* The Honorable Paul R. Mati a, Chief Unit ed Sta tes Dist

ric t Ju dge f

or the Northern District

of Ohio, sitt ing by designati on.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0316P (6th C ir.) File Name: 04a03 16p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R OBIN L EPARD ,

Plaintiff- Appellant

,

v.

NBD B ANK , a Division of Bank One; W ALTER O. K OCH ; J EREMY H. L EPARD ; and P ATRIC IA C. L EPARD , Defenda nts-Appe llees. X - - - -
> , - - - - - - N No. 02-1887

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 00-72296—George E. Woods, District Judge.

Argued: August 4, 2004 Decided and Filed: September 16, 2004

Before: CLAY a

nd GIL MAN, Circuit Judges; MATIA, Chief District Judge. * 2 Lepard v. NBD Bank, et al. No. 02-1887

_________________ COUNSEL

ARG UED: Jeffrey D. Mee k, JEFFREY D. MEEK & ASSOCI ATES, Livon

ia , Mic higan, for Appellant. Thomas G. Peck, SIMON, GAL

ASSO & FRANTZ, Troy, Michigan, George G. Kemsley, B ODMAN, LONGL EY & DAHLI

NG, Detroit, Michigan, for Appellees. ON BR IEF: J effrey

D. Meek, JEFFREY D. MEEK & ASSOCIATES, L ivoni a, Michi gan, for Appe llant. Tho mas G. Pec k, Thomas C

. Wisehart, Jr., SIMON, GALAS SO & FR AN TZ , T ro y, Mich igan, George G. Kemsley, BODMAN, LONGL EY & DAHLI NG, Detroit, Michigan, for Appellees. Jeremy H. Lepard, Waianae, H awaii, pro se.

_________________ OPINION

_________________ RON ALD LEEGIL

MAN, Circuit Judge. Robin Lepard, procee ding pro

se, broug ht suit ag ainst the d

efenda nts based upo n thei r alleged unlawful interfere nce with the financial assistance that Robin had been receiving from her mo ther. The named defendants were the National B ank of Detroit, a di vision of Bank One (NBD), Walter Koc h, Jeremy L ep ard , and Patric i a Lepard. Koc

h had served as the attorney for Le pard’s parents , Cecil an d Elizabet

h Lep ard, and

was th e drafter of Dr. Cecil Lepard’ s trusts. He later served as counsel for the trus ts’ cotrust ees, NBD and Lepard’s mother Elizabeth. Jeremy

Lepa rd is Robin’s ha

lf-brother and Pa

tricia Lepard is Jeremy ’s wife.

The district c ourt dismis sed Robin’ s ten-co unt compla

int in its entirety. Counts one and two we re dism issed with prejudice for fail

ure to sta te a c laim under Michigan law, counts three through seven were dismissed with prejudice as barred by t he applic able sta

tute o f limitations, and c ountsNo. 02-1887 Lepard v. NBD Bank, et al. 3

eight through ten were dismissed w

ith out pr ejudice for lack of subject matter jurisdiction.

Rob in, now repr

esented by c ounsel, a

rgues on appea

l t ha t the district c ourt commi

tte d rever sible err

or with re spect to six o f the ten counts in her complaint: count two (alienation of affections), count three (intentional infliction of emotional distress), count

six (theft andextortion), count eight (breach of fiduciary duty

), count nine (theft and undue influence resulting in theft), and count ten (breach of fiduciary

duty and abuseof power). Counts two and thre e seek r elief against

all of the n amed

defe ndan ts, co unts s ix a

nd eight seek relief agains tNB D o nl y, and counts nine and ten seek relief a gainst Jeremy and Patricia only. (

Robin do es not appeal the dismissal of

count one (wastage of assets), count four ( slander and defamation), count

five (discrimination), or

count seven (attorney malpra ctic e)). For the reasons set forth below, we AFFIRM the judg

ment of the

district c ourt.
I. BACKGROUND

As descri bed by Robin in her brief , “[t]he crux of [her] allegations is that trust officials from Bank One and Mr. Koch

. . . worked with and collaborated with her half-brothe r, Jeremy H. Lepard a

nd his wife Patricia, to manipulate and control Ms. Le

pard’s e lderly

mother, E lisabeth F . Lep ard, so that her mother would discontinue g i fting . . . $40,000 per annum to Robin and her three children.”

Robin filed a 132-page handwritten complaint on May 19, 2000. That

complaint was superseded over thefollowing ye ar by a 97-page “first amended c omplaint,” an 89-page “final amended compl aint version one,” and a 117-page “ final
ame nded complaint version two.” In July of 2001, Rob i n designated

the “final amended complaint version one” as her operative pleading.

Motions to dismiss were filed by all of the

defenda nts, to which Robin filed

a 20-page response. The matter was then 4 Lepard v. NBD Bank, et al. No. 02-1887

referred to a magistrate judge for a Repor t and Recomme

ndation (R& R). I

n the R & R, the mag istrate judge noted that “[a]ll of the documents filed by [Robin were] handwritten, lengthy, c omposed in a nar rative form, and contain[ed] numerous conclusory assertions.” Rul e 8 (a) of the Federal Rules of Civil Procedure s p ecifies that “[a] ple ading w hich sets

forth a c laim for r

elief . . . shall contain

. . . a short

and plain statement of the claim showing that the pleader is en titled to r elief . . . .” Although “[n]o technical forms of pleading or motions are req uire d[,]” Rule 8(e) specifies that

“[e]ach averment of a pleading shall be simple,
co ncise , and direct.” The magistrate judg e concluded that Robin’s complain

t “fail[e d] to comply with these directives.” Becau se Robin was proceed ing pro s e, howev er, th e magistrat e j udge considered her alleg ations despite her failure to comply with Rule 8.

The magi strate judge heard oral arg ument on the motions inDecember of 2001. Heissued an 18-page R & R later that
mon th, concluding that all of Robin’s claims should b e dismissed. Robin objected. After review, the district court adopted the R & R a

nd dismi ssed Robin’s complaint. T his appeal followed. (The district court initially found tha t Robin had failed to timely file her notice of appeal. In an ord er entered on February

10, 2003, however, this court determined that Robin’s notice of appeal was in fact timely filed.)

II. ANALY SIS

A. The district court did not errin dis missing Robin’s claim for alienatio n of affections Michigan does no t recognize a cause of action for alien at ion of affe ctions. See Mich. Comp. Laws Ann. § 600.2901 ( “The fo ll owin g causes of action are a bolished: (1) alienati on of the a

ffections of any

person, a nimal, or thing capable of fee ling affection, whatsoever[.]”). The district court therefore dismissed Robin’s alienation-of-affections
cause of actio n for failure to state a claim upon which reliefNo. 02-1887 Lepard v. NBD Bank, et al. 5

can be granted. See Fed. R. Ci v. P. 12(b)(6). This court conducts a de novo

review o f compla

ints dismissedpursuant to Ru le 12(b)(6). Mayer v. Mylod , 988 F.2d 635, 63 7 (6t h Cir. 1993). “All factual allegations are considered to be true.” Id. at 6 38. “If

an allegation is capable of severa l infere nces, the allega tion must be construed in a

light most favorable for the plaintiff.” Id.

For the first time on app eal, Robin argues that her Michigan-law

claim for alienation of

affec tions was a

ctually
a New Mexico-law claim for tortious interfe rence. As evidence of this inte

ntion, Robin

points out that she attached
a copy of Dough ty v. Mor ris , 871 P.2d 380 (N.M. Ct. App. 1994) , to her final amended complaint. Doughty is a Ne w Mexico case that “extend[s] the line of New Mexico c ases acknowledging

tortious int erfe rence c auses of action to include a cause of action a gainst those who intentionally and tortiously interfere with an

expected inheritance.” Id. at 383.

Robin argues in her appellate brief that the “v ast ma

jority of the acts complained about . . . o ccurred after her mother
was moved to N ew Mexico b y th e Defe

ndants in late 1991.” Inthe d i strict court, however, she alleged that “ [t]he matter givingrise to thi s Complaint occurr ed fir st a nd primar

ily i n Wayne County , Michig an.” A nd her October 26, 2000 response to the defe

ndants’ motions to dismiss flatly asserte d that “[t]he primary matters raised in the Complaint took place inMichigan and were no t in the juri sdiction o f the cou rt in Santa Fe, New Mexico . . . .”

This court “ has repe atedly held that it will not c onsi de r argume nts raised for the first time on appeal unless our

failure to consider the issue will result in a plain miscar riage of justice.” United States v. Ninety-Three (93) Firearms , 330 F.3d 414, 424 (6th Cir. 200 3 ) (quotation marks omitted). Based upon Lepard’s inconsistent positions on this issue, we do notbelieve that a plain miscarriage of justice would occur by affirming the district court’s dismissal ofher alienation-ofaffec tions clai

m. 6 Lepard v. NBD Bank, et al. No. 02-1887

B. Robin’s claims

for emo tional distr ess and conversion were time-barred Regarding

Robin’s cause of action for intentionalinfliction of emotional distress, the magistrate judge concluded as follows:

Cou nt three, which asserts intentional infliction of emotional distress, is governed by a three year statute of limitations

. See Mich. Comp. Laws Ann. § 600.5085(9); Nelson v. Ho , 564 N.W.2d482, 484 (Mich. App. 1997). Plaintiff claims that defen dan ts committed intentional infliction of emotion al distr ess “from 1984 and . . . thr oughout

the 1990s.” Any cla

im(s) for emotiona l distressoc c urring prior to June 4, 1998, three y ears before Plaintiff

filed this complain t, should be dismissed with prejudice.

Inher brie f, Robin a

rgues t hat the di strict co

urt erroneously adopted the magistra

te j udge’s mistaken finding that the complaint was filed on June 4, 2001 when, in fact, the action
was filed on May

19, 2000. But even if May 19, 2000 is the operative date, the three-y ear statute of limitations

would still bar Robin’s claim. The lates t conduct allegedly supporting this cause of action occurre d in March of 1 997, when NBD purporte dly

made reservations for Jeremy and Patricia to stay at the same country c lub as Robin after they r eturned t o Michigan for the funeral of Robin’s mother. Regarding

Robin’s cause of action for conversion, the magistrate judge made the following determination:

Count six, for “extortio n and theft,” could be construed to assert a cause of action for conversion. (Extortion i s a criminal cause of action under Michigan law. See Mich. Comp. Laws Ann. § 750.213.) Th e t ort of conversion has a three year statute of limitations p ursuant to Mich. Comp. Law s An n. § 600.5805(9). See Brennan v. Edward D. Jon es & Co

. , 626 N.W.2d 917, 919 (Mich.No. 02-1887 Lepard v. NBD Bank, et al. 7

App. 2001). Accordingly , any cl ai ms for conversion whic h Pl aintiff claims to have occurred before June 4, 1998, should be dismissed with prejudice.

The factual bases for this claim were (1) NB D’s threatened legal action if Robin did no t return funds that she impermiss ibly

withdrew from her mother’s account at the bank, and (2) NBD’s alerting Robin that her f ather’s trus t might soon be liquidating one of its asset s, a Washington, D.C. apartment occasionally used by one of Robin’schildren. Neither of these events occurred within the three-y ear period preceding the filing of Robin’s suit in May of 2000.

At the hearing before the mag istrate judge, Robin claimed that she did not

learn th at sh e had any

legal c laims ag ainst defenda nts until “recently.”

The mag istrate

judge considered whether any equitable tolling

of the ap p licable statutes of limitations was called for under Michigan law. He concluded that “[t]he record demonstrates that had she exe rcised
reasona ble diligence, and assuming the facts a s she pre se nts them to be true, she shoul d hav e discovered that she had a possible cause of actio n again st these

defendants nearer to the time when the

allege d wrong s occurr

ed.” We f ind no basi s to conclude that this determination by the magi strat e judge was clearly errone ous.
C. The district

court lac ked subjec t matt er juris di c tion regard ing R obin ’s remai ning claims

The district c ourt dismis sed Robin’ s claims in counts eight throu gh ten for la

ck of subj ect matte

r jurisdict ion, citing the “probat e exception” to diversity jurisdiction. We r eview de
novo a district court’s determination that it lacks subject matter jurisdiction. Good v. Ohio Edison Co. , 149 F.3d 413, 418 (6th Cir. 1998).

“The probate exception is a practical doctri ne designe d to promote legal c ertai nty and ju dicia l econ omy by provid ing a single forum of litigati on, and to

tap the expertise of

probate 8 Lepard v. NBD Bank, et al. No. 02-1887

judges by confer

ring exclusive jurisdiction on the p robate court.” Cenker v. Cenker , 660 F. Supp. 793, 795 (E.D. Mich. 1987). “Under the so-called ‘probate exception,’ e ven when the require

ments of d

iversity jurisdiction have been met – the parties are diverse and

the amoun

t in controversy

exceeds the jurisdictional threshold, see 28 U.S.C. § 1332(a)(1) (2004) –
a federal court nonetheless lacks jurisdiction over ca ses involving probate matters.” Storm v. Storm , 328 F.3d 941, 943 (7th Cir. 2003); see also Markman v. Allen , 326 U.S. 490, 494 (1946) (“[A] federal court has no jur

isdiction t o probate a will or administer an estate.”).

“The standard for determining whether federal jurisdiction may be exercised is whether under state law th e dispute would be cog nizable on

ly b y th e probat

e court.” McKibben v. Chubb , 840 F.2d 1525, 1529 ( 10th Cir. 1988) (quotation marks omitted). This court applied the “prob a te exception” in Bedo v. McGui re , 767 F.2d 305 (6th Cir. 1985), holding that the distri ct court lacked

subject matter jurisdiction over
a cla im for bre ach of f iduciar y du ty brought by th e bene ficiaries of the estate against the executrix because, unde r Oh io law, “e xclusive jur isdiction o f probat

e matter s, including b reach o f fiducia ry duty , is veste d in the Pro bate Court.” Id. at 306.

As the magistrate judge noted, “Coun t eigh t is asserted agains tBa nk On e f

or br ea ch of

fi du ci ar y dut y reg arding Dr. Lepard’s[19]75 and [19]79 trusts.” Claims regarding the admi nistr ation of a trust fall squarely within the exclusive jurisdiction of the Michigan probate courts. See Mich. Comp. Laws Ann. § 700.1302 ( “ The [probate] court has exclusive legal and equitable jurisdiction [over] . . . (b) [a] proceeding that concerns . . . the administration . . . of a trust[.]”). Regarding

coun ts ni ne and ten of the complaint, the magistr ate judg e summari zed Robin’s claims as follows:

Counts nine and ten are asserted ag ainst Jeremy and Pat Lepard for theft and undue influence resulting in theftNo. 02-1887 Lepard v. NBD Bank, et al. 9

and for breach of fiduciary

duties and abu ses of

power. See Compl. at 80-81. Plaintiff c laims that they cause d Mrs. Lepard to give

to them and their children assets that Mrs. Lepard wanted to g ive to Plaintiff, and

that th ey breached their duties as fiduciaries for Mrs. Lepard.

The magist

rate j udge concluded that these counts were “connected

in ex tr ic ab ly w ith the probate of the estates and other issues ancillary to proba

te.” We agree. “The [probate] exception applies b oth to pure ly probate ma tter s, and to matters ancillary to proba te in th e practical sense that allowing it [the cas e] to be mai ntained i n federal court wo

uld impair the policies served by the probate excep tion to diversity jurisdiction.” Cenker , 660 F. Supp. at 795 (quotation marks omitted); see also Manning v. Amerman , 582 N.W.2d 539, 54 0 (Mich. Ct. App. 1998) (affirming the trial court’s ruling that the tr

ust benef

ic ia ries’ claims for “tortious interfere nce with a prospective ad va nt ag e/ ex pe ct an cy, tortious interferencewith a trust/contractual relationship, intentional
a nd negligent infliction of emotional distress, leg a l malpractice, breach

of contr act, and unjust enrichm ent” were within the exclusive jurisdiction of the probate court).

Robin seeks to avoid the probate exception by claiming an interest in an annui ty alleg edly taken out by her mother for Robi n’s benefit. This argument, however, is raised f or the fir st time on appeal and therefore will not be enter taine d “unless o ur failur e to consi der the i ssue will r esult in a p lain misca rriage of justice.” United States v. Ninety-Three (93) Firearms , 330 F.3d 414, 424 (6th Cir. 2003) (quotation marks omitted). We find no m iscarri age of

justice un

der thes e circumstances because, at the very least, Robin’s an nuit y argument is closely related to her other probate and fiduciar y issues. See Rice v. Rice F oundati on , 610 F.2d 471, 477-78 (7th Cir. 1979) (holding that

abstention is appropriate in cases on the periphery

of the probate exception). 10 Lepard v. NBD Bank, et al. No. 02-1887

III. CONCL USION

For all of the reasons set forth above, we A FFIRM the judgmen t of the dis trict cou

rt.