Marx v. Marx et al

Filing 12

ORDER: on Motion to Re-Open Civil Action 8 . Signed by Judge Sharon L. Gleason on 05/04/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DAVID H. MARX,
Plaintiff,
vs.
Case No.: 3:16-cv-00288-SLG
JAMES C. MARX, et al.,
Defendants.
ORDER ON MOTION TO RE-OPEN CIVIL ACTION
On March 15, 2018, self-represented litigant David H. Marx filed a motion seeking
to reopen this case, after voluntarily dismissing it in February of 2017. 1 David Marx seeks
an order annulling the Testament of Lawrence Eugene Marx (Deceased) and an order
“restor[ing] all assets, money, and real property to Plaintiff, and order[ing] immediate
criminal sanctions against James C. Marx and all parties associated with the theft of real
property from the Trust and Residuary Estate and unauthorized removals of property from
Plaintiff’s house in Tenakee Springs, Alaska.” 2 Attached to his motion are documents
from the Superior Court for the State of Alaska in Ketchikan, a trust registration, case no.
1KE-91-3TR, for the Lawrence and Nancy Marx trust, and documents from a state
Superior Court informal probate proceeding for the Estate of Lawrence Eugene Mark,
pending in Juneau, case no. 1JU-17-78PR. 3

David Marx is Lawrence Marx’s only

1

See Docket 5 (Mot. for Voluntary Dismissal); Docket 7 (Order re: Voluntary Dismissal); Docket
8 (Motion to Reopen Case).
2
3

Docket 8 at 4, ¶ 6.

See Docket 8-1 (Trust Recognition); Docket 8-2 (Will of Lawrence Marx); Docket 8-4 (Inventory
of Estate); Docket 8-5 (Petition for Approval of Proposed Distribution).

surviving child. David Marx is purportedly the sole beneficiary of the trust at issue. James
C. Marx, Lawrence Marx’s brother, is purportedly the sole beneficiary of Lawrence Marx’s
estate. 4 Plaintiff asserts that “Defendant and counsel’s actions have undermined the
integrity of th[e] Informal Probate of The Matter of Lawrence Eugene Marx (Deceased)”
by filing an allegedly fraudulent “Inventory and Appraisal” with the probate court. 5
LEGAL STANDARD
A United States District Court is a court of limited, not general, jurisdiction, and a
district court is obligated to consider sua sponte (on its own initiative) whether it has
subject matter jurisdiction. 6

“Subject-matter jurisdiction can never be waived or

forfeited.” 7 A federal district court generally has the authority to hear only two types of
civil cases: cases in which there is federal question jurisdiction, under 28 U.S.C. ' 1331,
and cases in which there is diversity jurisdiction, under 28 U.S.C. ' 1332. 8
Section 1331 confers jurisdiction over civil actions Aarising under@ federal law. 9 “[A]
suit ‘arises under’ federal law ‘only when the plaintiff’s statement of his own cause of

4

Docket 8 at 3; Docket 8-5 at 1–2; Docket 8-3 (letter from James C. Marx’s attorney and inventory
of items taken from Tenakee Springs property) at 1.
5

Docket 8 at 5.

6

See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (“Federal courts are courts
of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]”
(citations omitted)); Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004) (“[B]y
whatever route a case arrives in federal court, it is the obligation of both district court and counsel
to be alert to jurisdictional requirements.”); United States v. S. Cal. Edison Co., 300 F.Supp.2d
964, 972 (E.D. Cal. 2004) (district courts “ha[ve] an independent obligation to address [subjectmatter jurisdiction] sua sponte”).
7
8

9

Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).
See Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005).
28 U.S.C. § 1331 provides, “The district courts shall have original jurisdiction of all civil actions

3:16-cv-00288-SLG, Marx v. Marx
Order re Motion to Re-Open Civil Action
Page 2 of 5

action shows that it is based upon [federal law].’” 10 Federal law is not at issue in this
case. Diversity jurisdiction requires that the plaintiff have “citizenship which is diverse
from that of every defendant.” 11 In addition, to establish diversity jurisdiction, the amount
in controversy must exceed $75,000. 12 Here, there may well be diversity of citizenship
between Plaintiff and all Defendants. However, “diversity jurisdiction does not exist for
two major types of cases:

probate matters and domestic relations cases involving

divorce, alimony, and child custody matters.” 13 As explained by the Supreme Court, “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.” 14
ANALYSIS
Here, even if there was diversity of citizenship and a sufficient amount in
controversy, the probate exception to diversity jurisdiction precludes this Court from
exercising jurisdiction. The Court takes judicial notice that probate case no. 1JU-17-78PR,

arising under the Constitution, laws, or treaties of the United States.”
10

Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (quoting Louisville & Nashville R. Co. v.
Mottley, 211 U.S. 149, 152 (1908)).

11

See Cook v. AVI Casino Enters., 548 F.3d 718, 722 (9th Cir. 2008) (citing Caterpillar, Inc. v.
Lewis, 519 U.S. 61, 68 (1996) (stating that diversity jurisdiction requires Acomplete diversity of
citizenship@)).

12

28 U.S.C. ' 1332(a).

13

E. Chemerinsky, Federal Jurisdiction 334 (7th ed. 2016); Marshall v. Marshall, 547 U.S. 293,
308 (2006) (“Decisions of this Court have recognized a ‘probate exception,’ kin to the domestic
relations exception, to otherwise proper federal jurisdiction.” (citing Markham v. Allen, 326 U.S.
490, 494 (1946); Sutton v. English, 246 U.S. 199 (1918); Waterman v. Canal–Louisiana Bank &
Trust Co., 215 U.S. 33 (1909)).
14

Marshall, 547 U.S. at 311–312.

3:16-cv-00288-SLG, Marx v. Marx
Order re Motion to Re-Open Civil Action
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involving the estate of decedent Lawrence Marx, is currently open with David Marx
appearing as an intervenor. 15 Similarly, the public record of the trust registration, 1KE91-3TR, indicates David Marx has a motion pending before the Ketchikan court, seeking
the appointment of a successor trustee. 16
David Marx seeks relief in this federal case that is substantially intertwined with
both of the currently pending state probate proceedings. He alleges that the personal
representative of his father’s estate trespassed onto the Tenakee Springs property, and
then proceeded to “sell-off, move, transfer, convey, or confer upon himself assets
belonging to the Trust” from the Tenakee Springs property. 17 David Marx also alleges
James C. Marx and his attorney(s) knew of assets, including real estate in Hyder, Alaska,
that was intended to be a part of the trust in addition to the Tenakee Springs real estate,
but committed fraud by alleging to the probate court that such property was part of the
estate. 18 David Marx seeks “the annulment of the Testament of Lawrence Eugene Marx

15

See public docket of case no. 1JU-17-00078PR via Alaska Court System’s Courtview search
engine found at: https://records.courts.alaska.gov/eaccess/home.page.2. Judicial notice is
the “court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a
well-known and indisputable fact; the court’s power to accept such a fact.” Black’s Law Dictionary
(10th ed. 2014); see also Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir.
2005) (“Materials from a proceeding in another tribunal are appropriate for judicial notice.” (citing
Biggs v. Terhune, 334 F.3d 910, 915 n.3 (9th Cir. 2003))); see also Fed. R. Evid. 201.

16

See public docket of case no. 1KE-91-00003TR via Alaska Court System’s Courtview search
engine found at: https://records.courts.alaska.gov/eaccess/home.page.2 (showing motion
pending since Nov. 13, 2017).
17

Docket 8 at 4 (Plaintiff’s allegations of wrongdoing); Docket 8-3 at 1–4; Docket 8-8 (James C.
Marx’s Trustee Declination).
18

Docket 8 at 3–4 (“Plaintiff assert[s] that James C. Marx and undersigned counsel committed
fraud upon this Honorable Court through the execution of documents and pleadings in the
Informal Probate 1JU-17-00078PR, that purport and allege the fact that the Defendant had the
legal right to illegally acquire all of the assets listed in the General Affidavits (See [Dockets 8-6 &
8-7]) executed by Lawrence and Nancy Marx (Deceased), when in-fact these assets do not
belong to the will or to Defendant and in-fact remain legally entitled in the Trust Inventory.”); see
3:16-cv-00288-SLG, Marx v. Marx
Order re Motion to Re-Open Civil Action
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(Deceased)” and “INJUNCTIVE –TRO (remedies): ORDERING (DEFENDANT-S) to
return (all) real properties-valuables-monie(s) ‘taken’ by DEFENDANT-S via BREACH
LIVING TRUST, felony theft, and or extortion[] inter alia.”19 These claims fall squarely
within the probate exception to a federal court’s diversity jurisdiction, such that this Court
lacks subject matter jurisdiction to hear them.
IT IS THEREFORE ORDERED:
1. The Motion to Re-Open Civil Action Case No. 3:16-cv-00288-SLG at Docket 8 is
DENIED.
2. All other outstanding motions are DENIED AS MOOT.
3. The case shall remain closed. 20
DATED at Anchorage, Alaska, this 4th day of May, 2018.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

Docket 8-7 (general affidavit signed July 15, 2009 listing two stock portfolios, various bank
accounts and insurance policies, and two lots in Hyder, Alaska with Tenakee real estate); Docket
8-6 (general affidavit signed Feb. 22, 2000 listing some of the same and additional property).
19

Docket 8 at 4 (see also supra note 2 and accompanying text); Docket 1 (Compl.) at 5. See
Sutton, 246 U.S. at 208 (finding essential feature of suit to be annulment of will, which made suit
merely supplemental to proceedings for probate of the will and cognizable only by probate court).
20

See Docket 7 (Amended Text Order Closing Case).

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