SARGUS, District Judge.
Defendant-Appellant Arnold Purifoy ("Purifoy") appeals the decision of the District Court denying his motion to suppress evidence discovered during a search of his condominium. Purifoy contends that evidence adduced at his suppression hearing established that a DEA agent used recklessly or knowingly false information in an affidavit supporting the application for the warrant to search the condominium. Purifoy further contends that if such information were removed from the affidavit pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the remaining information would not have sufficed to establish probable cause that evidence of criminal activity would be found at the condominium. For the reasons that follow, we AFFIRM the decision of the District Court denying Purifoy's motion to suppress evidence.
I. BACKGROUND
On April 24, 2008, agents of the Drug Enforcement Administration ("DEA") executed a search warrant at a condominium associated with Purifoy located on Alexa Drive in Commerce Township, Michigan. Prior to the execution of the search warrant, DEA agents had been investigating Purifoy as the suspected leader of a cocaine trafficking organization. During the search of the condominium, the agents discovered just under 500 grams of cocaine and various firearms, including an assault rifle with a one-hundred-round ammunition drum. The assault rifle was found in the same bedroom closet as the cocaine, which was stored in a safe.
Purifoy was subsequently indicted for possessing a firearm after having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1), possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a), and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Purifoy moved to suppress the evidence found in the condominium on the grounds that the affidavit used to obtain the search warrant contained insufficient information to establish probable cause or on the alternative ground that the affidavit contained information that the DEA agent knew was false, or for which the agent exhibited a reckless disregard for the truth.
DEA Task Force Agent Patrick DeBottis ("DeBottis") submitted the affidavit. In the affidavit, DeBottis averred that he had twenty-two years of experience as a police officer with over five years working for the DEA. In a section of the affidavit labeled "Investigative Background," DeBottis detailed why the DEA suspected that evidence of illegal drug activity would be found at the condominium located on Alexa Drive. In paragraph 9, DeBottis indicated that during 2008, he had interviewed three confidential sources, identified as "DEA-1," "DEA-2," and "DEA-3," who stated that the condominium located on Alexa Drive was a drug stash and distribution center for Purifoy's illegal drug operation. The three confidential sources all stated that they observed consistent, short-term vehicular activity at the condominium late at night. According to DeBottis, such short term vehicular traffic can be indicative of illegal drug operations. DeBottis averred that information provided to himself and other DEA agents by the three confidential sources was verified and deemed reliable. DeBottis further averred that DEA-3 had received specific training related to narcotics investigations.
In paragraph 10, DeBottis indicated that he had identified Purifoy, and that the three confidential sources all confirmed Purifoy's identity upon being shown a photograph of Purifoy. In the remainder of paragraph 10, DeBottis listed Purifoy's many previous arrests, including several arrests for drug-related offenses, and indicated that Purifoy had an outstanding arrest warrant for the delivery and manufacture of cocaine. Paragraph 11 of the affidavit indicated that agents had observed an individual identified as Angela Withenshaw ("Withenshaw") frequently leaving and entering the condominium, a sign that she was a possible drug courier. Withenshaw had previous arrests for possession of cocaine, and her identity was confirmed by the confidential sources upon being shown her photograph by DEA agents.
In paragraph 12 of the affidavit, DeBottis described observation of another possible drug courier associated with the condominium as follows:
Agents on numerous occasions observed a 1992 Chevrolet four-door vehicle bearing Michigan registration BTN2782 at [] Alexa Drive. The occupant was observed in and out of the residence located at [] Alexa Drive on a regular basis. This was confirmed by DEA-1, DEA-2, and DEA-3. Affiant identified the driver of the 1992 Chevrolet as Edward Frowner, black male, DOB: []-1952. DEA-1, DEA-2, and DEA-3 identified Frowner as a person who frequents [] Alexa Drive. DEA-1, DEA-2, and DEA-3 identified Frowner by a photograph provided by agents. An inquiry of Edward Frowner's criminal history revealed Frowner had previous arrests. . . .
In the remainder of paragraph 12, DeBottis listed approximately fifteen prior arrests for Edward Frowner ("Frowner"), each of which appears to be drug-related.
In paragraph 13 of the affidavit, DeBottis detailed four vehicles that were utilized by Purifoy — a 2000 Cadillac Deville registered to "Sweet Creations LLC" at the Alexa Drive condominium; a 2000 Volvo registered to "Ideal Candy CO LLC" [sic] at the Alexa Drive condominium; a 1997 Buick also registered to Ideal Candy Co.; and a 2002 Chevrolet Impala registered to Melissa Kaye Smith, who was believed to be a "nominee" owner of the vehicle. According to DeBottis, DEA agents had observed Purifoy driving the 2002 Chevrolet Impala on several occasions, and observed Purifoy utilizing the condominium "on a regular basis both day and night."
In paragraph 14 of the affidavit, DeBottis averred that a search through public and law enforcement databases indicated that the condominium was purchased and owned by "Melvin C. Purifoy" and that MeMn C. Purifoy was an alias of Purifoy. According to DeBottis, a check of public databases also indicated that Melvin C. Purifoy was the registered owner of the 2000 Cadillac Deville. In paragraph 15, DeBottis indicated that DEA-1 and DEA-2 provided information that Purifoy bragged about changing his identity, had stated that he had burned off his fingerprints to prevent law enforcement officers from discovering his true identity, and that he became enraged when an individual called him by his true name. According to DeBottis, through his training and experience, he was aware that drug-traffickers use aliases and nominee owners of assets to avoid detection by law enforcement officers.
Finally, in paragraph 16, DeBottis averred that on April 20, 2008, he and other DEA agents searched a large trash container abandoned near the condominium and recovered numerous plastic bags with cut corners, one of which contained cocaine residue, a proof of residency for "MC Purifoy" at the condominium's address, a piece of paper containing large numbers, a broken crack pipe, and "Chore boy" copper screens, which can be used to smoke crack cocaine. According to DeBottis, based on his experience, cocaine traffickers typically use plastic bags of the type discovered to package cocaine for delivery.
The District Court held an evidentiary hearing on Purifoy's motion to suppress on September 4 and 11, 2008. In the record and on appeal, Purifoy has characterized this hearing as a Franks hearing. However, as explained below, it is apparent that the District Court did not consider the proceedings to be a Franks hearing. Among other issues, the hearing focused on paragraphs 11 and 12 of the affidavit and included testimony from DeBottis, Withenshaw, Frowner, David Arafat ("Arafat"), and DEA Agent Ted Dosch. Withenshaw stated that she was Purifoy's girl-friend. She denied being a drug courier, but admitted that she had been living at the condominium at the time the search warrant was executed. According to Withenshaw, Purifoy had been helping her kick drug addictions as she was preparing to turn herself in to the authorities for probation violations.
From the testimony of Arafat and Frowner, it became apparent that DeBottis had misidentified the black male described in paragraph 12 as Frowner. Arafat testified that he lived near the condominium associated with Purifoy and that, in February 2008, he had purchased from Frowner the 1992 Chevrolet referred to in paragraph 12. According to Arafat, the 1992 Chevrolet did not run properly and he left it parked in various locations throughout the condominium complex where he lived. He never changed the title from Frowner's name to his own before eventually selling it to a junkyard. Arafat denied that Frowner had ever visited his home. Frowner corroborated Arafat's story that Frowner had sold to Arafat the 1992 Chevrolet at Arafat's place of employment, a liquor store. Frowner denied ever meeting Purifoy or ever having been in Commerce Township. Frowner did, however, confirm that he had several prior drug convictions in California. Frowner is a black male and testified that he shaved his head and usually wore a beard.
DeBottis confirmed that Frowner was not the individual whom was described in paragraph 12 of the affidavit as a possible drug courier. According to DeBottis, a check of license plate records indicated that the white Chevrolet parked near the condominium was registered to Frowner. Based on this information, DeBottis was able to obtain Frowner's photograph and concluded that a black male who was seen near the 1992 Chevrolet talking to Purifoy was Frowner because the man, who was also bald, resembled Frowner. DeBottis admitted that the man he thought was Frowner was of a significantly larger build than Frowner and did not have a beard. However, there is some indication in the record that the photograph of Frowner obtained by DeBottis did not depict Frowner wearing a beard. ("Q. Okay. Now, you would agree, would you not, that that photograph does not resemble in the sense that it doesn't have — Mr. Frowner in that particular photograph does not have a beard? A. That is correct."). DeBottis also admitted that despite specific averments in the affidavit, the black male he observed was never actually seen occupying or driving the 1992 Chevrolet. DeBottis did testify, however, that the three confidential sources all believed that the man seen frequenting the condominium was Frowner after being shown Frowner's picture.
The District Court denied Purifoy's motion to suppress evidence in an opinion issued on October 24, 2008. Of relevance to the instant appeal, the Court held that, when viewed in totality, the facts presented in the affidavit, including "the informants' statements, the affiant's experience, the results of the agents' investigation, and the contents of the trash container," supported a finding of probable cause by the magistrate judge. The Court went on to note that, while the information that Frowner was the individual seen near the condominium on several occasions was apparently false, Purifoy failed to provide evidence that DeBottis recklessly or intentionally included the false information in the affidavit. According to the District Court, the misidentification of Frowner "was a plausible mistake, not reckless behavior." The Court further found that Withenshaw's testimony that she was not a drug courier and merely lived at the condominium was inconsequential to DeBottis's state of mind in identifying her as a possible drug courier. Finally, the Court held that, even if the information in paragraphs 11 and 12 of the affidavit were removed, the remaining information would still have supported a finding of probable cause by the magistrate judge. In this regard, the District Court noted that the remaining information would include that supplied by the confidential sources, the information about Purifoy's use of aliases, and, most significantly, the results of the trash pull.
As explained above, Purifoy has described the evidentiary hearing held by the District Court as a Franks hearing. However, in examining the District Court's decision, it is apparent that the Court analyzed the evidence presented at the hearing under the standard that a defendant must meet before a hearing challenging the sufficiency of an affidavit can be awarded pursuant to Franks ("If a defendant requests an evidentiary hearing to challenge the veracity of an underlying affidavit, he must meet the requirements established by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). . . . A so-called Franks hearing will be granted only if . . . two conditions are met. . . ."; "Defendant has not met his burden under Franks)". Thus, the District Court did not view the evidentiary hearing as a Franks hearing.
After the District Court denied his motion to suppress, Purifoy agreed to conditionally plead guilty to the counts against him. The District Court subsequently sentenced him to a term of 262 months in prison.
II. STANDARD OF REVIEW
We review the denial by the District Court of a Franks hearing and the denial of a motion to suppress evidence under the same standard. United States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001). The District Court's conclusions of fact are reviewed for clear error and its conclusions of law are reviewed de novo. Id.
III. DISCUSSION
The Fourth Amendment to the Constitution of the United States provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. In cases where officers of the government violate the Fourth Amendment rights of individuals in conducting searches or seizures, the government may be prohibited from using evidence obtained during such illegal searches or seizures against those whose rights have been violated. See generally Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Purifoy asserts that under the Supreme Court's decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the evidence found during the search of the condominium on Alexa Drive should be suppressed. In Franks, the Supreme Court held that
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
Id. at 155-56,
98 S.Ct. 2674. Thus, under
Franks, a defendant is entitled to a hearing challenging "the sufficiency of an executed search warrant" if "(1) there is a substantial preliminary showing that specified portions of the affiant's averments are deliberately or recklessly false
and (2) a finding of probable cause would not be supported by the remaining content of the affidavit when the allegedly false material is set to one side."
United States v. Atkin, 107 F.3d 1213, 1216-17 (6th Cir. 1997) (quoting
United States v. Campbell, 878 F.2d 170, 171 (6th Cir. 1989)) (emphasis in original).
On appeal, Purifoy contends that the District Court erred in concluding that he had failed to provide evidence that DeBottis had knowingly or recklessly included false information in the affidavit, and in concluding that if the information at issue were removed from the affidavit, probable cause to search the condominium would still have been established. We agree with the District Court's conclusion that Purifoy has produced no evidence that statements in the affidavit were recklessly or knowingly false. We further agree with the District Court that, even if the allegedly false statements, and indeed all of paragraph 12, were excised from the affidavit, the remaining information would still support a finding of probable cause by the magistrate. Accordingly, we affirm the District Court's denial of Purifoy's motion to suppress.
A. Recklessly False or Knowingly False Information
Purifoy asserts that three factual averments made by DeBottis in paragraph 12 of the affidavit were recklessly made or knowingly false. These averments include (1) that an individual who was a possible drug courier for Purifoy was identified as Edward Frowner, a man with many previous drug arrests; (2) that this man was observed "in and out" of the condominium on a regular basis, and (3) that the man was observed driving or occupying the 1992 Chevrolet parked near the condominium.
From the evidence adduced at the suppression hearing, Purifoy was able to establish that the black male seen near the condominium was not Frowner. However, Purifoy was not able to produce evidence suggesting that DeBottis's identification as the man as Frowner was reckless or knowingly false. To the contrary, the evidence suggests that the misidentification was nothing more than a reasonable mistake. For instance, the 1992 Chevrolet parked near the condominium was still registered to Frowner because Arafat never titled the car, which he had purchased from Frowner, in his own name. DeBottis testified that he had seen the unidentified black male, who was bald with no beard, near the Chevrolet. Upon running the license plate of the Chevrolet, DeBottis was led to Frowner, a black male who shaves his head, and whose driver's license picture, which was used by DeBottis for identification, apparently did not depict him wearing a beard as he usually did.
DeBottis assumed that the male who resembled Frowner and who was seen standing near a car registered to Frowner was in fact Frowner. Under the circumstances, this was a plausible mistake. A reasonable misidentification cannot be made "recklessly" and a mistake cannot be made "knowingly." Thus, DeBottis's mis-identification of the male observed near the condominium was neither reckless nor knowing.
Purifoy next contends that the statement that the unidentified black male "was observed in and out of the residence located at [] Alexa Drive on a regular basis" was knowingly or recklessly false. However, as with the statements concerning the man's identification as Frowner, Purifoy was unable to adduce any evidence supporting this contention. DeBottis testified that he personally only observed the man mistakenly identified as Frowner twice — once talking to Purifoy near cars parked outside the condominium and once with Purifoy in the garage area of the condominium (while the garage door was open). Based on this testimony, DeBottis personally did not observe the man "in and out of the residence on a regular basis." On its face, however, the statement in question does not reveal who actually observed this male entering and leaving the residence. At the hearing, DeBottis testified that the confidential informants (who apparently also mistakenly identified the man as Frowner) observed the man "in and out of the residence." Aside from proving that this man was not Frowner, Purifoy has not provided evidence that would contradict DeBottis's testimony on this point. Thus, Purifoy has not met his burden under Franks in demonstrating that the statement in question is false, let alone that it was made recklessly or knowingly.
Finally, Purifoy asserts that the factual averments indicating that the black male was an occupant or driver of the 1992 Chevrolet were knowingly false. At the hearing, DeBottis testified that he had actually never seen the black male in the 1992 Chevrolet associated with Frowner. ("Q. . . . Did you ever actually see [the black male] in the car? A. No, I didn't."). If DeBottis never actually saw the man in the car, then the statements in paragraph 12 of the affidavit that "[t]he occupant [of the 1992 Chevrolet] was observed in and out of the residence and [a]ffiant identified the driver of the 1992 Chevrolet as Edward Frowner" were false to the extent they indicate that the unidentified black male was seen driving or occupying the 1992 Chevrolet. Furthermore, there is no evidence in the record that the confidential informants observed the unknown man occupying the car, and, because the car was owned by Arafat and was likely not associated with the unknown man at all, this possibility is unlikely. However, Purifoy has not produced evidence to suggest that any false information was not the result of a simple mistake. Thus, Purifoy did not meet his burden of making a substantial preliminary showing in this regard.
In the end, however, the issue of whether the unidentified man was ever observed driving or occupying the vehicle linked with Frowner is of relatively little consequence to the overall portrait painted by the affidavit. As discussed below, even if all of the statements contested by Purifoy and indeed all of paragraph 12 of the affidavit were removed, the remaining information would still have been sufficient for a finding of probable cause by the magistrate judge.
B. Probable Cause from the Remaining Information
In deciding whether an affidavit establishes probable cause justifying the issuance of a search warrant, a magistrate must find that "given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "When determining whether an affidavit establishes probable cause, we look only to the four corners of the affidavit; information known to the officer but not conveyed to the magistrate is irrelevant." United States v. Brooks,. 594 F.3d 488, 492 (6th Cir. 2010). Finally, in reviewing the affidavit, we must show great deference to the probable cause determination of the magistrate, but at the same time "insist that the magistrate perform his `neutral and detached' function and not serve merely as a rubber stamp for the police." United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (quoting Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), abrogated on other grounds by Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527). "When the district court itself is a reviewing court . . . this court owes the district court's conclusions no particular deference." United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996).
Purifoy attempts to characterize paragraph 12, which contains the statements that he alleges were recklessly or knowingly false, as "the most important piece of evidence in the affidavit." To the contrary, the information contained in paragraph 12 is relatively insubstantial compared to other information in the affidavit. If this paragraph were removed, the remaining information would still have been sufficient for a finding of probable cause by the magistrate judge. Among other things, the remaining information would include: (1) that three confidential sources (one of whom with training in narcotics investigations), whose information was verified and deemed reliable, stated that they believed the condominium was being used by Purifoy to stash and distribute drugs; (2) that the three informants had observed consistent, short-term vehicular traffic outside the condominium on Alexa Drive and that in DeBottis's experience, such short-term traffic was consistent with illegal drug operations; (3) that DeBottis had identified Purifoy, who had a lengthy history of drug-related arrests, using the condominium on a regular basis and that Purifoy's identity had been verified by the confidential sources; (4) that the condominium was owned by "Melvin C. Purifoy," a known alias of Purifoy; (5) that two of the confidential sources reported that Purifoy bragged about changing his identity, stated that he had gone so far as to burn off his fingerprints to stop law enforcement officers from discovering his true identity, and became enraged on an occasion when someone called him by his real name; and (6) that in a trash container on the street next to the condominium, DEA agents discovered numerous plastic bags with cut corners — bags which, in DeBottis's experience, were similar to bags used by drug traffickers to package cocaine for delivery — a plastic bag containing cocaine residue, a crack pipe and materials used to smoke crack, and documentation linking the garbage to "MC Purifoy." This information is more than enough for a magistrate to conclude that there was "a fair probability that contraband or evidence of a crime" would be found at the condominium. Gates, 462 U.S. at 238, 103 S.Ct. 2317.
Purifoy contends that the information provided by the confidential sources should be disregarded in this case because this information was not sufficiently corroborated by the DEA agents. "When confronted with hearsay information from a confidential informant or an anonymous tipster, a court must consider the veracity, reliability, and the basis of knowledge for that information as part of the totality of the circumstances for evaluating the impact of that information." United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). "While independent corroboration of a confidential informant's story is not a sine qua non to a finding of probable cause, in the absence of any indicia of the informants' rehability, courts insist that the affidavit contain substantial independent police corroboration." United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005) (citation omitted) (emphasis in original).
Here, contrary to Purifoy's assertions, there are specific indications in the affidavit of the past reliability of DEA-1 and DEA-2 ("DEA-1 and DEA-2 have provided information to affiant and other Drug Enforcement agents which was verified and deemed reliable"), and ample evidence that information provided by all three confidential informants was corroborated by independent DEA investigations. In this regard, DeBottis expressly stated in paragraph 9 of the affidavit that information provided by the confidential sources during the investigation of Purifoy was confirmed by DEA surveillance, databases, and other law enforcement information. Furthermore and perhaps most significantly, the discovery of plastic bags of a type used in cocaine trafficking, one of which containing cocaine residue, in garbage connected with the condominium provided the most substantial corroboration of all of the confidential informants' statements that the condominium was being used for drug trafficking. See, e.g., United States v. Martin, 526 F.3d 926, 937 (6th Cir. 2008) ("The confidential informant's minimal facts here were bolstered when the trash pull yielded cocaine residue.").
IV. CONCLUSION
For the foregoing reasons, the decision of the District Court denying Purifoy's motion to suppress evidence is AFFIRMED.
cquisition Corp.,
909 F.Supp. 65, 74 (D.R.I. 1995);
see also Daynard,
290 F.3d at 54. "The continuous and systematic requirement has been characterized as being satisfied when the defendant's forum contacts are extensive and pervasive."
Barry,
909 F.Supp. at 75 (citations and internal quotation marks omitted).
Defendant argues that "[i]n this case, general jurisdiction over Peggy is clearly lacking." Defendant's Mem. at 5. Plaintiffs do not appear to contend otherwise. See Plaintiff's [sic] Memorandum of Law in Support of Objection to Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim upon which Relief Can Be Granted ("Plaintiffs' Mem.") at 9-12. The Court agrees that general jurisdiction over Peggy is not present.
2. Specific Jurisdiction
In the absence of general jurisdiction, a court's power depends upon the existence of specific jurisdiction. Daynard, 290 F.3d at 51. Specific jurisdiction applies where "the cause of action arises directly out of, or relates to, the defendant's forum-based contacts." United Elec. Workers, 960 F.2d at 1088-89. For a court properly to exercise specific personal jurisdiction over the defendant, the requirements of both the state's long-arm statute and the United States Constitution must be satisfied. See Barrett, 239 F.3d at 26; Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994). The Rhode Island long-arm statute, as interpreted by the Supreme Court of Rhode Island, is coextensive with federal due process mandates. See Levinger v. Matthew Stuart Co., Inc., 676 F.Supp. 437, 439 (D.R.I. 1988) (citing Conn v. ITT Aetna Fin. Co., 252 A.2d 184, 186 (R.I. 1969)); see also Microfibres, Inc., 20 F.Supp.2d at 320. Therefore, Fourteenth Amendment due process requirements determine the exercise of personal jurisdiction in the District of Rhode Island. See Levinger, 676 F.Supp. at 439;Northeastern Land Servs., Ltd., 988 F.Supp. at 57.
"Due process demands minimum contacts between a nonresident defendant and the forum such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Northeastern Land Servs., Ltd., 988 F.Supp. at 57 (citing Int'l Shoe Co., 326 U.S. at 316). The First Circuit applies a three-part analysis in evaluating minimum contacts. See Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999); Sawtelle, 70 F.3d at 1388-89.
First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.
Sawtelle,
70 F.3d at 1389 (quoting
United Elec. Workers,
960 F.2d at 1089). The "Gestalt factors,"
id. at 1394, are: "(1) the defendant's burden of appearing; (2) the forum state's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the judicial system's interest in obtaining the most effective resolution of the controversy; and (5) the common interests of all sovereigns in promoting substantive social policies,"
id. (citing
Burger King Corp. v. Rudzewicz,
471 U.S. 462, 477, 105 S.Ct. 2174 (1985)). An affirmative finding on each of the three elements of the test is required to support a finding of specific jurisdiction.
Phillips Exeter Acad.,
196 F.3d at 288.
It is well settled that in determining whether a plaintiff has sustained his burden when confronted with a motion to dismiss for lack of jurisdiction, a court may rely on affidavits and discovery to establish the jurisdictional facts. . . ." Ben's Marine Sales v. Sleek Craft Boats, 502 A.2d 808, 810 (R.I. 1985). In doing so, the Court "should consider such evidence in the light most favorable to the nonmoving party." Id.
C. Application
Plaintiffs contend that "[t]his Court may independently exercise jurisdiction over Peggy based on her voluntary appearance in the recent State Court proceedings," Plaintiffs' Mem. at 9, and also because Peggy committed a tort in Rhode Island, id. at 12. Therefore, the Court must determine whether Peggy's involvement with the Rhode Island courts during the probate appeal are sufficient to constitute "minimum contacts" with Rhode Island "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Daynard, 290 F.3d at 60 (quoting Int'l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339 (1940))). Bearing that standard in mind, the Court proceeds with the constitutional analysis required for specific jurisdiction. See id.
1. Relatedness
Relatedness requires that the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Daynard, 290 F.3d at 61. Plaintiffs argue that "there is an obvious relationship among the defendant[], the litigation and the forum here." Plaintiffs' Mem. at 4. Defendant counters that "there is simply no nexus between Peggy, Rhode Island and this litigation." Defendant's Mem. at 6.
Peggy is a citizen of Colorado. See Amended Complaint ¶ 7; see also Defendant's Mem., Attachment ("Att.") (Declaration of Margaret Kemp Henry ("Henry Decl.")) ¶¶ 1, 3. However, "in gauging relatedness, a defendant's contacts with the forum state are not necessarily limited to moments of physical presence."Phillips Exeter Acad., 196 F.3d at 289. Rather, "the action must directly arise out of the the specific contacts between the defendant and the forum state." Id. at 290 (quoting Sawtelle, 70 F.3d at 1389).
As detailed previously, Peggy, acting as David's purported attorney in fact, opposed Nathan's (and subsequently Corinna's) attempt to reopen Captain Henry's estate and vacate the 1995 Decree. See Amended Complaint ¶ 35. Thereafter, Peggy, again acting as David's purported attorney in fact, appealed the Probate Court's 2009 Order to the Superior Court. See id. ¶ 37. After David's death on February 16, 2009, see id. ¶ 38, a district court in Colorado appointed Peggy as the Executrix of David's estate and as his personal representative. See id. ¶ 39. She was then substituted as the real party in interest in the pending Rhode Island proceedings and continued to prosecute the appeal as David's personal representative. See id.
The prior litigation in the Probate Court and Superior Court underlying the instant action took place in Rhode Island. "The assets in question . . .," Plaintiffs' Mem. at 4, which Plaintiffs contend Peggy holds in constructive trust, "are of a distinctly Rhode Island character," id. The monies which Plaintiffs seek derived from Captain Henry's Will and Codicil, specifically the DVH Trust.
Peggy participated in the appeal of the Probate Court's 2009 Order, first as David's purported attorney in fact and subsequently as his personal representative and Executrix of his estate. See Plaintiffs' Mem., Ex. K (Transcript of 7/17/09 Superior Court hearing) at 10-11 (noting that David had passed away during the pendency of the appeal and that "while [counsel's] dealings were up to that point in time with his widow, it was very difficult from that point forward to work or communicate with her as she was going through a difficult grieving process . . ."); id. at 11 (noting that discussions had occurred pertaining to settlement of the appeal "at least with regard to David Henry and his widow"); see also Plaintiffs' Mem., Ex. H (Transcript of 11/20/09 Superior Court hearing) at 7-8 (noting that on October 5, 2009, an attorney "filed an entry of appearance on behalf of Margaret Kemp Henry as personal representative of the Estate of David Vaugh[a]n Henry and was substituted under Rule 25 for David Vaugh[a]n Henry on October 16, 2009"); Amended Complaint, Ex. G (Order Admitting Will to Formal Probate and Formal Appointment of Personal Representative); Henry Decl. ¶ 8. Although Peggy argues that her entry of appearance as David's personal representative and continued prosecution of the appeal "did not give rise to this cause of action, and is not the type of contact which should give rise to an exercise of specific jurisdiction," Defendant's Mem. at 6 (internal footnote omitted), the Court disagrees. In fact, Defendant's counsel during the probate appeal (and current counsel) recognized that "there's always the potential for an action not only against David Henry's estate but against his wife to the extent that any of these trust assets were transferred from David to her." Plaintiff's Mem., Ex. K at 23. Moreover, Peggy's actions in the probate appeal are the basis for Plaintiffs' breach of fiduciary duty claim, to be discussedinfra, and therefore do give rise to that aspect of the instant Amended Complaint.
Plaintiffs have not relied on "mere averments," Barrett, 239 F.3d 23, 26 (1st Cir. 2001), but have buttressed their allegations with copies of the Will and Codicil, the petition to admit the Will and Codicil to probate, the Sheffield Aff. presented to the Probate Court, the 1995 Decree, the 2009 Order, David's will, and the order appointing Peggy as David's personal representative, see Amended Complaint, Exs. A-G; Plaintiffs' Mem., Exs. I, L. Accordingly, the Court concludes that the relatedness prong has been satisfied.
2. Purposeful Availment
The defendant's in-state contacts must represent a purposeful availment of the privilege of conducting business in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state courts foreseeable. Daynard, 290 F.3d at 61 (citing Foster-Miller, 46 F.3d at 144). The cornerstones upon which the concept of purposeful availment rests are voluntariness and foreseeability. Id. (citing Sawtelle, 70 F.3d at 1391 (citingTicketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 207 (1st Cir. 1994))). The Rhode Island Supreme Court "has interpreted McGee [v. Int'l Life Ins. Co., 355 U.S. 220, 78 S.Ct. 1888 (1957)], as standing for the proposition that `a single act having impact in and connection with the forum state can satisfy the minimum-contact test of International Shoe Co.'" Ben's Marine Sales v. Sleek Craft Boats, 502 A.2d 808, 812 (R.I. 1985) (quoting Trustees of Sheppard Enoch Pratt Hosp. v. Smith, 330 A.2d 804, 806 (R.I. 1975)).
Plaintiffs argue that "Peggy actively sought to protect her interests in retaining those assets [from the DVH Trust] by voluntarily appearing in the Rhode Island courts and opposing correction of the manifest irregularities in the entry of the 1995 Decree that effectively disinherited Plaintiffs." Plaintiffs' Mem. at 4; see also id. at 9 ("This Court may independently exercise jurisdiction over Peggy based on her voluntary appearance in the recent State Court proceedings.); id. at 11 ("Having appeared in the Rhode Island courts to defend the erroneous transfer of Plaintiffs' inheritance to David and later to her, Peggy sufficiently submitted herself to the jurisdiction of the Rhode Island courts to permit complete justice to be done here."). Defendant states that "Peggy's October entry of appearance (in her representative capacity) in an appeal that was resolved approximately six weeks later, did not give rise to this cause of action, and is not the type of contact which should give rise to an exercise of specific jurisdiction." Defendant's Mem. at 6 (internal footnote omitted). The Court disagrees.
"A defendant may manifest consent to a court's in personam jurisdiction in any number of ways, from failure seasonably to interpose a jurisdictional defense, to express acquiescence in the prosecution of a cause in a given forum, to submission implied from conduct." Gen. Contracting Trading Co., 940 F.2d 20, 22 (1st Cir. 1991); see also Precision Etchings Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 23 (1st Cir. 1992) (noting that personal jurisdiction may be acquired by consent or implied by conduct) (citing Gen. Contracting Trading Co.); United States, to the Use of Combustion Sys. Sales, Inc. v. Eastern Metal Prods. Fabricators, Inc., 112 F.R.D. 685, 687 (M.D.N.C. 1986) (noting that waiver of defenses such as lack of personal jurisdiction has been inferred in wide variety of cases, collecting cases, and concluding that "[t]hese cases, while presenting markedly different situations, have the common factors of dilatoriness and participation in, or encouragement of, judicial proceedings"). Although there is no evidence of dilatoriness here, Peggy at least participated in, if not encouraged, the appeal of the 2009 Order vacating the 1995 Decree. There is no evidence that she did so involuntarily. See Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454 (1938) ("The plaintiff having, by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence. It is the price which the state may exact as the condition of opening its courts to the plaintiff."); Matkowski v. Bellingham Trading Co., No. 85-2726, 1985 WL 663586, at *2 (R.I. Super. Ct. Sept. 18, 1985) (noting that defendant was not "a totally disinterested witness who had to be dragged into the state to testify" and that "[d]efendant is an interested party in this litigation and his appearance in our court was voluntary"). Thus, the Court finds that the voluntariness factor has been satisfied.
"Even if a defendant's contacts with the forum [state] are deemed voluntary, the purposeful availment prong of the jurisdictional test investigates whether the dendant benefitted from those contacts in a way that made jurisdiction foreseeable."Phillips Exeter Acad., 196 F.3d at 292. In Conn v. ITT Aetna Finance Co., 252 A.2d 184 (R.I. 1969), the Rhode Island Supreme Court found "nothing in the record before [it] which even remotely suggests that the alleged right which plaintiff asserts arose in this state. In short, the trustees did not in any way purposefully avail themselves of the privilege of conducting activities within this state and thereby invoke the benefits and protection of its laws." Id. at 190. Here, by contrast, the alleged right, entitlement to the assets of the DVH Trust, which Peggy asserted in appealing the 2009 Order arose in Rhode Island by way of the Probate Court's 1995 Decree regarding Captain Henry's estate. She "invoke[d] the benefits and protection of [Rhode Island's] laws," id., by her voluntary participation in the Superior Court proceedings. She cannot now disclaim jurisdiction in Rhode Island. Compare Pratt v. Pratt, 431 A.2d 405, 410 (R.I. 1981) ("[O]ne who was present and participated in an initial judicial proceeding cannot collaterally attack the court's jurisdiction in a later enforcement proceeding. . . ."), and Matkowski, 1985 WL 663586, at *3 ("defendant has an obligation to respond to a suit brought to enforce the very activities that arose out of these Rhode Island contacts"), with Accardi v. Accardi, 197 A.2d 755, 758 (R.I. 1964) ("In thus appearing [to contest jurisdiction] he was not asking for relief from the court or in any way invoking its jurisdiction to aid him."). Unlike the situation in Accardi, Peggy sought relief in the Superior Court and invoked its jurisdiction to aid her. Although she was ultimately unsuccessful, the Court finds that it was foreseeable to Peggy, by way of her participation in the Superior Court appeal, that she could be brought to court in Rhode Island in order to enforce the Superior Court's ruling. As noted previously, her attorney foresaw such a possibility. See Plaintiffs' Mem., Ex. K at 23; cf. McGee v. Int'l Life Ins. Co., 355 U.S. at 224 ("There is no contention that respondent did not have adequate notice of the suit or sufficient time to prepare its defenses and appear."). Thus, the foreseeability factor has been satisfied as well.
Plaintiffs have made a prima facie showing that Defendant voluntarily appeared in Rhode Island Superior Court and that it was foreseeable that she would be haled into court to enforce the Superior Court's ruling. Thus, the Court finds that the purposeful availment prong has been met.
3. Reasonableness
The third prong of the personal jurisdiction analysis, the Gestalt factors, arises after the establishment of minimum contacts and centers on whether the exercise of jurisdiction is reasonable. See Burger King Corp., 471 U.S. at 476-77, 105 S.Ct. 2174. Reasonableness equates with "fair play and substantial justice." Id. at 476, 105 S.Ct. 2174 (citing Int'l Shoe Co., 326 U.S. at 320, 66 S.Ct. 154).
This third portion of the jurisdictional test is not inflexible and varies in accordance with the strength of the first two parts. That is, "the weaker the plaintiff's showing on the first two prongs (relatedness and purposeful availment), the less a defendant need show in terms of unreasonableness to defeat jurisdiction." Ticketmaster-New York, Inc., 26 F.3d at 210. On the other hand, "an especially strong showing of reasonableness may serve to fortify a borderline showing of relatedness and purposefulness." Id.
a. Defendant's Appearance Burden
In terms of the burden of defending this suit in Rhode Island, "this factor is only meaningful where a party can demonstrate some kind of special or unusual burden." Pritzker, 42 F.3d at 64. Peggy is a resident of Colorado. See Amended Complaint ¶ 7. However, that fact did not prevent her from participating in the appeal of the 2009 Order, and it should not prevent her participation in the instant matter.
b. Forum State's Interest
In determining Rhode Island's interest in adjudication, this Court should assess its legitimacy and "not . . . compare [its] interest to that of some other jurisdiction. . . ."Foster-Miller, Inc., 46 F.3d at 151 (citing Burger King Corp., 471 U.S. at 483 n. 26, 105 S.Ct. 2174), for the proposition that two forums may simultaneously have legitimate interests in the dispute's resolution). Rhode Island clearly has an interest in correcting mistakes arising from adjudications made by its judicial system. Here, had the Probate Court not erroneously altered Captain Henry's Will and Codicil, the terms of the DVH trust would have not been altered, the funds would not have been transferred to David (and, subsequently, to Peggy), and Nathan and Corinna would have received their inheritance from their grandfather.
During the July 17, 2009, hearing in Superior Court, Defendant's counsel argued that, even if the Will and Codicil had not been altered by the 1995 Decree, "what would have happened here is, the trustee, under the power that he had in the codicil as drafted, would simply have paid the entire corpus of the trust to David anyway." Plaintiffs' Mem., Ex. K at 10. That argument was rejected, as the Superior Court denied and dismissed the appeal from the Probate Court. See Plaintiffs' Mem., Ex. H at 20.
c. Plaintiff's Interest in Relief
The aim of this factor is to ensure that Plaintiff is able to obtain "convenient and effective relief." Pritzker, 42 F.3d at 64. To achieve this end, a court must generally "accord plaintiff's choice of forum a degree of deference in respect to the issue of its own convenience. . . ." Id. (citingTicketmaster-New York, Inc., 26 F.3d at 211. Since the underlying litigation which gave rise to this action occurred in Rhode Island, it is logical for Plaintiffs to turn to Rhode Island's courts, including this one, for relief.
"In the context of personal jurisdiction, it is settled that the concept of a `state's courts' includes those federal courts located within the state." Gen. Contracting Trading Co. v. Interpole, Inc., 940 F.2d 20, 23 n. 4 (1st Cir. 1991) (citingKeeton v. Hustler Magazine, Inc., 465 U.S. 770, 775-77, 104 S.Ct. 1473 (1984)).
d. Judicial System's Interest
The key to applying this factor is ensuring "the most effective resolution of the controversy." Sawtelle, 70 F.3d at 1395. The controversy between Plaintiffs and Defendant will be most effectively resolved within the confines of a single judicial action, rather than having parallel proceedings in both Rhode Island (against the remaining Defendants) and Colorado (against Peggy). Determination of the issues raised in Plaintiffs' Amended Complaint in one forum conserves judicial resources and eliminates the risk of conflicting judgments.
e. States' Common Interest
To the extent that this factor is applicable, the court which is most concerned with a controversy should adjudicate the dispute. Of the possible locations for this action, Rhode Island, New Mexico (where Plaintiffs reside, see Amended Complaint ¶¶ 1-2), and Colorado, it appears that Rhode Island has the greatest connection with the controversy and should adjudicate it.
f. Summary Re Gestalt Factors
None of the Gestalt factors weighs against the application of jurisdiction.
4. Finding Re All Factors
The Court concludes that Peggy's actions in opposing and appealing the 2009 Order constitute minimum contacts with Rhode Island "such that the maintenance of th[is] suit does not offend `traditional notions of fair play and substantial justice.'"Daynard, 290 F.3d at 63 (quoting Int'l Shoe Co., 326 U.S. at 316 (quoting Milliken, 311 U.S. at 463)). The Court reaches this conclusion utilizing the prima facie approach, taking Plaintiffs' properly documented evidentiary proffers as true, whether disputed or not, and construing them in the light most congenial to Plaintiffs' jurisdictional claim. See id. In particular, the Court finds that it does not "offend traditional notions of fair play and substantial justice," Int'l Shoe, 326 U.S. at 316. 66 S.Ct. 154 (internal quotation marks omitted), to subject Peggy to jurisdiction in Rhode Island where Peggy deliberately sought to use the Rhode Island courts to defeat distribution of the DVH Trust as written in Captain Henry's Will and Codicil, even though her efforts were ultimately unsuccessful. Accordingly, Defendant's Motion to Dismiss based on lack of personal jurisdiction should be denied, and I so recommend.
II. Failure to State a Claim
A. Law
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must view the stated facts in the light most favorable to the pleader, In Re Credit Suisse First Boston Corp., 431 F.3d 36, 51 (1st Cir. 2005); see also Greater Providence MRI Ltd. P'ship v. Medical Imaging Network of S. New England, Inc., 32 F.Supp.2d 491, 493 (D.R.I. 1998), taking all well-pleaded allegations as true and giving the pleader the benefit of all reasonable inferences that fit the pleader's stated theory of liability,Redondo-Borges v. U.S. Dep't of Housing Urban Development, 421 F.3d 1, 5 (1st Cir. 2005); see also Arruda v. Sears, Roebuck Co., 310 F.3d 13, 18 (1st Cir. 2002). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.; see also Bell Atlantic Corp., 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level. . . ."). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations, Bell Atlantic Corp., 550 U.S. at 555; see also Ashcroft, 129 S.Ct. at 1949, "a pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do,'" Ashcroft, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp., 550 U.S. at 555).
Moreover, the Court is not required to "credit bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aponte-Torres v. Univ. of Puerto Rico, 445 F.3d 50, 54 (1st Cir. 2006) (internal quotation marks omitted); see also Ashcroft, 129 S.Ct. at 1949 ("Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'") (quoting Bell Atlantic Corp., 550 U.S. at 557)) (alteration in original). Rule 12(b)(6) is forgiving, see Campagna v. Massachusetts Dep't of Envtl. Prot., 334 F.3d 150, 155 (1st Cir. 2003), but it "is not entirely a toothless tiger,"Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005) (quotingEducadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 67 (1st Cir. 2004) (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989))). A plaintiff must allege facts in support of "each material element necessary to sustain recovery under some actionable legal theory." Campagna, 334 F.3d at 155.
B. Application
Plaintiffs allege that Peggy breached her fiduciary duty to Nathan and Corinna as Executrix of David's estate. See Amended Complaint ¶¶ 39-49, 53. Acording to Plaintiffs, Peggy did so by prosecuting the probate appeal in Superior Court,
which appeal is contrary to the dispositive provisions of David's will designating Corinna and Nathan as the sole beneficiaries of David's Estate. Peggy's
prosecution of the Probate Appeal did not serve or advance any interest of David's Estate but rather was to protect her own personal interests by defeating Nathan and Corinna's attempt to recover their rightful inheritance under Captain Henry's Will and Codicil.
Amended Complaint ¶ 53; see also id. ¶ 40 ("Peggy prosecuted the Probate Appeal as David's personal representative, not because it was in the interest of David's probate estate, but because it served her self-interest to defeat Corinna's and Nathan's recovery of their inheritances which had been transferred to her through David."). Defendant counters that she owed no fiduciary duty to Nathan and Corinna at the time the probate appeal was filed, that she breached no duty, and that no damages resulted.See Defendant's Mem. at 7; see also id. ("The probate appeal involved Captain Henry's estate, not David's, and Peggy owed no duty to Plaintiffs regarding Captain Henry's estate."); Henry Decl. ¶¶ 4-5 (noting that Peggy "was not involved in any way in the administration of" Captain Henry's estate or the DVH Trust).
The Court finds that Plaintiffs have stated a valid breach of fiduciary duty claim against Peggy based on her actions in prosecuting the probate appeal in her own name, as David's personal representative, after his death in 2009. While Peggy initially opposed vacation of the 1995 Decree on David's behalf, subsequent to his death she prosecuted the appeal in her own name, arguing against the interests of Plaintiffs. Her argument that she owed no fiduciary duty to Nathan and Corinna at the time the probate appeal was filed is unpersuasive.
Although "Defendant submits that she could not have committed a breach of her fiduciary duty as executor by actions that had nothing to do with David's estate, or her duties as executor thereof," Defendant Margaret Kemp Henry's Reply to Plaintiff's [sic] Objection to Defendant's Motion to Dismiss ("Defendant's Reply") at 3, the very statute Peggy cites in Defendant's Reply,see id., undermines her argument. Section 15-1-509 of the Colorado Revised Statutes provides that:
In the exercise of any of the powers granted in this part 5,
a fiduciary has a duty to act reasonably and equitably with due regard for his obligations and responsibilities toward the interests of beneficiaries and creditors and the estate or trust involved and the purposes thereof and with due regard for the manner in which men of prudence, discretion, and intelligence would act in the management of the property of another.
Colo. Rev. Stat. § 15-1-509 (2010) (bold added); see also Fry Co. v. Dist. Ct. in for County of Adams, 653 P.2d 1135, 1137 (Colo. 1982) (noting that personal representative has "the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate") (bold added); cf. Colorado Nat'l Bank of Denver v. Friedman, 846 P.2d 159, 173 (Colo. 1993) (noting fact that a fiduciary relationship exists between a personal representative and the beneficiaries of an estate); Fry Co., 653 P.2d at 1137 (noting that Colorado Fiduciaries' Powers Act grants personal representatives broad powers as fiduciaries). The Court, therefore, finds that Plaintiffs' argument that "[b]y opposing vacation of the 1995 [D]ecree and prosecuting a meritless probate appeal in Rhode Island that served no one's interests other than her own, Peggy breached a fiduciary duty to Nathan and Corinna," Plaintiffs' Objection at 12, has merit, see Phillips Exeter Acad., 196 F.3d at 291 ("A breach of fiduciary duty occurs where the fiduciary acts disloyally.").
By opposing Nathan's and Corinna's attempts to receive their inheritance under Captain Henry's Will and Codicil, Peggy clearly was not acting with due regard for the interests of Nathan and Corinna, the sole beneficiaries of David's estate. Their ability to recover the money which they contend they were wrongfully denied has at least been delayed. They have incurred additional costs and legal expenses in their effort to uphold the Superior Court's judgment in their favor, vacation of the 1995 Decree, and reinstatement of Captain Henry's Will and Codicil. Moreover, as Plaintiffs note, see Plaintiffs' Mem. at 12, "[t]he remedy for improper exercise of power by a personal representative is an action for damages for the resulting losses," Fry Co., 653 P.2d at 1137, which is what they have filed in this Court.
Accordingly, the Court finds that Plaintiffs have stated a claim for breach of fiduciary duty against Peggy. Plaintiffs have pled sufficient factual content to allow the Court to draw the reasonable inference that Defendant is liable for the misconduct alleged. See Ashcroft, 129 S.Ct. at 1949. Thus, I recommend that the Motion to Dismiss based on Fed.R.Civ.P. 12(b)(6) be denied.
Summary
The Court finds that it may properly exercise personal jurisdiction over Defendant. The Court further finds that Plaintiffs have stated a breach of fiduciary duty claim against Defendant. I therefore recommend that the Motion to Dismiss be denied.
Conclusion
For the foregoing reasons, I recommend that the Motion to Dismiss be denied. Any objections to this Report and Recommendation must be specific and must be filed with the Clerk of Court within fourteen (14) days of its receipt. See Fed.R.Civ.P. 72(b); DRI LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district court and of the right to appeal the district court's decision. See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).