NOT RECOMMENDED FOR PUBLICATION File Name: 22a0359n.06
Case No. 22-3005
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Aug 30, 2022 AMERICAN ELECTRIC POWER SERVICE ) DEBORAH S. HUNT, Clerk CORPORATION, as fiduciary of the ) AMERICAN ELECTRIC POWER SYSTEM ) ON APPEAL FROM THE UNITED COMPREHENSIVE MEDICAL PLAN, ) STATES DISTRICT COURT FOR Plaintiff-Appellant, ) THE SOUTHERN DISTRICT OF ) OHIO v. ) ) JOHN K. FITCH, as administrator of the ) OPINION ESTATE OF JOHN D. FITCH; GLORI ) FITCH, ) Defendants-Appellees. ) ____________________________________/
Before: GUY, MOORE, and CLAY, Circuit Judges.
The court issued a PER CURIAM opinion. GUY, J. (pp. 13–18), delivered a separate dissenting opinion.
PER CURIAM. A tragic automobile accident resulted in the death of John “Jack” D. Fitch
and the payment of expenses for accident-related medical treatment by the American Electric
Power System Comprehensive Medical Plan (Plan). Jack was enrolled as a beneficiary under the
self-funded medical plan that his mother participated in as an employee of American Electric
Power Service Corporation (AEP). In this action brought under the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA), AEP, on behalf of the Plan, sought to
impose “an equitable lien by agreement over identifiable [third-party settlement] funds in the Case No. 22-3005, Am. Elec. Power Service Corp. v. Fitch, et al.
possession and/or control of” Jack’s father, John K. Fitch, as the Administrator of the Estate, and/or
Glori Fitch, Jack’s mother as a Plan participant.
The district court dismissed the complaint without reaching the merits of the ERISA claims
after concluding that the “probate exception” deprived the federal court of subject-matter
jurisdiction. See Fitch v. Am. Elec. Power Sys. Comprehensive Med. Plan, No. 21-CV-576, 2021
WL 5711909, at *10–12 (S.D. Ohio Dec. 2, 2021). AEP appealed, arguing that the district court
erred in dismissing its complaint. The Fitches respond that AEP has forfeited any challenge to the
district court’s conclusion that federal courts lack jurisdiction to hear its claims. We agree with
the Fitches and AFFIRM.
I.
The facts of this case revolve around medical expenses. Glori Fitch was employed by AEP,
enrolled in the Plan, and designated her son, Jack Fitch, as a beneficiary of that Plan. R. 1 (Compl.
¶ 9) (Page ID #2). On October 11, 2019, Jack was critically injured in an automobile accident,
dying the next day. Id. ¶ 10. AEP alleges that the Plan paid benefits in the amount of $101,582.46
for Jack’s accident-related medical treatment. Id. The Plan’s terms contain a provision providing
that, in the event that benefits paid on the beneficiary’s behalf have not been repaid, the Plan has
“a right to be repaid from [a] Recovery in the amount of the benefits paid on your behalf.” R. 1-1
(Plan at 2) (Page ID #9).
As a result of Jack’s death, the administrator of Jack’s estate, John K. Fitch,
(Administrator) obtained two settlements: (1) $500,000 from the “at-fault” driver’s insurance on
a wrongful-death liability claim; and (2) $100,000 from the Fitches’ own automobile policy on a
medical-payments claim. Fitch, 2021 WL 5711909, at *2–3. There seems to be no dispute that
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Anthem Blue Cross and Blue Shield (Anthem) asserted the Plan’s right to subrogation and/or
reimbursement by sending a letter to the Administrator. See id. at *2.
On October 12, 2020, the Administrator filed an “Application to Approve Settlement and
Distribution of Wrongful Death and Survivor Claims” in the Probate Court of Franklin County,
Ohio. R. 1-2 (Application) (Page ID #11–15). In it, the Administrator proposed that all $600,000
in settlement proceeds be allocated to the wrongful-death claims of Jack’s surviving parents and
other next of kin “who have suffered damages by reason of the wrongful death.” Id. at 2 (Page ID
#12). The Application was accompanied by a “Narrative Statement,” which represented, in part:
(1) that negotiations continued as to a claim against an umbrella policy; and (2) that Anthem had
asserted a lien totaling $101,582.46 that would be disputed. Id. at 3 (Page ID #13). The probate
court approved the settlement and distribution the same day, allocating $260,750 to John K. Fitch
(father); $250,750 to Glori Fitch (mother); and $88,500 to Charles Fitch (brother). Id. at 4–5 (Page
ID #14–15).
By all accounts, the Administrator did not send Anthem notice of the Application until ten
days later. The Plan responded by asserting that it had a right to reimbursement from the settlement
proceeds, while the Administrator contended that the settlement proceeds were not part of the
Estate. Fitch, 2021 WL 5711909, at *3. The lien dispute resulted in two lawsuits, which were
resolved by the district court in the single consolidated order before us now. See id. at *1.
Those lawsuits involved the following maneuvers. First, the Administrator sued the Plan
in the Franklin County Court of Common Pleas seeking a declaration that the Plan was not entitled
to reimbursement because the settlement proceeds had been allocated to the wrongful-death
claims—not the survival claim. Id. at *3. The Plan then removed that action to federal court (No.
21-cv-576) and filed its separate ERISA action seeking reimbursement in federal court (No. 21-
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cv-682). Id. The district court’s consolidated order (1) remanded the Administrator’s declaratory
judgment action and (2) dismissed the Plan’s ERISA action for lack of subject-matter jurisdiction
based on the probate exception. Id. at *15. The Plan filed—but abandoned—an appeal from the
remand. App. R. 16 (No. 22-3004) (Order). The Plan has expressly limited the present appeal to
the dismissal of its claim against the wrongful-death proceeds in the possession of Glori Fitch. See
Appellant Br. at 5; Reply Br. at 1.
II.
The district court recognized that the defendants’ motion to dismiss the Plan’s ERISA
complaint for lack of subject-matter jurisdiction was a facial attack—not a factual attack—under
Federal Rule of Civil Procedure 12(b)(1). See Am. Telecom Co. v. Republic of Lebanon, 501 F.3d
534, 537 (6th Cir. 2007). Because a facial attack is a challenge to the sufficiency of a complaint,
the court examines the sufficiency of the pleading by taking the material allegations as true and
viewing them in the light most favorable to the non-moving party. See Gentek Bldg. Prods., Inc.
v. Steel Peel Litig. Tr., 491 F.3d 320, 330 (6th Cir. 2007); United States v. Ritchie, 15 F.3d 592,
598 (6th Cir. 1994). “When a defendant moves to dismiss for lack of subject matter jurisdiction
‘the plaintiff has the burden of proving jurisdiction in order to survive the motion.’” Wisecarver
v. Moore, 489 F.3d 747, 749 (6th Cir. 2007) (quoting Moir v. Greater Cleveland Reg’l Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990)). This court’s review of a dismissal for lack of jurisdiction
based on a facial attack is de novo. Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 553
(6th Cir. 2012).
A.
The Supreme Court has recognized “a probate exception of distinctly limited scope,”
explaining that “a federal court may not exercise its jurisdiction to disturb or affect the possession
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of property in the custody of a state court.” Marshall v. Marshall, 547 U.S. 293, 310 (2006)
(quoting Markham v. Allen, 326 U.S. 490, 494 (1946)). This “longstanding limitation[] on federal
jurisdiction otherwise properly exercised,” is a “judicially created doctrine[] stemming in large
measure from misty understandings of English legal history.” Id. at 299 (citations omitted).
Clarifying and curtailing the probate exception, Marshall reiterated that the courts “have no more
right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”
Id. 298–99 (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)).1
The Supreme Court in Marshall explained that, following Markham, federal courts
“puzzled over the meaning of the words ‘interfere with the probate proceedings’” and that “some
[courts] have read those words to block federal jurisdiction over a range of matters well beyond
probate of a will or administration of a decedent’s estate.” Id. at 311; see, e.g., Chevalier v. Est.
of Barnhart, 803 F.3d 789, 800–01 (6th Cir. 2015) (recognizing that Marshall abrogated Lepard
v. NBD Bank, 384 F.3d 232, 234–37 (6th Cir. 2004)). As the Supreme Court elaborated:
the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.
Marshall, 547 U.S. at 311–12. That is, the “interference” referred to in Markham was “essentially
a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a
1 Marshall left open whether the probate exception has application when jurisdiction is based on federal question as well as diversity of citizenship. Marshall, 547 U.S. at 308-09. But see Jones v. Brennan, 465 F.3d 304, 307 (7th Cir. 2006) (post-Marshall decision finding “no good reason to strain to give different meaning to the identical language in the diversity and federal-question statutes”); Tonti v. Petropoulous, 656 F.2d 212, 215–16 (6th Cir. 1981) (pre-Marshall decision applying probate exception to action brought under 42 U.S.C. § 1983). AEP has not urged this court to limit the scope of the probate exception. Nor is it necessary to do so given our resolution of this appeal. We therefore express no opinion on whether or how the probate exception applies in federal-question cases. -5- Case No. 22-3005, Am. Elec. Power Service Corp. v. Fitch, et al.
res, a second court will not assume in rem jurisdiction over the same res.” Id. at 311; see also
Chevalier, 803 F.3d at 800; Osborn v. Griffin, 865 F.3d 417, 434 (6th Cir. 2017).
Since Marshall was decided, we have applied its framework on numerous occasions. See,
e.g., Osborn, 865 F.3d at 433–36; Chevalier, 803 F.3d at 799–804; Wisecarver, 489 F.3d at 749–
51. Notably, in Wisecarver we considered a plaintiff who sought, inter alia, an order enjoining the
defendants from disposing of assets received from an estate. 489 F.3d at 751. We concluded that
the probate exception barred jurisdiction in that case to the extent that granting the requested relief
“would require the district court to dispose of property in a manner inconsistent with the state
probate court’s distribution of the assets.” Id. We will return to Wisecarver and its application in
the present dispute below.
B.
The complaint before us, filed February 16, 2021, seeks to impose “an equitable lien by
agreement over identifiable funds in the possession and/or control of” John Fitch, as Administrator
of the Estate, or Glori Fitch, as a Plan participant. R. 1 (Compl. ¶ 3) (Page ID #2). Specifically,
AEP asserts an equitable lien pursuant to § 502(a)(3) of ERISA against: (1) the medical-payment
settlement proceeds in the possession of the Administrator; and (2) the wrongful-death proceeds
allocated to Glori Fitch. See 29 U.S.C. § 1132(a)(3). AEP alleges a right to reimbursement under
the terms of the Summary Plan Description that “constitutes an equitable lien by agreement over
the proceeds of any settlement, including recoveries obtained by the covered person’s relatives,
heirs, or assignees.” R. 1 (Compl. ¶ 12) (Page ID #3). In terms of relief, the complaint asks that
an equitable lien be imposed “upon the settlement proceeds”; that the defendants be required, “as
[a] constructive trustee, to transfer the funds” to AEP; and that the defendants be enjoined from
“transferring or disposing of the settlement funds which would prejudice, frustrate, or impair
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[AEP’s] ability to recover the same.” Id. ¶ 39 (Page ID #6–7.) Because the Plan has limited the
scope of its appeal, we consider these requests only insofar as they relate to Glori Fitch.
There can be no dispute that AEP does not seek to probate (or annul) a will or to administer
the decedent’s estate. See Chevalier, 803 F.3d at 801. Furthermore, the district court discarded
these options, and AEP does not challenge the court’s reasoning here. Fitch, 2021 WL 5711909,
at *10. The question then is simply whether this action seeks to reach the same res over which the
probate court has custody. Chevalier, 803 F.3d at 801 (citing Wisecarver, 489 F.3d at 750–51).
To resolve that, we first ask whether the claim is in personam or in rem. Id. An in
personam action is “‘brought against a person rather than property,’ and the judgment ‘is binding
on the judgment-debtor and can be enforced against all the property of the judgment-debtor.’” Id.
at 801–02 (citation omitted). In contrast, a claim for reimbursement under § 502(a)(3)(B) of
ERISA is one for “‘restitution in equity,’ not ‘restitution at law.’” Zirbel v. Ford Motor Co., 980
F.3d 520, 524 (6th Cir. 2020) (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, 213–14 (2002)); see also Sereboff v. Mid. Atl. Med. Servs., Inc., 547 U.S. 356, 362–63 (2006).
“A court awards equitable restitution when it imposes a lien on ‘particular funds or property in the
defendant’s possession’ but legal restitution when it holds the defendant liable for a sum of
money.” Zirbel, 980 F.3d at 524 (quoting Knudson, 534 U.S. at 214). Nor can the ERISA remedy
be a judgment against a defendant’s general assets. See Montanile v. Bd. of Trs. of Nat’l Elevator
Indus. Health Benefit Plan, 577 U.S. 136, 144–46 (2016).
Again, the district court determined that AEP’s ERISA claims invoke the federal court’s
in rem jurisdiction over identifiable settlement proceeds. Fitch, 2021 WL 5711909, at *11. And
again, AEP does not challenge that determination. We are therefore left to conclude that AEP’s
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claim would invoke the district court’s in rem jurisdiction over the settlement proceeds. Our
inquiry continues.
Next, a federal court may exercise subject-matter jurisdiction over such proceeds as are at
issue here unless the relief sought would require that the court “‘elbow its way into’ an ongoing
‘fight[] over a property or a person in [another] court’s control.’” Chevalier, 803 F.3d at 802
(quoting Struck v. Cook Cnty. Pub. Guardian, 508 F.3d 858, 860 (7th Cir. 2007)). In other words,
were the settlement proceeds in the custody of the probate court when the federal action was filed?
The district court concluded that they were, reasoning that “were this Court to grant AEP’s
requested relief, it would both (i) impose upon the Probate Court’s jurisdiction over the
Administrator’s account and/or its distribution of the Fitch Estate, and (ii) ‘require the district court
to dispose of property in a manner inconsistent with’ the Probate Court’s judgment.” Fitch, 2021
WL 5711909, at *12 (quoting Wisecarver, 489 F.3d at 750). Unfortunately, AEP did not address
why this conclusion was flawed either in its opening appellate brief or in its reply brief. That is a
problem for AEP’s appeal.
C.
“In this Circuit, an appellant forfeits an argument that [it] fails to raise in [its] opening
brief.” Scott v. First S. Nat’l Bank, 936 F.3d 509, 522 (6th Cir. 2019) (collecting cases). That
proposition stems from Federal Rule of Appellate Practice 28(a)(8), which requires that an
appellant’s brief contain the party’s “contentions and reasons for them, with citations to the
authorities . . . on which the appellant relies,” and has led us to stress repeatedly that appellants
must address in their opening brief the reasons provided by the district court or else risk forfeiting
the argument that the district court erred. See, e.g., Island Creek Coal Co. v. Wilkerson, 910 F.3d
254, 256 (6th Cir. 2018) (“Time, time, and time again, we have reminded litigants that we will
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treat an ‘argument’ as ‘forfeited when it was not raised in the opening brief.’” (quoting Golden v.
Comm’r, 548 F.3d 487, 493 (6th Cir. 2008))); Courser v. Michigan House of Representatives, 831
F. App’x 161, 179 (6th Cir. 2020) (failure to address case on which district court’s decision rested
resulted in argument being forfeited); Rees v. W.M. Barr & Co., 736 F. App’x 119, 124–25 (6th
Cir. 2018) (failure to address alternative basis on which district court’s decision rested resulted in
forfeiture).
Those principles resolve this case. AEP focuses its briefing on the argument that the
probate court did not have jurisdiction under Ohio law to adjudicate its ERISA claim for
reimbursement from the wrongful death proceeds allocated to Glori Fitch. Distilled, AEP’s
position is that “[t]he district court erred in finding that enforcement of the AEP Plan was within
the jurisdiction of the Franklin County Probate Court.” Appellant Br. at 8. AEP proceeds in its
opening brief to discuss Ohio law and the scope of the probate court’s jurisdiction under it, a
strategy that it repeats in its reply brief. This is a misdirection for a couple of reasons.
First, the probate exception is a creature of federal, not state, law. See Chevalier, 803 F.3d
at 801. Indeed, the Supreme Court has “firmly rejected the proposition that a federal court’s
subject-matter jurisdiction is dependent upon state law.” Id. (citing Marshall, 547 U.S. at 314).
That means that we “look to only federal law to determine whether the probate exception . . .
applies.” Id. AEP’s heavy reliance on Ohio law in its opening brief combined with its lack of any
citations to our probate-exception cases is unhelpful to determining whether the district court erred
in applying that exception.
Second, and more fundamentally, the district court did not ultimately base its conclusion
on Ohio law. Regardless of whether the probate court had jurisdiction over this claim, the district
court rested its decision on whether the probate court continued to have custody over the res.
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Relying on our decision in Wisecarver, the district court determined that exercising subject-matter
jurisdiction over AEP’s claim would result in the district court disposing of property inconsistent
with the probate court’s judgment. Fitch, 2021 WL 5711909, at *12 (citing Wisecarver, 489 F.3d
at 750). This was because the probate court’s allocation of the settlement proceeds was wholly to
the estate’s wrongful-death-proceeds account and because the estate remained open. Id.
Therefore, the district court concluded that the relief that AEP sought would interfere with this
distribution process, thus triggering the probate exception. Id.
Right or wrong, AEP does not address the district court’s reasoning on this point.2 Nor
does AEP even cite Wisecarver, much less attempt to distinguish it, in its opening brief. Then,
despite the Fitches discussing that case extensively in their response brief, AEP in its reply brief
continued to provide no analysis of Wisecarver’s application; instead, AEP doubled down on its
state-law theory, analyzing the estate’s res in this context. Reply Br. at 3–4. In fact, the only
guidance that we have been provided from the briefs on how the probate exception operates in
these circumstances has come from the Fitches, not AEP.
It is true that AEP’s opening brief contains a header that reads: “the district court erred in
holding that AEP’s claim against Glori Fitch was barred by the probate exception.” Appellant Br.
at 7. But as other courts have held, “a litigant who fails to press a point by supporting it with
2 AEP comes closest to addressing the issue in the final paragraph of its initial appellate brief when it argues that the district court did not accept as true its allegation that “Glori Fitch was in possession of the wrongful death settlement proceeds allocated to her.” Appellant Br. at 16. There are two issues with this argument, however. To start, this is not what AEP alleged in its complaint. Instead, there AEP alleged that “John K. Fitch as administrator of the Estate, or Glori Fitch, is in possession of $250,750.00 paid.” R. 1 (Compl. ¶ 31) (Page ID #5) (emphasis added). Setting aside that this allegation’s either/or construction leaves unresolved who specifically AEP was alleging to be in possession of the wrongful-death proceeds, it does not address the district court’s reasoning that exercising federal jurisdiction would “‘require the district court to dispose of property in a manner inconsistent with’ the Probate Court’s judgment.” Fitch, 2021 WL 5711909, at *12 (quoting Wisecarver, 489 F.3d at 750). - 10 - Case No. 22-3005, Am. Elec. Power Service Corp. v. Fitch, et al.
pertinent authority, or by showing why it is sound despite a lack of supporting authority, forfeits
the point.” Tyler v. Runyon, 70 F.3d 458, 464 (7th Cir. 1995) (quoting Doe v. Johnson, 52 F.3d
1448, 1457 (7th Cir. 1995)); see also JTB Tools & Oilfield Servs., L.L.C. v. United States, 831
F.3d 597, 601 (5th Cir. 2016). AEP, which is represented by counsel, has failed either to engage
with the authorities with which the district court engaged or to show why different reasoning other
than what the district court provided should control. Given the nuances entailed in the probate
exception, those are not small oversights. Such failures lead us to conclude that AEP has forfeited
the argument that the district court erred in applying the probate exception.
Finally, although the dissent is right to note that we must exercise jurisdiction when it is
given, see Marshall, 547 U.S. at 298–99, that proposition goes only so far. “[F]ederal courts are
courts of limited jurisdiction.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
For this reason, it is the burden of the party asserting subject-matter jurisdiction to show that such
jurisdiction is ours to exercise. Jude v. Comm’r of Soc. Sec., 908 F.3d 152, 157 (6th Cir. 2018)
(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Our duty is to
identify when we lack jurisdiction, not to identify arguments that a party could have made for why
we possess it. See 13 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3522
(3d ed. 2022) (“Even if the parties remain silent, a federal court, whether trial or appellate, is
obliged to notice on its own motion its lack of subject matter jurisdiction, or the lower court’s lack
of subject matter jurisdiction when a case is on appeal.”). Consequently, if a party appeals a district
court’s dismissal of a complaint for lack of subject-matter jurisdiction, then general references in
the appellant’s opening brief to the exception applied below and a lack of engagement with the
relevant law does not suffice to carry that party’s burden.
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III.
We AFFIRM the judgment of the district court.
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RALPH B. GUY, JR., Circuit Judge, dissenting. I have no quarrel with the court’s
discussion of the facts or the general principles governing the probate exception to the exercise of
federal subject matter jurisdiction. See Marshall v. Marshall, 547 U.S. 293 (2006). I cannot agree,
however, that AEP forfeited review of whether the probate exception applies to its ERISA claim
to the extent it seeks an equitable lien against any wrongful death proceeds in the possession or
control of Glori Fitch. I would reach the issue and then reverse and remand for further proceedings
as to that claim. Courts “have no more right to decline the exercise of jurisdiction which is given,
than to usurp that which is not given.” Id. at 298-99 (quoting Cohens v. Virginia, 6 Wheat. 264,
404 (1821)).
1.
AEP’s opening brief squarely and unequivocally asserts the very claim that the court finds
was forfeited. That is, AEP describes the sole issue on appeal to be “[w]hether the district court
correctly held that the probate exception divested the federal court of subject matter jurisdiction to
enforce the provisions of an employee benefit plan under 29 U.S.C. § 1132(a)(3) against funds
allocated as wrongful death proceeds and excluded from the decedent’s estate and alleged to be in
the possession of a plan participant.” (Opening Br., p. 2). AEP’s “Summary of the Argument”
includes the argument that “[t]he probate exception does not divest the district court of subject
matter jurisdiction to hear a claim arising under a separate contractual obligation.” (Opening Br.,
p. 5). And, as the majority opinion acknowledges, AEP’s argument heading claims that the district
court “erred in holding that AEP’s claim against Glori Fitch was barred by the probate exception.”
(Opening Br., p. 7). Finally, AEP also argues that its complaint sufficiently alleged that Glori
Fitch was in possession of funds that “were allocated to [her] as wrongful death proceeds and never
became an asset of the Decedent’s estate.” (Opening Br., p. 15). That is, AEP argues, the district
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court erred by not accepting as true its allegation that the settlement proceeds were not in the
custody of the probate court.1
Indeed, even the Fitches’ brief undermines the court’s finding of forfeiture. That is, the
Fitches say AEP’s argument is wrong because “the applicability of the probate exception turns on
the probate court’s jurisdiction over the property at issue, not that court’s ability to hear the precise
claims that the federal-court plaintiff is asserting.” (Fitches’ Br., p. 17 (citing Osborn v. Griffin,
865 F.3d 417, 434-35 (6th Cir. 2017) (focusing on the remedies sought and whether the disputed
property was part of the res of the probate court))). AEP directs its focus to the property by arguing
that its claim does not ask the federal “courts to exercise in rem jurisdiction over the same res over
which the probate court is exercising in rem jurisdiction.” (Reply, p. 3). AEP goes on to argue
that “the probate court allocated the entire settlement to the wrongful death claims of the survivors,
taking [the settlement funds] outside the Estate and thus outside of the probate court’s in rem
jurisdiction,” which therefore meant “the district court was free to exercise in rem jurisdiction over
the same proceeds.” (Reply, p. 4).
Thus, the arguments AEP makes in its briefing do, in fact, address the question that the
majority opinion aptly identifies: “whether this action seeks to reach the same res over which the
probate court had custody.” (Maj. Op., p. 7 (citing Chevalier v. Estate of Barnhart, 803 F.3d 789,
802 (6th Cir. 2015) (citing Wisecarver v. Moore, 489 F.3d 747, 750 (6th Cir. 2007))).
1 It makes no difference that AEP’s complaint alleged, upon information and belief, that the wrongful death proceeds allocated to Glori Fitch were in the possession of either the Administrator or Glori Fitch. See Fed. R. Civ. P. 8(d)(2) (“If any party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”). In narrowing its claim on appeal, AEP has expressly limited its ERISA claim to one for an equitable lien against proceeds that are in Glori Fitch’s possession. On a motion to dismiss, AEP need not prove that such proceeds actually are in her possession—only that AEP is not barred from pursuing its claim as to any proceeds that may be in her possession. - 14 - Case No. 22-3005, Am. Elec. Power Service Corp. v. Fitch, et al.
This remains true notwithstanding AEP’s misguided discussion of Ohio law. The district
court here understood AEP to argue that the probate court could have no custody over the res
because “Ohio probate courts ‘do not have jurisdiction to adjudicate the enforceability of a contract
that falls outside the administration of the [Fitch] Estate.’” (Order, p. 16). In other words, AEP’s
position was that the federal court could exercise in rem jurisdiction precisely because the probate
court could not. The district court devoted several pages of its opinion to rejecting this argument
before concluding “the probate exception remains applicable to AEP’s claim against Glori Fitch.”
(Order, p. 20). It is not surprising then that AEP returns to this argument as a basis for rejecting
the probate exception. (Reply, p. 5 (“the lack of probate court jurisdiction necessarily precludes
application of the probate exception”)). But that is a misguided subsidiary argument—not one of
two independent grounds for dismissing the ERISA claim. See Glennborough Homeowners Ass’n
v. USPS, 21 F.4th 410, 418 (6th Cir. 2021) (White, J., concurring in part) (explaining that when a
district court dismisses a claim on two independent grounds, a plaintiff must challenge the decision
with respect to both).
Before declaring forfeiture, we need to look behind the general admonition that “we will
treat an ‘argument’ as forfeited, when it was not raised in the opening brief.” Island Creek Coal
Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018). The forfeited claim in Island Creek was, in
fact, an independent Appointments Clause challenge. See id. Similarly, in Scott v. First Southern
National Bank, the district court dismissed a fraudulent misrepresentation claim solely on statute
of limitations grounds, but plaintiffs’ opening brief “argue[d] exclusively that the district court
improperly dismissed th[at] claim on the merits.” 936 F.3d 509, 522 (6th Cir. 2019) (emphasis
added). Forfeiture in that case was obvious. See also In re Issacs, 895 F.3d 904, 917 (6th Cir.
2018) (finding amici curiae’s independent claim that mortgage could be avoided as a preferential
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transfer was forfeited because it was not included in the appellant’s opening brief). I would not
find that AEP forfeited its challenge to the application of the probate exception to the federal
court’s exercise of its subject matter jurisdiction.
2.
The district court recognized that AEP’s ERISA action invokes the court’s in rem
jurisdiction, and identified the final inquiry regarding application of the probate exception to be
whether the relief sought by AEP would require the court to “‘elbow’ itself into an ‘ongoing fight’
over res that is within the ‘custody’ or ‘control’ of the Probate Court.” (Order, p. 21-22 (quoting
Chevalier, 803 F.3d at 802)). Uncertain whether the res had been fully disbursed to Glori Fitch,
the district court found that it did not matter because AEP’s requested relief would require it “‘to
dispose of property in an manner inconsistent with’ the Probate Court’s judgment.” (Order, p. 23
(quoting Wisecarver, 489 F.3d at 750)).
AEP directly disputed that its claim “would require the district court to disturb, or override,
the probate court’s allocation order.” (Reply, p. 4). AEP clarifies its position by arguing that
“[t]he relief requested by AEP does not require the district court to reclassify the settlement as
anything other than wrongful death proceeds.” (Reply, pp. 4-5). In other words, AEP explains
that it is not asking the federal court “to dispose of property in a manner inconsistent with the state
probate court’s distribution of assets.” Wisecarver, 489 F.3d at 750. This is the critical question
and AEP cited both Marshall and Chevalier—even though it did not discuss Wisecarver.
Reviewing this dismissal for lack of subject matter jurisdiction de novo, the allegations
place AEP’s claim with respect to any wrongful death proceeds in Glori Fitch’s possession or
control outside the scope of the “distinctly limited” probate exception. Marshall, 547 U.S. at 310.
That is the case notwithstanding Wisecarver, where the plaintiffs claimed to be the intended and
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rightful beneficiaries of the decedent’s will and alleged that the defendants had used undue
influence to procure and promote a false will and to obtain and use a power of attorney to make
inter vivos transfers. Id. at 748-49. The in personam claims for damages relating to allegedly
improper inter vivos transfers were not barred by the probate exception. Id. at 750-51. But for
claims seeking “money damages equal to the amount of the probate disbursements,” we held that
the probate exception applied “since it would be tantamount to setting aside the will.” Id. at 750
n.1. We explained: “Even though these claims in this case seek in personam jurisdiction, a
majority of the relief that [p]laintiffs seek would involve disturbing [the decedent’s] estate, which
has already been probated.” Id. at 751.
Although this suggests that the probate court may no longer have had custody of the assets,
the important take away from Wisecarver is that the nature of the remedies sought is what
implicates the probate exception. Id. at 750-51; see also Osborn, 865 F.3d at 434 (discussing
Wisecarver). There, the probate exception to federal jurisdiction applied only to those claims that:
sought to recover damages in the amount of the improperly disbursed assets; to enjoin the
disposition of assets received from the estate; to order divestment and transfer of all remaining
assets received from the estate; and to declare the probated will invalid and the defendants
ineligible beneficiaries. Wisecarver, 489 F.3d at 751. For that reason, the remedies sought would
have required the federal court undo the probate court’s disposition of those assets.
The district court’s analogy to Wisecarver was not without basis to the extent that AEP
sought either a lien against settlement funds in the possession of the Administrator or a reallocation
of the settlement proceeds from wrongful death claims to survival claims. Perhaps recognizing as
much, AEP abandons such claims on appeal. The analogy does not hold, however, with respect
to AEP’s assertion of an equitable lien by agreement against any wrongful death proceeds in the
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possession or control of Glori Fitch. That is an in rem claim, which arises only against identifiable
funds that are not in the custody or control of the probate court. Nor would the remedy of an
equitable lien involve disturbing the probate court’s allocation or distribution of those funds. The
probate exception should be no impediment to the federal court’s exercise of jurisdiction over that
claim. That would leave unresolved Glori Fitch’s contention on the merits that her wrongful death
recovery is not subject to the reimbursement provisions of the AEP Plan because it is a recovery
for her own injuries from the death of her son.
Because I would reverse the dismissal of AEP’s remaining claim and remand for further
proceedings, I respectfully dissent.
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