UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TRACI M. CLEMENS, 

Administrator, Estate of Suni Music, 

 Plaintiff, 

 Case No.: 2:18–cv–639 

v. JUDGE GEORGE C. SMITH 

 Magistrate Judge Vascura 

 

DALLAS MUSIC, Administrator, 

Estate of James Music, 

 Defendant. 

OPINION AND ORDER 

This matter is before the Court upon Defendant Dallas Music, Administrator of the Estate 

of James Music’s Motion to Dismiss (Doc. 7). Also pending are Plaintiff’s Motion for Summary 

Judgment (Doc. 8) and Motion to Consolidate Cases (Doc. 9), as well as Defendant’s Motion to 

Stay (Doc. 17). These motions are fully briefed and ripe for review. For the reasons that follow, 

Defendant’s Motion to Dismiss is GRANTED and all other pending motions are DENIED AS

MOOT. 

I. BACKGROUND 

On December 24, 2016, husband and wife James Music and Suni Music, as well as their 

daughter, Mylee Music, were traveling in a vehicle on Interstate 270 in Franklin County, Ohio, 

when they were struck by an intoxicated driver. Tragically, all three family members died as a 

result of the collision. Mr. Music was pronounced dead at 4:21 PM; Mrs. Music was pronounced 

dead at 5:05 PM; and Mylee Music was pronounced dead at 3:02 AM on December 25, 2016. 
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Mr. Music was survived by his parents, Joyce Music and Ernest (Bud) Music, and his 

brother Dallas Music. Suni Music was survived by her parents, Cynthia Noble and James Olson, 

her brother Chris Olson, and her sister Traci Clemens. Mylee was survived by her grandparents. 

Following the Musics’ deaths, three separate estates were opened in the Franklin County Probate 

Court. 

At the time of his death, James Music was insured by a life insurance plan sponsored by 

his employer, Kokosing Construction Company, Inc., and administered by Hartford Life and 

Accident Insurance Company (“Hartford”). The insurance plan is an employee welfare benefit 

plan governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. 

§§ 1001 et seq. The insurance plan provided that, upon James Music’s death, benefits would be 

distributed to the listed beneficiary. The listed beneficiary on James Music’s plan was Suni Music. 

Following James Music’s death, Hartford determined that he was survived by Suni Music, and 

thus paid the entirety of the death benefits, totaling $251,229.00, to the Estate of Suni Music. 

In accordance with Ohio Revised Code § 2109.30, the fiduciary of the Estate of Suni Music 

filed a Partial Account on February 13, 2018, identifying the proceeds of James Music’s life 

insurance plan remaining in the fiduciary’s hands. On March 21, 2018, Joyce and Ernest Music 

filed Exceptions to Partial Account (“Exceptions”) as interested parties. In the Exceptions, Joyce 

and Ernest Music contend that Ohio Revised Code § 2105.32 governs the payment of death 

benefits to surviving beneficiaries, who must survive the decedent by more than 120 hours. 

Because Suni Music did not survive James Music by more than 120 hours, Joyce and Ernest Music 

argue that Hartford improperly paid benefits to the Estate of Suni Music, and that the funds should 

be included in the Estate of James Music. Suni Music’s mother, Cynthia Noble removed that 

probate action to this Court on May 17, 2018. (See Case No. 2:18-cv-492). 
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Joyce and Ernest Music moved to remand that matter to the Franklin County Probate Court. 

The Magistrate Judge recommended that the matter be remanded and this Court adopted that 

recommendation, remanding that matter. (See Docs. 25 and 30). 

Plaintiff in this case initiated this lawsuit on June 29, 2018, well after the probate court 

action was proceeding and the funds from the life insurance plan had been paid out. Plaintiff 

brings a claim for declaratory judgment to “declare plaintiff the rightful beneficiary of the proceeds 

under the ERISA plan, finding ORC 2105.32 does not apply to the ERISA plan.” (Doc. 1, Compl. 

at 5). 

II. STANDARDS OF REVIEW 

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal when the court lacks 

subject matter jurisdiction. Without subject matter jurisdiction, a federal court lacks authority to 

hear a case. Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990). Motions 

to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and 

factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack under 

Rule 12(b)(1) “questions merely the sufficiency of the pleading,” and the trial court therefore takes 

the allegations of the complaint as true. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816 

(6th Cir. 2017) (quoting Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 

1990)). To survive a facial attack, the complaint must contain a short and plain statement of the 

grounds for jurisdiction. Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016). 

A factual attack is a challenge to the factual existence of subject matter jurisdiction. No 

presumptive truthfulness applies to the factual allegations. Glob. Tech., Inc. v. Yubei (XinXiang) 

Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015). When examining a factual attack 

under Rule 12(b)(1), “the court can actually weigh evidence to confirm the existence of the factual 
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predicates for subject-matter jurisdiction.” Id. (quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d 

430, 440 (6th Cir. 2012)). The plaintiff has the burden of establishing jurisdiction in order to 

survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Moir v. 

Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). 

Defendant also moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 

alleging that Plaintiff has failed to state a claim upon which relief can be granted. Rule 12(b)(6) 

allows parties to challenge the sufficiency of a complaint under the foregoing standards. In 

considering whether a complaint fails to state a claim upon which relief can be granted, the Court 

must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as 

true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police & Fire Pension 

Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting Directv, 

Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a court must accept a 

complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, 

supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus, while a court is to afford 

plaintiffs every inference, the pleading must still contain facts sufficient to “provide a plausible 

basis for the claims in the complaint”; a recitation of facts intimating the “mere possibility of 

misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., Inc., 491 F. App’x 

628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679. 

III. DISCUSSION 

Defendant Dallas Music, in his capacity as Administrator of the Estate of James Music, has 

moved to dismiss Plaintiff’s claim for lack of subject matter jurisdiction and for failure to state a 

claim under 29 U.S.C. §1132, upon which relief can be granted. Plaintiff Traci Clemens, in her 

capacity as Administrator of the Estate of Suni Music, responds that this case is properly before 
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the Court because it involves the determination of ERISA benefits. The Court will address the 

arguments of the parties in turn. 

A. Subject Matter Jurisdiction 

Defendant first argues that this Court lacks subject matter jurisdiction to hear Plaintiff’s 

claim because the probate exception to federal question jurisdiction applies. The life insurance 

proceeds at issue in this case have already been paid to the Estate of Suni Music. Defendant argues 

that the funds are in the custody and control of the probate court and the fact that the funds arise 

from an ERISA plan is not enough to establish federal question jurisdiction. This Court agrees. 

The probate exception to federal jurisdiction “reserves to state probate courts the probate 

or annulment of a will and the administration of a decedent’s estate; it also precludes the federal 

court from endeavoring to dispose of property that is in the custody of a state probate court.” 

Marshall v. Marshall, 547 U.S. 293, 307 (2006). The probate exception does not bar federal courts 

from adjudicating matters outside the aforementioned purposes and otherwise within federal 

jurisdiction. Id. Some courts have held that when the probate exception applies, the court lacks 

jurisdiction to consider ERISA pre-emption. See In re Boisseau, No. 5:16-cv-0549, 2017 U.S. 

Dist. LEXIS 11964, *4-8 (N.D. N.Y. Jan. 30, 2017); Carpenters’ Pension Tr. Fund-Detroit & 

Vicinity v. Century Truss Co., No. 14-cv-11535, 2015 U.S. Dist. LEXIS 39106 at *6 (E.D. Mich. 

Mar. 27, 2015); In re Estate of Lewis, 128 F. Supp. 2d 573, 574 (N.D. Ill. 2001). On the other 

hand, the Supreme Court has held: 

[W]hile a federal court may not exercise its jurisdiction to disturb or affect the 

possession of property in the custody of a state court, . . . it may exercise its 

jurisdiction to adjudicate rights in such property where the final judgment does not 

undertake to interfere with the state court’s possession save to the extent that the 

state court is bound by the judgment to recognize the right adjudicated by the 

federal court. 
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Marshall, 547 U.S. at 310. Therefore, the Court must determine whether the final judgment sought 

in this case will interfere with the probate court’s possession of the life insurance proceeds. 

Plaintiff in this case brings a claim for declaratory judgment to “declare plaintiff the 

rightful beneficiary of the proceeds under the ERISA plan, finding ORC 2105.32 does not apply 

to the ERISA plan.” (Doc. 1). Notably, this case is brought against the administrator of the Estate 

of James Music and not against Mr. Music’s employer Kokosing Construction, nor their insurance 

company, Hartford Life and Accident Insurance Company. Hartford has already distributed the 

life insurance proceeds and no longer has any interest in this matter. 

This case involves determination of the rightful beneficiary of the insurance proceeds, 

however, those proceeds have already been paid to the Estate of Suni Music based on the claim 

filed with Hartford. The controversy here is between the beneficiaries of the Estates of James 

Music and Suni Music. The probate court has already begun this process and exceptions to the 

estate account have been filed. Any order by this Court would interfere with the custody of those 

insurance proceeds and potentially conflict with a ruling by the probate court in the related action. 

Therefore, the probate exception is applicable to the facts of this case. The Franklin County 

Probate Court should be the ultimate decisionmaker regarding the distribution of the life insurance 

proceeds. 

B. Failure to State a Claim 

Next, Defendant argues that the funds from the ERISA governed life insurance policy have 

already been distributed and therefore there is no available relief under the ERISA statute. 

 Plaintiff’s Complaint seeks relief under 29 U.S.C. §§ 1003, 1132. 29 U.S.C. § 1132(a) 

states in pertinent part: 

(a) Persons empowered to bring a civil action. A civil action may be brought-- 

(1) by a participant or beneficiary-- 
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(A) for the relief provided for in subsection (c) of this section, or 

(B) to recover benefits due to him under the terms of his plan, to 

enforce his rights under the terms of the plan, or to clarify his rights 

to future benefits under the terms of the plan; 

 Defendant concedes that the proceeds Plaintiff claims are at issue were distributed from a 

plan governed by ERISA. However, Defendant argues, and the Court agrees, that the relief sought 

is not available under the ERISA statute because the funds are no longer in the custody of the plan 

administrator. Because the claim for life insurance benefits has already been paid to the Estate of 

Suni Music, there is no relief available to “recover benefits due to him under the terms of his plan,” 

“enforce his rights under the terms of the plan,” or “to clarify his rights to future benefits under 

the terms of the plan.” Further, Defendant in this case, the Estate of James Music, has never filed 

a claim for the life insurance proceeds and there is no present or future right to the life insurance 

proceeds to enforce or clarify. Accordingly, Plaintiff has failed to state a claim under ERISA upon 

which relief can be granted. 

IV. CONCLUSION 

Based on the foregoing, Defendant’s Motion to Dismiss is hereby GRANTED (Doc. 7) 

and all other pending motions are DENIED AS MOOT. 

The Clerk shall REMOVE Documents 7, 8, 9, and 17 from the Court’s pending motions 

list. The Clerk shall enter final judgment in favor of Defendant and REMOVE this case from the 

Court’s pending cases list. 

IT IS SO ORDERED. 

__/s/ George C. Smith ___

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT