United States District Court, W.D. Louisiana, Monroe Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes, United States Magistrate Judge.
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.
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.
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
(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.
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.
Hilliard's Factual Allegations
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
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.
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.
contends he and his family only recently learned, in state
court, of the transgressions committed by Kramer and
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
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.
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 ...