United States District Court, N.D. Mississippi, Oxford Division
IN THE MATTER OF THE ESTATE OF SYLVIA GORDON, DECEASED ROSS B. LEIDY PETITIONER
M. BROWN, UNITED STATES DISTRICT JUDGE.
case removed from the Chancery Court of Tate County,
Mississippi, is before the Court for a review of subject
26, 2017, Ross B. Leidy filed in the Chancery Court of Tate
County, Mississippi, a “Petition for Probate of Will
and Letters Testamentary” regarding decedent Sylvia
Jean Gordon. Doc. #6-1 at 5. On October 25, 2018, Leidy,
acting as executor of Gordon's estate, filed in the
probate action a “Complaint for Declaratory Judgment,
to Compel Payment of Assets to the Estate, and Alternatively,
for Damages.” Doc. #1-1. The complaint-which listed as
defendants OppenheimerFunds, Inc. (“OFI”);
American Equity Investment Life Insurance Company
(“AEI”); Madison Avenue Securities, LLC; Dennis
Alan Cirbo d/b/a Cirbo & Associates Financial Services;
and certain fictitious defendants-seeks, among other things,
a declaratory judgment that certain investment accounts under
the control of the defendants are the property of the Gordon
Estate, and the creation of a constructive trust or equitable
lien on the funds. Id. at 4-5.
December 5, 2018, OFI filed in the United States District
Court for the Northern District of Mississippi a notice of
removal bearing the style of the declaratory judgment
complaint. Doc. #1. The notice of removal is based on
an allegation of diversity jurisdiction. Id. at 2-3.
One week later, OFI and AEI filed answers to the complaint
and interpleader counterclaims regarding the funds at issue.
Doc. #7; Doc. #10.
January 9, 2019, OFI moved to join the Estate of Kelly K.
Carter, Deceased, as an indispensable party and
counter-defendant to both Leidy's action and the related
interpleader claim. Doc. #16. In support of its motion, OFI
represents that Carter was a “transfer-on-death”
beneficiary of the relevant accounts, that Carter died, and
that the relevant funds “appear to have become the
property of Carter's estate.” Doc. #17 at 1. Two
days later, following a telephonic conference regarding the
applicability of the probate exception to federal
jurisdiction, United States Magistrate Judge Jane M. Virden
stayed this case pending a determination of this Court's
jurisdiction. Doc. #19.
February 4, 2019, Leidy filed a brief arguing this case
should be remanded because this Court lacks subject matter
jurisdiction due to the probate exception. Doc. #21 at 3-8.
The same day, the defendants filed a motion to sever the
probate matter from Leidy's claims against them. Doc.
#24. The defendants argue that the probate exception does not
apply in this case. See Doc. #25 at 3; Doc. #26 at
1. Leidy responded in opposition to the motion to sever on
February 12, 2019. Doc. #27. The defendants replied on
February 19, 2019. Doc. #29.
what is known as the probate exception to federal
jurisdiction, “a federal court has no jurisdiction to
probate a will or administer an estate.” Curtis v.
Brunsting, 704 F.3d 406, 408 (5th Cir. 2013) (quotation
marks omitted). However, “the probate exception only
bars a federal district court from (1) probating or annulling
a will or (2) seeking to reach a res in custody of a
state court by endeavoring to dispose of such
property.” Id. at 409 (quotation marks
omitted). An action runs afoul of the second prong if
“the property in dispute is estate property within the
custody of the probate court” and if the “claims
would … require the federal court to assume in
rem jurisdiction over that property.” Id.
The party asserting federal jurisdiction-here, OFI-has the
burden of establishing the inapplicability of the probate
exception. See Ashford v. Aeroframe Servs., L.L.C.,
907 F.3d 385, 395 (5th Cir. 2018) (“A removing
defendant bears the burden of establishing removal
jurisdiction.”); Leskinen v. Halsey, No. CV
12-623, 2013 WL 802915, at *7 (E.D.N.Y. Jan. 28, 2013)
(“[P]laintiff bears the burden of proving, by a
preponderance of the evidence, that the probate exception
does not apply to this action.”).
initial matter, with certain exceptions not applicable here,
“removal under the general removal statute, 28 U.S.C.
§ 1441, and other similar statutes, removes the action,
” not specific claims. Dillon v. State of Miss.
Military Dep't, 23 F.3d 915, 918 (5th Cir. 1994).
Thus, the removal statute does not contemplate
“piecemeal removal where diversity of citizenship is
the basis.” Mason v. Medio Pictures Partners,
No. 2:18-cv-5620, 2018 WL 4092039, at *4 (C.D. Cal. Aug. 27,
2018); see Levert-St. John, Inc. v. Hartford Steam Boiler
Inspection & Ins. Co., No. CivA 06-1023, 2006 WL
1875494, at *2 (W.D. La. July 3, 2006) (“[P]artial
removal is contrary to both the law and the theory of
removal.”); J.C. ex rel. Cook v. Pfizer, Inc.,
No. 3:13-cv-33048, 2014 WL 495455, at *5 (S.D.W.V. Feb. 5,
2014) (“[P]artial removal of a consolidated state civil
action is improper.”). Accordingly, OFI's notice of
removal removed not only the declaratory judgment complaint
but the probate action in its entirety.
can be no serious dispute that a probate action in its
entirety falls squarely within the probate exception's
ambit. Accordingly, this Court lacks jurisdiction over this
removed action. However, the defendants, invoking Federal
Rule of Civil Procedure 21, argue in their memorandum in
support of their motion to sever that “[b]ecause there
is diversity of citizenship jurisdiction and the probate
exception does not apply, the probate matter should be
severed from the Plaintiff's claims asserted in the
Complaint against the Defendants and remanded to state
court.” Doc. #25 at 3.
provides: “Misjoinder of parties is not a ground for
dismissing an action. On motion or on its own, the court may
at any time, on just terms, add or drop a party. The court
may also sever any claim against a party.” Generally, a
court considering severance under Rule 21 should consider
five factors: “(1) whether the claim arose out of the
same transaction or occurrence; (2) whether the claims
present common questions of law or fact; (3) whether
settlement or judicial economy would be promoted; (4) whether
prejudice would be averted by severance; and, (5) whether
different witnesses and documentary proof are required for
separate claims.” E. Cornell Malone Corp. v.
Sisters of the Holy Family, St. Mary's Acad. of the Holy
Family, 922 F.Supp.2d 550, 561 (E.D. La. 2013). However,
“[f]ederal courts have frowned on using the Rule 21
severance vehicle to conjure removal jurisdiction that would
otherwise be absent.” Brown v. Endo Pharms.,
Inc., 38 F.Supp.3d 1312, ...