Reagin et al v. French
MEMORANDUM OPINION: The Court DENIES Plaintiffs' Motion to Remand; The Court will issue an accompanying Order lifting the Stay in this action and directing the parties to pursue the appropriate prosecution of this matter. Signed by Magistrate Judge Herman N Johnson, Jr on 10/04/17. (SPT )
2017 Oct-04 PM 03:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JOEL REAGIN, et al.,
) Case No. 5:17-cv-00421-HNJ
This civil action for a partition and sale of property proceeds before the court
on Plaintiffs’ Motion to Remand. (Doc. 2). In their Motion, Plaintiffs argue that the
federal court does not have subject matter jurisdiction to sustain removal because this
case proceeds as an in rem or quasi in rem action.
Because the Defendant’s removal
terminated the state court’s quasi in rem jurisdiction over this action, the court
DENIES the motion.
Plaintiffs Joel Reagin, Susan Ann Morris Gardner, and Carol Massey, and
Defendant Norman French, assumed ownership of an undivided, one fourth interest,
“each in and to [particular] property by separate deeds,” from the Wendell and Martha
French Revocable Trust. Plaintiff filed this action in the Circuit Court of Lawrence
County, Alabama, on February 14, 2017, seeking a “divide or partition, or sell for
partition,” of the jointly-owned property pursuant to 1975 Ala. Code §§35-6-20
through 35-6-25 (1975). Defendant French, who avers he is a citizen of Texas,
removed the action on March 17, 2017, alleging diversity jurisdiction. See 28 U.S.C.
§1441(a) (allowing removal of civil actions over which the district courts have original
jurisdiction); 28 U.S.C. §1332 (providing that federal courts “have original jurisdiction
of all civil actions where the matter in controversy exceeds the sums or value of
$75,000 . . . and is between . . . citizens of different states.”). The Plaintiffs timely
filed motions to remand this case to the state court.
Standard of Review
“Federal courts are courts of limited jurisdiction, and there is a presumption
against the exercise of federal jurisdiction, such that all uncertainties as to removal
jurisdiction are to be resolved in favor of remand.” Russell Corp. v. American Home
Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation omitted). Therefore,
courts should construe “removal statutes . . . narrowly, with doubts resolved against
removal.” Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir.), cert. denied, 540 U.S. 877
(2003); University of South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir.
1999)(“Because removal jurisdiction raises significant federalism concerns, federal
courts are directed to construe removal statutes strictly. . . . Indeed, all doubts about
jurisdiction should be resolved in favor of remand to state court”).
The removing defendant “bears the burden of proving proper federal
jurisdiction.” Adventure Outdoors, Inc. v. Blomberg, 552 F.3d 1290, 1294 (11th Cir. 2008)
(internal quotes omitted). Where jurisdiction is based on diversity of citizenship
pursuant to § 1332, French, as the removing party invoking this court’s jurisdiction,
must establish diversity jurisdiction by a preponderance of the evidence. McCormick v.
Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). The court assesses the basis for federal
jurisdiction at the time of removal. Whitt v. Sherman Int’l Corp, 147 F.3d 1325, 1332
(11th Cir. 1998).
As the Supreme Court proclaims, federal courts “‘have no more right to decline
the exercise of jurisdiction which is given, than to usurp that which is not given.’”
Marshall v. Marshall, 547 U.S. 293, 298-99 (2006) (quoting Cohens v. Virginia, 6 Wheat.
264, 404 (1821)). In the matter at bar, the case ostensibly falls under the Court’s
diversity subject matter jurisdiction:
there exists complete diversity between the
Plaintiffs and Defendant, and the amount in controversy exceeds $75,000 for each
Therefore, if such analysis holds, then the defendant properly removed
this case because the Court possessed original jurisdiction over the action. However,
Where a plaintiff fails to specify monetary relief, a defendant seeking removal based on diversity
jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds
the $75,000 jurisdictional requirement. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).
The court considers the complaint and the notice of removal when determining the amount in
controversy. Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007).
Although the complaint does not make a specific monetary demand, the claims asserted in the
complaint and the undisputed information in the notice of removal clearly show that Plaintiffs are
demanding in excess of $75,000. Defendant presented the unopposed affidavit of Christopher A.
Pettey, an appraiser of the subject property, and Mr. Pettey appraised the property’s retrospective
fair market value at $368,000. See Doc. 1-3, Pettey Aff., at 2. Apportioned among the Plaintiffs and
the Defendant, such value amounts to $92,000 for each party, which satisfies § 1332(a)’s
there exist several common law exceptions to the exercise of otherwise proper subject
matter jurisdiction, one of which arises in this case: the probate exception.
The probate exception serves as a longstanding limitation on otherwise
properly exercised federal jurisdiction. See Markham v. Allen, 326 U.S. 490, 494 (1946);
Sutton v. English, 246 U.S. 199 (1918). This exception stemmed from a general
understanding that the equity jurisdiction conferred by the Judiciary Act of 1789 did
not extend to probate matters. See Sutton, 246 U.S. at 205; O’Callaghan v. O’Brien, 199
U.S. 89, 105 (1905). The Supreme Court clarified the exception’s scope in Marshall
and delineated three circumstances where the probate exception limits federal court
jurisdiction: (1) the probate or annulment of a will; (2) the administration of a
decedent’s estate; and (3) where the federal court endeavors to dispose of property
that is in the custody of a state probate court. Marshall, 547 U.S. at 311-12. Federal
courts may adjudicate matters “outside those confines and otherwise within federal
jurisdiction.” Id. at 312.
This action involves a sale for partition under Alabama law, and thus the
request falls outside the first two categories of the probate exception: it does not
involve the probate or annulment of a will, and it does not involve the administration
of a decedent’s estate. 2 The issue remains whether a state probate court maintains
For similar reasons related to the probate of property, the Court rejects Plaintiffs’ reliance upon
Westervelt Company Inc. v. Robertson, No.: 7:15–cv–383, 2015 WL 5173586 (N.D. Ala. Sept. 2, 2015).
In Westervelt, the Court declared that the state probate court maintained exclusive jurisdiction over
the property at issue therein based upon the Alabama condemnation statute, and thus, the defendant
improperly removed the case. Id. at *5; but c.f., Marshall v. Marshall, 547 U.S. 293, 314 (2006) (“[T]he
custody of the subject property, a circumstances which incites 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.” 547 U.S. at 311.
The third category of the probate exception actually comprises the prior
exclusive jurisdiction doctrine. Goncalves By and Through Goncalves v. Rady Children’s
Hospital San Diego, 865 F.3d 1237, 1253 (9th Cir. 2017) (This aspect of Marshall “has
little to do with probate; rather, it is an application of the prior exclusive jurisdiction
doctrine.”) (citation omitted).3
Pursuant to the doctrine, when litigants advance
jurisdiction of the federal courts, ‘having existed from the beginning of the Federal government,
cannot be impaired by subsequent state legislation creating courts of probate.’”) (quoting McClellan v.
Carland, 217 U.S. 268, 281 (1910)); 17A Fed. Prac. & Proc. Juris. § 4211 (3d ed. 2017) (“A state
cannot defeat federal jurisdiction of a matter judicial in nature by confiding jurisdiction to a
specialized state court, such as a probate court.”); Id., § 4211 n. 10 (“The Supreme Court
emphatically reiterated in 2006 that a state’s creation of and conferral of jurisdiction to a probate
court cannot deprive a federal court of jurisdiction where the federal jurisdictional prerequisites are
otherwise present.”) (citing Marshall, 547 U.S. at 314). As reflected previously, the Plaintiffs filed
this case in a state circuit court, not probate court.
As for In re Moody, Nos. 83-Y-2579-S, 83-HM-2999-S, 1984 U.S. Dist. LEXIS 19332 (N.D. Ala. Feb.
17, 1984), the decision merely states, without discussion and among a litany of reasons, that a state
court receivership “is not subject to removal [to bankruptcy court] because the state court possesses
exclusive in rem or quasi in rem jurisdiction.” Id. at 21 (citing Penn. Gen. Cas. Co. v. Pennsylvania ex rel.
Schnader, 294 U.S. 189, 194-95 (1935); Pennsylvania v. Williams, 294 U.S. 176 (1935); Princess Lida of
Thurn and Taxis v. Thompson, 305 U.S. 456 (1939)). The Moody decision clearly indicated that it did
not exclusively, or even primarily, rely upon this declaration to remand the case to state court, and in
any event the complex procedural posture of the case renders it an inapposite authority for the
matter at bar.
In further clarification, this component of the probate exception actually does not incite subject
matter jurisdiction; jurisdiction over persons or property – in personam, in rem, and quasi in rem
jurisdiction – do not constitute species of subject matter jurisdiction, contrary to the improper
misnomer in some court decisions. See Carvel v. Thomas and Agnes Carvel Foundation, 188 F.3d 83, 86
(2d Cir. 1999) (“The Supreme Court spoke of jurisdiction in Princess Lida, but never of subject
matter jurisdiction; it was exploring the difference between in personam and in rem proceedings. . . .
The Court indicated that the doctrine it was expounding was a rule of comity or abstention, rather
than one of subject matter jurisdiction.”); Falise v. American Tobacco Co., 241 B.R. 48, 62 (E.D.N.Y.
1999) (“Both in rem and quasi in rem jurisdiction deal with personal and not subject matter
separate in rem or quasi in rem cases in federal and state courts regarding the same
property, the court first assuming jurisdiction over the res at issue maintains control
over the property to the exclusion of the other court. Princess Lida of Thurn and Taxis v.
Thompson, 305 U.S. 456, 466 (1939); see United States v. $270,000 in U.S. Currency, Plus
Interest, 1 F.3d 1146, 1147 (11th Cir. 1993) (“A state court and a federal court cannot
simultaneously exercise in rem jurisdiction over the same property.”). 4
The parties do not dispute that this case constitutes a quasi in rem action. The
plaintiffs advance this cause to determine the status and disposition of property over
which the parties have ownership interests. See Ex Parte Bruner, 749 So.2d 437, 440
(Ala. 1999)(“a quasi in rem action is an action ‘against the person in respect of the res,
where, for example, it has for its object partition, or the sale or other disposition of
[the] defendant’s property.’”)(quoting Gill v. More, 76 So. 453, 459 (Ala. 1917)).
jurisdiction.”) (citing Cargill, Inc. v. Sabine Trading & Shipping Co., Inc., 756 F.2d 224, 228–29 (2d Cir.
See also Palmer v. Texas, 212 U.S. 118, 125 (1909) (“If a court of competent jurisdiction, Federal or
state, has taken possession of property, or by its procedure has obtained jurisdiction over the same,
such property is withdrawn from the jurisdiction of the courts of the other authority as effectually as
if the property had been entirely removed to the territory of another sovereignty.”); Kline v. Burke
Constr. Co., 260 U.S. 226, 229 (1922) (“The converse of the rule is equally true, that where the
jurisdiction of the state court has first attached, the federal court is precluded from exercising its
jurisdiction over the same res to defeat or impair the state court’s jurisdiction.”); Penn. Gen., 294 U.S.
at 195 (Where parallel state and federal proceedings seek to “determine interests in specific property
as against the whole world (in rem), or where the parties [sic] interests in the property serve as the
basis of the jurisdiction for the parallel proceedings (quasi in rem), then the doctrine of prior
exclusive jurisdiction fully applies.”)(citations and alterations omitted); 13F Fed. Prac. & Proc. Juris.
§ 3631 (3d ed. 2017) (“[F]ederal court jurisdiction is qualified by the ancient and oft-repeated
rule—often called the doctrine of prior exclusive jurisdiction—that when a state or federal court of
competent jurisdiction has obtained possession, custody, or control of particular property, that
authority and power over the property may not be disturbed by any other court.”) (footnote and
The Plaintiffs argue primarily that the Lawrence County Circuit Court’s
assumption of quasi in rem jurisdiction, upon the initial filing in this case, precludes a
federal court from exercising jurisdiction over the subject property. Implicitly, the
Plaintiffs argue that the Lawrence County Circuit Court’s assumption of quasi in rem
jurisdiction should preclude jurisdiction in this Court, yet the Plaintiffs fail to
acknowledge that this finding rests upon a missing premise: the existence of parallel
proceedings in the Lawrence County Circuit Court and this federal court.
discerned previously, the prior exclusive jurisdiction doctrine proceeds on this
foundational rule: federal and state courts in concurrent proceedings cannot maintain
simultaneous custody over a res.
Those foundational circumstances do not exist in this case. As the Eleventh
Circuit provides, a case removed to federal court terminates state court jurisdiction,
and thus, the federal and state courts do not exercise concurrent jurisdiction, or
maintain parallel proceedings, over the dispute. Maseda v. Honda Motor Co., Ltd., 861
F.2d 1248, 1256 (11th Cir. 1988); In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233,
1251 (11th Cir. 2006) (A federal court sustains exclusive jurisdiction over an action
removed from state court because “removal has terminated the state court’s
jurisdiction over the case.”); see also American Income Life Insurance Company v. Google, Inc.,
No. 2:11-cv-04126, 2012 WL 12902779, *3 (N.D. Ala. Feb. 23, 2012) (“Because the
removal of this action to federal court ‘terminated the jurisdiction of the state court,’
no ‘concurrent jurisdiction rested with both the state and federal court’” . . . .)
(quoting Maseda, 861 F.2d at 1256). Therefore, the Defendant’s removal of this case
terminated the Lawrence County Circuit’s quasi in rem jurisdiction and lodged
exclusive jurisdiction in this federal court. As there exists no other doctrine warranting
the withdrawal of the Court’s jurisdiction, the Plaintiffs’ remand motion falters.
In a case presenting substantially similar facts, the district court reached the
same conclusion as the undersigned. In Barr v. Hagan, 322 F. Supp. 2d 1280 (M.D.
Ala. 2004), the plaintiff filed a petition for division in the Circuit Court of Barbour
County, Alabama, pursuant to § 35-6-20. Defendants removed the case to federal
court on the basis of diversity jurisdiction, and subsequently plaintiff moved to
remand on the basis that the court lacked jurisdiction. The court held that the Princess
Lida doctrine – or rather, the prior exclusive jurisdiction doctrine -- did not apply
because removal resulted in the maintenance of a sole case for disposition; therefore,
no jurisdictional conflict existed between the state and federal courts. Barr, 322 F.
Supp. 2d at 1282. The court explained that “the removal of a case from state to
federal court terminates the state court’s jurisdiction, unless and until the case is
remanded back to state court.” Id. at 1282 (citing Maseda, 861 F.2d at 1255 n.11).
Plaintiffs cite to Mercer v. Sechan Realty, Inc., 569 Fed. Appx. 652 (11th Cir. 2014)
in support of their Motion to Remand, yet Mercer does not provide any relief. The
Eleventh Circuit in Mercer held that a state court’s initial attachment of in rem
jurisdiction precludes federal courts from exercising jurisdiction. However, the
applicable circumstances in Mercer involved parallel proceedings in federal and state
courts, which incited the Anti-Injunction Act’s provision that a federal court may not
“grant an injunction to stay proceedings in a State court except . . .  where
necessary in aid of its jurisdiction.” Mercer, 569 Fed. Appx. at 655 (citing 28 U.S.C. §
As discussed in Mercer, the federal court could not enjoin a state court
proceeding unless the federal court exercised in rem jurisdiction over a res before the
state court assumed jurisdiction over the same res. Mercer, 569 Fed. Appx. at 656
(citing Bayshore, 471 F.3d at 1250-51). As discerned, those circumstances do not exist
here because there exists only one case, not a conflict between two proceedings.
Indeed, in rejecting an additional basis for applying the Anti-Injunction Act exception,
the Eleventh Circuit acknowledged that removal of the case to federal court would
have vested exclusive jurisdiction in federal court to the detriment of any prior in rem
jurisdiction in state court. Mercer, 569 Fed. Appx. at 655-56.
In further support of their Motion, Plaintiffs rely upon Florida First Nat’l Bank
v. Bagley, 508 F. Supp. 8, 10 (M.D. Fla. 1980), where the court held that the state
court’s acquisition of quasi in rem jurisdiction precludes removal, compels remand, and
prevents a federal court from assuming jurisdiction. The Bagley decision does not
contain any discussion as to its proposition’s propriety, but it cites in support Glenmede
Trust Company v. Dow Chemical Company, 384 F. Supp. 423 (E.D.Pa. 1974), where the
court declared a “well settled” rule that “controversies arising in an in rem proceeding
in a State court are not removable where the removal would interfere with the court’s
exclusive jurisdiction of the res.” Glenmede, 385 F. Supp. at 433 (citing People v. National
Cancer Hospital of America, 153 F. Supp. 484 (S.D.N.Y. 1956); Conners v. Federal Deposit
Insurance Corporation, 39 F. Supp. 812, 815 (E.D. Pa. 1941)). In Glenmede, the dispute
involved the sale of certain stocks owned by a trust. The court therein ruled that the
defendants improperly removed the case because the state court “acquired quasi in
rem jurisdiction over the administration of the trust involved in this proceeding and
has jurisdiction of the trust res.” 385 F. Supp. at 432-33 (emphasis added).
The Court respectfully declines to adopt Glenmede and Bagley and instead heed
the Supreme Court’s instruction that courts for too long strayed and expansively
interpreted the probate exception, leading to the Court’s endeavor to curtail the
doctrine in Markham and Marshall. Marshall, 547 U.S. at 299. As one court recently
declared, “nothing in the text of the removal statutes or the case law construing them
supports . . . a distinction [between in rem state court actions and other civil actions].”
Carstarphen v. Deutsche Bank Nat’l Trust Company, No. 08-0511-WS-M, 2009 WL
1035490, *5 (S.D. Ala. April 17, 2009), vacated in part on reconsid., 2009 WL 1537861
(S.D. Ala., June 1, 2009). “Applicable law provides that a defendant may remove ‘any
civil action brought in a State court of which the district courts of the United States
have original jurisdiction,’ . . . without distinguishing among in personam, in rem, or quasi
in rem proceedings.” Id. (quoting 28 U.S.C. § 1441(a)). As previously discerned, “’it is
. . . a well-settled rule of decision in the federal courts that, when a sufficient case for
removal is made in the state court, the rightful jurisdiction of that court comes to an
end . . . . When a cause has been removed to the federal court, as a matter of law and
of necessity that court acquires exclusive jurisdiction of the res.’” Id. (quoting Ex parte
Consolidated Graphite Corp., 129 So. 262, 265 (Ala. 1930)). Because Defendant removed
Plaintiffs’ case to federal court, the Lawrence County Circuit Court no longer
exercises jurisdiction over this action or the subject res. C.f., Lucas v. Acheson, No.
2:14–CV–0856, 2015 WL 685638, *5 (N.D. Ala. Feb. 18, 2015) (applying Marshall and
maintaining jurisdiction of a case because “‘the probate exception is inapplicable to
disputes concerning administration of [a] trust’” as trust assets are “‘not within the
custody of a state court . . . .’”) (quoting Curtis v. Brunsting, 704 F.3d 406, 409–10 (5th
Finally, although federal courts do not often hear suits to partition and sell
property, such actions have occurred in prior instances. See, e.g., Barr, 322 F. Supp. 2d
1280; McClendon v. Straub, 193 F.2d 596, 5987 (5th Cir. 1952) (federal court possessed
diversity jurisdiction over action for court to sell property sold and divide the
proceeds among the joint owners); Fischer v. Wurts, No. CIV. A. 96–6863, 1997 WL
407987 (E.D. Penn. 1997) (court partitioning house owned by plaintiff and defendant
as tenants in common).
For the foregoing reasons, the Court DENIES Plaintiffs’ Motion to Remand.
The Court will issue an accompanying Order lifting the Stay in this action and
directing the parties to pursue the appropriate prosecution of this matter.
DONE this 4th day of October, 2017.
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE
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