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Fisch v. Fisch

United States District Court, S.D. New York

September 23, 2014

ABRAHAM M. FISCH, Plaintiff,
v.
EBBA M. FISCH as PERSONAL, REPRESENTATIVE OR HEIR/BENEFICIARY OF THE ESTATE OF RICHARD L. FISCH, Defendant.

OPINION AND ORDER

NELSON S. ROMN, District Judge.

Abraham M. Fisch ("Plaintiff, " or "Abraham"), brought this action against Ebba M. Fisch as Personal Representative or Heir/Beneficiary of the Estate of Richard L. Fisch ("Defendant, " or "Ebba") for breach of contract.

Before the Court is Defendant's motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). In her Rule 12(b)(1) motion. Defendant contends that Plaintiffs' claims are barred by the "probate exception" to federal jurisdiction. For the following reasons, Defendant's motion is GRANTED.

I. Background

The following facts are taken from Plaintiff's Second Amended Complaint unless otherwise noted, and are accepted as true for the purposes of this motion.[1]

Plaintiff Abraham M. Fisch is a resident of Houston, Texas. Abraham is one of the children of Richard L. Fisch, the decedent, and his former wife Mary Louise Fisch.[2] Richard Fisch was a resident of Westchester County, New York, and died on August 23, 2013. Defendant Ebba M. Fisch was the spouse of Richard Fisch at the time of his death, and is the named Executrix of a Last Will and Testament executed by the decedent in 2009.

Richard Fisch and Mary Louise Fisch signed a written separation agreement ("Separation Agreement") in November 1963 incident to their divorce. In the Separation Agreement, decedent agreed to make an irrevocable will leaving his estate to his children and to maintain a life insurance policy (or policies) naming each of their three children as beneficiaries. See Pl.'s Second Am. Compl. Ex. A. The Separation Agreement was supported by good and valuable consideration; it was executed by both parties; and it was both witnessed and notarized.[3]

Plaintiff alleges that he discovered the agreement between his parents was breached when Richard Fisch died without executing an irrevocable will leaving his estate to his children or securing a life insurance policy with his children as beneficiaries. Instead, Richard Fisch's 2009 Last Will and Testament leaves the entirety of his estate to Defendant Ebba Fisch and names her as Executrix. The 2009 Will was admitted to probate in the Surrogate's Court of the State of New York, Westchester County, and the Surrogate issued Preliminary Letters Testamentary to Defendant on May 28, 2014. See Def.'s Mot. Dismiss Ex. C.

Plaintiff alleges that he has suffered damages in the form of the complete and total loss of his inheritance from his father. He estimates that his father's estate is worth $2.5 million and includes personal property; funds in bank accounts; stocks, bonds, and similar financial investments; and real property situated in New York and Massachusetts.

Plaintiff initiated this action on March 5, 2014, and filed an Amended Complaint on April 3, which Defendant answered on May 22. Defendant served his motion to dismiss on July 28, 2014. Plaintiff filed a Second Amended Complaint on August 6, 2014, which Defendant answered on August 7. In his Second Amended Complaint, Plaintiff seeks to recover his actual damages, including attorney fees and court costs, for breach of the Separation Agreement.

II. Legal Standard

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the Court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The party asserting that the Court has jurisdiction bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Id. "In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court... may refer to evidence outside the pleadings." Id. The Court, however, must accept all material factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Aurecchone v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005); Atl. Mut. Ins. Co. v. Balfour MacLaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 2002).

Even where a complaint on its face properly alleges diversity of the parties and exceeds the threshold amount in controversy, there are some circumstances in which the federal courts still lack jurisdiction. One example of this is the probate exception to federal jurisdiction. See Markham v. Allen, 326 U.S. 490, 494 (1946) ...


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