Glassie v. Doucette et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
GEORGIA GLASSIE, 	)
Plaintiff 	` 	)
)
v. 	) 	No. 1:20-cv-00493-MSM-PAS
)
PAUL DOUCETTE, JOHN TAFT 	)
and THOMAS GLASSIE, 	)
Defendants 	)
____________________________________)
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
This case concerns a first marriage versus second marriage family dispute over
a substantial estate that has played out its “long and tortured history” for more than
ten years in state courts.
	Marcia Glassie v. Doucette, No. NP-2019-0213, 2020 WL
6736281, at *1 (R.I. Super. Nov. 6, 2020). The Rhode Island Supreme Court called it
“a complicated, multistate continuing saga over the decedent’s estate, arising in the
context of a legacy of wealth,”
Alison Glassie v. Doucette, 157 A.3d 1092, 1094 (R.I.
2017). 	It has “interwoven the [superior c]ourt in a serpentine procedural morass
between the Probate Court, the Superior Court, and the Supreme Court . . . .”
Marcia
Glassie, 2020 WL 6736281, at *1.
The tentacles of that morass have reached out to this Court.
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This Court, however, finds that the “probate exception” to federal jurisdiction
applies and, as a result, it declines the invitation of the plaintiff to become yet another
judicial participant in the disposition of the estate. 	The defendants’ Motions to
Dismiss (ECF Nos. 15, 18 and 19) are, for the reasons outlined below, GRANTED.
I. 	BACKGROUND
Donelson C. Glassie (“Donelson”) died on February 3, 2011. Before his death,
he had been married twice. He and his first wife, Phyllis Fragola, had two children:
Elizabeth Doucette (“Elizabeth”) and Thomas Glassie (“Thomas”).1 Donelson and his
second 	wife, 	Marcia 	Glassie, 	had 	three 	additional 	daughters: 	Georgia 	Glassie
(“Georgia”), the eldest, who is the plaintiff here, Alison, and Jacquelin (“Jacqi”).2
Both marriages ended in divorce. His son, Thomas, is one of the defendants here; the
others are Paul Doucette (“Doucette”), who is married to Elizabeth, and John Taft
(“Taft”), Donelson’s former business partner. Doucette, the son-in-law, is the executor
of the estate.
Georgia refers to herself, her mother, and her sisters Alison and Jacqi, as “the
Jamestown clan” --a moniker she asserts was given to them derisively by Doucette.
She refers to Elizabeth and her half-brother Thomas as “the favored beneficiaries,” a
description that reflects her own perception of Doucette’s treatment of the estate
1 As have the previous courts addressing this dispute, I refer to most of those involved
by their first names to avoid confusion. No disrespect is intended.
2 A fourth child, Christopher, was born after the marriage to Marcia and after the
execution of the Will; he has apparently played no part in the relevant litigation.
(ECF No. 1, ¶ 25).
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beneficiaries generally. The plaintiff included in the complaint a helpful family tree
(ECF No. 1, ¶ 23):
The gravamen of Georgia’s complaint is that Doucette has carried out his role
as executor by systematically attempting to defraud her and her second-marriage
siblings out of their full rightful shares in order to benefit the first marriage children.
Donelson 	was 	a 	wealthy 	hotelier 	in 	Newport 	and 	New 	York. 	Several
allegations in the complaint refer to business interests of Donelson’s in hotels and
other entities.3 While the estate has not yet been finally valued, it appears to have
been considerable.
3 The complaint sets forth a tangled web of intertwined business dealings between
hotels that are part of the estate and other entities Donelson was involved in that are
not. A big part of Georgia’s allegations of mismanagement of the estate to the extent
of breach of fiduciary obligation involve one entity’s loaning money to another entity,
secured by assets of the estate. 	There is a particular entity, called Historic Inns,
whose membership includes all the parties here, but Georgia alleges that Doucette,
her brother Thomas, and Taft, acted fraudulently in carrying out certain transactions
in secrecy from her and without her authorization.
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Georgia has brought a complaint under the Racketeer Influenced and Corrupt
Organizations (“RICO”) and Mail Fraud and Other Fraud Offenses Acts accusing the
defendant of committing wire and bank fraud. 18 U.S.C. §§ 1961, 1962 (1970); 18
U.S.C. §§ 1343, 1344 (1952). 	She alleges a pattern of illegal activity conducted
through a joint enterprise whose purpose was to defraud her out of her rightful
inheritance. 	(ECF No. 1, Count 1). 	In addition, she claims liability under various
state law torts for breach of fiduciary duty (count II and III), breach of contract (count
IV), 	negligence 	and 	misrepresentation 	(count 	V), 	fraud 	(count 	VI), 	and 	civil
conspiracy (count VII).
As early as 2012, soon after Donelson’s death, Marcia began to litigate the
disposition of the estate, suing in Rhode Island Superior Court to enforce a portion of
her divorce agreement in which Donelson had allegedly promised to leave her
$2,000,000 in his will.
	Marcia Glassie v. Doucette, 159 A.3d 88, 92 (R.I. 2017).
Around that time, Alison also brought a superior court action for breach of contract
concerning Donelson’s agreement in the divorce to fund a trust for Jacqui equal to
those previously established for Georgia and Alison.
Meanwhile, Donelson’s will was presented for probate in the Newport Probate
Court. It has not yet been closed, a fact at the heart of many of Georgia’s complaints,
as she accuses her brother-in-law, Doucette, of deliberately keeping the estate open
to further his own interests by continuing to collect fees as executor. 	The superior
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court consolidated its cases with the probate court’s to bring some order and efficiency
to the litigation.4
II. 	STANDARD OF REVIEW
The defendants have brought Motions to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1) (1949) (“Rule 12(b)(1)”), claiming lack of subject-matter
jurisdiction. 	To the extent that jurisdiction depends on facts whose accuracy is
contested, “[a] plaintiff’s jurisdictional averments are entitled to no presumptive
weight; the court must address the merits of the jurisdictional claim by resolving the
factual disputes between the parties.”
Valentin v. Hospital Bella Vista, 254 F.3d 358,
363 (1st Cir. 2001). 	In this dispute, it is the
sufficiency of the plaintiff’s averments
that are at issue: has the plaintiff “propounded an adequate basis for subject-matter
jurisdiction?”
Id. In assessing the sufficiency of the claim to establish subject matter
jurisdiction “the court must credit the plaintiff’s well-pleaded factual allegations
(usually taken from the complaint . . .), draw all reasonable inferences from them in
her favor, and dispose of the challenge accordingly.”
	Id. In line with that directive,
all facts alleged are taken from the complaint and assumed to be true. (ECF No. 1).
4 There have been at least four state court opinions to date:
	Marcia Glassie v.
Doucette, No. NP-2019-0213, 2020 WL 6736281, at *1 (R.I. Super. Nov. 6, 2020);
Marcia Glassie v. Doucette, No. NP-2019-02NP-2019-0213, 2020 WL 5406037, at *1
(R.I. Super. Sept 2, 2020);
Marcia Glassie v. Doucette, 159 A3d 88 (R.I. 2017);
Alison
Glassie v. Doucette, 157 A.3d 1092 (R.I. 2017).
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III. 	JURISDICTION
Georgia claims both sources of this Court’s jurisdiction: 	a federal question5
because of the RICO allegation and diversity jurisdiction6 based on her California
residency, the Florida residency of Thomas Glassie, and the Rhode Island residency
of Paul Doucette and John Taft. (ECF No. 1, ¶¶ 12-15).
The defendants, moving to dismiss pursuant to Rule 12(b)(1), contend that
subject-matter jurisdiction is lacking because of the applicability to each of these
jurisdictional prongs of the “probate exception,” a doctrine applied by the United
States Supreme Court to divest the federal courts of what would otherwise be their
authority to hear “all civil cases” under 28 U.S.C. §§ 1331 and 1332. Generally, the
plaintiff has the burden of establishing subject-matter jurisdiction.
Cristobal-Torres
v. Cristobal-Torres, 401 F. Supp. 3d 216, 218 (D.P.R. 2019). 	But once a plaintiff
establishes diversity, as Georgia has, the burden shifts to the defendant to establish
that the case falls within an exception to diversity jurisdiction.
Tartak v. Del Palacio,
No. 09-1730 (DRD), 2010 WL 3960572, at *9 (D.P.R. Sept. 30, 2010). 	There is no
logical reason that the same burden-shifting paradigm would not apply to federal
question jurisdiction.
Cf. Jones v. Brennan, 465 F.3d 304, 306 (7th Cir. 2006).
The probate exception, like its close kin the “domestic relations exception,” has
its roots in common law.
Among 	longstanding 	limitations 	on 	federal 	jurisdiction 	otherwise
properly exercised are the so-called “domestic relations” and “probate”
exceptions. 	Neither is compelled by the text of the Constitution or
5 28 U.S.C. § 1331 (1980).
6 28 U.S.C. § 1332 (2011).
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federal statute. Both are judicially created doctrines stemming in large
measure from misty understandings of English legal history.
Marshall v. Marshall, 547 U.S. 293, 298 (2006). The two are exceptions to the general
rule that a federal court “will not take jurisdiction if it should not; but it is equally
true, that it must take jurisdiction if it should.”
Cohens v. Virginia, 19 U.S. 264, 291
(1821), quoted in
Marshall at 298.
Until
Marshall, the probate exception had been applied broadly, whenever
federal jurisdiction would “interfere with the probate proceedings” of a state court.
Markham v. Allen, 326 U.S. 490, 494 (1946). 	Thus, a federal court could “entertain
suits ‘in favor of creditors, legatees, and heirs’ and other claimants against a
decedent’s estate ‘to establish their claims,’” but could not “exercise its jurisdiction to
disturb or affect the possession of property in the custody of a state court.”
Id.
In
Marshall, however, the Court clarified what it meant to interfere with the
probate proceedings explaining that the “probate exception” is a limited one.7 547
U.S. at 298. The “probate exception,” the
Marshall Court declared, is “essentially a
reiteration of the general principle that, when one court is exercising
	in rem
jurisdiction over a
res, a second court will not assume
in rem jurisdiction over the
same
res.”
Marshall, 547 U.S. at 311. In practical terms,
Marshall prohibits a federal
court only from doing three things: (a) probating or annulling a will, (b) administering
an estate, and (c) “dispos[ing] of property that is in the custody of a state probate
7
	See Ankenbrandt v. Richards, 504 U.S. 689, 701 (1992), (characterizing the
“domestic relations” exception as similarly limited covering “only a narrow range of
domestic relations issues”).
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court. 	But it does not bar federal courts from adjudicating matters outside those
confines and otherwise within federal jurisdiction.”
	Id. at 311-12. 	This “distinctly
limited” exception does not preclude federal jurisdiction simply when the federal
action is “intertwined with [or] binding on those state proceedings.”
	Jimenez v.
Rodriguez-Pagan, 597 F.3d 18, 24 (1st Cir. 2010).
The task for a court confronted with a claim of a probate exception is to press
past 	the 	labels 	and determine 	whether 	the 	asserted 	federal 	action 	is 	merely
intertwined with state probate proceedings or, in practical respect, would entail
either administration of the estate or distribution of the
res in the custody of the
probate court.
	See Mulet v. 	De la Fuente, 228 F. Supp. 2d 12, 15-16 (D.P.R. 2002)
(court must look behind the labels to the effect of an action).
Accord Turton v. Turton,
644 F.2d 344, 348 (5th Cir. 1981) (court must go beyond the labels to assess the impact
on the jurisdiction of the probate court). 	Simply invoking
in personam jurisdiction
over the executor and not
in rem jurisdiction over the estate does not shield the action
from scrutiny over whether it impermissibly intrudes into the administration of
assets or affects the
res of the estate.
Thus, for example, the
Marshall court itself found the exception inapplicable
to an
in personam claim for tortious interference which alleged that one of the
beneficiaries had prevented the testator’s gift to another by effectively imprisoning
him and making misrepresentations to him. 547 U.S. at 301-02. The Bankruptcy
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Court had awarded $449 million in compensatory damages.8
Id. at 301. Reversing
what had been the Ninth Circuit’s broad application of the probate exception, the
Supreme Court declared that adjudication of the “widely recognized tort,” did not
probate the will or declare it a nullity, did not administer the state, and did not direct
disposition of an estate asset.
Id. at 312.9 Instead, the compensatory damages were
awarded against the tortfeasor personally, a remedy outside distribution of the estate
assets.
Id.
8 The judgment was reduced by the amount the plaintiff was awarded in probate
court, but the Supreme Court ultimately reversed that reduction.
9 The Court takes this opportunity to correct a blatant misstatement in one of the
defendants’ filings. 	In his Memorandum in Support of his Motion to Dismiss,
Doucette manipulates a putative quotation from
Marshall in a way so misleading
that it should not go without comment. 	The Memorandum contains the following
passage:
Second, state courts are better equipped to resolve probate disputes.
The 	Supreme 	Court 	recognized 	that 	state 	courts 	have 	developed
specialized expertise and procedures for handling cases involving the
administration of estates.
	See Marshall v. Marshall, 547 U.S. 293, 312
(2006) (citing state probate courts’ “special proficiency” in handling
probate matters as a “sound policy consideration[]” supporting the
probate exception).”
(ECF No. 16, p. 4) (bold face supplied). In fact, the Opinion said precisely the opposite:
Furthermore, no “sound policy considerations” militate in favor of
extending 	the 	probate 	exception 	to 	cover 	the 	case 	at 	hand. 	Cf.
Ankenbrandt [v. Richards], 504 U.S. [689, at] 703, 112 S. Ct. 2206
[(1992)]. 	Trial courts, both federal and state, often address conduct of
the kind Vickie alleges. 	State probate courts possess no “special
proficiency in handling [such] issues.” Cf.
id., at 704, 112 S. Ct. 2206.
Marshall, 547 U.S. at 312 (ellipse and brackets original) (bold face supplied).
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Similarly, in the leading case in this Circuit,
Jimenez v. Rodriguez-Pagan, 597
F.3d 18, 23 (1st Cir. 2010), the court held the exception not applicable to prevent an
action by a widow to exercise an option on real estate and to recover a share of
proceeds from the sale of stocks. Neither property, nor the real estate nor the stocks,
were part of the estate and thus none was “in the custody of a state probate court.”
Id. at 24. 	That the widow sought to bring them
into the estate did not constitute
distribution of estate assets: “While divvying up an estate falls squarely within the
probate exception, merely increasing it does not.”
Id. In
Sinclair v. Sampson, No. CV
16-127S, 2017 WL 758486, at *2 (D.R.I. Jan. 26, 2017),
adopted 2017 WL 750479
(D.R.I. Feb. 27, 2017), the action was to recover assets allegedly misappropriated by
the plaintiff from her mother’s estate. 	The plaintiff was not seeking to “adjudicate
the rights to specific assets presently within the custody or control of the probate
court.”
Id. Instead, “[i]f they are successful on their Counterclaims, Defendants may
recover additional assets to be included in the estate.”
Id: see also Henry v. Sheffield,
856 F. Supp. 2d 345, 351-52 (D.R.I. 2012) (probate exception not applicable to
in
personam actions to recover property allegedly wrongfully distributed).
On the other hand, actions that require the federal court to “make factual
findings 	and 	conclusions 	of 	law 	regarding, 	the 	Executor’s 	identification,
administration and handling of assets of the Estate,” thus forcing a court “to
prematurely enter into an accounting and assessment before the local probate court
has had an opportunity to rule on these very matters,” are barred.
	Mulet, 228 F.
Supp. 2d at 16. Although an action is brought
in personam, as this one is, it will “still
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fall[] within the probate exception to diversity jurisdiction [if] the relief sought would
interfere with the administration of an ongoing probate and partition proceeding.”
Id. at 17.
Two 	related 	factors 	are 	particularly 	deserving 	of 	scrutiny 	to 	determine
whether the probate exception precludes jurisdiction. 	The first is whether the
probate proceedings are ongoing.
See Lebron-Yero v. Lebron-Rodriguez, No. 18-1665
(RAM), 2020 WL 1493897, at *3 (D.P.R. Mar. 24, 2020) (where there were no ongoing
probate proceedings, there was “no risk of disposing of property in the custody of a
commonwealth 	probate 	court”). 	There 	is 	more 	potential 	for 	impermissible
interference if probate proceedings have not been completed. 	The assets are still
within the custody of the probate court.
In re Garcia, 507 B.R. 32, 43 (1st Cir. 2014).
Second, when the relief requires an accounting of the estate, and there has not
yet been a final accounting in probate court, the exception is likely to apply.
Lebron-
Yero, 2020 WL 1493897, at *3 (plaintiff’s claim for return of property required a
premature accounting that only a probate court can do);
see also,
Mulet, 228 F. Supp.
2d at 16 (remedy would force court to “prematurely enter into an accounting and
assessment before the local probate court has had an opportunity to rule on these
very matters”).
	See Henry, 856 F. Supp. 2d at 351-52 (federal claim brought after
final administration of estate).
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The claims Georgia makes here are much like those in
Stuart v. Hatcher, 757
F. App’x 807, 808 (11th Cir. 2018) (per curiam).10 	There, a federal court action
claiming breach of fiduciary duty was brought before probate proceedings had been
completed. Id. The essence of the claim, as here, was alleged mismanagement of the
administration of the estate, a failure to collect on amounts owed to the estate, the
incurring of unnecessary expenses, the paying of unnecessary professional fees, and
the executor’s resistance to plaintiff’s attempts to obtain an accounting.
	Id. at 809.
Like Georgia, the plaintiff claimed the estate had been diminished as a result.
	Id.
The Eleventh Circuit recognized that resolution of that claim would require valuing
the estate which in turn would require a premature accounting.
Id. at 810. Focusing
on the
effect of the claim, the court noted that the labeling of the action as an
in
personam one against the executor rather than an
in rem one against the estate was
not dispositive.
Id.
When one goes behind Georgia’s labels, the vulnerability of this case to the
probate exception becomes clear. 	Each of the roads her complaint maps lead to the
probate court.11 	The factual allegations in Georgia’s complaint fall into several
categories: 	1) that Doucette’s mismanagement of the estate, abetted by defendants
Taft and Thomas, has caused its value to diminish, thus depriving her of the full
10 Georgia’s complaint that this opinion is unpublished is correct, but unpublished
decisions still may be given persuasive value if issued after January 1, 2007. Fed. R.
App. P. 32(1)(a) (2006).
11 As noted above, the Rhode Island Superior Court has consolidated its proceedings
with probate proceedings. 	The reference to “probate court” in this Opinion may
therefore implicate the superior court, but the point is the same.
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worth of the 10% share she was left,12 2) that Doucette has breached his fiduciary
duty and committed other wrongs borne of a conflict of interest created by his
marriage to Elizabeth, one of the first-marriage beneficiaries, 3) that Doucette has
taken a number of actions either not authorized by the probate court or authorized
only because of false or misleading statements by Doucette, 4) that Doucette has
profited personally and unjustifiably by keeping the estate open and taking excessive
fees, and 5) that Doucette has hidden information from her.13 	The gist of the
allegations are (paragraph numbers refer to the complaint, ECF No. 1):
A. Mismanagement
• 	That he rendered the estate vulnerable to several liabilities because he
used 	the 	estate 	as 	collateral 	for 	loans 	that 	benefited 	non-estate
businesses and other beneficiaries (¶ 52). One of these loans favored a
non-estate-owned business that is allegedly in danger of defaulting (¶¶
75, 76)
• 	That he created large debts of the estate (¶ 7(ii))
• 	That he arranged a loan to the estate at a too-high interest rate, and put
up an unnecessary amount of the estate to guarantee the loan (¶¶ 58,
60)
• 	That he lied to banks, creating effective liability (¶ 7(ix))
B. Conflict
• 	That Doucette took action that benefited the first marriage “favored
beneficiaries” over the second marriage “Jamestown clan” (¶¶ 31-32)
12 Georgia alleged she was left “a limited percentage interest in certain of Mr.
Glassie’s companies, and in addition a 10% share of the entire remainder of the
Estate.” (ECF No. 1, ¶ 27.)
13 The defendants maintain that the inclusion of a RICO count in the Complaint is a
transparent attempt to remove the case from the probate exception. The RICO count,
which alleges wire and bank fraud, relies on different factual assertions. But to the
extent that Georgia seeks compensation for an allegedly adverse impact on her share
of the estate, the analysis that renders the probate exception applicable is the same
for the RICO count.
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• 	That he threatened beneficiaries from the second marriage by invoking
the
in terrorem clause14 inappropriately (¶¶ 34-36)
• 	That his preference for favored beneficiaries is “a matter of record,”
(¶ 40)
• 	That he used his ability as executor to control 61% of a non-estate-owned
business 	to 	benefit 	the 	favored 	beneficiaries 	who 	own 	a 	greater
percentage of it than Georgia does (¶¶ 69, 72, 74)
C. Unauthorized Actions
• 	That, lacking authority, Doucette unilaterally guaranteed business
debts with estate assets (¶ 53)
• 	That his encumbering of the estate as security for loans exceeded the
authorization of the probate court and was on unauthorized terms.
(¶¶ 62, 63)
D. Personal (Unjust) Enrichment
• 	That Doucette “parlay[ed]” a part-time limited position of executor into
a decades-long position paying him $650,000 so far against a “reserved”
fund of $2.3M (¶ 38)
• 	That he receives a salary for managing the estate-owned businesses as
well as a fee as executor. (¶ 38)
E. Concealment of Information
• 	That Doucette failed to turn over discovery material in prior litigation
(¶¶ 42, 43)
• 	That he “thwarted” Georgia’s efforts to obtain meaningful information
(¶ 46)
• 	That he refused to provide a sufficient accounting (¶ 47)
• 	That he “put her off” by pretending to prepare responses to her inquiries
(¶ 48)
• 	That he threatened to disinherit her for requesting information (¶ 50)
• 	That he pressured her to release claims in order to avoid giving her
information (¶ 50)
14 An “
in terrorem” clause is a provision threatening forfeiture if a beneficiary
challenges the validity of the will.
What is IN TERROREM? The Law Dictionary
https://thelawdictionary.org/in-terrorem/#:~: 	text=In%20terror%20or%20warning%
3B%20by,regarded%20as%20a%20mere%20 threat (last visited Sept. 8, 2021).
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Georgia seeks compensatory damages for these wrongs.15 	An inescapable fact,
however, is that any calculation of damages requires precisely the kind of valuation
and accounting that is within the exclusive province of the probate court, especially
as probate remains open and there has been no final accounting. It is impossible to
determine whether and to what extent Georgia’s ten percent share of the residual
estate has been diminished without determining the present value of the estate and
what the monetary impact has been of the various transactions Doucette, with the
alleged participation of the other defendants, has carried out. 	In addition, many
allegations involve speculation about what
may happen to the value of the estate as
guarantor of loans to other entities that may end up in default.
Indeed, Georgia acknowledges that she cannot determine the damages she
feels entitled to without full financial disclosure of the estate’s finances. (ECF No. 1,
¶ 106). 	She complains that Doucette’s withholding of information – which he
presumably would have to disgorge in an accounting – renders her incapable of
determining the value of her ten percent interest.
Id. If Georgia cannot, for purposes
of pressing this lawsuit, attach a value to her loss without a complete accounting of
15 Many of the allegations concern Doucette’s alleged conflict of interest, presumably
as explanation for what Georgia terms his mismanagement. 	She does not seek a
remedy from this Court, but the only remedy would be replacement of Doucette as
executor which is within the exclusive province of the probate court. 	In addition, a
number of the allegations involve Doucette purportedly exceeding the authority the
probate court has given him to enter into certain transactions. 	A determination of
the scope of the authority given him, the conditions of any approvals the probate court
placed 	on 	transactions, 	and 	whether 	the 	authority 	has 	been 	exceeded 	or 	the
conditions gone unmet are issues peculiarly within the purview of the probate court.
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the estate, this Court cannot either, for the same reason. 	An accounting runs
squarely into the probate exception and is beyond the power of this Court to order.
For these reasons, the Court concludes that the probate exception applies,
and that subject-matter jurisdiction is lacking. The defendants’ Motions to Dismiss
(ECF Nos. 15, 18, 19) are GRANTED.
IT IS SO ORDERED:
______________________________
Mary S. McElroy,
United States District Judge
September 14, 2021
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