United States District Court, N.D. New York
In the matter of BRENDA M. BOISSEAU, Individually and as executor of the estate of EDWARD BOISSEAU, Petitioner.
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge.
10, 2016, the Hanover HHR Employee Benefit Plan
(“Plan”) removed this action to the Northern
District of New York pursuant to 28 U.S.C. § 1441,
asserting federal question jurisdiction under 28 U.S.C.
§ 1331. Dkt. No. 1 (“Notice of Removal”)
¶¶ 1, 10. Petitioner Brenda M. Boisseau, executrix
of the estate of Edward Boisseau, moved to remand the case to
the Surrogate's Court for the State of New York, Oswego
County. Dkt. Nos. 9 (“Motion”), 9-1
(“Supporting Affidavit”), 9-2
(“Memorandum”). The Plan opposed Petitioner's
Motion, Dkt. No. 13 (“Response”), and Petitioner
filed a reply, Dkt. No. 14 (“Reply”). For the
following reasons, Petitioner's Motion is granted.
Mr. Boisseau's death on October 15, 2014, he received
medical treatment for prostate cancer. Supp. Aff. ¶ 4.
During the course of Mr. Boisseau's treatment, the Plan,
an employee benefit plan under the Employee Retirement Income
Security Act (“ERISA”), paid out a total of $299,
975.73 to cover Mr. Boisseau's medical expenses.
Id. ¶¶ 2, 5. The decedent and Mrs.
Boisseau later brought a personal injury action against their
medical providers in the Onondaga County Supreme Court for
medical malpractice, wrongful death, and loss of consortium
arising out of alleged medical negligence that occurred in
August 2012. Id. ¶¶ 3-5.
October 2014, after a settlement agreement was reached in the
personal injury action, the Plan--through its agent Xerox
Recovery Services,  a collection agency-asserted a lien
against the settlement proceeds seeking repayment of the
funds expended to cover Mr. Boisseau's medical treatment.
Id. ¶¶ 2, 5. Petitioner sent repeated
requests to the Plan seeking information in order to
ascertain the validity of the lien. Id. ¶ 8.
After failing to receive a satisfactory response from the
Plan, Petitioner filed a petition in the Oswego
Surrogate's Court under section 1809 of the New York
Surrogate's Court Procedure Act seeking to vacate the
lien. Id. ¶¶ 2-4; Dkt. No. 2 (“State
Record”) at 3. As a result, on April 1, 2016, the
Surrogate's Court issued an order to show cause as to why
the lien should not be dismissed. State R. at 1. The Plan
responded by removing the action to this Court, asserting
federal question jurisdiction under ERISA, and Petitioner
moved to remand. Mem. at 2.
U.S.C. § 1441(a) permits a defendant to remove
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction” to a district court of the United States.
Under this statute, “[f]ederal courts have a duty to
exercise jurisdiction over properly removed cases even if a
related matter is currently proceeding before a state
court.” Fox & Horan v. Beiny, No.
92-CV-2067, 1992 WL 168261, at *1 (S.D.N.Y. June 29, 1992).
The Second Circuit has recognized that, “[i]n light of
the congressional intent to restrict federal court
jurisdiction, as well as the importance of preserving the
independence of state governments, federal courts construe
the removal statute narrowly, resolving any doubts against
removability.” Somlyo v. J. Lu-Rob Enters.,
Inc., 932 F.2d 1043, 1045-46 (2d. Cir. 1991) (citing
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108 (1941)).
federal courts may not hear a case in the absence of subject
matter jurisdiction. A lack of subject matter jurisdiction
may not be waived and may be raised by motion or sua sponte
at any time. Transatlantic Marine Claims Agency, Inc. v.
Ace Shipping Corp., 109 F.3d 105, 107 (2d Cir. 1997);
see also Fed.R.Civ.P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). In
the absence of subject matter jurisdiction, federal courts
must remand a removed case to state court. 28 U.S.C. §
argues that the Plan could not remove because it was not a
defendant in the underlying state court action, and because
ERISA does not provide a basis for subject matter
jurisdiction in this case. Mem. at 2, 10. But the Court does
not reach those issues because there is a separate basis for
remand in this case: the probate exception to federal
jurisdiction. “The ‘probate exception' is an
historical aspect of federal jurisdiction that holds
‘probate matters' are excepted from the scope of
federal diversity jurisdiction.” Lefkowitz v. Bank
of N.Y., 528 F.3d 102, 105 (2d Cir. 2007) (citing
Marshall v. Marshall (Marshall II), 547
U.S. 293, 307 (2006)).
it is clear that the probate exception applies to diversity
jurisdiction, there is some disagreement as to whether it
also applies to federal question jurisdiction. The Second
Circuit has not explicitly addressed the issue, and there is
a split among the circuit courts that have. Compare Jones
v. Brennan, 465 F.3d 304, 306-07 (7th Cir. 2006)
(finding the probate exception applies to both federal
question and diversity jurisdiction cases), and In re
Marshall, (Marshall I) 392 F.3d 1118, 1131-32
(9th Cir. 2004) (same), rev'd on other grounds sub
nom. Marshall II 547 U.S. 293, and Tonti v.
Petropoulous, 656 F.2d 212, 215 (6th Cir. 1981) (same),
with In re Goerg, 844 F.2d 1562, 1565 (11th Cir.
1988) (finding that the probate exception “relates only
to 28 U.S.C. § 1332 . . . and has no bearing on federal
question jurisdiction” (footnote omitted)). When the
Supreme Court reversed the Ninth Circuit in Marshall
II, it expressly avoided resolving the question of
whether the probate exception applies to federal bankruptcy
jurisdiction or other forms of federal question jurisdiction.
Marshall II, 547 U.S. at 308-09.
probate exception “has been described as ‘one of
the most mysterious and esoteric branches of the law of
federal jurisdiction.'” United States v.
Blake, 942 F.Supp.2d 285, 294 (E.D.N.Y. 2013) (quoting
Ashton v. Paul, 918 F.2d 1065, 1071 (2d Cir. 1990)).
It is a doctrine created by the judiciary and largely based
on “misty understandings of English legal
history.” Marshall II, 547 U.S. at 293. The
original diversity jurisdiction statute, the Judiciary Act of
1789, was read to grant federal courts jurisdiction over
those suits that would have been within the jurisdiction of
England's common law courts or its High Court of
Chancery. Peter Nicolas, Fighting the Probate Mafia: A
Dissection of the Probate Exception to Federal Court
Jurisdiction, 74 S. Cal. L. Rev. 1479, 1500
(2001). Because issues of probate fell outside the
jurisdiction of those courts (probate of wills and the
administration of estates were left to England's
ecclesiastical courts), they were also considered to be left
out of the diversity jurisdiction granted by the Judiciary
Act of 1789. Id.
is good historical reason to think that the probate exception
applies equally to both diversity and federal question cases.
Jones, 465 F.3d at 306-07. When Congress granted
federal question jurisdiction to the federal courts in the
Judiciary Act of 1875, it described the scope of that
jurisdiction with the same language that was used to describe
the scope of diversity cases: “all suits of a civil
nature at common law or in equity.” Judiciary Act of
March 3, 1875, § 1, 18 Stat. 470. Additionally, in their
present form, 28 U.S.C. §§ 1331 and 1332(a)-the
statutes that ...