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Hilliard v. Estate of Swazer

United States District Court, W.D. Louisiana, Monroe Division

February 15, 2019

ROGER HILLIARD
v.
ESTATE OF KING SWAZER, JR., et al.

          DOUGHTY, JUDGE.

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge.

         Defendant Michael Kramer (“Kramer”) filed a motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim on which relief may be granted. (Doc. 6). Because Plaintiff Roger Hilliard (“Hilliard”) has not shown this Court has subject matter jurisdiction, Kramer's Motion to Dismiss for Lack of Subject Matter Jurisdiction should be GRANTED.

         I. Background

         A. Procedural History

         Hilliard filed this action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 1331, 2201, and 2202, alleging claims for: (1) declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202; (2) breach of fiduciary duty by Kramer and to have him removed as trustee of the Scott and Swazer estates pursuant to La. C.C.P. arts. 3182 and 3191; (3) unjust enrichment pursuant to La. C.C. art. 2298; (4) violation of civil rights pursuant to 28 U.S.C. § 1981; (4) intentional infliction of emotional distress pursuant to La. C.C. art. 2315; and (5) civil conspiracy pursuant to La. C.C. art. 2324. The named defendants are Estate of King Swazer, Jr. (“Swazer Estate), Jessie Augustine (“Augustine”) (administrator of the Scott and Swazer Estates), and Michael E. Kramer (“Kramer”) (trustee of the Scott and Swazer Estates). Hilliard seeks injunctive and declaratory relief, monetary damages, fees, costs, monetary damages, and a jury trial.

         Hilliard also filed a “Notice of Removal or, in the Alternative, Motion to Stay proceedings Pending the Judgment of the Federal Dispute in the Above-Styled Caption.” (Doc. 3). Hilliard attached the state court record for the “Petition for Partition by Licitation” that was filed by Kramer on behalf of Augustine, as administrator of the succession of King Swazer, Jr. (Doc. 3-1). Hilliard's pleading was filed as a “Remark, ” and neither the Notice of Removal nor the Motion to Stay were ever dealt with.

         Kramer (through counsel) filed a Motion to Dismiss for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. (Doc. 6). Hilliard opposes that motion. (Doc. 17).

         As their attorney, Kramer then filed an answer on behalf of Augustine and the Estate of King Swazer, Jr. (Doc. 21). Interestingly, neither Augustine nor the Estate has been included in the Motion to Dismiss.

         B. Hilliard's Factual Allegations

         Hilliard shows he owns 61 acres in Franklin Parish, Louisiana that he received as a donation from his parents, Roy E. Hilliard, Sr. and Annie B. Hilliard. Hilliard further shows his parents were gifted that land, as part of a 300-acre tract, from Luther and Leola Scott Hilliard (“the Scott Estate”). In 1970, Roy and Annie Hilliard mortgaged the property to Jim Walter Homes, Inc.-Louisiana, and that mortgage was recorded. They refinanced the home with JPMorgan Chase Bank, N.A. in 1990 and maintained flood insurance.[1]

         Hilliard contends he owns the highest percentage of acres of the Scott Estate, but has never received monies/disbursements from the Scott Estate. Hilliard alleges Kramer (by his own admission) is holding the Scott Estate funds in an account. Hilliard alleges he has not been told where the account is; whether the account is interest-bearing; if any costs or fees have been paid out of the account and, if so, to whom and for what purpose; the beginning balance of the account; the date the account was opened; and the current account balance. Hilliard also contends the other heirs, Roy Hilliard and Roger Hilliard, have not received any correspondence or an accounting from Kramer. Hilliard alleges that Kramer has paid himself more than $100, 000 from the Swazer and Scott estates over a period of 20 years. Hilliard further alleges Kramer knew or should have known about all the heirs of both estates but failed to list some heirs, in order to garner a larger share of the proceeds from both Estates. Hilliard contends Kramer breached his fiduciary duty as trustee and alleges a state law claim for unjust enrichment.

         Hilliard further contends that Augustine resides in Houston, Texas. Hilliard contends Augustine is only entitled to the equal portion of the Swazer Estate that was bequeathed to her by King Swazer, Jr. in his will. However, Hilliard alleges Augustine has been illegally receiving profits on a lease/rental agreement of the Scott Estate and keeping the profits for herself. Hilliard alleges a state law claim for unjust enrichment against Augustine.

         Hilliard contends he and his family only recently learned, in state court, of the transgressions committed by Kramer and Augustine.

         Hilliard also claims violations of the Equal Protection Clause. Hilliard contends Kramer is white. Kramer entered into contracts to act as Trustee of the estates of King Swazer, Jr. and Sir Walter Scott, both black men who are now deceased. Hilliard contends he and the other heirs are also black.

         Hilliard contends Kramer induced Augustine (who has not resided in Franklin Parish, Louisiana in over 60 years) to bring an action against Roy Hilliard for disturbing the peace of the property that was donated to him by succession. Apparently, Kramer has put the estate lands up for sale.

         Hilliard claims Kramer and Augustine conspired to defraud the heirs of the Scott and Swazer Estates by attempting to force a sale (partition by licitation) in a Louisiana state court of property that did not belong to the ...


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