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Richard Weisz v. Farmers and Merchants Trust Company

February 29, 2012

RICHARD WEISZ, PLAINTIFF,
v.
FARMERS AND MERCHANTS TRUST COMPANY, UNION BANK, N.A., BRIAN GLICKER, ESQ., AND GLICKER & ASSOCIATES, PLC, DEFENDANTS.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM

Before the Court are the motions of Defendants Farmers and Merchants Trust Company ("Farmers") and Union Bank, N.A. ("Union Bank"), to dismiss this action for lack of subject-matter jurisdiction, *fn1 lack of personal jurisdiction, *fn2 and improper venue, *fn3 or in the alternative, to transfer venue to the United States District Court for the Central District of California.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Richard Weisz, a Pennsylvania resident, filed this action to recover a $147,775.95 preliminary distribution due to him from the estate of Joseph Clementi, Jr., a California decedent. The Complaint alleges that Defendant Brian Glicker, a California attorney, and his law firm Glicker & Associates, PLC (collectively, the "Glicker Defendants") represented Mr. Weisz's interests in the Clementi Estate before the Superior Court of the State of California, County of Orange ("Probate Court"). *fn4 Mr. Glicker filed a petition on Mr. Weisz's behalf requesting a preliminary distribution from the Clementi Estate. On October 27, 2008, after a hearing, the Probate Court granted the petition and directed Defendant Farmers, the California trust company that administers and makes distributions from the Clementi Estate, to make payment in the amount of $147,775.95, "payable to Richard Weisz in care of Glicker & Associates, his attorneys of record." *fn5 Farmers issued a check made payable to "Richard Weisz, c/o Glicker & Assoc., 14945 Ventura Blvd, Suite 220, Sherman Oaks, CA 19403," which was mailed to Mr. Glicker. *fn6 Mr. Glicker then deposited the check into the law firm's client trust account at Union Bank. The back of the check was stamped: "Pay To The Order Of/Union Bank of California . . . For Deposit Only/Glicker & Associates/Prop Law Corp/Client Trust Acc," but was not signed by Mr. Weisz or Mr. Glicker. *fn7 Union Bank accepted the check for deposit. Although Farmers paid Union Bank upon the check's presentment, Mr. Weisz received no part of the preliminary distribution funds.

Mr. Weisz has asserted claims against the Glicker Defendants for conversion, breach of fiduciary duty, and breach of contract. Mr. Weisz also asserts negligence claims against Farmers and Union Bank, alleging that Farmers breached its duty of care by making the distribution check payable to Mr. Weisz "c/o" the Glicker Defendants and by later making payment upon the unsigned check, and that Union Bank failed to exercise due care by accepting the unsigned check. Finally, he brings claims against both Farmers and Union Bank for conversion of the check and the money it represents.

II. DISCUSSION

A. Subject Matter Jurisdiction

First, Farmers argues that this Court is barred from adjudicating this matter under the "probate exception" to jurisdiction, which limits a federal court's ability to assume jurisdiction over property that is in the custody of a probate court. The Supreme Court has long recognized a probate exception to otherwise proper federal jurisdiction; *fn8 however, the precise scope of this exception has been much debated. The Supreme Court's opinion in Marshall v. Marshall clarified that earlier language prohibiting a federal court's "interference" with a state court's possession was "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 ." *fn9 Thus, the Supreme Court held, 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." *fn10 Therefore, "[i]t is clear after Marshall that unless a federal court is endeavoring to (1) probate or annul a will, (2) administer a decedent's estate, or (3) assume in rem jurisdiction over property that is in the custody of the probate court, the probate exception does not apply." *fn11

Mr. Weisz does not ask the federal court to take any of these actions. The funds at issue here are not the kind of non-fungible property contemplated by Marshall ; to the contrary, Mr. Weisz seeks money which is no longer part of the Clementi Estate, and theoretically recoverable from the general assets of any Defendant. Adjudication of this dispute by a federal court would not affect previous or future decisions by the Probate Court regarding the Clementi Estate, interfere with the administration of the Estate, or alter any provision of Mr. Clementi's will. Consequently, the probate exception does not apply.

B. Personal Jurisdiction

In deciding a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the allegations of the complaint are taken as true. *fn12 However, once a jurisdictional defense is raised, the plaintiff bears the burden of proving sufficient contacts with the forum state to establish personal jurisdiction. *fn13 In evaluating the motion, while a court must construe all disputed facts in the light most favorable to the non-moving party, *fn14 the plaintiff cannot rely on general averments in the complaint or unsupported statements in his response; instead, he must "establish[] with reasonable particularity sufficient contacts between the defendant and the forum state," *fn15 by providing jurisdictional facts supported by affidavits or competent evidence. *fn16

The Federal Rules of Civil Procedure allow a district court to assert personal jurisdiction over a non-resident to the extent allowed by the law of the state in which the court sits. *fn17

Pennsylvania's long-arm statute permits the exercise of jurisdiction over non-resident defendants to the full extent permitted under the due process clause of the Fourteenth Amendment. *fn18 Due process requires that the defendant have "minimum contacts" with the forum, and that the exercise of jurisdiction comports with "traditional notions of fair play and substantial justice." *fn19

"[M]inimum contacts must have a basis in some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking ...


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