, argue tha t Walker was under the influe nce of medications that would have diminished her capacity a nd rendered her incapable of unde rstanding the transaction. Id. at 7; see Dkt. 69-2 at 3 (Pls.’ Reply, Ex. B). Alternatively, they argu e, Wells may have forged Walker’s signature outright, r endering the conveyance void. Dk t. 57 at 7; see Dkt. 69-6 at 44 (Pls.’ Reply, Ex. D). Wells does not dispute that Walker parti ally transferred the ownership of her residence to him shortly b efore her death, but—relying in p art on an affidavit filed by his mother Joan, Walker’s daughter—he denies that Walker was coerce d into transferring the property to him or that she was incompetent. See Dkt. 67 at 11; Dkt. 67-5 at 3–4 (Def.’s MSJ, Ex. E, ¶¶ 12–15) (“Taylor Aff.”). Second, the plaintiffs allege, W ells intentionally under-repres ented the value of Walker’s estate in order to dim inish Jarvis’s share of the estate’s asse ts—while simultane ously converting estate assets to hi s own personal benefit. Dkt. 57 at 4–7. Sp ecifically, they claim, Wells twice represented to the New Jersey prob ate court that the estate was worth only $566,500. See Dkt. 57 at 2; Dkt. 57-2 at 2 (Pls.’ MS J, Ex. B); Dkt. 57-4 at 2 (Pls .’ MSJ, Ex. D). Between 2000 and 2004, however, they allege, Wells sold or conveyed properties t hat had belonged to Walker for a total sum of over $1.4 million. See Dkt. 57 at 7–8; Dkt. 69-3 at 7 ( Pls.’ Reply, Ex. C). The plaintiffs also allege that Wells misrepresented the value of W alker’s personal property. Dkt. 57 at 5. They argue that Jarvis’s s hare of the estate should have been over $500,000, but that—as a result of Wells’s fraud, conversion, and breach of fiduciary du ty—he received only $257,500.
Id. at 8. Third, and relatedly, the plainti ffs allege that Wells fraudule ntly induced Jarvis to sign a document releasing his right to his share of the W alker estate in exchange for a cash payment of $15,000 and titleto one of Walker’s properties. Dkt. 57 at 6; see also Dkt. 67-2 at 1 (Def.’s MSJ, Ex. B) (“Release”). Wells alleg es that Jarvis approached him s hortly after his appointment as estate administrator and “propos ed an arrangement” in which he would receive $15,000 cash, and title to the property, as “fu ll satisfaction of his share o f the estate.” Dkt. 67-3 at 8 (Wells Aff. ¶ 29). Wells alleges that Ja rvis proposed the arrangement because he “did not wish to wait5 five . . . years for distribution” of the estate assets. Id. at 13 (Wells Aff. ¶ 44). The plaintiffs argue that Jarvis’s release is invalid because it was not prope rly notarized and filed, but also argue that even if the release is facially valid, it was fraudu lently induced given Wells’s representations regarding the va lue of the Walker estate. Dkt. 69 at 5. Wells, for his part, denies that he made any false or mislead ing statements to Jarvis and d enies that he conc ealed any estate assets. Dkt. 67-3 at 13 (Wells Aff. ¶¶ 42–43). B. Jarvis’s Death, Probate Proceedings, and Ensuing Litigation Jarvis himself made none of these allegations in his lifetime. When he passed away in 2003, however, his heirs—including t he plaintiffs—began what ha s now become over a decade of litigation over his estate. The litigation began just after Jarvis’s death in 2003, when his heirs initiated proceedings to preclude one of Jarvis’s daughter’s, G reer Burriss, from appointment as administrator of Jarvis’s estate. See Lewis v. Parker , 67 F. Supp. 3d 189, 194 (D.D.C. 2014); see Dkt. 74-3 at 17 (Def.’s Supp. Brief, Ex. C, at 17) (“ In re Jarvis Docket”). 1 In 2004, the probate court appointed Darrel S. Parker, a Washington, D.C., attorney, as estate representative. See id. Parker promptly petitioned the prob ate court for an order direc ting Burriss to show cause why she should not return to the esta te a Cadillac car that had bel onged to Jarvis, but, on the estate’s behalf, Parker entered into an a greement with Burriss in Februa ry 2005 in which the estate agreed to release any claims it might have against her. See Lewis , 67 F. Supp. 3d at 194–95. In July 2005, motivated in part by w hat they viewed as Parker’s misconduct in releasing the estate’s claims against Burriss, the plaintiffs filed a com plaint in probate court to remove him as estate administrator. Id. at 195; see Dkt. 74-2 (Def.’s Supp. Brief , Ex. B) (“D.C. Compl.”).

1 The public docket for Jarvis’s probate proceedings can be fou nd by searching for “James Jarvis” at https://www.dccour ts.gov/cco/maincase.jsf.6 The plaintiffs also sough t unspecified damages. Id. at 1 (D.C. Compl. 1). In t heir complaint, the plaintiffs argued that Parker ha d failed to keep them apprised of his actions as representative, had failed to marshal and account for e state assets, and had failed properly to pursue the estate’s claims against Burriss. Id. at 1–18 (D.C. Compl. 1–18). But the plaintiffs also alleged t hat “[t]he most compelling case of [ Parker’s] neglect” was his fail ure to pursue potential claims by the estate for assets arisi ng out of the Walker estate. Id. at 19–20 (D.C. Compl. 19–20). The complaint specifically alleged: [Jarvis]’s mother[] Rose Walker willed that all of her persona l and real property be sold as soon as practicable aft er her death and that the pro ceeds from the sales be placed in a trust fund to be dispersed in twenty (20) percen t increments of the total value over the course of f ive (5) years . . . to the thre e beneficiaries in equal shares. The real propert y alone has sold for $1,841,040.00 as of 2004. Under Ms. Walker’s will, the decedent ha d the right to one-third (1/3) of the aforementioned value, specifically, $613,680.00. Due to Mr. Parker’s negligen ce and lack of diligence by not discussing all issues of the estate with each and every heir and in ignoring their pleas that he look i nto the matter, he never dis covered this major wrinkle in the disposition of t he Jarvis estate. The heirs int end on instituting a civil action against the Executo r to the Walker estate for negl igence in New Jersey by misrepresenting the tru e value of the Walker estate t o the New Jersey Probate Court by excluding several real properties of the deced ent and all of her personal property, for the outsta nding value of James P. Jarvis ’ inheritance; interest; and punitive damages and/or treble damages; amounting to $1,841,040.00+

. Id. (emphasis in original). The complaint was filed pro se by the plaintiffs, but it requested that the probate court appoint James Zeas, the plaintiffs’ current c ounsel, as estate administrator, and it appear from the record in the probate litigation that Zeas a ppeared in August 2005 before the probate court and stated “that he would be representing all the beneficiaries of the estate.” Id. ; Dkt. 74-3 at 15 ( In re Jarvis Docket, Aug. 10, 2005 Scheduling Order). The proceedings against Parker in probate court continued for t he next four years, until March 2009. See Dkt. 72-3 at 1 (Def.’s Reply, Ex. C, at 1) (“ In re Jarvis Removal Order”). In7 July 2007, apparently in response to a motion for clarification , the probate court issued an order clarifying that the only relief available to the plaintiffs pur suant to their complaint was Parker’s removal, not money damages. In re Jarvis , Adm. No. 1036-03 (D.C. Super. Ct. July 25, 2007) (“ In re Jarvis Clarification Order”). 2 In that order, the probate court specifically rejected the plaintiffs’ argument that they c ould seek damages from Parker s temming from his failure to marshal estate assets (such as his claim to a greater share of the Walker estate). It explained: It is Plaintiff[s’] burden to dem onstrate that there were funds belonging to the deceased, which assets Mr. Parker could have recovered and due to his dereliction of duty the funds are no longer recoverable. The court may con sider any such dereliction of duty as the basi s for removal. In addition, if Plaintiffs demonstrate any sum certain, Mr. Parker coul d be held responsible. But the n, it would be for the successor personal representa tive to make the recovery from Mr. Parker, his surety or both. And so again, we come up to the point that the only action here is for the removal of Mr. Parker.
In re Jarvis Clarification Order, at 9–10. 3 In August 2008, the probate court held a trial regarding the pl aintiffs’ complaint against Parker. See Dkt. 74-3 at 3–4 ( In re Jarvis Docket); Dkt. 72-3 at 2 ( In re Jarvis Removal Order 2). Two of the plaintiffs—LaCr easha Kennedy-Jarvis and Derek J arvis—testified a s to Parker’s alleged breaches of his fiduciary duty. Id. At the close of the trial , the probate court found that Parker had “mismanaged prope rty” and “failed . . . to fulfill t he duties of his office” by failing to marshal four specific assets for the estate: a payroll check fo r $618 made out to Jarvis by a D.C.

2 The Court may take judicial not ice of public records, such as the probate court’s opinion in In re Jarvis , in adjudicating a motion for summary judgment. See Covad Comm’ns Co. v. Bell Atl. Corp. , 407 F.3d 1220, 1222 (D.C. Cir. 2005). The clarification orde r is attached as an exhibit to a brief filed by the plaintiffs in their second federal action against Parker, discussed below. See Pls.’ Opp’n to Mot. to Dismiss, Ex. A, Lewis v. Parker , 67 F. Supp. 3d 189 (D.D.C. 2014) (No. 14-163, Dkt. 17-3).

3 The plaintiffs also apparentl y filed a complaint in New Jerse y probate court around this time, seeking to reopen the Walker es tate. Zeas represents that he w as denied leave to appear pro hac vice in that proceeding. See Dkt. 76 at 3 n.2.8 agency, a 1995 Cadillac, a claim a gainst the assets of Jarvis’s father’s estate, and funds that had been automatically withdrawn f rom Jarvis’s bank account after h is death. Id. at 20–25; see also
Lewis , 67 F. Supp. 3d at 197. With respect to the assets that had b elonged to the Walker estate, however, the probate court conc luded that Parker had not violat ed his fiduciary duties, because the plaintiffs had “failed to prove that Parker had informationthat he could use to attempt to locate the property and marshal it for the estate.” Dkt. 72-3 at 16 ( In re Jarvis Removal Order 18). The probate court ordered Parker removed as estate admini strator. Id. at 23 ( In re Jarvis Removal Order 25). Both parties ap pealed—Parker his removal an d the plaintiffs the probate court’s order on damages—but in A pril 2012 the D.C. Court of Ap peals affirmed the probate court’s orders “in all respect s.” Dkt. 76-3 at 2 (Pls.’ Supp. Brief, Ex. C, at 1). With respect to the court’s damages order, the C ourt of Appeals explained that the probate court was correct to hold that the successor personal re presentative (not the plaint iffs) was the “appropriate party to seek such damages” from Parker , but also stated t hat it did notconstrue the “court’s order as foreclosing [the plaintiffs’] ability to obtain damages from Mr . Parker if the successor personal representative elects not to pursue damages.” Id. at 3 (Pls.’ Supp. Brief, Ex. C, at 2). In March 2013, the plaintiffs file d suit in this court against Parker and Hope Brown, the successor representative. Jarvis v. Parker , 13 F. Supp. 3d 74, 75 (D.D.C. 2014). The plaintiffs brought claims against Parker f or damages, alleging that he had failed to marshal estate assets and that Brown had failed to pursu e claims against him on behal f of the estate. But the suit was dismissed without prejudice for fa ilure to prosecute when the p laintiffs’ counsel failed to file a timely opposition to the defendants’ motions. Id. at 76. The plaintiffs re -filed their complaint against Parker and Brown in 2014. See Lewis , 67 F. Supp. 3d at 199. Another judge of this Court dismissed that case with prejudice in September 2014. Id. at 210–11. She ruled that the9 plaintiffs’ claims against Par ker were barred by res judicata, as they had been “raised, addressed, and necessarily decided by” the D.C. Court of Appeals. See id. at 207. And she held that the plaintiffs’ claims against Bro wn either failed on the merits or were time-barred. Id. at 210. “The plaintiffs had their day in court, ” she wrote, “and this Court need not provide the proverbial ‘second bite at the apple.’” Id. at 207. Plaintiffs did not a ppeal that judgment. C. The Present Proceedings The plaintiffs filed the present case in October 2013, while th eir first federal case against Parker and Brown was still pend ing. Dkt. 1. In their complain t, they allege claims for breach of fiduciary duty, conversion, and fra ud against Wells, the execut or of Walker’s estate. Compl. ¶¶ 50–69. In October 2014, Wells filed a motion to dismiss, argui ng that the action fell within the probate exception to the Court’ s diversity jurisdiction. Dkt. 31. The Court concluded that, because the plaintiffs’ claims, as a general matter, did not re quire the Court to “probate or annul a will or administer a decedent’s estate,” but rather alleged “ ‘widely recognized torts’ . . . [that] intertwine[d] with” the admini stration of an estate, the probat e exception did not apply. Kennedy-Jarvis v. Wells , 113 F. Supp. 3d 144, 152, 155 (D.D.C. 2015). The case procee ded to discovery, and the parties filed m otions for summary judgment i n late 2015. Dkts. 56, 57, 67. At the Court’s direction, the parties submitted supplemental br iefs on whether the action was time-barred in January 2016. Dkts. 74, 76. The motions are no w fully briefed.
II. LEGAL STANDARD This matter is before the Court on the parties’ motions for sum mary judgment. Summary judgment is appropriately granted “if the movant shows that the re is no genuine dispute as to any material fact and the movant is entitled to judgment as a matte r of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986); Holcomb v. Powell , 433 F.3d10 889, 895–96 (D.C. Cir. 2006). A fact is “material” if it is ca pable of affecting the outcome of the litigation. Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reas onable jury coul d return a verd ict for the nonmoving party. See
Scott v. Harris , 550 U.S. 372, 380 (2007); Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. “A party asserting that a f act cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .” Fed. R. Civ. P. 56(c)(1)(A). The party seeking summary judgm ent “bears the heavy burden of e stablishing that the merits of his case are so clear t hat expedited action is justif ied.” See Taxpayers Watchdog, Inc. v. Stanley , 819 F.2d 294, 297 (D.C. Cir. 1987). Whe n a motion for summar y judgment is under consideration, “the evidence of the non-movant is to be believe d, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby , 477 U.S. at 255; see also Mastro v. Pepco , 447 F.3d 843, 850 (D.C. Cir. 2006). The non-movant’s opposition, h owever, must consist of more than mere denials and must be supported by affidavits, declarat ions, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). The non- movant must provide evidence that would permit a reas onable jury to find in its fav or. See Laningham v. United States Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). If his evidence is “me rely colorable” or “not significantly probative,” summa ry judgment may be granted. Liberty Lobby , 477 U.S. at 249–
50.
III. DISCUSSION The parties have cross-moved f or summary judgment, Dkts. 57, 67 , but the Court need address only one issue raised by t he pending motions: whether t he plaintiffs’ claims are barred11 by New Jersey’s statute of limitations. Dkt. 67 at 12–14. For the following rea sons, the Court concludes that they are. Wells raises a statute-of-limita tions defense in his cross-moti on for summary judgment, arguing that the plaintiffs’ claims are time-barred, because th ey “were aware of their potential claim[s] as early as . . . June 3, 2003 . . . and not later tha n 2005.” Dkt. 67 at 13. The plaintiffs originally failed to offer any s ubstantive response to Wells’s statute-of-limitations defense, arguing instead that the Court ha d previously “denied dismissal of the action based on a limitations theory”; that the C ourt should reject Wells’s “atte mpts to once again resurrect [a] limitations defense that was c onsidered and flatly rejected by this Court”; and that Wells was, in any case, simply “throw[ing] dart s asserting various statutory periods being unable to decide between limitations peri ods from the State of New Jersey or the from the District of Columbia.” Dkt. 70 at 3–4. This response was , to say the least, bewilderi ng. The Court had not previously denied a motion to dismiss on s tatute-of-limitations grounds; i t had not previously “considered,” much less “flatly rejected,” tha t defense; and Wells had, in fa ct, clearly argued tha t the plaintiffs’ claims were governed by New Jerse y’s six-year statute of limita tions for “tortious injury to the rights of another,” Dkt. 6 7 at 12–13 (quoting N.J. Stat. Ann. § 2A:14-1). Rather than treat the plaintiffs’ failure to respond t o the substance of Wells’s defe nse as a concession, however, the Court provided the plaintiffs w ith a second bite at the apple a nd directed the pa rties to file supplemental briefs addressing “th e appropriate statute or stat utes of limitations.” Dkt. 73 at 2. In response, the plaintiffs file d a brief in which they concede d that a six-year statute of limitations applies to their f raud and conversion claims and po sited that a two-year statute of limitations applies to their cla im for breach of fiduciary duty

. See Dkt. 76 at 1–3 (arguing that the plaintiffs “filed the insta nt action . . . we ll within the applicable statute of limitations periods12 for all of their causes of ac tion: tort of deceit—fraud (6 yea rs); tort of civil conversion (6 years . . .) and breach of fiduciary dut y (2 years . . .)”). Even assu ming, however, that the plaintiffs’ claim for breach of fiduciary du ty is governed by the six-year— and not the two-year—statute of limitations, see, e.g. , Balliet v. Fennell , 845 A.2d 168, 172–73 (N.J. Super. Ct. App. Div. 2004), the plaintiffs can only prevail if the relevant conduct occurre d within six years of October 2013, when they filed the present suit. 4 But the plaintiffs did not disp ute—and, given the allegations contained in their complaint, c annot dispute—that the events th at form the core of their claims occurred between March 2000, whe n Walker died, and January 2001 , when Jarvis signed the document releasing his right to his share of the W alker estate— over a decade before October 2013. Dkt. 1. Those claims, accordingly, are untimely absent the operation of some rule or equitable principle that would de lay or toll the statute of lim itations. Dkt. 76 at 2. The plaintiffs argue that three such rules appl y: (1) the “discovery rule,” wh ich provides that a statute of

4 After oral argument on the mo tions, and at the plaintiffs’ re quest, the Court permitted the plaintiffs to file a short suppl emental brief limited to the qu estion “whether, under New Jersey law, a plaintiff is entitled t o equitable tolling where suit co uld have been brought earlier—but was not—by the plaintiff’s repre sentative or agent.” Feb. 1, 2 016 Min. Order. In this second supplemental brief, the plainti ffs raised two additional argume nts for the first time: (1) that some of their conversion claims ag ainst Wells are governed not by th e six-year statute of limitations set out in § 2A:14-1, but by a twent y-year statute of limitatio ns applicable to “action[s] at law for real estate,” N.J. Stat. Ann. § 2A :14-7; and (2) that, as a mat ter of New Jersey law, “[t]here is no statute of limitations on an Admin istrator’s liability for impr oper exercise of power during his entire administration of an e state.” Dkt. 77 at 1–3. The plai ntiffs’ late effort to raise these new arguments fails. By the time the plaintiffs filed their second supplemental brief, the Court had already provided them with an oppo rtunity to cure the deficienc ies in their original opposition. But when the plaintiffs filed th eir first supplemental brief, t hey explicitly conceded that a sixyear (or two-year) statute of limitations applied to their clai ms, see Dkt. 76 at 2–3, and they did not raise any argument as to the existence of a longer (or evenan indefinite) limitations period. Moreover, when the Court permitted them to file their second su pplemental (fifth overall) brief, it only authorized them to addre ss an entirely different issue. In light of the D.C. Circuit’s admonitions that the court need no t address an argument raised for the first time in a reply brief, see McBride v. Merrell Dow & Pharm., Inc. , 800 F.2d 1208, 1211 (D.C. Cir. 1986), the Court concludes that the p laintiffs have waived these arguments.13 limitations does not begin to r un until a party has actual or c onstructive knowledge of his claims; (2) the “continuing tort doctri ne,” under which a limitations p eriod does not begin to run until a continuous course of wrongful conduc t ceases; and (3) general p rinciples of equitable tolling. Id. at 2–7. The Court will address each argument in turn. A. Discovery Rule The plaintiffs first argue that the “discovery rule” delayed t he accrual of their causes of action, rendering them timel y. Dkt. 76 at 6–7. The so-called discovery rule “delays the accrual of the action until the plaintiff discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts whic h form the basis of a cause o f action or provide a basis for an actionable claim.” Henry v. N.J. Dep’t of Human Servs. , 9 A.3d 882, 892 (N.J. 2010) (citations and internal quotation marks omitted). It “seeks to remedy ine quity resulting when ‘an injured person, unaware that he has a cau se of action, is denied his da y in court solely because of his ignorance.’” Id. at 891 (quoting Lopez v. Swyer , 300 A.2d 563, 566 (N.J. 1973)). The problem for the plaintiffs, however, is that even they concede that the y “discover[ed]” Wells’s alleged breaches no later than July 2005, when they filed their complai nt in D.C. Superior Court alleging that Parker had failed to marsha l assets arising out of the Wal ker estate. See Dkt. 74-2 at 19–20 (D.C. Compl. 19–20). Thus, even if the discovery rule were to delay the accrual of the plaintiffs’ causes of action, it would at mos t have delayed their accrual until 2005. Standing alone, the discovery rule cannot render th e plaintiffs’ claims timely. The plaintiffs attempt to overc ome this hurdle by arguing that they did not discover the “whereabouts” of a Jaguar car , which had belonged to Walker, un til 2015, and that to this day they “have no idea where all of [Walker’s] person property” is, including a grand piano, jewelry, paintings, and rugs. Dkt. 76 at 7. But they alleged as early as 2005, in related l itigation, that14 Wells misrepresented “the true v alue of the Walker estate to th e New Jersey Probate Court by excluding several real properties . . . and all of her personal property .” Dkt. 74-2 at 19. The fact that they may not know how Wells ultimately disposed of that pr operty, or where it is currently located, has no bearing on their claims that Wells committed va rious torts by failing to include it in the estate. Moreover, even i f the plaintiffs were unaware o f every detail regarding their claims by July 2005, they were on notice of the claims and had a duty diligently to pursue them at that time. B. Continuing Tort Doctrine The plaintiffs next argue that New Jersey’s “continuing tort do ctrine” delayed the accrual of their causes of action until May 2011, when Wells sold the J aguar that had once belonged to Walker. See Dkt. 76 at 3–6. Under that doctrine, “when an individual expe riences a ‘continual, cumulative pattern of tortious c onduct, the statute of limitati ons does not begin to run until the wrongful action ceases.’” Roa v. Roa , 985 A.2d 1225, 1231 (N.J. 2010) (quoting Wilson v. WalMart Stores , 729 A.2d 1006, 1010 (N.J. 1999)). “The premise underlying th e doctrine is that the conduct becomes actionable becaus e of its ‘continuous, cumulati ve, synergistic nature.’” See id. (quoting Wilson , 729 A.2d at 1011). Here, the plainti ffs argue that the doctr ine operates to delay the accrual of their claims until May 2011, when Wells sold the car that had formerly belonged to Walker. Dkt. 76 at 5. They ar gue that this s ale was Wells’ s “last over[t] act in furtherance of his scheme to convert Walker Estate assets to himself.” Id. But there are several problems with the plaintiffs’ effort to invoke the continuing tort doctrine i n this context. First, it is not at all clear that New Jersey courts would appl y the continuing tort doctrine to a scheme of the kind that the plaintiffs describe—that is, ascheme involving a course of discrete fraudulent or torti ous acts. To the Court’s knowledge , New Jersey courts have applied15 the continuing tort doctrine only in two contexts: (1) in emplo yment discrimination cases in which plaintiffs allege “a patte rn or series of acts, any one o f which may not be actionable as a discrete act, but when viewed c umulatively constitute a hostile work environment,” see Roa , 985 A.2d at 1232 (quoting Shepherd v. Hunterdon Dev. Ctr. , 803 A.2d 611, 623 (N.J. 2002)); and (2) in trespass and nuisance cases i n which plaintiffs allege “thatthe defendant is committing a new tort, including a new breach of duty, each day, triggering a ne w statute of limitations,” see Russo Farms, Inc. v. Vineland Bd. of Educ. , 675 A.2d 1077, 1084 (N.J. 1996). Even assuming that the New Jersey courts would expand t he reach of the doctrine beyond these employment cases and trespass and nuisance cases, the plaintiffs offer no basis to b elieve that the reasoning employed by those courts might apply here. 5 The rationale underlying the firstline of cases—employment dis crimination cases in which plaintiffs allege acts th at, taken together, make out a h ostile work environment claim— does not encompass a case, lik e this one, involving allegations of discrete fraudulent or tortious acts. Indeed, the New Jersey Suprem e Court has rejected just s uch an argument in the context of employment discrimination claims , embracing the Supreme Court’s approach in National Railroad Passenger Corp. v. Morgan , 536 U.S. 101 (2002), and explaini ng that “the continuing violation theory . . . does not perm it the aggregation of discr ete discriminatory acts for the

5 Although the case law applying th e continuing violation doctr ine has been characterized as “confusing, incoherent, and inconsistent,” see Elad Peled, Rethinking the Continuing Violation Doctrine: The Application of Statutes of Limitations to Continuing Tort Claims , 41 Ohio N.U. L. Rev. 343, 346 & n.8 (2015) (collecting authority), the categori es in which the New Jersey cases principally fall reflect the tw o primary forms of the rule reco gnized in the commentary, see id. at 352; Kyle Graham, The Continuing Violations Doctrine , 43 Gonz. L. Rev. 271, 283 (2008) (distinguishing between cases in which the doctrine “ aggregates wrongs to permit recovery for harm suffered outside of the limitations period” and cas es in which the doctrine “ divides causes of action to create new claims a nd allow recovery for harms suf fered within the limitations period”).16 purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.” Roa , 985 A.2d at 1233. For this same reason, the continuing viola tion theory does not apply to the plaintiffs’ claims that Wells misappropri ated a share of Walker’s residence before she died, that he misled J arvis regarding the size of th e estate and fraudulently convinced him to waive his rights in the e state in exchange for inadequat e compensation, and that he subsequently appropriated assets that should have been included in the estate. The allegations are related, but—unlike a claim for hostile work environment—th ey involve a series of discrete torts, each of which (like a discrete discrimination claim) is independently actionable. The second line of cases—nuisan ce and trespass cases in which p laintiffs allege that the defendant’s torts effectivel y recur on a daily basis—do no more for the plaintiffs, because these cases do not permit plaintiffs to recover for allof a defendant’s actions, only those that occur within the relevant statute of limitations. See Russo Farms , 675 A.2d at 1087 (“If an individual assaults another person on a c ontinuing basis extending over se veral years, each new assault is a battery, because the attack itself includes every element of a new tort. If the first attack is barred by the statute of limitations, more recent claims may not be barred because each a sserts a new tort.”). Such a rule would not pe rmit the plaintiffs to revive their untimely claims. Second, even if New Jersey law w ould allow courts to apply the continuing tort doctrine to a series of fraudulent acts , the plaintiffs have not made ou t a claim that Wells engaged in such a course of conduct here—at least not one that continued to a t imeframe within the limitations period. The plaintiffs describe on ly two tortious acts that We lls allegedly committed within the limitations period. The first is Wells’s sale in May 2011 of a Jaguar automob ile that had once belonged to Walker. See Dkt. 76 at 5–6. But the plainti ffs offer no theory under whic h the sale of the Jaguar to a third party c ould be understoo d as a tortiou s act. The plaintiffs can identify no17 misrepresentation that accompani ed the sale of the Jaguar, as r equired to make out a fraud claim in connection with the sale. See, e.g. , Gennari v. Weichert Co. Realtors , 691 A.2d 350, 368 (N.J. 1997). Nor do they claim that Wells converted the Jaguar to hi s own use in 2011—indeed, to the contrary, record evidence demons trates that he obtained title t o the vehicle in 2004. See Dkt. 69- 8 at 2 (Pls.’ Reply, Ex. F). Even i f Wells committed some tort regarding the Jaguar at some prior point—for instance, by omitting its value from his statements r egarding the value of Walker’s estate, failing to mention its exi stence to Jarvis, or converti ng it for his own use—the plaintiffs cannot explain why Wells’s eve ntual sale of the car in 2011 was tortious. The plaintiffs also contend that, as late as December 6, 2007, Wells sought to “cov er his tracks” and “fraudulently [to] conceal his theft of Walke r Estate assets by filing with t he New Jersey Surrogate Court the Jarvis Bond Release secured thr ough fraudulent inducement and d uress.” Dkt. 76 at 6. But the plaintiffs again offer no theor y under which the filing of the bond release was itself a tortious act, or even why it might have been improper under New Jersey law. And to the extent the plaintiffs contend that the New Jersey cour t was misled, their remedy lies there, and not before this Court. Finally, the plaintiffs cite se veral out-of-jurisdiction cases that they claim support their argument, Dkt. 76 at 4–5, but none in fact aids the plaintiffs. As an initial matter, the plaintiffs’ suggestion that any of these cas es is binding here is difficult to fathom. They characterize three precedents, for example, as “Third Circuit decisions (of which New Jersey is a part),” id. at 4, but all three are decisions of the Pennsylvania state courts—no t decisions of the U.S. Court of Appeals for the Third Circuit. The fact that the federal courts in Pennsylvania and New Jersey are both part of the Third Cir cuit does not suggest that the de cisions of the Pennsylvania state courts inform the meaning of N ew Jersey law. And the plaintiff s’ assertion that a decision from the Illinois Appellate Court constitutes “ mandatory precedent to this Court,” id. at 4 (emphasis18 in original), defies comprehe nsion. And, even to the extent th ese decisions might serve as persuasive authority, they do the plaintiffs little good. The Pennsylvania cases the plaintiffs cite do, as they observe, “apply” the continuing tort doctrine to in tentional tort claims, but only to reject plaintiffs’ arguments th at that doctrine could salvage t heir claims for discrete torts occurring outside the st atute of limitations. See CBG Occupational Therapy Inc. v. Bala Nursing
& Ret. Ctr. , No. 03-1758, 2005 WL 280838, at *3 ( Pa. Ct. Com. Pl. Jan. 27, 2005); Dellape v. Murray , 651 A.2d 638, 640 (Pa. Commw. Ct. 199 4). The results reached by the courts in the Illinois cases cited by the plainti ffs are likewise consistent with the Court’s decision, although perhaps better explained by the “discovery rule” embraced in Ne w Jersey and other states. See,

e.g. , Field v. First Nat’l Bank of Harrisburg , 619 N.E.2d 1296, 1298 (Ill. App. Ct. 1993) (finding delayed accrual in case in whic h defendants engaged in “four-ye ar course of conduct” and plaintiff “discovered this cour se of conduct” only after his fa ther’s death); accord Haddad's of Ill., Inc. v. Credit Union 1 Credit Union , 678 N.E.2d 322, 324 (Ill. App. Ct. 1997). Because the plaintiffs have not demonstrated the existence of any actionable conduct that falls within the six-year limita tions period, they cannot avail themselves of the continuous tort doctrine. C. Equitable Tolling The plaintiffs finally assert that general principles of equita ble tolling law should permit them to bring untimely claims against Wells. Dkt. 76 at 2–3. They argue that because they “had no standing to sue [Wells] until [P arker] was removed” as admin istrator of the Jarvis estate, and because they diligently pursued their rights by attempting to r emove Parker as administrator (and then suing him for damages), the Court should toll the statute of limitations for the period of time between July 2005, when they filed th eir complaint in D.C. Supe rior Court, and November 2012,19 when Brown, the successor represe ntative, closed the Jarvis est ate. Id. at 3. They rely primarily on the Court’s equitable powers , but also analogize their argum ent to the “adverse domination doctrine,” under which courts m ay toll statutes of limitations governing claims against corporate directors where “a corporate pl aintiff is controlled by the all eged wrongdoers,” In re MacGregor Sporting Goods, Inc. , 199 B.R. 502, 515 (D.N.J. 1995); see also Freeland v. Enodis Corp. , 540 F.3d 721, 741 (7th Cir. 2008). In essen ce, the plaintiffs argu e, the statute of limitations should have been tolled during the period in which they would have brought their claims but could not do so. The Court declines to toll the statute on this basis. To begin with, the Court rejects the plaintiffs’ efforts to in voke the “adverse domination doctrine,” which “tolls the statute of limitations for claims b y a corporation against its officers and directors while the corporat ion is controlled by those wron gdoing officers and directors.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp. , 665 F.3d 930, 935 (7th Cir. 2012) (quoting Lease Resolution Corp. v. Larney , 719 N.E.2d 165, 170 (Ill. App. Ct. 1999)). That doctrine, inall the states that have recognized it, 6 is limited to claims brought by a c orporation against its form er directors and their alleged co-c onspirators—that is, against th ose persons who “dominated” the corporation and wrongfully prev ented it from pursuing its claim s, or those who have conspired with them. See, e.g. , 3A William M. Fletcher, Fletcher Cyclopedia of the Law of Corporations § 1306.20 (rev. ed. 2011); Indep. Tr. Corp. , 665 F.3d at 937 (explaining tha t, under Illinois law, “a plaintiff’s allegations must establish that the defendant wa s complicit in the wrongdoing of the directors for the adverse domina tion doctrine to toll the statu te of limitations”); Buchwald v.

6 New Jersey courts do not appear to have recognized the doctri ne. See In re Payroll Express Corp. , 186 F.3d 196, 206 (2d Cir. 1999) (“New J ersey has not adopted the adverse domination theory.”). But that question is of limited relevance, given th at the doctrine would not, in any event, apply in this case.20 Citibank, N.A. , No. 13-cv-210, 2013 WL 5218579, at *4 (D.D.C. Sept. 17, 2013) (to similar effect). The plaintiffs here are attem pting to do something quite differ ent: they are attempting to revive claims that Jarvis—and, l ater, the administrator of his estate—could have brought, but did not. Jarvis and the administrat ors of his estate did not fail to bring these claims because—as in adverse-domination cases—they were implicated in them. Cf. Freeland , 540 F.3d at 741 (“The . . . adverse domination doctrin e is premised upon the principl e that officers and directors who have harmed the entity cannot be expected to take legal action against themselves.”). They did not bring the present claims because they either were not aware of them, they concluded that they lacked merit, or—exercisi ng their judgment as fiduciaries— they concluded that it was not in the best interes t of the estate ( i.e. , in light of the cost, likelihood of success, and potential fo r delay) to pursue the claims. Cf. Dkt. 76 at 2–3 (explaining that Br own “declined to diligently investigate or pursue the admini stration of the Walker Estate o ver repeated requests by Plaintiffs that she do so”). The adverse domination doctrine has no role in such a case. Indeed, even if applicable to the administrati on of an estate, all that the doc trine would do is permit a beneficiary to sue a trustee or administrat or who declined to pursue a clai m against him or herself. The plaintiffs here have already tri ed that here: they brought suit against Parker and Brown in this Court over their failure to pursu e the very claims at issue her e. See Jarvis , 13 F. Supp. 3d at 75;
Lewis , 67 F. Supp. 3d at 199. The fact that they obtained no relief in those suits does not mean that they may now bring the claim s that Jarvis, Parker, and Bro wn declined to advance. For essentially the same reasons , the Court decl ines to exercis e its equitable powers to toll the statute of limitations. I t is true, as the plaintiffs contend, that they have attempted to remedy what they view as an inj ustice. And it is true that New Jersey courts have recognized21 that, in some cases, “the filing of a lawsu it itself shows the proper diligence on the part of the plaintiff [that] statutes of limitations were intended to insur e.” Galligan v. Westfield Ctr. Serv.,
Inc. , 412 A.2d 122, 125 (N.J. 1980). But this is not a case where plaintiffs’ attempts to pursue a cause of action have been defeate d by the application of some “ mechanistic” or technical rule.
Id. It is a case in which others— first Jarvis and then the admini strators of his estate—failed to bring suit, and none of those indivi duals had the type of confl ict of interest that might justify ignoring their lack of diligence, if any. It is not unusual that a successor or beneficiary of a trust or estate is put in a position i n which he must rely on others to protect his indire ct interests. But that does not mean that the statut e of limitations is tolled fo r years—or even decades—while he waits on the sidelines. Jarvis or the administrators of his es tate could have brought suit if they were convinced that a cognizable wrong occurred, and their fail ure to do so does not mean that Wells must defend an action tha t could have been brought many y ears ago. The plaintiffs have tried to emp loy many different causes of ac tion in many different fora against many different defenda nts in an effort to reach assets that they claim should have been included in the accounting of an e state over fifteen years ago. It may be that the plaintiffs are correct, and that Wells’s failu re to convey these assets to Jarvis was negligent, fraudulent, or simply unjust; the Court is i n no position to say. But the tim e for bringing such claims against him has long since passed. On these facts, the Court thus f inds no basis for equitable tol ling.22 CONCLUSION For these reasons, the Court wi ll grant Wells’s motion for sum mary judgment, Dkt. 67, and will deny the plaintiffs’ cr oss-motion for summary judgment , Dkt. 57. A separate Order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: July 1, 2016