Raymond Loubier Irrevocable Tr. v. Loubier

18‐1054‐cv Raymond Loubier Irrevocable Tr. v. Loubier UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.    CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.    WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS  COURT,  A  PARTY  MUST  CITE  EITHER  THE  FEDERAL  APPENDIX  OR  AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING  TO  A  SUMMARY  ORDER  MUST  SERVE  A  COPY  OF  IT  ON  ANY  PARTY  NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 20th day of March, two thousand nineteen. [4] 5 PRESENT: PIERRE N. LEVAL, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 LEWIS A. KAPLAN,* 9 District Judge. 10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 11 RAYMOND LOUBIER IRREVOCABLE TRUST, 12 NOELLA LOUBIER IRREVOCABLE TRUST, 13 ESTATE OF GERVAIS A. LOUBIER, [14] 15 Plaintiffs‐Appellants, [16] 17 v. No. 18‐1054‐cv [18] 19 NOELLA LOUBIER, RAYMOND LOUBIER * Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 1 REVOCABLE TRUST, NOELLA LOUBIER 2 REVOCABLE TRUST, [3] 4 Defendants‐Appellees.† 5 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 6 FOR APPELLANTS: EDDI ZYBER ZYKO, Middlebury, 7 CT. 8 FOR APPELLEES: HOWARD M. CAMERIK, Gray 9 Robinson, P.A., Fort 10 Lauderdale, FL (Jeffrey P. 11 Mueller, Day Pitney LLP, 12 Hartford, CT, on the brief). 13 Appeal from a judgment of the United States District Court for the District 14 of Connecticut (Warren W. Eginton, Judge). 15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 16 AND DECREED that the judgment of the District Court is AFFIRMED. 17 Plaintiffs appeal from a judgment of the District Court (Eginton, J.) 18 dismissing their case rather than transferring it to the Southern District of 19 Florida. We assume the parties’ familiarity with the underlying facts and the 20 record of prior proceedings, to which we refer only as necessary to explain our 21 decision to affirm. † The Clerk of Court is directed to amend the official caption as shown above. [2] 1 The District Court did not abuse its discretion when it opted to dismiss 2 rather than transfer the Plaintiffs’ case. See Minnette v. Time Warner, 997 F.2d 3 1023, 1026 (2d Cir. 1993). In deciding whether it would be in the “interest of 4 justice” to transfer the case to a court with proper jurisdiction, the District Court 5 was entitled to consider (1) whether the claim would be meritless “in the court 6 that has jurisdiction”—that is, the United States District Court for the Southern 7 District of Florida, Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 436 (2d 8 Cir. 2005) (quotation marks omitted), and (2) the Plaintiffs’ diligence in choosing 9 a proper forum, Spar, Inc. v. Info. Res., Inc., 956 F.2d 392, 394 (2d Cir. 1992). 10 Both of these factors counseled against transfer here. 11 First, the Plaintiffs’ case is meritless under Florida law: Neither their trusts 12 nor their estates are distinct legal entities under Florida law capable of bringing 13 suit on their own behalf or being a party to litigation. Raymond Loubier 14 Irrevocable Tr. v. Loubier, 858 F.3d 719, 730 (2d Cir. 2017); Tennyson v. ASCAP, 15 477 F. Appʹx 608, 611 (11th Cir. 2012) (“Under Florida law the only party who has 16 the capacity to sue on behalf of an estate is the duly appointed legal 17 representative of the estate.”); Spradley v. Spradley, 213 So. 3d 1042, 1045 (Fla. [3] 1 Dist. Ct. App. 2017); 18 Fla. Jur. 2d Decedentsʹ Property § 721. Even if the 2 Plaintiffs did have the capacity to sue, none has a claim for an accounting under 3 Florida law because none is owed a fiduciary duty by any of the Defendants—by 4 virtue, for example, of being a beneficiary of a trust. See Zaki Kulaibee 5 Establishment v. McFliker, 771 F.3d 1301, 1311 (11th Cir. 2014); see Loubier, 858 6 F.3d at 723–24 & n.4. 7 Second, the District Court did not err in determining that the Plaintiffs 8 lacked diligence with their choice of a proper forum. Soon after the Plaintiffs 9 first filed their claim in 2013, the Defendants argued that the District Court 10 lacked personal jurisdiction. The Plaintiffs now concede that the facts do not 11 establish personal jurisdiction over the Defendants. 12 We have considered the Plaintiffs’ remaining arguments and conclude that 13 they are without merit. For the foregoing reasons, the judgment of the District 14 Court is AFFIRMED. 15 FOR THE COURT: 16 Catherine O=Hagan Wolfe, Clerk of Court