Lebron-Yero v. Lebron-Rodriguez

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 20-1443
FÉLIX ALBERT LEBRÓN-YERO,
Plaintiff, Appellant,
v.
FILIBERTO LEBRÓN-RODRÍGUEZ; MARÍA ELENA LEBRÓN-RODRÍGUEZ; JOHN
DOE; CONJUGAL PARTNERSHIP DOE-LEBRÓN; ANICRUZ LEBRÓN-RODRÍGUEZ;
JOHN ROE; CONJUGAL PARTNERSHIP ROE-LEBRÓN; ANA MARÍA RODRÍGUEZ
DE LEBRÓN; JOHN DOES 1, 2, AND 3; CORPORATIONS A THROUGH Z;
UNKNOWN INSURANCE COMPANIES A THROUGH H,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raúl M. Arias-Marxuach, Chief U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
David Efron, with whom Law Offices David Efron, PC was on
brief, for appellant.
Roberto A. Cámara-Fuertes, with whom René J. Avilés-Garcia,
Suleicka Tulier-Vázquez, and Ferraiuoli, LLC were on brief, for
appellees Filiberto Lebrón-Rodríguez, María Elena Lebrón-
Rodríguez, and Anicruz Lebrón-Rodríguez.
Gabriel R. Avilés-Aponte, with whom Avilés-Aponte, LLC was on
brief, for appellee Ana María Rodríguez de Lebrón.
March 2, 2022
PER CURIAM. Plaintiff-appellant Felix Alberto Lebrón-
Yero ("Lebrón-Yero") filed a four-count complaint in the U.S.
District Court for the District of Puerto Rico against his half-
siblings and stepmother, among others, alleging that they had
fraudulently appropriated assets from the estate of Lebrón-Yero's
father and thereby diminished Lebrón-Yero's inheritance of one-
sixth of his father's estate. In turn, those defendants,
appellees here, filed a motion to dismiss Lebrón-Yero's complaint.1
Applying the probate exception to diversity
jurisdiction, the district court granted the motion to dismiss
Counts I through III of the complaint for lack of subject matter
jurisdiction, pursuant to Federal Rule of Civil Procedure
12(b)(1). The district court also dismissed Count IV for failure
to state a claim upon which relief can be granted, pursuant to
Federal Rule of Civil Procedure 12(b)(6).
We review a district court's grant of a motion to dismiss
de novo. See Ali Abdisamad v. City of Lewiston, 960 F.3d 56, 59
(1st Cir. 2020). The "probate" exception is a judicially created
doctrine "stemming in large measure from misty understandings of
1 In the same action, Lebrón-Yero also sued the following
defendants: (1) "John Doe," a spouse of one of his half-siblings;
(2) "John Roe," the spouse of another of his half-siblings; (3)
"John Does 1, 2, and 3 and Corporations A through Z," which
allegedly "caused or contributed" to his damages "by their
negligent acts or omissions"; and (4) "Unknown Insurance Companies
A through H" which he alleged "insured the [] defendants" and were
"jointly responsible . . . for the damages claimed."
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English legal history." Marshall v. Marshall, 547 U.S. 293, 299
(2006). "Under the probate exception to diversity jurisdiction,
'a federal court may not probate a will, administer an estate, or
entertain an action that would interfere with pending probate
proceedings in a state court or with a state court's control of
property in its custody.'" Mangieri v. Mangieri, 226 F.3d 1, 2
(1st Cir. 2000)(quoting Ashton v. Josephine Bay Paul & C. Michael
Paul Found., Inc., 918 F.2d 1065, 1071 (2d Cir. 1990), cert.
denied, 531 U.S. 1080 (2001)), abrogated on other grounds by
Marshall, 547 U.S. at 311 (clarifying that the prohibition against
"interfer[ing] with [] probate proceedings" is "in part
redundant," and proscribes "disturb[ing] or affect[ing] the
possession of property in the custody of a state court") (quoting
Markham v. Allen, 326 U.S. 490, 494 (1946)).
For substantially the same reasons as those set forth by
the district court, Lebrón-Yero v. Lebrón-Rodríguez, No. 18-1665
(RAM), 2020 WL 1493897 (D.P.R. Mar. 24, 2020), we conclude that
the court properly applied the probate exception to Count III and
also properly dismissed Count IV. We comment briefly on the
dismissals of Counts I and II, but we ultimately conclude that
Lebrón-Yero has waived any of the arguments that might have helped
him prevail on those counts.
In his briefing on Counts I and II, Lebrón-Yero almost
exclusively focuses on the fact that "there is no active probate
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estate opened," but we have explained that this fact alone does
not prevent application of the probate exception. See Mangieri,
226 F.3d at 2 (listing "interfere[nce] with pending probate
proceedings" as merely one category under which the probate
exception applies). Lebrón-Yero also fails to highlight the
potentially significant distinction, as we discuss below, between
assets appropriated from an estate prior to, versus subsequent to,
a decedent's passing. The only portion of his briefing in which
he addresses the probate exception in any meaningful way is with
respect to Count IV, which alleged tortious interference, fraud,
and unjust enrichment, and which the district court properly found
did not fall within the probate exception (in Lebrón-Yero's favor).
Turning to Lebrón-Yero's complaint, Count I of the
complaint requested that the district court "order Defendants to
render true and complete accounts of the operations, transactions,
income and expenses, assets and liabilities from the time they
came in possession of the assets of their father until the present
date." Finding that the probate exception applied, the district
court reasoned that "granting Plaintiff's request for a complete
accounting . . . of the [d]ecedent's property would entail
'prematurely enter[ing] into an accounting and assessment before
the local probate court has had an opportunity to rule on these
very matters.'" Lebrón-Yero, 2020 WL 1493897, at *3 (quoting
Junco Mulet v. Junco De La Fuente, 228 F. Supp. 2d 12, 16 (D.P.R.
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2002)). The district court concluded that this would improperly
assume general probate jurisdiction and that such an accounting
would exclusively be a matter for the probate court having
jurisdiction over the estate. See id. (citing Markham, 326 U.S.
at 494 and quoting Ellis v. Stevens, 37 F. Supp. 488, 491 (D. Mass.
1941), aff'd, 126 F.2d 263 (1st Cir. 1942)).
Lebrón-Yero's requested relief, however, necessarily
implicates what the defendants allegedly did with the decedent's
property prior to the decedent's passing, not just afterward. For
example, the complaint alleges that "[p]rior to the death of [the]
decedent . . . the defendant half-siblings . . . in just one of
several other suspected transactions, purportedly purchased shares
of corporations . . . from the decedent and his wife, codefendant
herein, for the amount of $53,900,000.00, which defendants never
paid to decedent nor to his estate." At least this portion of his
action, therefore, might be viewed as an equitable one in aid of
his fraud claim.
In somewhat analogous circumstances, the court in
Wisecarver v. Moore, 489 F.3d 747, 751 (6th Cir. 2007), explained
that it "would not implicate the probate exception" for a plaintiff
to "seek an accounting of assets received during the last two years
of [the decedent's] life" and that the "removal of these assets
from [the decedent's] estate during his lifetime removes them from
the limited scope of the probate exception." See also Osborn v.
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Griffin, 865 F.3d 417, 435 (6th Cir. 2017) ("The reasoning for
this rule is simple: property that a party removes from a
decedent's estate prior to his death is not part of the res that
is distributed by the probate court."). But Lebrón-Yero does not
address these cases, both of which postdate and refer to the
Supreme Court's most recent pronouncement on the probate exception
in Marshall v. Marshall, 547 U.S. 293 (2006) (narrowing the probate
exception).
Count II requested that the district court "order the
restitution of all income, monies, properties and securities to
the estate of [the decedent], with interest." The district court
understood Lebrón-Yero's request that "the [d]ecedent's heirs
return property that should belong to the estate" as a "purely
probate matter that would require this Court to validate the will
as well as oversee and administer property of the estate." Lebrón-
Yero, 2020 WL 1493897, at *4. The district court relied on our
court's explanation in Jiménez v. Rodríguez-Pagán that "[w]hile
divvying up an estate falls squarely within the probate exception,
merely increasing it does not." 597 F.3d 18, 24 (1st Cir. 2010)
(citing Gustafson v. zumBrunnen, 546 F.3d 398, 400 (7th Cir.
2008)).
It is not entirely clear to us that Lebrón-Yero's
requested relief involves divvying up an estate rather than merely
increasing it. At least a portion of his requested relief seeks
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to add to the estate certain assets appropriated prior to the
decedent's passing, which would be merely increasing the estate.
The Sixth Circuit addressed this scenario as well. In Osborn v.
Griffin, that court further explained that because property
removed from the decedent's estate prior to his death is not part
of the res, "ordering a defendant to disgorge the profits acquired
from such property does not require either setting aside the
decedent's will, or redistributing assets that were parceled out
by the probate court," and thus such relief fell outside the scope
of the probate exception. 865 F.3d at 435. See also Capponi v.
Murphy, 772 F. Supp. 2d 457, 466 (S.D.N.Y. 2009) ("Where a
plaintiff seeks to recover assets allegedly in a defendant's
possession so that they may be returned to the estate, the probate
exception does not apply." (quotation and alteration omitted)).
These out-of-circuit authorities are of course not
binding on us, and we have not yet had occasion to decide whether
seeking an accounting and restitution of assets removed from the
estate prior to a decedent's passing falls outside the probate
exception. We note, however, that a colorable argument could be
advanced in the other direction: namely, that application of the
Sixth Circuit's approach to this case might overlook the issue
that Lebrón-Yero's requested accounting and restitution would
essentially require a federal district court to determine what is
within and what is without a decedent's estate, potentially
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implicating the core functions of the probate court and assuming
general probate jurisdiction. See Markham, 326 U.S. at 494.
We express no view as to the merits of these arguments
because, on appeal, Lebrón-Yero does not make an argument along
the lines of Wisecarver or Osborn, much less develop an argument
along those lines. The argument is therefore waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We were not
briefed on that specific issue, and "it is not our job to do the
parties' homework for them." United States v. Rivera-
Carrasquillo, 933 F.3d 33, 43 (1st Cir. 2019). Nor are we required
to "search[] sua sponte for issues that may be lurking in the
penumbra of the motion papers." United States v. Slade, 980 F.2d
27, 31 (1st Cir. 1992). Finding waiver here, we need not proceed
any further.2
Affirmed.
2 As a final note about Count IV, the district court found
that Lebrón-Yero failed to state a claim upon which relief could
be granted; we agree with the district court for largely the same
reasons as it laid out. However, the district court went a step
further and explained that it is well-established in Puerto Rico
law that the undue enrichment doctrine is not applicable where
there is a legal precept that excludes application of that doctrine
without cause, pointing to decedent's will as the legal precept.
Lebrón-Yero, 2020 WL 1493897, at *5. We are not so certain about
that additional justification, as the parties have not represented
that the will purports to govern transactions occurring prior to
the decedent's passing. But because that additional justification
was superfluous (and because an argument addressing that
justification has not been made by Lebrón-Yero and is therefore
waived), we need not say more.
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