The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff brings this action for breach of fiduciary duty following the death of his father, John A. Lamica. Currently before the Court is Defendant's motion to dismiss Plaintiff's claims pursuant to Rules 12(b)(1), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1406(a).
John Lamica was a resident of Oswego County, New York; and, while suffering from a brain tumor, he executed a will on April 15, 2004, in which he left his entire estate to Plaintiff. Thereafter, John Lamica executed a durable power of attorney dated June 2, 2004, naming Defendant, who was his sister, as his agent. The power of attorney gave Defendant authority to conduct banking transactions, retirement transactions, and all other matters including medical decisions, on John Lamica's behalf. Shortly thereafter, John Lamica moved to Goochland, Virginia. Following the move to Virginia, John Lamica executed a second will, in which he left his Oswego residence to Plaintiff and the remainder of his estate to Defendant. John Lamica died on August 2, 2004.
Following John Lamica's death, Defendant was appointed executrix of his estate and was granted Limited Letters of Testament in Virginia and Ancillary Letters Testamentary in Oswego County. The second will was admitted to probate in Virginia on July 21, 2004.*fn1
Based upon these allegations, Plaintiff's Complaint alleges five substantive claims: (1) John Lamica lacked mental capacity to execute the second will due to terminal illness and dementia; (2) the second will is null and void; (3) Defendant "intentionally and negligently removed all funds" from John Lamica's bank and pension accounts for her own benefit, amounting to approximately $100,000; (4) John Lamica intended to leave his estate and all assets to Plaintiff; and (5) Defendant exploited John Lamica's mental incapacity and disregarded his intentions.
Defendant's motion to dismiss Plaintiff's claims is based on five grounds: (1) lack of subject-matter jurisdiction over Plaintiff's claims due to the probate exception to diversity jurisdiction; (2) the doctrine of res judicata, based on the second will's admission to probate in Virginia, bars Plaintiff's claims; (3) Plaintiff lacks standing to sue her for misusing the power of attorney because he has not been appointed as John Lamica's personal representative; (4) failure to state a cause of action upon which relief may be granted; and (5) improper venue.
A. Subject-matter jurisdiction
A federal court has no jurisdiction to probate a will or administer an estate because the equity jurisdiction that the Judiciary Act of 1789 granted is the same as that of the English Court of Chancery in 1789, which did not extend to probate matters. See Markham v. Allen, 326 U.S. 490, 494 (1946). However, federal courts "have jurisdiction to entertain suits 'in favor of creditors, legatees and heirs' and other claimants against a decedent's estate 'to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." Id. (citations omitted). Subject-matter jurisdiction is present when a federal court's judgment would interfere with state court proceedings only to the extent that a state court would be bound to recognize the federally adjudicated right. See id.; see Ashton v. Josephine Bay Paul & C. Michael Paul Found., Inc., 918 F.2d 1065, 1072 (2d Cir. 1990) (quotation omitted).
The Supreme Court recently interpreted Markham as describing "a
probate exception of distinctly limited scope . . . ."*fn2
Marshall v. Marshall, 126 S. Ct. 1735, 1747 (2006). The
Marshall Court stated:
[t]hus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.
Id. at 1748. Marshall had to do with a tortious interference with inheritance claim brought against a decedent's son, based on his self-interested attempts to prevent the widow from receiving her intended inheritance. See id. at 1742. Since the tortious interference with inheritance claim in Marshall sought an in personam judgment rather than the probate or annulment of a will and did not seek ...