Appendix — Mangieri v. Mangieri

App. 1

226 F.3d 1

United States Court of Appeals

For the First Circuit

No. 00-1084

ROBERT W. MANGIERI,

Plaintiff, Appellant,

Vv.

PAUL MANGIERI, AS EXECUTOR OF

THE ESTATE OF JOSEPH F. MANGIERI,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Tortuella, Chief Judge,

Wallace, “” Senior Circui €

and Lipez, Circuit Judge.

Peter D. Prevett for appellant.

Pamela E. Terry, with whom Forman, Terry, Hickey & Garrahan

L.LP. was on brief, for appellee.

September 11, 2000

App. 2

TORRUELLA, Chief Judge. This case arises from a will

contest between plaintiff-appellant Robert W. Mangieri and

defendant-appellee Paul Mangieri, who are, respectively, the only son

and a nephew of the now deceased Joseph F. Mangieri. The case was

filed on August 31, 1999. The complaint alleges two claims: first, a

claim under Massachusetts General Laws Chapter 191 § 20, the

omitted child statute; and second, a breach of fiduciary duty claim

against appellee Paul Mangieri based on his actions as executor of the

estate of Joseph W. Mangieri. The district court granted summary

judgment for appellee on November 4, 1999. For the reasons stated

below, we affirm.

The essential facts are as follows: On November 2, 1984,

Joseph F. Mangieri executed a will in which he divided his estate

between his brothers, Robert L. and Sal Mangieri, his sister-in-law,

Josephine Mangieri, and other beneficiaries. The 1984 will contained a

clause stating that any children not provided for in the will were

intentionally omitted from the will. The 1984 will made no provision

for decedent's son, Robert W. Mangieri. On February 12, 1987, Joseph

executed a second will. The 1987 will did not make any provision for

Robert; however, in contrast to the 1984 will, it did not expressly state

that this omission was intentional. The 1987 will left the entire estate to

testator's nephew, Paul Mangieri. Paul Mangieri was also named

executor of the 1987 will. On May 28, 1997, Joseph directed his

attorney to draw up a new will, which, if executed, would have left the

bulk of his estate to his son Robert. Joseph died on June 10, 1997

without having signed the new will.

A trial ensued in the Massachusetts Probate Court. On April 12,

1999, the probate court issued detailed findings of fact and conclusions

of law. For our purposes, it is only relevant that (1) the court explicitly

found that testator-decedent had deliberately left his son Robert out of

the 1987 will, and (2) the court admitted the 1987 will to probate as the

Last Will and Testament of the Decedent. Robert Mangieri neither filed

a motion to amend the probate court's findings of fact nor appealed the

court's judgment.

On August 31, 1999, appellant filed suit against Paul Mangieri,

as executor of the estate of Joseph F. Mangieri, in the United States

District Court for the District of Massachusetts. As indicated, the

App. 3

complaint alleges (1) a claim under Massachusetts General Laws

Chapter 191 s. 20, the omitted child statute, and (2) that Paul Mangieri

committed a breach of his fiduciary duty as executor of Joseph F.

Mangieri's estate by failing to consider Robert's claim as an omitted

child and thus failing to protect Robert's interest as one of the testator's

heirs. Appellant alleges that jurisdiction is proper pursuant to 28 U.S.C.

s. 1332, the federal diversity of citizenship statute.

At the time appellant filed his complaint in federal court, he

simultaneously filed a motion for an ex parte temporary restraining

order. Following a hearing, the trial court denied the motion on

September 2, 1999. After notice to opposing counsel was provided, the

court held a second hearing on September 8, 1999. At that time,

appellee filed a motion to dismiss, which the district court construed as

a motion for summary judgment. Thereafter, on September 15th,

appellant renewed his motion for a preliminary injunction. On

November 4, 1999, the district court issued an order granting appellee's

motion to dismiss, denying appellant's motion for preliminary

injunction, and entering judgment for appellee, Paul Mangieri. The

court reasoned, in part, that:

The core issues that require dismissal of this case in the view of this

court are that (1) this court lacks authority to hear and resolve this case

on the merits because this controversy is within the jurisdiction of the

Probate Court of the Commonwealth of Massachusetts and that court

has taken jurisdiction and issued findings and conclusions that preclude

plaintiff's claim, and (2) this court either lacks jurisdiction . . . or in the

exercise of discretion should not exercise jurisdiction to make any

order that would be inconsistent with or otherwise impede completion

of proceedings in that court before it has reached a final disposition.

Mangieri v. Mangieri, No. 99-11812, slip op. at 7 (D. Mass. Nov. 4,

1999).

We believe that the district court's ruling in this case is amply

supported by both the record and the law and needs little analysis.

Under the probate exception to diversity jurisdiction, "a federal court

may not probate a will, administer an estate, or entertain an action that

would interfere with pending probate proceedings in a state court or

with a state court's control of property in its custody." Ashton v.

ine B ichael Paul F ..Inc., 918 F.2d 1065,

1071 (2d Cir. 1990) (citing Markham v. Allen, 326 U.S. 490, 494

App. 4

(1946)). While "[t]he precise scope of the probate exception has not

been clearly established," it is clear that "[a]s a general matter, courts

tend to view the probate exception as extending to all suits ‘ancillary’ to

the probate of a will." Georges v. Glick, 856 F.2d 971, 973 (7th Cir.

1988) (citing Dragan v. Miller, 679 F.2d 712, 715 (7th Cir. 1982)).

In this Circuit, we have previously stated:

It is obvious that insofar as the complaint requests the district court to

order the defendants to turn over to the plaintiff property which they

received in their capacity as fiduciaries, and for which they are

accountable to the probate court, the federal district court had no

jurisdiction. Kittredge v. Stevens, 126 F.2d 263, 266 (1st Cir. 1942).

Against this background, it is clear that this case falls squarely within

the probate exception to the diversity jurisdiction of the district court.

First, appellant's claim is within the jurisdiction of the Massachusetts

Probate Court. Second, as appellant concedes, the relief he requests

would require the district court to set aside the ruling of the probate

court that appellant Robert was deliberately omitted from the 1987 will

and that the 1987 will must be admitted to probate as the Last Will and

Testament of the Decedent. In fact, the complaint "demands that [the

district court] find Plaintiff is an omitted child, is entitled to an intestate

share of the testator-decedent, Joseph F. Mangieri's estate, and order

Paul Mangieri, as executor, to distribute the estate accordingly."

In our view, the district court correctly declined to do so on the

ground that this would improperly interfere with a probate proceeding

currently pending before the Massachusetts State Probate Court. @

For the reasons stated, the decision of the district court is affirmed.

(1). Of the Ninth Circuit, sitting by designation.

(2). In light of our conclusion that the probate exception to federal diversity

jurisdiction applies to this case, we need not address the district court's alternative

holding that abstention is proper pursuant to the Rooker-Feldman doctrine. See

Mangieri, No. 99-11812, slip op. at 8 (citing

District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462, 482 (1983), and Rooker v. Fidelity Trust Co., 263 U.S.

413, 416 (1923)).

App. 5

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

j

Civil Action, File Number 99-CV-11812-REK

ROBERT W. MANGIERI,

PLAINTIFF

Ve

PAUL MANGIERI, as executor of the estate

of Joseph F. Mangieri,

DEFENDANT

Ne ee ee ee we wae we SS

Memorandum and Order

November 4, 1999

I. Pending Matters

Pending before this court are the following motions:

(1) Defendant's Motion to Dismiss (Docket No. 9, filed

September 8, 1999) and Memorandum in Support Docket No. 16, filed

September 22, 1999) and Plaintiffs Opposition (Docket No. 13 and 15,

filed September 15, 1999):

(2) Plaintiffs Motion for Preliminary Injunction (Docket No.

11, filed September 15, 1999) and Defendant's Opposition (Docket No.

17, filed September 22, 1999).

IL. Factual and Procedural Background

This case arises from a will contest between the only son anda

nephew of the now deceased Joseph F. Mangieri.

App. 6

On April 12, 1999, after a trial on the issue of revocation and

undue influence, the Probate Court in Barnstable, Massachusetts, of the

Commonwealth of Massachusetts, issued an

Order that included findings of fact and conclusions of law regarding

the contested last will and testament of Joseph F. Mangieri. I recite the

relevant factual findings below for the purpose of context and

background for this memorandum.

On February 12, 1987, Joseph F. Mangieri (hereinafter

“Decedent") executed an instrument-as his last will and testament that

did not make any provision for his only child, Robert Mangieri

(hereinafter "Robert") because of an apparently estranged relationship

between father and son. The will left everything to the Decedent's

nephew, Paul Mangieri (hereinafter "Paul"), and also named Paul as the

executor.

In July of 1993, on the occasion of Paul's birthday, the

Decedent visited him and gave him the original 1987 will along with a

deed to a cemetery plot and a Weatherby rifle and rifle case. The

Decedent told Paul and his wife Cathy that Paul was to inherit his entire

estate. Paul testified that he put the will in his attic for safekeeping.

Between February of 1987 and May of 1997, the Decedent and

his son, Robert, reconciled their relationship and on May 28, 1997, the

Decedent instructed his attorney, Brooks Thayer at the law firm

LaTanzi, Spaulding and Landreth to prepare a will naming his son as

executor and leaving his entire estate to his son, his daughter-in-law,

and his brother.

The Decedent died on June 10, 1997, without having executed

the 1997 will.

Although the original 1987 will leaving everything to Paul could

not be located upon the Decedent's death (the will's envelope was in

Paul's attic, but it was empty), the probate court found that, contrary to

Robert's assertions, the Decedent had not revoked his 1987 will.

The Probate Court also found that the Decedent had

deliberately left Robert out of his 1987 will, providing a motive for

Robert to destroy the will (and thus an explanation of its

disappearance) if he had come upon it after his father's death.

On April 12, 1999, the Probate Court ordered that the

photocopy of the Decedent's will dated February 12, 1987, that was

kept in the Decedent's lawyer's office, shall be admitted to probate as

App. 7

the Last Will and Testament of the Decedent and that a decree shall

issue appointing Paul Mangieri as executor.

On August 31, 1999, Robert filed suit against Paul Mangieri, as

executor of the estate of Joseph F. Mangieri, in this United States

District Court for the District of Massachusetts alleging (1) a claim

under Massachusetts General Laws, Chapter 191, Section 20, as an

“omitted child"; and (2) that defendant committed a breach of his

fiduciary duty as executor of Joseph F. Mangieri's estate by failing to

consider the plaintiff's claim as an omitted child and thus by failing to

protect plaintiff's interest as possibly one of the testator’s heirs.

Immediately upon filing suit in this federal district court, Robert

Mangieri filed a Motion for an Ex Parte Temporary Restraining Order

(Docket No. 2, filed August 31, 1999) on which the court heard

evidence and argument on September 2, 1999. On the basis of all the

oral and filed submissions then before the court, and for reasons stated

orally and summarized here, the court found: (a) that plaintiff had failed

to show a likelihood of success on the merits of his contention that the

absence of a clause in the 1987 will of Joseph F. Mangieri, that

appeared in his 1984 will, manifested that his leaving his child Robert

W. Mangieri of the 1987 will was not intentional, -- had railed to show

that he is likely to succeed on his claim as an “omitted child" under

Mass. Gen. Laws ch. 191, 20; (b) that plaintiff had failed to show

irreparable harm that would warrant preliminary equitable relief: (c)

that plaintiff had failed to show a balance of hardship that would

support preliminary equitable relief, and (d) that plaintiff had failed to

show that public interest would be better served by granting than by

denying preliminary equitable relief. The court therefore denied the

Motion for Ex Parte Temporary Restraining Order (Docket No. 2) and

scheduled a time for hearing the motion for a temporary restraining

order after appropriate notice.

The hearing after notice was convened on September 8, 1999.

On the basis of all the oral and filed submissions and oral argument the

court DISMISSED WITHOUT PREJUDICE the special defenses

asserted in the defendant's Motion to Dismiss (Docket No. 9, filed

September 8, 1999). The court deferred ruling on other aspects of the

Motion to Dismiss and accepted the agreement of the parties to submit

the case on the merits forthwith rather than going through a two-phase

process of hearing, first on preliminary injunction and, second, at a later

App. 8

time, a trial or hearing on the merits. Defendant orally moved for

summary judgment, and the court, with consent of the parties, set a

schedule for additional submissions by the parties on or before

September 22, 1999. The additional submissions of the parties having

been filed -- e.g., Plaintiff's renewed Motion for Preliminary Injunction

(Docket No. 11, filed September 15, 1999), Plaintiffs Statement of

Material Facts As To Which There Exists A Genuine Dispute (Docket

No. 14), Plaintiff's Oppositions to Defendant's Motion for Summary

Judgment (Docket No. 13 and ;5), Defendant's Memorandum of Law

In Support of Motion for Summary Judgment (Docket No. 16) and

Defendant's Opposition to Motion for Preliminary Injunction (Docket

No. 17) -- the court now addresses the merits.

III. Defendant's Memorandum of Law in Support of

Defendant's Motion for Summary Judgment asserts the following

grounds for a Final Judgment dismissing this civil action:

1. To dismiss the action because the complaint

fails to state a claim against the defendant upon which

relief can be granted. The matter being res judicata on

the issue of pretermitted child.

2. To dismiss the action or in lieu thereof to

quash the return of service of the summons on the

grounds that the defendant is a citizen of New York,

was served in New York and was not and is not subject

to service ofprocess within the District of

Massachusetts.

3. To dismiss the action on the grounds that the

court lacks jurisdiction because both the Plaintiff and the

Defendant are citizens of the State of New York.

4. To dismiss the action on the grounds that the

within the exclusive jurisdiction of the Probate Court in

which the Estate was probated. See Ellis v. Stevens et

al., 37 F. Supp. 488, 490-491 (D. Mass.] 1941), M.G.L.

App. 9

ch. 215, 3 and M.G.L. ch. 191 15. Memorandum of

Law in Support of Defendant's Motion for Summary

Judgment (Docket No. 16, filed September 22, 1999) at

2-3.

Plaintiffs Motion in Opposition to Defendant's Motion for .

Summary Judgment (Docket No. 13, filed September 15, 1999) asserts

that issues of fact that are material to the outcome of this case are

genuinely in dispute. Plaintiffs Concise Statement of Material Facts As

to Which There Exists a Genuine Dispute for Trial (Docket No. 14,

filed September 15, 1999), filed to comply with Local Rule 56.1, lists

the following allegedly disputed and material facts:

1. Whether the Plaintiff's Complaint alleges a

viable cause of action against the Defendant on which

relief can be granted.

2. Whether the doctrine of res judicata applies to

the Plaintiff's current claims due to the Findings of Fact

and Conclusions of Law set forth by the Barnstable

County Probate Court.

3. Whether the service on the Defendant in New

York state was insufficient ac a matter of law.

4 Whether the Defendant is subject to in

personam jurisdiction in the District of Massachusetts

due to his status as executor of the testator-decedent's

Will.

5. Whether complete diversity of citizenship

exists between the Plaintiff and Defendant so as to

confer subject matter jurisdiction upon this Honorable

Court.

6. Whether this Honorable Court is precluded

from subject matter jurisdiction due to the exclusive

jurisdiction of the Barnstable County Probate Court.

7. Whether the District Court should "abstain"

from hearing the matter under the "domestic relations

exception" to diversity or the "Burford Abstention

Doctrine."

App. 10

_8. Whether the case of Ellis v. Stevens. et al., 37

F.Supp. 488 (D. Mass. 1941) precludes the Plaintiff

from recovering. Docket No. 14 at 1-2.

The core issues that require dismissal of this case in the view of

this court are that this court lacks authority to hear and resolve this

case on the merits because this controversy is within the jurisdiction of

the Probate Court of the Commonwealth of Massachusetts and that

court has taken jurisdiction and issued findings and conclusions that

preclude plaintiff's claim, and e this court either lacks jurisdiction (as

the point is sometimes expressed) or in the exercise of discretion should

not exercise jurisdiction to make any order that would be inconsistent

with or otherwise impede completion of proceedings in that court

before it has reached a final disposition.

In other words, in so far as plaintiff is asking this court to

consider the merits of his claim as an “omitted child" under Mass. Gen.

Laws ch. 191, 20, with regard to the probating of the will of Joseph F.

Mangieri, that is a claim that is properly heard in the Probate Court of

the Commonwealth of Massachusetts. See Mass. Gen. Laws 215, 3.

See also Markham v. Allen, 326 U.S. 490, 494 (1946) (stating the by

now axiomatic proposition that "the probate exception to federal

diversity jurisdiction is a common law limitation which holds simply

that a federal court has no jurisdiction to probate a will or administer an

estate"); Kittredge v. Stevens, 126 F.2d 263, 266 (Ist Cir.) cert. denied,

317 U.S. 642 (1942) (holding that, according to the Princess Lida —

Doctrine, a federal district court has no jurisdiction over a case which

would involve the examination of the general administration of an

estate by a state probate court).

And, if plaintiff is asking this court to review the Probate

Court's decision for error in its finding that Robert was deliberately

omitted from the 1987 will, that review must be by the Massachusetts

Court of Appeals or by the Supreme Judicial Court of Massachusetts in

accordance with Mass. Gen. Laws ch. 215, 9. See also Rooker v.

Fidelity Trust Co., 263 U.S. 413, 483 & n. 16 (1923) (announcing the

now-called "Rooker-Feldman" doctrine that a federal district court

lacks appellate jurisdiction to review a state court judgment); District

App. 11

f Columbi Vv 460 U.S. 462, 482-86 & n.

16 (1983) (reiterating the viability of the "Rooker-Feldman" doctrine

State court judgment"). The two claims presented here -- alleging a

right of inheritance as an "omitted child" and a breach of fiduciary duty

by the executor of the estate for a failure to consider the "omitted

child" claim -- are sufficiently "intertwined" with the probate court

proceedings so as to require state court appellate jurisdiction, not

federal court jurisdiction. See Feldman, 460 U.S. at 483.

ORDER

For the foregoing reasons, it is ORDERED:

(1) Defendant's Motion to Dismiss (Docket No. 9, filed September 8,

1999) is ALLOWED;

(2) Plaintiffs Motion for Preliminary Injunction (Docket No. 1 1, filed

September 15, 1999) is DENIED:

(3) The Clerk is directed to enter forthwith on a separate document a

Final Judgment as follows:

For the reasons stated with the Memorandum of this date, it is Ordered:

Judgment for the defendant, Paul Mangieri.

App. 12

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action, File Number 99-CV-11812-REK

)

)

ROBERT W. MANGIERI, )

PLAINTIFF )

)

V. )

)

PAUL MANGIERI, as executor of the estate )

of Joseph F. Mangieri, )

DEFENDANT )

)

Final Judgment

November 4, 1999

For the reasons stated with the Memorandum of this date, it is

Ordered:

Judgment for the defendant, Paul Mangieri.

Approved: By the Court,

/s/ Robert Keeton /s/ Craig Nicewicz

United States District Judge Craig Nicewicz, Deputy Clerk

App. 13

STATUTES AND CONSTITUTIONAL PROVISIONS

U.S. Const., art. Il

Section 1.

The judicial Power of the United States, shall be vested in one supreme

Court, and in such inferior Courts as the Congress may from time to

time ordain and establish. The Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Behaviour, and shall, at

stated Times, receive for their Services, a Compensation, which shall

not be diminished during their Continuance in Office.

Section 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States, and Treaties

made, or which shall be made, under their Authority;--to all Cases

affecting Ambassadors, other public ministers and Consuls;--to all

Cases of admiralty and maritime Jurisdiction;--to Controversies to

which the United States shall be a Party;--to Controversies between

two or more States;--between a State and Citizens of another

State;--between Citizens of different States;--between Citizens of the

same State claiming Lands under Grants of different States, and

between a State, or the Citizens thereof, and foreign States, Citizens or

Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls,

and those in which a State shall be Party, the supreme Court shall have

original Jurisdiction. In all the other Cases before mentioned, the

supreme Court shall have appellate Jurisdiction, both as to Law and

Fact, with such Exceptions, and under such Regulations as the

Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by

Jury; and such Trial shall be held in the State where the said Crimes

shall have been committed; but when not committed within any State,

the Trial shall be at such Place or Places as the Congress may by Law

have directed.

App. 14

28 U.S.C. Section 1254. Courts of appeals; certiorari; certified

questions

Cases in the courts of appeals may be reviewed by the Supreme

Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party to

any civil or criminal case, before or after rendition of judgment or

decree;

(2) By certification at any time by a court of appeals of any

question of law in any civil or criminal case as to which instructions are

desired, and upon such certification the Supreme Court may give

binding instructions or require the entire record to be sent up for

decision of the entire matter in controversy.

28 U.S.C. Section 1332. Diversity of citizenship; amount in

controversy; costs

(a) The district courts shall have original jurisdiction of all civil

actions where the matter in controversy exceeds the sum or value of

$75,000, exclusive of interest and costs, and is between -

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of

a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as

plaintiff and citizens of a State or of different States.

For the purposes of this section, section 1335, and section 1441, an

alien admitted to the United States for permanent residence shall be

deemed a citizen of the State in which such alien is domiciled.

(b) Except when express provision therefor is otherwise made in a

statute of the United States, where the plaintiff who files the case

originally in the Federal courts is finally adjudged to be entitled to

recover less than the sum or value of $75,000, computed without -

regard to any setoff or counterclaim to which the defendant may be

App. 15

adjudged to be entitled, and exclusive of interest and costs, the district

court may deny costs to the plaintiff and, in addition, may impose costs

on the plaintiff.

(c) For the purposes of this section and section 1441 of this title -

(1) a corporation shall be deemed to be a citizen of any State

by which it has been incorporated and of the State where it has its

principal place of business, except that in any direct action against the

insurer of a policy or contract of liability insurance, whether

incorporated or unincorporated, to which action the insured is not

joined as a party-defendant, such insurer shall be deemed a citizen of

the State of which the insured is a citizen, as well as of any State by

which the insurer has been incorporated and of the State where it has

its principal place of business; and

(2) the legal representative of the estate of a decedent shall be

deemed to be a citizen only of the same State as the decedent, and the

legal representative of an infant or incompetent shall be

deemed to be a citizen only of the same State as the infant or

incompetent.

(d) The word "States", as used in this section, includes the

Territories, the District of Columbia, and the Commonwealth of Puerto

Rico.

Mass. Gen. Laws Chapter 191: Section 20. Omitted children.

If a testator omits to provide in his will for any of his children, whether

born before or after the testator's death, or for the issue of a deceased

child, whether born before or after the testator's death, they shall take

the same share of his estate which they would have taken if he had died

intestate, unless they have been provided for by the testator in his

lifetime or unless it appears that the omission was intentional and not

occasioned by accident or mistake; provided, however, that no such

child or issue shall take any share in any real property in the testator's

estate unless a claim is filed in the registry of probate by or in behalf of

such child or any of such issue within one year after the date of the

approval of the bond of the executor.

App. 16

Mass. Gen. Laws Chapter 215: Section 3. General provisions.

Probate courts shall have jurisdiction of probate of wills, of granting

administration on the estates of persons who at the time of their

decease were inhabitants of or residents in their respective counties and

of persons who die out of the commonwealth leaving estate to be

administered within their respective counties; of the appointment of

guardians and conservators; of all matters relative to the estates of such

deceased persons and wards; of petitions for the adoption of children,

and for change of names; or proceedings transferred to it under the

provisions of section four A of chapter two hundred and eleven; and of

such other matters as have been or may be placed within their

_ jurisdiction. Whenever service of any notice, summons, citation, order

or other process in any of the foregoing proceedings is ordered to be

made by publication the names of the estates or parties to such

proceedings shall be printed in bold type.

Probate courts have exclusive original jurisdiction of actions for

divorce or for affirming or annulling marriage.

Probate courts shall have exclusive original jurisdiction of all actions

concerning the execution and validity of health care proxies created

pursuant to chapter two hundred and one D or disputes arising

thereunder.