United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
H. RITTER UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendants Adda Moldt and
David River's Motion for Summary Judgment, filed on March
6, 2018 (the “Motion”). [Doc. 33]. The
undersigned has reviewed the Motion and attached exhibits,
Plaintiff's responsive brief to the Motion, filed on
April 2, 2018 (the “Response”), [Doc. 35], and
Defendant's Reply in Support of their Motion for Summary
Judgment, filed on April 16, 2018 (the “Reply”)
[Doc. 37]. Having thoroughly considered and analyzed the
parties' submissions and the relevant law, the
undersigned recommends that the Court find that the Motion is
well taken and should be granted.
January 30, 2017, Plaintiff Stephen Ullrich (“Mr.
Ullrich”) filed a Complaint with this Court, pro
se, alleging that he was not properly notified of his
parent's deaths, having learned of the deaths in an
obituary, and that Defendants Adda Moldt and David River
improperly acted as agents in his parent's estates by
failing to properly distribute property. [Doc. 1 at 2-3]. Mr.
Ullrich admits in his complaint that there was a prior state
court case addressing these issues, but claims the state
court “did not liberally construe the action of SU and
did not deem the issues as true as, (sic) was affirmed under
oath;…that [Mr. Ullrich] was not able to cite state,
(sic) case law, statu[t]e, rule, and in admonishment against
[Mr. Ullrich, ]…the State Court did not rule on all
pleadings placed by [Mr. Ullrich], and did not make a
knowledgeable, or otherwise, merits ruling.”
[Id.] Mr. Ullrich's complaint is unclear as to
his actual claims, but appears to allege violations of the
Fourth and Fifth Amendments of the United States
Constitution, along with “malfeasance, nonfeasance, in
general, and malum in se.” [Id. at 3-4].
Ullrich filed an amended complaint after his motion to amend
was granted. [Doc. 6; 7; 10]. His allegations remained
essentially the same: that Defendants Adda Moldt and David
River were negligent in the administration of his
parent's will by improperly distributing property that
should have been transferred to him. [Doc. 10 at 4-5]. Ms.
Moldt and Mr. River filed their answer to the Amended
Complaint on January 17, 2018. [Doc. 24]. Mr. Ullrich filed a
Motion for Summary Judgment and Lien [Doc. 25] and a Motion
for Order for Partial Settlement [Doc. 26] on January 22,
2018. The Court denied his motions on February 2, 2018. [Doc.
29]. After an Initial Scheduling Order was entered, [Doc.
31], on March 6, 2018, Defendants filed a Motion for Summary
Judgment. [Doc. 33].
argue that: (1) the Court lacks subject-matter jurisdiction
over Plaintiff's probate claims; (2) the claims are
barred under the doctrines of collateral estoppel and/or res
judicata; and (3) the claims are time barred under the New
Mexico Trust Code, NMSA 1978, Section 46A-6-604(A). [Doc. 33
at 4-9]. On April 2, 2018, Mr. Ullrich filed his Response, in
which he argues that the entire record from the state court
has not been provided, and that the state court decision
“did not dispose of all issues raised in this
case.” [Doc. 35 at 5-6]. He also asserts that the case
is based on contractual claims, not in probate, so the Court
may exercise its jurisdiction. [Id. at 7-8]. He also
argues that the “state proceeding was filed 7 weeks
after father[']s passing, ” but that “state
law does not apply to this case.”
argue in their Reply that Mr. Ullrich's interpretation of
his claim as a breach of contract claim instead of one based
on probate is inaccurate and implausible, since he has
presented no evidence of any actual contract, Defendants were
not parties to the alleged contract, and even if Mr. Ullrich
had brought a breach of contract claim, the statute of
limitations would have expired long ago. [Doc. 37 at 3-4].
Mr. Ullrich also filed a Surreply [Doc. 43] and a Motion for
Leave to Supplement Response to the Motion for Summary
Judgment [Doc. 44].
Fed.R.Civ.P. 56, a party may move for summary judgment on a
claim or defense, which shall be granted “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” “Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Sealock v. Colorado, 218 F.3d
1205, 1209 (10th Cir. 2000). For purposes of summary
judgment, a verified complaint is treated as an affidavit.
Mark v. Jackson, No. CIV-11-426-M, 2012 WL 1035879,
at *8 n. 11 (W.D. Okla. Mar. 12, 2012), report and
recommendation adopted, No. CIV-11-426-M, 2012 WL
1035761 (W.D. Okla. Mar. 28, 2012) (citing Conaway v.
Smith, 853 F.2d 789, 792 (10th Cir.1988) (per
reviewing a motion for summary judgment, the Court views
“‘the evidence and draw[s] reasonable inferences
therefrom in the light most favorable to the nonmoving
party.'” Beers v. Ballard, 248 Fed.Appx.
988, 990 (10th Cir. 2007) (quoting Lawmaster v.
Ward, 125 F.3d 1341, 1346 (10th Cir.1997)). However, a
non-moving party who bears the burden of proof at trial on a
dispositive issue “must go beyond the pleadings and
designate specific facts so as to make a showing sufficient
to establish the existence of an element essential to that
party's case in order to survive summary judgment.”
Sealock, 218 F.3d at 1209 (citing McKnight v.
Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th
The Court has jurisdiction over the issues in
first argue that the Court should grant summary judgment in
their favor because the federal court lacks subject matter
jurisdiction over the matter under the “probate
exception” as delineated in Markham v. Allen,
326 U.S. 490 (1946). [Doc. 33 at 4]. Defendants argue that
“[a] fair interpretation of [Plaintiff's]
allegations is that Plaintiff is asking the Court to order
that his deceased parents' property be distributed to
him, to invalidate the Trust and Wills, and/or to intervene
in the administration of his parents' estates.”
[Doc. 33 at 5]. However, construing Plaintiff's Complaint
liberally, as the Court must, the Court finds that
Plaintiff's claims are broader than interpreted by
Ullrich alleges that Defendants “invoke[d] the Living
Trust in a wrongful or unlawful [manner], and dispos[ed] of
property of [Plaintiff] in a wrongful or unlawful
[manner].” Although it is unclear from the Complaint
what particular claims Plaintiff's allegations fall
under, this Court must afford Plaintiff's complaint a
liberal construction. Trackwell v. U.S. Gov't,
472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972), and Hall v.
Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.
1991). Whatever ...