Lewis v. Parker

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LASHAWN D. LEWIS, et al.,

Plaintiffs, Civil Action No. 14-163 (BAH)

v. Judge Beryl A. Howell

DARRYL S. PARKER, et al.,

Defendants.

MEMORANDUM OPINION

The instant suit is the latest iteration of a “long arduous and unnecessary journey of 10

years” of litigation over the estate of James Jarvis (the “James Jarvis Estate”), who died in 2003.

Compl. ¶ 106, ECF No. 1; see id. ¶¶ 4–8, 15. The plaintiffs, who include LaCreasha Kennedy-

Jarvis, the decedent’s spouse, and Lashawn Lewis and Derek Jarvis, who are two out of at least

four of the decedent’s children, are dissatisfied with the administration of the James Jarvis Estate

by the defendants, Daryl S. Parker and C. Hope Brown (collectively, the “defendants”), who

served, successively, as the personal representatives of the estate. See generally Compl., ECF

No 1. 1 The plaintiffs bring this action for breach of fiduciary duty against both defendants, see

Compl. ¶¶ 116–22, 129–35, and for civil conversion against Defendant Parker, see id. ¶¶ 123–

128. 2 Pending before the Court are three motions: Defendant Parker’s Motion to Dismiss, Def.

1

Each defendant is an attorney proceeding pro se. See Def. Parker Mot. Dismiss (“Def. Parker’s Mot.”) at 1, ECF

No. 11; Def. Brown’s Mot. Dismiss Alt. Mot. Summ. J. (“Def. Brown’s Mot.”) at 1, ECF No. 12.

2

This Court has diversity jurisdiction over this matter, pursuant to 28 U.S.C. § 1332, since the plaintiffs are

domiciled in Maryland, Defendants Parker and Brown are domiciled in the District of Columbia and “the District of

Columbia or Virginia,” respectively, and the amount of the alleged damages exceeds $75,000, since those damages

allegedly include, inter alia, “$291,667.00 for the un-marshaled lost inheritance of real estate from decedent’s

mother Rose Walker’s Estate,” and $38,705.87 allegedly procured unlawfully in fees by Defendant Parker from the

James Jarvis Estate. See Compl., ¶¶ 4–8, 10; id. at 21–22 ¶¶ (ii), (ix). Although, federal courts generally do not

exercise subject matter jurisdiction over probate actions, the Supreme Court clarified that the so-called “probate

exception” to federal diversity jurisdiction is “distinctly limited [in] scope,” and only applies “when one court is

1

Parker’s Mot. Dismiss (“Def. Parker Mot.”) at 1, ECF No. 11; Defendant Brown’s Motion to

Dismiss or, in the alternative, Motion for Summary Judgment, Def. Brown’s Mot. Dismiss Alt.

Mot. Summ. J. (“Def. Brown Mot.”) at 1, ECF No. 12; and the plaintiffs’ Motion for Partial

Summary Judgment, (“Pls.’ Mot.”), ECF No. 16. 3 For the reasons below, the defendants’

motions are granted. 4

I. BACKGROUND

Both defendants assert that the plaintiffs’ claims are barred on res judicata grounds

including claim and issue preclusion, see Def. Parker’s Mot. ¶¶ 3–4; Def. Brown’s Mot. at 1.

Thus, a review of the history of proceedings involving the James Jarvis Estate before the District

of Columbia Probate Court and Court of Appeals is necessary, before turning to the litigation in

this United States District Court. 5

A. D.C. Probate Court Proceedings

Defendant Parker was appointed personal representative to the James Jarvis Estate in

2004, following the preclusion of one of Jarvis’ daughters, Greer Burriss (“Burriss”), from

appointment as a Special Administrator. See Compl. ¶¶ 18–22. In his role as Personal

Representative, Defendant Parker secured a settlement, following court-ordered mediation, with

Burriss regarding “a 2003 Cadillac automobile allegedly titled in the name of the decedent.” See

exercising in rem jurisdiction over a res, [and] a second court will not assume in rem jurisdiction over the same res.”

Marshall v. Marshall, 547 U.S. 293, 311 (2006). As the Second Circuit noted in Lefkowitz v. Bank of New York,

528 F.3d 102, 108 (2d Cir. 2007), in the wake of Marshall, “[t]he probate exception can no longer be used to

dismiss ‘widely recognized tort[s]’ such as breach of fiduciary duty or fraudulent misrepresentation merely because

the issues intertwine with claims proceeding in state court.” Thus, the Court finds that it has jurisdiction over this

matter, despite the fact that the claims at issue are significantly intertwined with the underlying probate action.

3

The plaintiffs incorrectly docketed their cross-motion for partial summary judgment, filing it solely as an

opposition to Defendant Parker’s motion to dismiss. See Pls.’ Mot at 1.

4

The plaintiffs have also moved, pursuant to Local Civil Rule 7(f), for a hearing on the pending motions, Pls.’ Mot.

Hearing at 1, ECF No. 18, but this request is denied as unnecessary in light of the adequacy of the briefing and in the

interest of judicial economy.

5

The Court has reviewed all of the voluminous submissions by the parties, but only provides specific citations to

those submissions relevant to the pending motions. Consequently, the absence of a citation to a particular

submission by a party is not indicative of whether the Court reviewed the document.

2

Compl. Ex. L (District of Columbia Probate Court Consent Order, February 23, 2005, filed in In

re James P. Jarvis, 2003 ADM 1036) (the “Consent Order”)at 1, ECF No. 4-1. As part of the

settlement, the James Jarvis Estate agreed to “forgo any further claims the Estate might raise

against Greer M. Burriss,” and Burriss “agree[d] to waive, relinquish and surrender her share as

an heir in the net Estate of James P. Jarvis.” Id.

Following entry of the Consent Order, the plaintiffs filed suit, on July 8, 2005, in District

of Columbia Probate Court alleging that Defendant Parker “breached his fiduciary duty in

administering the Estate.” Compl. Ex. N (District of Columbia Probate Court Order, March 10,

2009, filed in Jarvis v. Parker, 2003 ADM 1036) (the “Removal Order”)at 1, ECF No. 4-1. The

majority of the breaches the plaintiffs accuse Defendant Parker of committing stem from the

terms of the Consent Order, which the plaintiffs contend was improperly entered because

“Burriss had undervalued the Estate and had stolen items from the decedent’s abode shortly after

his death.” Compl. ¶¶ 19; see id. ¶ 27.

Before trial in Probate Court, the plaintiffs sought clarification of a ruling that limited the

plaintiffs’ possible relief to the removal of Defendant Parker as a personal representative. See

Pls.’ Opp’n Def. Brown’s Mot. Dismiss Ex. A (District of Columbia Probate Court Order, July

25, 2007, filed in In re Estate of James P. Jarvis, 2003 ADM 1036) (the “Clarification Order”)at

1, ECF No. 17-4. 6 Instead, the plaintiffs sought the ability to seek both “relief in equity and/or at

law for damages owed the Jarvis Estate by Defendant Parker . . . .” See id. at 1. Prompted by the

6

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court generally may not review

materials filed outside the pleadings. See Kim v. United States, 632 F.3d 713, 719–20 (D.C. Cir. 2011) (reversing

and remanding district court’s grant of motion to dismiss when court referred to materials outside the pleadings

without converting motion to one for summary judgment). The parties have attached certain documents from the

D.C. Probate Court to their legal memoranda, which are not attached to the Complaint. See, e.g., Clarification

Order. Since these records are public documents filed on a court docket, the Court may take judicial notice of such

documents without converting the motion to one for summary judgment. Covad Commc’ns Co. v. Bell Atl. Corp.,

407 F.3d 1220, 1222 (D.C. Cir. 2005); Slate v. Pub. Defender Serv. for the District of Columbia, No. 13-798, 2014

WL 1315238, at *4 (D.D.C. Apr. 2, 2014) (collecting cases).

3

plaintiffs’ request, the Probate Court issued the Clarification Order, which summarized the prior

history, through 2007, of the probate litigation. See generally id.

Of particular relevance to the instant matter are two issues addressed in the Clarification

Order. First, critically, the Probate Court rejected all of the plaintiffs’ requests for damages

based on certain purported assets not being included in the inventories and accountings of the

James Jarvis Estate that Defendant Parker filed with the Probate Court. See Clarification Order

at 6, 9–10. The court pointed out that the plaintiffs failed timely to object to Defendant Parker’s

inventories and accountings, thus waiving their right to later challenge the accuracy of those

filings. See id. at 6. Consequently, the allegedly missing assets, for which the plaintiffs sought

damages in their Complaint, were merely “assets that [the plaintiffs] believe the Estate might

have had.” Id. at 9 (emphasis in original). The court explained that the plaintiffs could not

recover damages based on assets not listed on the inventories of the James Jarvis Estate to which

the plaintiffs had ample opportunity, but declined or failed to challenge within the time provided

for by the relevant statute. See id. Rather, the plaintiffs would only be able to secure damages, if

at all, against Defendant Parker if they could prove that certain assets were lost from the James

Jarvis Estate that were properly inventoried as part of the Estate and were no longer available

due to Defendant Parker’s alleged breaches of fiduciary duty. See id. at 9–10.

Second, the Probate Court rejected the plaintiffs’ attack on the legitimacy of the Consent

Order and their allegations that Defendant Parker breached his fiduciary duty by filing the

Consent Order. See id. at 6–8. The court opined that “the Court, when deciding whether to grant

the petition to settle, must have determined that the settlement was in the best interest of the

estate.” See id. at 6. Consequently, “Mr. Parker’s decision to settle with Ms. Burriss would

appear able to withstand Plaintiffs’ challenge of any breach,” especially considering that the

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plaintiffs had the opportunity, pursuant to D.C. Code § 20-521, to seek an order restraining

Defendant Parker from joining the Consent Decree and the plaintiffs failed to do so. See id. at 7.

The court also considered, in the context of the Clarification Order, a motion filed by the

plaintiffs seeking to set aside the Consent Order, under D.C. Super. Ct. Civ. R. 60, based on

“newly discovered evidence.” Id. at 8. The court denied this motion because the plaintiffs, as

non-parties to the Consent Order, had no standing to pursue such a motion and only the

successor personal representative, if Defendant Parker were removed, would be able to file such

a motion “if appropriate.” Id. 7

The Probate Court then held a trial on eight allegations, posited by the plaintiffs as

warranting Defendant Parker’s removal as personal representative. The allegations were that

Defendant Parker: (1) failed “to marshal for the estate a 1995 Cadillac El Dorado that the

decedent owned when he died,” Removal Order at 1; (2) failed “to seek to become Successor

Personal Representative of the estate of Charles Jarvis, James Jarvis’ father, for which James

Jarvis had been Personal Representative before his death,” id. at 2; (3) failed “to attempt to

recoup for the estate moneys debited from the decedent’s bank account in the form of automatic

debits made after his death,” id.; (4) failed “to attempt to secure funds from a stale payroll check

of the decedent,” id.; (5) failed “to marshal estate real property in the states of New Jersey and

South Carolina owned by the decedent,” id. at 1; (6) failed “to marshal for the estate certain

personal property that the decedent owned at the time of his death,” id. at 1–2; (7) failed “to

communicate with the heirs about the administration of the estate,” id. at 2; and (8) failed “to pay

creditors in a timely fashion,” id.

7

The Clarification Order also made clear that the plaintiffs were not entitled to a jury trial or punitive damages due

to the equitable nature of the Probate Court proceedings. See Clarification Order at 10–11.

5

After hearing evidence at the trial, the Probate Court found that the plaintiffs had proven

the first four allegations but not the last four, and removed Defendant Parker as Personal

Representative. Removal Order at 24–25. Specifically, the Probate Court concluded that (1)

Defendant Parker “mismanaged property, specifically the funds represented by [a] $618.00

[payroll] check made payable to James Jarvis by a District of Columbia Agency;” (2) that

Defendant Parker “failed, without reasonable excuse, to fulfill the duties of his office” by

(a)“failing to conduct the basic investigation/verification required to make informed decisions

about” declining to marshal the 1995 Cadillac to the James Jarvis Estate, (b) foregoing “any

claims by the James Jarvis [E]state to any funds from the Charles Jarvis estate,” and (c) not

seeking “the return from the bank or any other individual of moneys withdrawn from James

Jarvis’ bank account after his death.” Id. The Probate Court concluded the plaintiffs failed to

prove that Defendant Parker was derelict in his duty to marshal to the estate personal property

owned by the decedent, real property allegedly owned by the decedent in New Jersey and South

Carolina, id. at 17–18, or that Defendant Parker failed materially to communicate with the heirs

or pay creditors in a timely fashion, id. at 12–13. 8

Following the removal of Defendant Parker as the Estate’s Personal Representative, he

filed a “Petition for Award of Compensation for Personal Representative,” which the Probate

Court granted in part and denied in part. See Def. Brown’s Mem. Supp. Def. Brown’s Mot.

(“Def. Brown’s Mem.”) Ex. 5 (District of Columbia Probate Court Order Granting Petition for

Compensation, Dec. 7, 2009, filed in Jarvis v. Parker, 2003 ADM 1036) (“Def. Parker Fees

8

The plaintiffs contend that the Probate Court adjudged Defendant Parker to have committed five fiduciary

breaches, Compl. ¶ 55, including Defendant Parker’s alleged failure to marshal property owned by the decedent’s

mother’s estate in South Carolina, see id. ¶ 55(iii). The plaintiffs are incorrect. The Removal Order makes clear that

the “[p]laintiffs have failed to prove that Parker had information that he could use to identify the property James

Jarvis allegedly inherited from his (James Jarvis’) mother.” Removal Order at 18.

6

Order”) at 1, ECF No. 12-5. 9 The Court granted compensation to Defendant Parker in the

amount of $10,762.50 for approximately seventy hours of service in the case but denied his

request for an unspecified additional amount in compensation. Id. at 2. By contrast, the Probate

Court denied entirely the plaintiffs’ “Petition for Award of Attorney’s Fees, Investigatory Fees,

and Administrative Costs by Counsel for Plaintiffs, Heirs, and Beneficiaries,” noting that “the

litigation tactics in which this counsel engaged throughout his involvement in this litigation

actually harmed the estate financially, costing it far more harm [than] by any inaction by the

Removed Personal Representative.” Def. Brown’s Mem. Ex. 6 (District of Columbia Probate

Court Order Denying Petition for Compensation, Dec. 7, 2009, filed in Jarvis v. Parker, 2003

ADM 1036) (“Pls.’ Counsel Fees Order”) at 1, ECF No. 12-6. 10 The Probate Court further

described plaintiffs’ counsel’s actions as “border[ing] on abuse of the litigation process, which

cannot be rewarded,” and opined that the plaintiffs’ counsel’s “lack of familiarity with the law

and lack of litigation experience and skills contributed to much delay at the hearings and trial in

this matter.” Id. 11

Defendant Brown was appointed in 2009 as successor Personal Representative following

the removal of Defendant Parker. See Compl. ¶ 73. She notified the plaintiffs that she did “not

plan to file” a Rule 60(b) motion seeking to vacate the Consent Order approved by the Probate

Court in 2005 and that, in her view, the plaintiffs’ appeal of portions of the Probate Court’s

Clarification Order and Removal Order were “not meritorious.” Compl. Ex. R (Email

Correspondence from Defendant Brown to Plaintiffs’ Counsel, December 8–12, 2011) at 1, ECF

No. 5-1.

9

See supra note 6.

10

See supra note 6.

11

The plaintiffs seek $65,000 in attorneys’ fees and costs in the instant matter “as monetary sanction [sic] in having

to pursue removal of Defendant Parker at trial and briefing and arguing an appeal,” a request that has apparently

already been denied by the D.C. Probate Court. See Compl. at 22 ¶ (xi).

7

B. District of Columbia Court of Appeals Ruling

Defendant Parker appealed the Removal Order and the plaintiffs appealed portions of the

Probate Court’s Clarification Order and Removal Order. See Compl. Ex. M (Mem. Op. and J.,

Nos. 09-PR-1131 and 10-PR-0248, In re Estate of James P. Jarvis (D.C. Apr. 30, 2012) (the

“2012 Appeal”)) at 1, ECF No. 4-1. The District of Columbia Court of Appeals affirmed the

Clarification Order and the Removal Order “in all respects.” See id. The appellate court

considered explicitly the plaintiffs’ “claim [that] the trial court erred in denying their motion to

vacate a consent order secured by Mr. Parker as personal representative, and that the trial court

improperly deprived appellants of their right to seek damages against Mr. Parker.” 12 Id. The

D.C. Court of Appeals upheld the trial court’s finding that the plaintiffs “lack standing to

challenge the [Consent] [O]rder” because “[i]f, as appellants allege, the 2005 Consent Order was

procured by fraud, the remedy is to have the personal representative removed in favor of a

successor personal representative who has the authority to seek relief from that order of the trial

court.” Id. at 2. The D.C. Court of Appeals also held that the trial court was correct “in not

awarding damages against Mr. Parker for breach of his fiduciary duties,” since it “reserved the

right to consider the issue of damages upon the removal of Mr. Parker as personal representative

and the appointment of a successor personal representative.” Id. The court stated that it was not

“constru[ing] the trial court’s order as foreclosing appellants’ opportunity to obtain damages

from Mr. Parker if the successor personal representative elects not to pursue damages.” Id.

(citing In re Estate of Bernstein, 3 A.3d 337, 342 n.6 (D.C. 2010)). Finally, the Court of Appeals

denied Defendant Parker’s cross-appeal and upheld the trial court’s removal of him from his

former position as the James Jarvis Estate’s personal representative. Id. at 2–3.

12

The plaintiffs raised other disputes with the Probate Court’s orders, including the Clarification Order and Removal

Order, but the D.C. Court of Appeals held that “those claims do not merit any discussion given our disposition of the

claims.” 2012 Appeal at 1 n.1.

8

C. Federal Court Proceedings

In March, 2013, the plaintiffs filed a complaint in this Court that is virtually identical to

the instant Complaint, but failed timely to respond to the defendants’ motions to dismiss that

case, leading to the dismissal without prejudice of the suit. See Jarvis v. Parker, No. 13-350,

2013 WL 2406293, at *1–2 (D.D.C. June 3, 2013). The plaintiffs’ subsequent motion for relief

from the judgment of dismissal pursuant to Federal Rules of Civil Procedure 60(b)(1) and (b)(6)

was denied because the plaintiffs’ failure to respond to the defendants’ motions to dismiss was

the result of the plaintiffs’ counsel “mistake or ignorance of the rules of this Court,” which did

not constitute “‘excusable neglect’” under Rule 60(b)(1), Jarvis v. Parker, No. 13-350, 2013 WL

346077, at *4 (D.D.C. Jan. 31, 2014), and did not otherwise show the requisite “extraordinary

circumstances” to warrant relief under Rule 60(b)(6), id. at *5. 13

Within four days of the dismissal of the initial federal complaint, the plaintiffs re-filed

their claims in the instant Complaint. See generally Compl. With regard to Defendant Parker,

the plaintiffs allege that he breached his “fiduciary duty of care” to the James Jarvis Estate and

the plaintiffs as estate beneficiaries, Compl. ¶¶ 117–18, some of which breaches have “already

been judicially determined,” id. ¶ 119, and thereby “actually and proximately caused monetary

damage to the Plaintiffs [sic] inheritance rights,” id. ¶ 120. The actions allegedly constituting

breaches of fiduciary duty are the same actions that were considered by the Probate Court,

including (1) entry of the Consent Order with Burriss, id. ¶¶ 27–37; (2) failing to obtain from

Burriss “valuable personal property,” id. ¶ 38, amounting to “$5,299.00 in jewelry purchased by

the decedent just months prior to his death,” id. ¶ 43; (3) failing to secure “the decedent’s second

older 1995 Cadillac El Dorado,” which was “held by a mechanic” and valued at “$7,300.00,” id.

13

Since the District Court dismissed the prior suit without prejudice, see Jarvis, 2013 WL 2406293, at *1, the

dismissal of that suit is not a “decision on the merits” and therefore has no res judicata effect, see Havens v. Mabus,

No. 12-5339, 2014 WL 3674599, at *5 (D.C. Cir. July 25, 2014).

9

¶ 55(i); (4) failing to investigate the decedent’s inheritance from the estate of the decedent’s

father, in the amount of “$1,975.83,” and the decedent’s mother, which estates allegedly

included real property in New Jersey and South Carolina and amounted to a total of

“$291,667.00,” id. ¶ 55(ii–iii); (5) failing to investigate post-death withdrawals of “$2,398,” id. ¶

55(iv); and (6) failing to ensure a stale payroll check of the decedent did not bounce, resulting in

“a $10.00 bounced check fee,” id. ¶55(v). The plaintiffs also allege that Defendant Parker

committed civil conversion of some of the James Jarvis Estate’s assets by petitioning for and

being awarded administration and attorneys’ fees for his work. See id. ¶¶ 83–87, 124–128.

With regard to Defendant Brown, the plaintiffs allege that she breached her “fiduciary

duty of care” to the James Jarvis Estate and the plaintiffs, by failing (1) “to provide statutorily

requisite accounts,” Compl. ¶ 132; (2) “to marshal known Estate assets,” id.; and (3) “to keep

herself apprised of Appellate proceedings related to the Estate,” id. According to the plaintiffs,

these breaches “proximately caused monetary damages to Plaintiffs [sic] inheritance rights”

causing the plaintiffs to suffer “monetary damages” for which Defendant Brown “must be held

directly liable” to the plaintiffs, id. ¶¶ 133–35.

II. LEGAL STANDARD

A. Motion To Dismiss For Failure To State A Claim

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff

need only plead “enough facts to state a claim to relief that is plausible on its face” and to

“nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); see also FED. R. CIV. P. 12(b)(6). “[A] complaint [does not]

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint

must plead facts that are more than “‘merely consistent with’ a defendant’s liability” but provide

10

sufficient “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. at 678 (quoting Twombly, 550 U.S. at 556);

accord Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). The Court “must assume all the

allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the

benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21.

November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and internal

quotation marks omitted).

B. Res Judicata (Claim Preclusion and Issue Preclusion)

“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,

which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892

(2008). Claim preclusion “forecloses ‘successive litigation of the very same claim, whether or

not relitigation of the claim raises the same issues as the earlier suit.’” Id. (quoting New

Hampshire v. Maine, 532 U.S. 742, 748 (2001)). In contrast, issue preclusion, which was “once

known as ‘collateral estoppel’ and ‘direct estoppel,’” bars “successive litigation of an issue of

fact or law actually litigated and resolved in a valid court determination essential to the prior

judgment, even if the issue recurs in the context of a different claim.” Id. at 892 and n.5 (internal

quotations and citations omitted); see also Allen v. McCurry, 449 U.S. 90, 94 (1980) (under “res

judicata, a final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action” and collateral estoppel

“preclude[s] relitigation of the issue in a suit on a different cause of action”); U.S. Postal Serv. v.

Am. Postal Workers Union, 553 F.3d 686, 696 (D.C. Cir. 2009) (“Under collateral estoppel, once

a court has decided an issue of fact or law necessary to its judgment, that decision may preclude

relitigation of the issue in a suit on a different cause of action involving a party to the first case.”)

(internal quotation marks and citation omitted). The Supreme Court has explained that these

11

preclusion doctrines serve important functions to “protect against ‘the expense and vexation

attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action

by minimizing the possibility of inconsistent decisions.’” Taylor, 553 U.S. at 892 (quoting

Montana v. United States, 440 U.S. 147, 153-154 (1979)) (alteration in original); see also

Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (“The objective of the

doctrine of issue preclusion . . . is judicial finality; it fulfills ‘the purpose for which civil courts

have been established, the conclusive resolution of disputes within their jurisdiction.’”) (quoting

Kremer v. Chemical Constr. Corp., 456 U.S. 461, 467 n.6 (1982)); Washington Water Power Co.

v. FERC, 775 F.2d 305, 341 (D.C. Cir. 1985) (the purpose of res judicata is “to prevent

relitigation of issues that were, or should have been, previously tried”).

In applying issue preclusion, three elements must be satisfied for a final judgment to

preclude litigation of an issue in a subsequent case: “[1], the same issue now being raised must

have been contested by the parties and submitted for judicial determination in the prior case[; 2],

the issue must have been actually and necessarily determined by a court of competent

jurisdiction in that prior case[; and] [3] preclusion in the second case must not work a basic

unfairness to the party bound by the first determination.” Martin v. Dep’t of Justice, 488 F.3d

446, 454 (D.C. Cir. 2007) (quoting Yamaha, 961 F.2d at 254 (D.C. Cir. 1992)) (alterations in

original). “[O]nce a court has decided an issue of fact or law necessary to its judgment, that

decision may preclude relitigation of the issue in a suit on a different cause of action involving a

party to the first case.” McLaughlin v. Bradlee, 803 F.2d 1197, 1201 (D.C. Cir. 1986) (quoting

Allen v. McCurry, 449 U.S. 90, 94 (1980)).

The overriding goal of the issue preclusion doctrine is to “avert needless relitigation and

disturbance of repose, without inadvertently inducing extra litigation or unfairly sacrificing a

12

person’s day in court.” Otherson v. U.S. Dep’t of Justice, 711 F.2d 267, 273 (D.C. Cir. 1983).

When the first two prerequisites for application of the issue preclusion doctrine are met, the

plaintiff “must be permitted to demonstrate, if he can, that he did not have a fair opportunity

procedurally, substantively, and evidentially to pursue his claim the first time.” Blonder-Tongue

Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333 (1971) (internal quotation marks omitted).

As the Supreme Court explained, “a party who has had one fair and full opportunity to prove a

claim and has failed in that effort, should not be permitted to go to trial on the merits of that

claim a second time. Both orderliness and reasonable time saving in judicial administration

require that this be so unless some overriding consideration of fairness to a litigant dictates a

different result in the circumstances of a particular case.” Id. at 324–25.

Notably, “[a] court conducting an issue preclusion analysis does not review the merits of

the determinations in the earlier litigation.” Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d

1254, 1257 (D.C. Cir. 2006); see also Nat’l Post Office Mail Handlers, Watchmen, Messengers,

and Grp. Leaders Div. of Laborers’ Int’l Union of N. Am. v. Am. Postal Workers Union, 907

F.2d 190, 194 (D.C. Cir. 1990) (“The doctrine of issue preclusion counsels us against reaching

the merits in this case, however, regardless of whether we would reject or accept our sister

circuit’s position.”); Yamaha Corp. of Am. v. United States, 745 F. Supp. 734, 738 (D.D.C. 1990)

(noting the D.C. Circuit’s instruction “that collateral estoppel prevents a court from ever

reaching the merits”).

For claim preclusion, “a subsequent lawsuit will be barred if there has been prior

litigation: (1) involving the same claims or cause of action, (2) between the same parties or their

privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent

jurisdiction.” Havens v. Mabus, No. 12-5339, 2014 WL 3674599, at *4 (D.C. Cir. July 25, 2014)

13

(quoting Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C.

Cir. 2009)). Under the doctrine of claim preclusion, a final judgment on the merits in a prior suit

involving the same parties bars subsequent suits based on the same cause of action, since a

plaintiff is expected to “present in one suit all the claims for relief that he may have arising out of

the same transaction or occurrence.” U.S. Indus., Inc. v. Blake Constr. Co., Inc., 765 F.2d 195,

205 (D.C. Cir. 1985) (quoting 1B J. Moore, Moore’s Federal Practice, ¶ 0.410[1] (1983)); see

Montana, 440 U.S. at 153; Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979).

“Whether two cases implicate the same cause of action turns on whether they share the same

‘nucleus of facts.’” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (quoting Drake v.

FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)). Parties are thus prevented from relitigating in a separate

proceeding “any ground for relief which they already have had an opportunity to litigate[,] even

if they chose not to exploit that opportunity,” and regardless of the soundness of the earlier

judgment. Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); I.A.M. Nat’l Pension

Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 (D.C. Cir. 1983) (noting that claim preclusion

“forecloses all that which might have been litigated previously” (citation omitted)).

III. DISCUSSION

The plaintiffs, dissatisfied with the clear and unambiguous rulings provided by the

District of Columbia’s Probate Court and Court of Appeals, have now filed suit twice in this

Court, attempting to recover damages allegedly due the James Jarvis Estate as a result of

Defendant Parker’s alleged fiduciary breaches. See Pls.’ Opp’n Def. Brown’s Mot. (“Pls.’

Brown Opp’n”) at 7–8, ECF No. 17-1. 14 As discussed below, the two claims against Defendant

14

Although the plaintiffs claim they are seeking “exorbitant damages in the amount of $504,222.50” against

Defendant Parker, Compl. ¶ 1, a close reading of the Complaint reveals that the most of the claimed damages are

based on the value of property the Probate Court has already determined was not part of the Estate and reflected no

breach of fiduciary duty by the Estate’s Personal Representative. Specifically, the plaintiffs include in their

14

Parker are barred by res judicata, since these claims and issues have been litigated already in the

local courts of the District of Columbia. The claim against Defendant Brown is barred by the

applicable statute of repose and the factual allegations made in the plaintiffs’ own filings. The

claims against each defendant are examined in turn. 15

A. The Claims Against Defendant Parker

The plaintiffs assert two claims against Defendant Parker: breach of fiduciary duty

stemming from his actions as Personal Representative of the James Jarvis Estate, Compl. ¶¶

116–22, and civil conversion of the payments made to him for administering the James Jarvis

Estate and the attorneys’ fees awarded him following the Removal Order, id. ¶¶ 83–87, 123–

28. 16 The elements of each claim and whether those claims are precluded on res judicata

grounds are examined individually.

“exorbitant” damage claim property covered by the court-approved settlement decree, id. at 21–22 ¶¶ (vii–viii);

court-awarded attorneys’ and estate administration fees, id. at 22 ¶¶ (ix–x); and attorneys’ fees for the plaintiffs’

counsel previously rejected by the D.C. Probate Court, id. ¶ (xi). The value of the property at issue in the breaches

of fiduciary duty found by the Probate Court and that arguably could have been part of the Estate, absent such

breaches, would amount to approximately $11,000, the damages amount that plaintiffs claim they are entitled to in

their partial motion for summary judgment. Pls.’ Corr. Am. Opp’n Def. Parker’s Mot. (“Pls.’ Parker Opp’n”) at 7,

ECF No. 21. As explained infra, the plaintiffs are not entitled to any relief from this Court, monetary or otherwise.

15

The parties do not address the choice of law that applies in this diversity action, but predicate their arguments on

District of Columbia law. See Def. Parker’s Mem. Supp. Def. Parker’s Mot. Dismiss (“Def. Parker’s Mem.”) at 8,

ECF No. 11 (arguing District of Columbia res judicata principles apply to the plaintiffs’ claims); Def. Brown’s

Mem. at 8 (arguing application of District of Columbia statute of repose bars plaintiffs’ claims); Pls.’ Parker Opp’n

at 3 (arguing District of Columbia Court of Appeals judgment controls liability in this matter). Indeed, when

exercising diversity jurisdiction, state law provides the applicable substantive rules of law. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938). Therefore, the Court will apply District of Columbia law to this case. Burke v.

Air Serv. Int’l, Inc., 685 F.3d 1102, 1107 (D.C. Cir. 2012) (“The ‘broad command of Erie,’ of course, is that ‘federal

courts are to apply state substantive law and federal procedural law’ when sitting pursuant to their diversity

jurisdiction.”) (quoting Hanna v. Plumer, 380 U.S. 460, 465 (1965)); see also Arias v. DynCorp, 752 F.3d 1011,

1013 (D.C. Cir. 2014); Cordoba Initiative Corp. v. Deak, 900 F. Supp. 2d 42, 46 n.2 (D.D.C. 2012) (applying

District of Columbia law in diversity suit where “[b]oth parties applied District of Columbia law in their motion

papers without engaging in any choice of law analysis”); Piedmont Resolution, L.L.C. v. Johnston, Rivlin & Foley,

999 F. Supp. 34, 39 (D.D.C. 1998) (same).

16

The grounds for the civil conversion claim are vague, at best, as set out in the Complaint. Nevertheless, the

plaintiffs have provided enough information about the legal theory upon which they base their civil conversion

claim for the Court to resolve the instant motion. See Part III.A.2. infra.

15

1. Breach of Fiduciary Duty

The seven allegations raised against Defendant Parker in this action are properly

precluded. The elements and application of claim preclusion are addressed first before turning to

issue preclusion.

a) Claim Preclusion

The first element in the application of the claim preclusion bar is whether the same claim

or cause of action is being raised as one raised in a previous suit. See Havens, 2014 WL

3674599, at *4. In their Complaint before the District of Columbia Probate Court, the plaintiffs

alleged that “Mr. Parker has breached his fiduciary duty to the Jarvis estate.” Def. Parker’s Mot.

Ex. 1 (Complaint [for] Removal of Personal Representative, Appointment of Successor

Representative, Demand for Completion of Accounting and Damages, July 7, 2005, filed in In re

Estate of James P. Jarvis, 2003 ADM 1036) (the “Probate Complaint”) ¶ 38, ECF No. 11. 17 As

support for this assertion before the D.C. Probate Court, the plaintiffs alleged, inter alia, that

Defendant Parker (1) improperly “engaged in a mediation proceeding” with Burriss regarding the

decedent’s 2003 Cadillac, id. ¶ 22; (2) failed to obtain property allegedly stolen by Burriss from

the decedent’s apartment, id. ¶ 15; (3) failed to follow-up on a $618.00 payroll check to the

decedent, id. ¶6(h); (4) failed to include real property from the decedents’ mother’s and father’s

estates in the James Jarvis Estate inventory, id. ¶ 13(c); (5) failed to marshal a 1995 Cadillac for

the estate, id. ¶ 24; and (6) failed to investigate certain automatic debits to the decedent’s bank

accounts that occurred after his death, id. ¶ 6(g). These are the same allegations underlying the

plaintiffs’ breach of fiduciary duty claim against Defendant Parker in the instant matter. See

Compl. ¶¶ 44–46 (alleging Defendant Parker improperly entered into settlement after mediation

regarding decedent’s 2003 Cadillac); id. ¶¶ 25, 38–43 (alleging failure to obtain property

17

See supra note 6.

16

allegedly stolen by Burriss from decedent’s apartment); id. ¶ 55(v) (alleging failure to follow-up

on $618.00 payroll check); id. ¶ 55(ii) (alleging failure to include property from decedent’s

mother’s and father’s estates in James Jarvis Estate inventory); id. ¶ 55(i) (alleging failure to

secure 1995 Cadillac for decedent’s estate); id. ¶ 55(iv) (alleging failure to investigate “post-

death electronic withdrawals from the decedent’s bank account . . . [totaling] $2,398.00”). Thus,

the first element for application of the claim preclusion bar is met as to the breach of fiduciary

duty claim.

The second element for the claim preclusion bar is whether the same parties or their

privies were involved in the prior suit and the instant suit. See Havens, 2014 WL 3674599, at *4.

In the instant matter, all of the plaintiffs and Defendant Parker were parties to the Probate Court

and D.C. Court of Appeals proceedings. See Probate Compl. at 1; 2012 Appeal at 1. Thus, the

second element is met.

The third element for the claim preclusion bar is whether there has been a final, valid

judgment on the merits. See Havens, 2014 WL 3674599, at *4. As previously noted, the District

of Columbia courts have issued final judgments on the merits as to each of the plaintiffs’

allegations in this matter. Specifically, in the Clarification Order the Probate Court held that

entry into the Consent Order with Burriss and failure to secure real property for the James Jarvis

Estate in South Carolina in which the decedent allegedly held an interest were not breaches of

Defendant Parker’s fiduciary duty, see Clarification Order at 7; Removal Order at 18. The

plaintiffs’ five remaining allegations in the instant case, i.e., the failure to (1) obtain property

from the estate allegedly stolen from the decedent’s apartment; (2) follow-up on the stale payroll

check; (3) pursue property from the decedent’s father’s estate; (4) secure the 1995 Cadillac for

the decedent’s estate; and (5) pursue the return of automatic post-death debits to the decedent’s

17

bank account, were rejected by the Probate Court as untimely and, therefore, waived. See

Clarification Order at 9–10. This prior, final judicial ruling is fatal to the plaintiffs’ damages

claim here against Defendant Parker for breach of fiduciary duty since none of the purported

assets subject to a breach were included in the inventory of Estate assets. See id.

While Defendant Parker’s actions in failing to marshal certain assets to the Estate

amounted to a breach of fiduciary duty warranting his removal as personal representative, the

fact that the plaintiffs failed to object to his accountings and inventories as insufficient or

improper precluded any award of damages based on those un-marshaled assets. See Clarification

Order at 6, 9–10. Instead, the only damages for which Defendant Parker might be personally

liable, and to which the D.C. Court of Appeals expressly referred in the 2012 Appeal, see 2012

Appeal at 2, are for any assets of the James Jarvis Estate that were included on the unchallenged

inventories and accountings but were subsequently lost due to Defendant Parker’s wrongful

action or inaction. See Clarification Order at 9. None of the items alleged in the instant matter

were included in the inventories and accountings and were instead, as the Probate Court held,

assets that the “plaintiffs believe the Estate might have had.” Id. (emphasis in original). Thus,

contrary to the plaintiffs’ contention, the actions for which the plaintiffs are seeking damages in

this Court were actually and necessarily determined to have been waived by the D.C. Probate

Court, a ruling affirmed by the D.C. Court of Appeals. 18 Thus, all of the plaintiffs’ allegations in

18

Defendant Brown argues that the D.C. Probate Court “reserved the right to consider the issue of damages upon the

removal of Mr. Parker as personal representative,” 2012 Appeal at 2, and, consequently, this Court is precluded

from opining on such damages under the Rooker-Feldman doctrine. Def. Brown’s Mem. at 7 (stating the “plaintiffs’

new federal district court litigation invites this court’s review and rejection of the judgments of the Superior Court of

the District of Columbia and the District of Columbia Court of Appeals” and asserting that the Rooker-Feldman

doctrine mandates dismissal of the action); see Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284

(2005) (declaring review of “unfavorable state-court judgments . . . . out of bounds, i.e., properly dismissed for want

of subject-matter jurisdiction.”). In essence, this defendant asserts that the plaintiffs are properly considered “state-

court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings

commenced” and are “inviting district court review and rejection of those judgments.” Exxon Mobil Corp., 544 U.S.

at 284. If the Rooker-Feldman doctrine applied here, this Court would lack subject matter jurisdiction over the

18

this matter are the subject of a final, valid judgment on the merits through either the Clarification

Order or the Removal Order.

The final element for the application of the claim preclusion bar is whether the final

judgments were rendered by a Court of competent jurisdiction. See Havens, 2014 WL 3674599,

at *4. The parties do not dispute this element, and the 2012 Appeal approved all of the Probate

Court’s Orders in all respects, indicating that the Probate Court was a court of competent

jurisdiction to issue its rulings. See 2012 Appeal at 1. Thus, this fourth element for the

application of claim preclusion is met.

Consequently, all of the plaintiffs’ allegations in the instant suit are barred by claim

preclusion and, on this ground alone, the plaintiffs’ complaint must be dismissed.

b) Issue Preclusion

Even if the plaintiffs’ allegations were not barred by claim preclusion, many of the

allegations, if not all, would be barred by issue preclusion as well. The first element of issue

preclusion, whether the same issue raised in the instant suit was raised in the prior suit, is

substantively similar to the first element of claim preclusion and, as such, the Court need not

repeat its analysis of this element here to determine that the first element of the issue preclusion

bar is met. See supra Part III.A.1.a.

The second element for issue preclusion to apply is whether a court of competent

jurisdiction actually and necessarily determined the issue previously. See Martin, 488 F.3d at

454. As previously noted and, indeed, as pleaded in the Complaint, the Probate Court and the

D.C. Court of Appeals addressed the plaintiffs’ instant claims and allegations in their previous

plaintiffs’ breach of fiduciary duty claims. Id. Since the claims against both defendants are resolved on other

grounds, the Court need not address this argument, which would, in any event, lead to the same result: dismissal of

the plaintiffs’ claims without reaching the merits of those claims.

19

rulings. See supra Part III.A.1.a; see also 2012 Appeal at 1; Clarification Order at 8–10. The

second element for application of the issue preclusion bar is met. 19

The final element of issue preclusion is whether its application would result in unfairness

to the party against whom this doctrine is to be applied. See Martin, 488 F.3d at 454. In

examining “unfairness” for the purposes of issue preclusion, the D.C. Circuit has been primarily

concerned with whether “the losing party clearly lacked any incentive to litigate the point in the

first trial, but the stakes of the second trial are of a vastly greater magnitude.” Yamaha, 961 F.2d

at 254. In other words, where the court “can discern no difference between the incentives the

[plaintiffs] may have had in” their earlier case and the instant matter, the application of issue

preclusion does not result in the compelling showing of unfairness that would render the issue

preclusion bar inapplicable. See Venetian Casino Resort, LLC v. NLRB, 484 F.3d 601, 610 (D.C.

Cir. 2007). The plaintiffs offer no argument, nor can the Court discern one, as to why the

incentive to litigate Defendant Parker’s alleged breaches of fiduciary duty in the Probate Court

were any different from their incentives here. 20 Considering that the facts underpinning the

plaintiffs’ Complaint in the instant matter are identical to those raised in the probate proceedings,

and the plaintiffs zealously litigated and appealed those issues in the local courts, there is no

“vastly greater incentive” in this action that would negate the application of the issue preclusion

bar.

19

Indeed, the plaintiffs assert in their motion for partial summary judgment that Defendant Parker’s alleged breaches

of fiduciary duty pertaining to failure to marshal the 1995 Cadillac, money owed the decedent by his father’s estate,

a stale payroll check, and certain automatic debits from the decedent’s bank account after his death, have been

previously considered and necessarily determined by a court of competent jurisdiction, the D.C. Probate Court and

Court of Appeals. See Pls.’ Mot. at 1 (noting certain breaches had been previously adjudged); 2012 Appeal at 2–3

(affirming removal of Defendant Parker as personal representative); Removal Order at 24–25 (listing breaches of

fiduciary duty warranting removal by Defendant Parker).

20

The plaintiffs appear to argue that they cannot obtain a fair trial in the Probate Court because “Defendant Parker is

well-known, is a member of various committees and has been practicing for over thirty (30) years.” Compl. ¶ 63;

see also id. ¶ 64 (noting “[a]n example of likely favoritism and bias toward Defendant Parker by the local Probate

Court . . .”). The plaintiffs offer no case law to support their assertion and, indeed, it is difficult to reconcile their

contention with the Probate Court’s removal of Defendant Parker as the James Jarvis Estate’s Personal

Representative and the Court of Appeals’ subsequent affirmation of that ruling.

20

Consequently, the Court finds that the plaintiffs’ claim for breach of fiduciary duty

against Defendant Parker is also barred by issue preclusion. 21

2. Civil Conversion

The plaintiffs’ second claim against Defendant Parker is for civil conversion. “The

essence of a conversion is a wrongful taking or a wrongful retention of property after a rightful

possession.” Shehyn v. District of Columbia, 392 A.2d 1008, 1012 (D.C. 1978). Central to a

conversion claim is the “dispossession of property rights,” since absent such dispossession “there

can be no action for conversion.” Kaempe v. Myers, 367 F.3d 958, 964 (D.C. Cir. 2004).

The Complaint alleges that Defendant Parker converted “$38,705.87 of Estate cash in its

bank account to fund his failed defense” to the plaintiffs’ prior action to remove him as Personal

Representative. Compl. ¶ 83. The gravamen of the plaintiffs’ Complaint is that Defendant

Parker required “a court order prior to taking any funds from the Estate bank account in

defending a removal action.” Id. ¶ 87 (emphasis in the original). Similarly to the claim against

Defendant Parker for breach of fiduciary duty, however, the plaintiffs’ Complaint reveals that

this issue, too, has been previously decided by the District of Columbia Probate Court.

The plaintiffs state in their Complaint that “[t]he fact that a Judge subsequently attempted

to right Parker’s wrong by ordering that the already removed funds was proper after-the-fact

does not comply [with] D.C. Statutes §§ 20-526 & 20-533 or excuse Defendant Parker’s breach

thereof.” Compl. ¶ 89 (emphasis in the original). This statement makes clear that (1) the issue

was brought before a court of competent jurisdiction and (2) that the court necessarily decided

the issue, since the Court entered an Order stating the removal of funds “was proper after-the-

21

Since res judicata bars the claim in its entirety from being heard in this Court, it is unnecessary to reach Defendant

Parker’s alternative grounds for dismissal.

21

fact.” See id.; see also Martin, 488 F.3d at 544. 22 Whether the court’s decision is correct as a

matter of law is immaterial to whether the issue preclusion bar applies to this action. See City of

Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013). 23

The plaintiffs offer no argument as to why it would be unfair to apply issue preclusion to

this claim, nor can the Court discern any reason why the incentives for seeking funds allegedly

improperly retained by Defendant Parker are any greater than the incentives the plaintiffs had in

seeking to prevent the disbursement of those funds to Defendant Parker in the first instance.

Thus, issue preclusion applies to this civil conversion claim and it must be dismissed.

* * *

To sum up, the two claims raised by the plaintiffs in the instant complaint against

Defendant Parker, and the factual bases for those claims, were raised, addressed, and necessarily

decided by courts of competent jurisdiction, and the application of claim and issue preclusion to

these claims does not work an unfairness on the plaintiffs. The plaintiffs had their day in court

and this Court need not provide the proverbial “second bite at the apple.” 24 Defendant Parker’s

motion to dismiss on the grounds of res judicata is granted as to all claims against him.

B. The Claim Against Defendant Brown

The plaintiffs assert a single claim against Defendant Brown: breach of fiduciary duty to

the James Jarvis Estate. See Compl. ¶¶ 129–35. The basis for the claim against Defendant

22

The plaintiffs have not submitted the decision approving these expenditures, but the Court must accept factual

allegations as true for the purposes of a motion to dismiss.

23

While unclear from the vagueness of the plaintiffs’ civil conversion claim, assuming, arguendo, that the plaintiffs

intended this claim to cover the award of $17,146.80 to Defendant Parker for his Estate administration and

attorneys’ fees, the same issue preclusion principles bar consideration of the claim. The Probate Court specifically

addressed fees paid to Defendant Parker for estate administration, see Clarification Order at 4 (holding claims for

attorneys’ fees prior to Defendant Parker’s removal untimely), and after the proceedings, see Def. Parker’s Fees

Order at 1 (noting the court consider “the opposition” to Defendant Parker’s fees petition). Thus, these claims have

been brought before, and necessarily ruled upon by, a court of competent jurisdiction and the plaintiffs have offered

no reason why application of issue preclusion would be fundamentally unfair.

24

As previously noted, since this is the plaintiffs’ second identical suit in this District, it would more properly be

considered the plaintiffs’ “third bite at the apple.”

22

Brown is difficult to disentangle from the plaintiffs’ claims against Defendant Parker, and the

parties’ briefing does little to alleviate this opaqueness. Nevertheless, the allegations that appear

to underlie the claim fail to state a claim upon which relief can be granted.

The factual allegations relating exclusively to Defendant Brown are contained in

paragraphs 73 through 82 and paragraphs 109 through 115 of the Complaint. In sum, the

plaintiffs allege that Defendant Brown (1) did not provide the plaintiffs with the “requisite

periodic Accounting” owed to them “pursuant to D.C. [Code] § 20-721,” Compl. ¶ 110; “failed

to keep herself apprised of the status of Appellate proceedings directly touching on her fiduciary

duties to the Estate,” id. ¶ 112; and (3) closed the estate “with no notice to Plaintiffs or their

counsel” which “foreclosed the opportunity for her or Plaintiffs to seek vacating the Consent

Order,” id. ¶ 114; see also id. ¶ 76 (noting Defendant Brown was opposed to moving to vacate

the Consent Order); id. ¶ 80 (alleging Defendant Brown failed to provide accountings to

beneficiaries). The Complaint alleges that as a result of these perceived failures, “Defendant

Brown must be held ‘directly liable’ to Plaintiffs for approximately $11,000 remaining in the

Estate Wachovia bank account as of circa December 2009 when Defendant Brown assumed

office.” Id. ¶ 82 (errors in original).

As to the first allegation, that Defendant Brown failed to notify the plaintiffs of her

accountings, the plaintiffs’ own opposition references the Probate Court docket in this matter and

the attached exhibit includes excerpts from that docket. See generally Pls.’ Opp’n Def. Brown’s

Mot. Dismiss Ex. F (Probate Court Docket for In re Estate of James P. Jarvis (“Probate

Docket”)), ECF No. 17-9. 25 This exhibit shows that Defendant Brown’s accountings were

mailed to the parties on August 19, 2010, May 24, 2011, December 30, 2011, and November 2,

2012. See id. at 3–5. Thus, contrary to the plaintiffs’ allegation that from “circa December 2009

25

See supra note 6.

23

to date Brown has failed to provide Plaintiffs or their counsel with a single statutorily requisite

periodic Accounting,” Compl. ¶ 110, the plaintiffs’ own exhibit reveals that at least four such

accountings were mailed to them, see Probate Docket at 3–5.

The second allegation, that Defendant Brown failed to keep herself apprised of the

appellate proceedings in this matter, appears to be based on the plaintiffs’ assertion that

Defendant Brown sent an email to the plaintiffs’ counsel on March 15, 2013 stating that “she

had thought that ‘the appeal had been dismissed’ and requested a copy of the opinion.” Compl. ¶

113; see id. ¶¶ 76–77 (noting Defendant Brown declined to join in the D.C. Court of Appeals

proceeding). Defendant Brown’s evaluation of the merits of the plaintiffs’ appeal was proven

correct: the Court of Appeals rejected all of the plaintiffs’ claims on appeal and affirmed all of

the Probate Court’s Orders. See 2012 Appeal at 1 and n.1. Thus, the plaintiffs’ Complaint

indicates that Defendant Brown was keeping abreast of the appellate proceedings, as she

correctly described the disposition of the appellate proceedings when asked, since the D.C. Court

of Appeals affirmed the Probate Court’s Orders in full. See 2012 Appeal at 1.

The plaintiffs’ third allegation, that Defendant Brown closed the James Jarvis Estate and

foreclosed an attack on the Consent Order is, in essence, a disagreement between the plaintiffs

and Defendant Brown as to whether such a motion to vacate would have been successful.

Defendant Brown, as the Personal Representative, made plain her view that the plaintiffs’

allegations regarding the Consent Order lacked merit and, consequently, did not move to vacate

the Consent Order on behalf of the James Jarvis Estate. See Def. Brown’s Reply Pls.’ Opp’n

Def. Brown’s Mot. Dismiss (“Def. Brown’s Reply”) at 3, ECF No. 29 (“Defendant Brown

clearly stated that the fraud allegations made by Plaintiffs appeared ‘flawed and unsupportable’

and that there was no basis for vacating the Consent Order.”). In any event, whether Defendant

24

Brown exercised her judgment properly with regard to seeking to undo the Consent Order is

immaterial, since such a challenge would have been statutorily barred at the time she assumed

her duties as personal representative.

D.C. Code § 20-108.01 provides the applicable statute of limitations and statute of repose

for probate matters when there are allegations of fraud, specifically providing that “[w]henever

fraud has been perpetrated in connection with any proceeding” relating to the probate and

administration of decedents’ estates, “any person injured thereby may obtain appropriate relief

against the perpetrator of the fraud . . . .” D.C. Code § 20-108.01(a). The statute further states

that “[a]ny proceeding must be commenced within 2 years after the discovery of the fraud, but

no proceeding may be brought against one not a perpetrator of the fraud later than 5 years after

the time of the commission of the fraud.” Id.

The plaintiffs made their allegations that the Consent Order was procured by fraud in

their initial Probate Complaint, filed in 2005, referring to Burriss’ 2003 actions regarding a 2003

Cadillac and the decedent’s personal property. See Probate Complaint ¶ 22–23 (alleging Burriss

committed fraud regarding her ownership of the disputed 2003 Cadillac and that Defendant

Parker should have sued Burriss “for the return of the 2003 Cadillac and other personal property

taken from the decedent’s apartment”). The plaintiffs do not allege that Defendant Brown

actually committed the fraud that led to the Consent Decree, but rather that Burriss, the

decedent’s daughter, was the fraudster who allegedly “stole” the decedents’ 2003 Cadillac,

Compl. ¶ 37, and “gained entry to the decedent’s apartment to rape, pillage, and plunder it,” id. ¶

40. Thus, any claim against Burriss for the alleged theft and fraud in connection with the 2003

Cadillac would have had to have been brought within two years of the plaintiffs’ discovery of the

fraud, i.e., no later than 2007, and against Defendant Brown as “one not a perpetrator of the

25

fraud” no “later than 5 years after the time of commission of the fraud,” or, more specifically, in

2008. See D.C. Code § 20-108.01(a).

The language regarding a non-perpetrator of fraud in D.C. Code § 20-108.01(a) is the

classic language of a statute of repose, not a statute of limitation. The Supreme Court held, in

CTS Corp. v. Waldburger, that statutes of repose “put[] an outer limit on the right to bring a civil

action . . . measured not from the date on which the claim accrues, but instead from the date of

the last culpable act or omission of the defendant.” 134 S. Ct. 2175, 2182 (2014). The

difference between a statute of limitation and a statute of repose is apparent in the statute at

issue, since the two year limit on commencement of an action is measured from “the discovery

of the fraud,” i.e., when the claim accrued, but the five year limit is measured from “the time of

commission of the fraud.” D.C. Code § 20-108.01(a). As the Supreme Court noted, a “statute of

repose limit is not related to the accrual of any cause of action; the injury need not have

occurred, much less have been discovered.” CTS Corp., 134 S. Ct. at 2182 (internal quotation

marks omitted). A statue of repose is “an ‘absolute . . . bar’ on a defendant’s temporal liability.”

Id. at 2183 (alteration in original). Since no tolling applies to a statue of repose and the statute is

an “absolute bar” to liability, the plaintiffs’ claims based on the allegedly fraudulently obtained

Consent Order are time-barred as to Defendant Brown, since the Complaint alleges that the fraud

occurred in 2003, see Compl. ¶¶ 15, 17 (alleging “Burriss forged the signature of the decedent . .

. on the title to his then new custom Cadillac Deville” shortly after his death on June 3, 2003),

any claim was barred by 2008, and Defendant Brown became the estate’s personal representative

in 2009. In short, the statute of repose would have barred any effort on her part—even if she

thought the claim had merit—to pursue Defendant Parker, who was not the perpetrator of the

alleged fraud, for damages in 2009 or later. In any event, since the Probate Court found that

26

neither Defendant Parker’s entry into the Consent Order or decision not to seek its vacatur was a

breach of fiduciary duty, see Clarification Order at 7, the plaintiffs’ claim for breach of fiduciary

duty based on Defendant Brown’s failure to seek to set aside the Consent Order is legally

untenable even if it were not barred by the statute of repose.

None of the allegations against Defendant Brown state a claim upon which relief can be

granted since the allegations either refer to facts specifically contradicted by the plaintiffs’ filings

or are barred by a statute of repose. Consequently, Defendant Brown’s motion to dismiss is

granted. 26

C. The Plaintiffs’ Suit Is Dismissed With Prejudice

In this Circuit, dismissals with prejudice under Rule 12(b)(6) are disfavored and

“warranted only when a trial court determines that the allegation of other facts consistent with

the challenged pleading could not possibly cure the deficiency.” Firestone v. Firestone, 76 F.3d

1205, 1209 (D.C. Cir. 1996) (internal quotation marks and citations omitted); accord Rollins v.

Wackenhut Servs., Inc., 703 F.3d 122, 132–33 (D.C. Cir. 2012) (Kavanaugh, J. concurring)

(noting that this Circuit’s “decisions have imposed a ‘high’ bar for Rule 12(b)(6) dismissals with

prejudice,” and that such “case law on Rule 12(b)(6) dismissals is not fully aligned with the

Rules” since “[o]n the contrary, Rule 41(b) contemplates that a Rule 12(b)(6) dismissal

ordinarily operates as a dismissal with prejudice, unless the district court in its discretion states

otherwise.”). This Court must balance the interests of efficiency and the timely resolution of

complaints, as required by Federal Rule of Civil Procedure 1, with the liberal pleading standards

contained in Rule 15(a) and the “high” Firestone standard in this Circuit for dismissal with

prejudice. See Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006) (“The standard for

26

Since Defendant Brown’s motion is resolved on this ground her alternative reasons for dismissal need not be

reached.

27

dismissing a complaint with prejudice is high.”); cf. In re APA Assessment Fee Litigation, No.

13-7032, 2014 WL 4377770, at *14, (D.C. Cir. Sept. 5, 2014) (reversing district court’s grant of

dismissal with prejudice where plaintiffs committed procedural violation but defendants made no

showing of prejudice against them). In keeping with these various requirements, dismissal with

prejudice is warranted here since the plaintiffs’ complaint is barred in its entirety by claim

preclusion, issue preclusion, the plaintiffs’ own filings, or the applicable standard of repose. See

supra Part III.A–B. Thus, any amendment of the plaintiffs’ complaint would be futile since any

claim based on the factual allegations made in the instant complaint would also be barred by

preclusion as arising out of the same “transaction or occurrence.” See U.S. Indus., Inc., 765 F.2d

at 205. Moreover, the plaintiffs have not asked for leave to amend their Complaint and, indeed,

have filed the identical Complaint in this District twice. As the D.C. Circuit has held, “it [can]

hardly . . . be[] an abuse of discretion for the District Court not to . . . afford[ the plaintiffs] such

leave sua sponte.” Confederate Memorial Ass’n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir.

1993). Consequently, the plaintiffs’ Complaint is dismissed with prejudice.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motions to dismiss are granted. 27 Since the

fatal deficiencies in the plaintiffs’ claims cannot be remedied by additional factual pleading, this

action is dismissed with prejudice.

The Court notes that, in the plaintiffs’ previous action filed in this District, they filed two

motions for reconsideration and multiple additional motions and amended memoranda to

accompany those motions for reconsideration. See Case No. 13-350, Jarvis v. Parker, ECF Nos.

24, 28, 31, 36–44. The plaintiffs have continued the practice of filing multiple motions for leave

to amend and supplement filings in this action. See ECF Nos. 16 (Pls.’ Am. Opp’n Def. Parker’s

27

The plaintiffs’ cross-motion for partial summary judgment is, therefore, denied as moot.

28

Mot. Dismiss); 19 (Pls.’ Mot. Lv. File Suppl. Opp’n); 20 (Pls.’ Mot. Lv. File Corrected Am.

Opp’n); 25 (Pls. Reply Opp’n Mot. Lv. File); 27 (Pls.’ Reply Opp’n Mot. Lv. File); 28 (Pls.

Suppl. Opp’n). The parties are directed to review carefully this Court’s Standing Order ¶ 12,

ECF No. 9, which states in relevant part that “[m]otions to alter or amend judgment . . . are

strongly discouraged. . . . The Court will not entertain a motion that (a) reasserts arguments

previously raised and rejected by the Court; or (b) raises for the first time arguments which

should have been advanced in the original motion.” The parties’ counsel are cautioned that any

submission of a motion for reconsideration that does not comply with the aforementioned Order

may subject the submitting counsel to sanctions under Federal Rule of Civil Procedure 11(c).

An appropriate Order accompanies this Memorandum Opinion.

Digitally signed by Beryl A. Howell

DN: cn=Beryl A. Howell, o=District

Date: September 10, 2014 Court for the District of Columbia,

ou=District Court Judge,

email=howell_chambers@dcd.usco

urts.gov, c=US

__________________________

Date: 2014.09.10 16:32:05 -04'00'

BERYL A. HOWELL

United States District Judge

29