general jurisdiction of the probate or control of the property in the custody of the state court.”
Markham, 326 U.S. at 494 (emphasis added).

The question presented here is whether the court, by maintaining jurisdiction over this
case, is effectively interfering with the state probate proceeding. Wendy contends that the court
will interfere with the probate proceedings because the court must construe Mary Mackey’s trusts
to reach a final judgment in this case and that judgment will have a direct effect on the
distribution of the residue of her estate. Mary Mackey’s Trust No. 1 provides for the residue of
her estate to be disbursed equally among the beneficiaries, taking into account all property
previously disbursed by gift or by trust. A final judgment in this case will determine the value of
certain gift and trust property which will in turn affect how the probate court distributes the
residue of Mary Mackey’s estate to Wendy and Joseph.

Joseph contends that the court will not interfere with the probate proceedings because a
final judgment in this case will leave Mary Mackey’s estate undisturbed. In other words, if the
court finds in favor of Joseph, then property will pass from Wendy to Joseph. If the court finds
in favor of Wendy, then she will retain her property. Under either scenario, the estate of Mary
Mackey will not be affected.

The Seventh Circuit has established that a federal court interferes with a probate
proceeding if the case before it is deemed to be “ancillary” to that proceeding. Rice v. Rice,
610 F.2d 471, 475-76 (7 Cir. 1979). To determine if a particular case is ancillary to a probate
proceeding, the court must consider whether, by allowing the case to be maintained in federal
court, the policies that form the bases for the probate exception would be impaired. Storm,

328 F.3d at 944; Dragan 679 F.3d at 715-16.



In this case, the claims of detinue and conversion can be brought in either state or federal
court. As noted above, for Joseph to be successful on either of these claims the court must
construe the trusts of Mary Mackey and find that Joseph is the rightful owner of the automobiles.
The practical effect of Joseph filing these claims in federal court is the circumvention of the state
probate proceedings. To promote legal certainty in the resolution of Mary Mackey’s estate, these
claims should be filed in the state probate court along with the other pending litigation.

In opposition, Joseph relies in part on Markham, noting that the Supreme Court upheld
federal jurisdiction under circumstances that related more directly to the probate proceedings
than those of the instant case. Markham involved a dispute between two parties claiming legal
right to the entire net estate of the decedent. Markham, 326 U.S. at 492. The decedent’s heirs-at-
law, who received nothing under the decedent’s Will, petitioned in state court to prohibit the
beneficiaries under the Will from receiving the estate pursuant to a state statute prohibiting
intestate inheritance by alien, non-resident heirs. Jd. The successor-in-interest to the
beneficiaries under the Will then filed a federal action for a declaration that the heirs-in-law had
no interest in the estate. /d. The Supreme Court upheld the federal district court’s jurisdiction to
render its judgment that the heirs-in-law had no rights or interest in the estate and that the
successor-in-interest to the Will beneficiaries was entitled to receive the net estate upon
completion of probate administration. /d. at 493, 496. The Court reasoned that “the effect of the
judgment was to leave undisturbed the orderly administration of decedent’s estate in the state
probate court and to decree the petitioner’s right in the property to be distributed after its

administration.” Jd. at 495.


DISCUSSION

Wendy moves to dismiss Joseph’s complaint on three grounds. First, Wendy contends
that the court lacks subject matter jurisdiction because the case falls within the probate exception
to federal diversity jurisdiction. Second, Wendy contends that the amount in controversy fails to
satisfy the requirements for diversity jurisdiction. Third, Wendy requests that the court dismiss
the complaint under the doctrine of abstention. Because the court dismisses the compliant
against Wendy with prejudice based on the probate exception to federal diversity jurisdiction, it
does not consider the other two grounds for dismissal.

Under the probate exception, a federal court lacks diversity jurisdiction over cases
involving probate matters. Storm v. Storm, 328 F.3d 941, 943 (7" Cir. 2003). The probate
exception is a judicial creation that is a well-established feature of the federal court system.
Dragan v. Miller, 679 F.2d 712, 713 (7" Cir. 1982). The precise scope of the probate exception
has not been clearly defined but courts have traditionally construed the exception narrowly.
Georges v. Glick, 856 F.2d 971, 973 (7" Cir. 1988).

The probate exception is rather easily applied to matters directly related to probate.
Storm, 328 F.3d at 943. It has long been settled that “a federal court has no jurisdiction to
probate a will or administer an estate.” Markham v. Allen, 326 U.S. 490, 494 (1946). In this
case, neither party contends that the court is being asked to directly probate the will or administer
the estate of Mary Mackey and therefore the probate exception does not apply in this regard.

The application of the probate exception is more difficult in matters that are indirectly related to
probate. Storm, 328 F.3d at 943. Federal court diversity jurisdiction over probate related matters

is proper “‘so long as the federal court does not interfere with the probate proceedings or assume


One policy underlying the probate exception is the promotion of judicial economy.
Storm, 328 F.3d at 944. If the probate proceeding begins in state court, judicial economy argues
for keeping it there until it is concluded. /d. This prevents federal courts from duplicating the
work of state courts and avoids the piecemeal or haphazard resolution of a decedent’s estate. Jd.

Here, the policy of judicial economy would be impaired if the court maintained federal
diversity jurisdiction over the case for three reasons. First, the court would be performing the
same functions as the probate court because, for Joseph to be successful on either of his claims,
this court must construe the trusts of Mary Mackey and find that Joseph is the rightful owner of
the Toyota and Jaguar automobiles.

Second, this case would cause a piecemeal resolution of Mary Mackey’s estate because
the final judgment would in turn impact the probate court’s disbursement of the residue of her
estate. The Fifth Amendment to Trust No. 1 states,

the value of each share will depend upon the value of gifts received from

and outside of Trust No. 1, so that the beneficiary...of each share will

receive total property of equal value from all sources, by reason of my death.

If the court maintains jurisdiction over this case, it will have to determine what was included in

the gift of personal property in the California home and the value of that gift. Subsequently, the
state probate court will have to take into consideration the final judgment in this case in order to
disburse the residue of Mary Mackey’s estate in accordance with her testamentary intent.

Third, Joseph has filed two additional lawsuits in state probate court regarding the estate
of Mary Mackey. One lawsuit seeks to determine the ownership of a watch collection and has
been filed against the very same Defendants that appear in this case. The other lawsuit relates to

the proper apportionment of estate taxes. “Where state courts are already familiar with the


Unlike Markham, this case requires the court to perform probate court functions, namely
construing Mary Mackey’s trust. By the operation of collateral estoppel and res judicata, any
final determinations by this court concerning Mary Mackey’s trust would be binding on the state
probate court. The Second Circuit has interpreted Markham to support the conclusion that a
federal court interferes with a concurrent probate proceedings if its judgment would supplant the
functions of the state probate court. Moser v. Pollin, 294 F.3d 335, 343 (2" Cir. 2002).
Therefore, Markham supports the finding that the probate exception should apply in this case.

In summary, this court finds that the policies that form the bases of the probate exception
would be impaired by maintaining jurisdiction over this case. Therefore, the case is considered
to be ancillary to the probate proceedings and falls within the scope of the probate exception to

federal diversity jurisdiction.

CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss is granted [# 8]. Wendy

Mackey and Nicholas Keogh are dismissed from the complaint with prejudice.

ENTER: bar KK tar—
JOAN HUMPHREY LEFKOW
Dated: March 22, 2004 United State District Judge



Minute Order Fee (06/97) =

United States District Court, Northern District of Iinois

Name of Assigned Judge Joan H. Lefkow Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 5057 DATE 3/22/2004
CASE F. Joseph Mackey vs. Wendy Mackey, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.}

DOCKET ENTRY:

gM a Filed motion of { use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) oO Answer brief to motion due . Reply to answer brief due

(4) Oo Ruling/Hearing on set for at

(5) im} Status hearing[held/continued to] [set for/re-set for] on set for at

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) Oo Trial[set for/re-set for] on at

(8) oO [Bench/Jury trial] [Hearing] held/continued to at

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OCOFRCP4(m) (Local Rule 41.1 COFRCP4i(a\(1) [1 FRCP41(a)(2).

(10) a [Other docket entry] Enter Memorandum Opinion and Order. Defendants’ motion to dismiss [8-1]
is granted. Defendants Wendy Mackey and Nicholas Keogh are dismissed for the complaint with
prejudice. Case dismissed with prejudice.

a1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court,
3
No notices required. umber ef ptes
UY | Notices mailed by judge's staff,
Notified counsel by telephone. ~ 3-6,
Docketing to mail notices,
v Mail AO 450 form. ‘docketing vuly initials: / v
Ce dge/magistrate judge.
‘opy to judge/inagistrate judge. — 1) saxo
ae ee
courtroom
MD deputy’s Mp
initials ——+
Date/time received in
central Clerk’s Office mailing deputy initials



litigation before the district court and the federal suit is intertwined with state court proceedings,
the district court may properly decline to exercise its jurisdiction. Rice, 610 F.2d at 478. Here,
the policy of judicial economy would be impaired if the court maintained federal diversity
jurisdiction because the resources of the state and federal court systems would not be properly
preserved and Mary Mackey’s estate would be subjected to a piecemeal resolution.

Another policy bases for the probate exception has been referred to as “relative
expertness.” Storm, 328 F.3d at 944. That is, state probate court judges may have more
experience in adjudicating probate matters due to their nearly exclusive jurisdiction over probate
matters. /d. In Illinois, this line of reasoning is less significant because the state courts are courts
of general jurisdiction. see Dragan, 679 F.2d at 715. However, when probate-like matters are at
issue, state courts vested with probate jurisdiction are much more familiar with the factual and
legal issues involved than are federal courts. Storm, 328 F.3d at 947. In this case,
determinations as to what property was included in the gift and whether Joseph is the rightful
owner of the automobiles are best left to the probate court not only because of their greater
experience with these types of issues but also due to the other lawsuits that are pending regarding
similar disputes relating to the estate of Mary Mackey.

A final reason for the probate exception is the promotion of legal certainty in regard to the
probate of a decedent’s will or administration of a decedent’s estate. Dragan, 679 F.2d at 714.
The probate exception helps ensure that the resolution of probate disputes will be consistent by
limiting their litigation to state courts. Storm, 328 F.3d at 944. In pursuit of this goal, federal
courts will look past the label of an action and examine the practical effect the action would have

if it succeeded. /d. (citing Dragan, 679 F.2d at 715-16).


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
F. JOSEPH MACKEY, )
)
Plaintiff, )
)
v. ) No. 03 C 5057
) Judge Joan H. Lefkow
WENDY MACKEY and ) Docy ee,
NICHOLAS KEOGH ) usp oS}
Defendants. ) 2004

MEMORANDUM OPINION AND ORDER

Plaintiff, F. Joseph Mackey (“Joseph”), brings this law suit against Wendy Mackey and
her son Nicholas Keogh (collectively referred to as “Wendy” or “Defendants”) alleging that
defendants wrongfully detained his property (Count I) and converted his property (Count II) in
violation of Illinois common law. Plaintiff invokes the diversity jurisdiction of the court under
28 U.S.C. § 1332. Before the court is a motion by Wendy under Rule 12(b)(1) of the Federal
Rules of Civil Procedure to dismiss both counts of the Amended Complaint for lack of subject
matter jurisdiction. For the reasons set forth below, the court grants the motion.

STANDARDS FOR A MOTION TO DISMISS

A motion to dismiss under Rule 12(b)(1) challenges the court’s jurisdiction over the
subject matter. U.S.C.S. Fed Rules Civ Proc R 12. The party seeking a federal forum bears the
burden of establishing that jurisdiction is proper. NLFC, Inc. v. Devcom Mid-America, Inc.,

45 F.3d 231, 237 (7" Cir. 1995). When considering a motion to dismiss for lack of subject
matter jurisdiction, all well-pleaded factual allegations of the complaint are accepted as true and

any reasonable inference from those allegations shall be construed in the plaintiff's favor. United /[ g


Transportation Union vy. Western Railway Co., 78 F.3d 1208, 1210 (7" Cir. 1996). The court
may also look beyond the jurisdictional allegations of the complaint and view whatever evidence
has been submitted on the issue. Capitol Leasing Co. v. Federal Deposit Insurance Corp.,
999 F.2d 188, 191 (7 Cir. 1993). Indeed, where the defendant challenges the plaintiff's factual
allegations regarding federal jurisdiction, the plaintiff must support its assertion with “competent
proof.” Rexford Rand Corp. y. Ancel, 58 F.3d 1215, 1218 (7" Cir. 1995). Competent proof has
been interpreted to mean a preponderance of the evidence or proof to a reasonable probability
that jurisdiction exists. NLFC, Inc., 45 F.3d at 237.
ALLEGATIONS OF THE COMPLAINT

According to Joseph’s Amended Complaint, which is taken as true for the purpose of this
motion, on January 15, 2002, Mary Mackey, the mother of Joseph and Wendy, made a gift of all
tangible property located in her California home to Joseph. (Am.Compl.f 8.) On April 30, 2002,
Mary Mackey died and via two trusts, she bequeathed to Joseph the California home and the
Toyota and Jaguar automobiles (the “Toyota” and “Jaguar”) located at the California home. (/d.
47,9.) At all times relevant to this action, defendants resided at the California home and did not
vacate the home until June, 2003. (/d. 4] 10, 11.) Joseph’s counsel instructed Wendy by letter
dated May 30, 2003, that she was not to remove any of the tangible personal property from that
home and that Joseph would let her keep the Jaguar only if she left the Toyota at the California
house when she vacated the house in June, 2003. (/d. § 11.) Despite this letter, Wendy sold or
otherwise disposed of the Toyota without Joseph’s authorization. (/d. { 12.) When defendants
left the California home, they took many items of tangible personal property as well as the

Jaguar. (/d. J 13.)