Cook v. Marshall

Filing 25

ORDER AND REASONS: IT IS ORDERED that 5 Motion to Dismiss Case is DENIED; IT IS FURTHER ORDERED that 7 Motion for Summary Judgment is DISMISSED WITHOUT PREJUDICE AS PREMATURE; IT IS FURTHER ORDERED that 14 Motion to Continue is DENIED AS MOOT. Signed by Judge Jay C. Zainey on 10/25/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEPHEN D. COOK, IN HIS CAPACITY AS COTRUSTEE OF THE MARSHALL HERITAGE
FOUNDATION

CIVIL ACTION

VERSUS

NO. 17-5368

PRESTON L. MARSHALL, IN HIS CAPACITY AS
CO-TRUSTEE OF THE PEROXISOME TRUST

SECTION A(3)

ORDER AND REASONS
The following motions are before the Court: Motion to Dismiss (Rec. Doc. 5) filed by
defendant, Preston L. Marshall; Motion for Summary Judgment (Rec. Doc. 7) filed by plaintiff,
Stephen D. Cook; Motion to Continue Hearing (Rec. Doc. 14) filed by defendant, Preston L.
Marshall. All motions are opposed. The motions, scheduled for submission on October 4, 2017,
are before the Court on the briefs without oral argument.1
This is a complaint for declaratory and injunctive relief filed by Stephen D. Cook, in his
capacity as co-trustee of The Marshall Heritage Foundation. The Marshall Heritage Foundation is
a Louisiana charitable trust. The Marshall Heritage Foundation is a beneficiary of a separate
charitable trust, the Peroxisome Trust. Defendant Preston L. Marshall is one of two co-trustees of
the Peroxisome Trust.2 Cook alleges that since June 6, 2016, Preston L. Marshall has failed and
refused to execute documents required to effect the quarterly payments that the Peroxisome
Trust must pay to The Marshall Heritage Foundation. (Comp. ¶ 18). On information and belief, E.

1

Plaintiff has requested oral argument but the Court is not persuaded that oral argument would
be helpful.
2

There are two co-trustees of the Peroxisome Trust, E. Pierce Marshall, Jr. and Preston L.
Marshall. (Comp. ¶ 14).
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Pierce Marshall, the other trustee, stands ready to execute the necessary documents. (Comp. ¶
19). But Louisiana law provides that when a trust has two trustees, the powers exercised by them
must be exercised jointly. (Comp. ¶ 17 (citing La. R.S. § 9:2113)). Cook seeks inter alia injunctive
relief ordering Preston L. Marshall as co-trustee of the Peroxisome Trust to take all steps
necessary to effect past unpaid distributions as well as future installment distributions from the
Peroxisome Trust to The Marshall Heritage Foundation.
Defendant moves to dismiss the complaint under the abstention authority of Colorado
River Water Conservation District v. United States, 424 U.S. 800 (1976), contending that multiple
parallel actions are ongoing in Louisiana state court.
The Court will not attempt to recapitulate the numerous proceedings involving the trusts at
issue that are pending in state court. While the Court does agree with Defendant’s contention that
the state court cases involve issues that will directly affect the issues before this Court,3 the Court
does not agree that the state court cases are “parallel” for purposes of Colorado River abstention.
Regardless of the interested parties’ motivation in choosing the Louisiana trustee to sue for relief,
the case is properly in federal court pursuant to diversity jurisdiction. The motion to dismiss is
therefore denied.
The Court does not agree, however, with Plaintiff’s suggestion that the case is ripe for
summary adjudication for the reasons argued in Defendant’s opposition to the motion for
summary judgment. In particular, Defendant desires to conduct discovery into certain matters.
Plaintiff characterizes those matters as immaterial non-issues but the Court is persuaded that

3

This contention is particularly true with respect to the relief pertaining to future payments. But
as Plaintiff points out, the relief pertaining to past-due payments would seem unrelated to any
issues being decided in state court.
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Defendant has a right to discovery, and that Plaintiff’s motion for immediate affirmative relief is
therefore premature.4
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 5) filed by defendant, Preston L.
Marshall is DENIED;
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. 7)
filed by plaintiff, Stephen D. Cook is DISMISSED WITHOUT PREJUDICE AS PREMATURE;
IT IS FURTHER ORDERED that the Motion to Continue Hearing (Rec. Doc. 14) filed
by defendant, Preston L. Marshall is DENIED AS MOOT.
October 25, 2017

____________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

4

Furthermore, in the interim the pending petition to enforce filed by Defendant in the state court
may have been resolved.
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