*

The Honorable Paul R. Matia, Chief United States District Judge for

the Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0316P (6th Cir.)

File Name: 04a0316p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ROBIN LEPARD,

Plaintiff-Appellant,

v.

NBD BANK, a Division of

Bank One; WALTER O. KOCH;

JEREMY H. LEPARD; and

PATRICIA C. LEPARD,

Defendants-Appellees.

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No. 02-1887

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 00-72296—George E. Woods, District Judge.

Argued: August 4, 2004

Decided and Filed: September 16, 2004 

Before: CLAY and GILMAN, Circuit Judges; MATIA,

Chief District Judge.*

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

_________________

COUNSEL

ARGUED: Jeffrey D. Meek, JEFFREY D. MEEK &

ASSOCIATES, Livonia, Michigan, for Appellant. Thomas

G. Peck, SIMON, GALASSO & FRANTZ, Troy, Michigan,

George G. Kemsley, BODMAN, LONGLEY & DAHLING,

Detroit, Michigan, for Appellees. ON BRIEF: Jeffrey D.

Meek, JEFFREY D. MEEK & ASSOCIATES, Livonia,

Michigan, for Appellant. Thomas G. Peck, Thomas C.

Wisehart, Jr., SIMON, GALASSO & FRANTZ, Troy,

Michigan, George G. Kemsley, BODMAN, LONGLEY &

DAHLING, Detroit, Michigan, for Appellees. Jeremy H.

Lepard, Waianae, Hawaii, pro se.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Robin Lepard,

proceeding pro se, brought suit against the defendants based

upon their alleged unlawful interference with the financial

assistance that Robin had been receiving from her mother.

The named defendants were the National Bank of Detroit, a

division of Bank One (NBD), Walter Koch, Jeremy Lepard,

and Patricia Lepard. Koch had served as the attorney for

Lepard’s parents, Cecil and Elizabeth Lepard, and was the

drafter of Dr. Cecil Lepard’s trusts. He later served as

counsel for the trusts’ cotrustees, NBD and Lepard’s mother

Elizabeth. Jeremy Lepard is Robin’s half-brother and Patricia

Lepard is Jeremy’s wife.

The district court dismissed Robin’s ten-count complaint in

its entirety. Counts one and two were dismissed with

prejudice for failure to state a claim under Michigan law,

counts three through seven were dismissed with prejudice as

barred by the applicable statute of limitations, and counts
No. 02-1887 Lepard v. NBD Bank, et al. 3

eight through ten were dismissed without prejudice for lack

of subject matter jurisdiction. 

Robin, now represented by counsel, argues on appeal that

the district court committed reversible error with respect to

six of the ten counts in her complaint: count two (alienation

of affections), count three (intentional infliction of emotional

distress), count six (theft and extortion), count eight (breach

of fiduciary duty), count nine (theft and undue influence

resulting in theft), and count ten (breach of fiduciary duty and

abuse of power). Counts two and three seek relief against all

of the named defendants, counts six and eight seek relief

against NBD only, and counts nine and ten seek relief against

Jeremy and Patricia only. (Robin does not appeal the

dismissal of count one (wastage of assets), count four (slander

and defamation), count five (discrimination), or count seven

(attorney malpractice)). For the reasons set forth below, we

AFFIRM the judgment of the district court.

I. BACKGROUND

As described 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-brother,

Jeremy H. Lepard and his wife Patricia, to manipulate and

control Ms. Lepard’s elderly mother, Elisabeth F. Lepard, so

that her mother would discontinue gifting . . . $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 the following year

by a 97-page “first amended complaint,” an 89-page “final

amended complaint version one,” and a 117-page “final

amended complaint version two.” In July of 2001, Robin

designated the “final amended complaint version one” as her

operative pleading. 

Motions to dismiss were filed by all of the defendants, 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 Report and

Recommendation (R & R). In the R & R, the magistrate

judge noted that “[a]ll of the documents filed by [Robin were]

handwritten, lengthy, composed in a narrative form, and

contain[ed] numerous conclusory assertions.” Rule 8(a) of

the Federal Rules of Civil Procedure specifies that “[a]

pleading which sets forth a claim for relief . . . shall contain

. . . a short and plain statement of the claim showing that the

pleader is entitled to relief . . . .” Although “[n]o technical

forms of pleading or motions are required[,]” Rule 8(e)

specifies that “[e]ach averment of a pleading shall be simple,

concise, and direct.” The magistrate judge concluded that

Robin’s complaint “fail[ed] to comply with these directives.”

Because Robin was proceeding pro se, however, the

magistrate judge considered her allegations despite her failure

to comply with Rule 8.

The magistrate judge heard oral argument on the motions

in December of 2001. He issued an 18-page R & R later that

month, concluding that all of Robin’s claims should be

dismissed. Robin objected. After review, the district court

adopted the R & R and dismissed Robin’s complaint. This

appeal followed. (The district court initially found that Robin

had failed to timely file her notice of appeal. In an order

entered on February 10, 2003, however, this court determined

that Robin’s notice of appeal was in fact timely filed.) 

II. ANALYSIS

A. The district court did not err in dismissing Robin’s

claim for alienation of affections

Michigan does not recognize a cause of action for

alienation of affections. See Mich. Comp. Laws Ann.

§ 600.2901 (“The following causes of action are abolished:

(1) alienation of the affections of any person, animal, or thing

capable of feeling affection, whatsoever[.]”). The district

court therefore dismissed Robin’s alienation-of-affections

cause of action for failure to state a claim upon which relief
No. 02-1887 Lepard v. NBD Bank, et al. 5

can be granted. See Fed. R. Civ. P. 12(b)(6). This court

conducts a de novo review of complaints dismissed pursuant

to Rule 12(b)(6). Mayer v. Mylod, 988 F.2d 635, 637 (6th

Cir. 1993). “All factual allegations are considered to be true.”

Id. at 638. “If an allegation is capable of several inferences,

the allegation must be construed in a light most favorable for

the plaintiff.” Id.

For the first time on appeal, Robin argues that her

Michigan-law claim for alienation of affections was actually

a New Mexico-law claim for tortious interference. As

evidence of this intention, Robin points out that she attached

a copy of Doughty v. Morris, 871 P.2d 380 (N.M. Ct. App.

1994), to her final amended complaint. Doughty is a New

Mexico case that “extend[s] the line of New Mexico cases

acknowledging tortious interference causes of action to

include a cause of action against those who intentionally and

tortiously interfere with an expected inheritance.” Id. at 383.

Robin argues in her appellate brief that the “vast majority

of the acts complained about . . . occurred after her mother

was moved to New Mexico by the Defendants in late 1991.”

In the district court, however, she alleged that “[t]he matter

giving rise to this Complaint occurred first and primarily in

Wayne County, Michigan.” And her October 26, 2000

response to the defendants’ motions to dismiss flatly asserted

that “[t]he primary matters raised in the Complaint took place

in Michigan and were not in the jurisdiction of the court in

Santa Fe, New Mexico . . . .” 

This court “has repeatedly held that it will not consider

arguments raised for the first time on appeal unless our failure

to consider the issue will result in a plain miscarriage of

justice.” United States v. Ninety-Three (93) Firearms, 330

F.3d 414, 424 (6th Cir. 2003) (quotation marks omitted).

Based upon Lepard’s inconsistent positions on this issue, we

do not believe that a plain miscarriage of justice would occur

by affirming the district court’s dismissal of her alienation-ofaffections claim.

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

B. Robin’s claims for emotional distress and conversion

were time-barred

Regarding Robin’s cause of action for intentional infliction

of emotional distress, the magistrate judge concluded as

follows:

Count 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.2d 482, 484 (Mich. App. 1997).

Plaintiff claims that defendants committed intentional

infliction of emotional distress “from 1984 and . . .

throughout the 1990s.” Any claim(s) for emotional

distress occurring prior to June 4, 1998, three years

before Plaintiff filed this complaint, should be dismissed

with prejudice. 

In her brief, Robin argues that the district court erroneously

adopted the magistrate judge’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-year statute of limitations would still

bar Robin’s claim. The latest conduct allegedly supporting

this cause of action occurred in March of 1997, when NBD

purportedly made reservations for Jeremy and Patricia to stay

at the same country club as Robin after they returned to

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 “extortion and theft,” could be construed

to assert a cause of action for conversion. (Extortion is a

criminal cause of action under Michigan law. See Mich.

Comp. Laws Ann. § 750.213.) The tort of conversion

has a three year statute of limitations pursuant to Mich.

Comp. Laws Ann. § 600.5805(9). See Brennan v.

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

App. 2001). Accordingly, any claims for conversion

which Plaintiff claims to have occurred before June 4,

1998, should be dismissed with prejudice.

The factual bases for this claim were (1) NBD’s threatened

legal action if Robin did not return funds that she

impermissibly withdrew from her mother’s account at the

bank, and (2) NBD’s alerting Robin that her father’s trust

might soon be liquidating one of its assets, a Washington,

D.C. apartment occasionally used by one of Robin’s children.

Neither of these events occurred within the three-year period

preceding the filing of Robin’s suit in May of 2000. 

At the hearing before the magistrate judge, Robin claimed

that she did not learn that she had any legal claims against

defendants until “recently.” The magistrate judge considered

whether any equitable tolling of the applicable statutes of

limitations was called for under Michigan law. He concluded

that “[t]he record demonstrates that had she exercised

reasonable diligence, and assuming the facts as she presents

them to be true, she should have discovered that she had a

possible cause of action against these defendants nearer to the

time when the alleged wrongs occurred.” We find no basis to

conclude that this determination by the magistrate judge was

clearly erroneous.

C. The district court lacked subject matter jurisdiction

regarding Robin’s remaining claims

The district court dismissed Robin’s claims in counts eight

through ten for lack of subject matter jurisdiction, citing the

“probate exception” to diversity jurisdiction. We review 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 doctrine designed to

promote legal certainty and judicial economy by providing a

single forum of litigation, and to tap the expertise of probate

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

judges by conferring exclusive jurisdiction on the probate

court.” Cenker v. Cenker, 660 F. Supp. 793, 795 (E.D. Mich.

1987). “Under the so-called ‘probate exception,’ even when

the requirements of diversity jurisdiction have been met – the

parties are diverse and the amount in controversy exceeds the

jurisdictional threshold, see 28 U.S.C. § 1332(a)(1) (2004) –

a federal court nonetheless lacks jurisdiction over cases

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 jurisdiction to probate

a will or administer an estate.”). 

“The standard for determining whether federal jurisdiction

may be exercised is whether under state law the dispute

would be cognizable only by the probate court.” McKibben v.

Chubb, 840 F.2d 1525, 1529 (10th Cir. 1988) (quotation

marks omitted). This court applied the “probate exception”

in Bedo v. McGuire, 767 F.2d 305 (6th Cir. 1985), holding

that the district court lacked subject matter jurisdiction over

a claim for breach of fiduciary duty brought by the

beneficiaries of the estate against the executrix because, under

Ohio law, “exclusive jurisdiction of probate matters,

including breach of fiduciary duty, is vested in the Probate

Court.” Id. at 306.

As the magistrate judge noted, “Count eight is asserted

against Bank One for breach of fiduciary duty regarding Dr.

Lepard’s [19]75 and [19]79 trusts.” Claims regarding the

administration 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 counts nine and ten of the complaint, the

magistrate judge summarized Robin’s claims as follows:

Counts nine and ten are asserted against Jeremy and Pat

Lepard for theft and undue influence resulting in theft
No. 02-1887 Lepard v. NBD Bank, et al. 9

and for breach of fiduciary duties and abuses of power.

See Compl. at 80-81. Plaintiff claims that they caused

Mrs. Lepard to give to them and their children assets that

Mrs. Lepard wanted to give to Plaintiff, and that they

breached their duties as fiduciaries for Mrs. Lepard.

The magistrate judge concluded that these counts were

“connected inextricably with the probate of the estates and

other issues ancillary to probate.” We agree. “The [probate]

exception applies both to purely probate matters, and to

matters ancillary to probate in the practical sense that

allowing it [the case] to be maintained in federal court would

impair the policies served by the probate exception to

diversity jurisdiction.” Cenker, 660 F. Supp. at 795 (quotation

marks omitted);see also Manning v. Amerman, 582 N.W.2d

539, 540 (Mich. Ct. App. 1998) (affirming the trial court’s

ruling that the trust beneficiaries’ claims for “tortious

interferencewith a prospective advantage/expectancy, tortious

interference with a trust/contractual relationship, intentional

and negligent infliction of emotional distress, legal

malpractice, breach of contract, and unjust enrichment” were

within the exclusive jurisdiction of the probate court). 

Robin seeks to avoid the probate exception by claiming an

interest in an annuity allegedly taken out by her mother for

Robin’s benefit. This argument, however, is raised for the

first time on appeal and therefore will not be entertained

“unless our failure to consider the issue will result in a plain

miscarriage of justice.” United States v. Ninety-Three (93)

Firearms, 330 F.3d 414, 424 (6th Cir. 2003) (quotation marks

omitted). We find no miscarriage of justice under these

circumstances because, at the very least, Robin’s annuity

argument is closely related to her other probate and fiduciary

issues. See Rice v. Rice Foundation, 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. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.