Plaintiff correctly states in this regard that, despite the requisite diversity of parties and amount in controversy, federal courts generally do not have diversity jurisdiction over matters concerning state probate proceedings, other than to establish claims and determine the rights of those asserting an interest in the estate. Moore v. Lindsey, 662 F.2d 354 (5th Cir. 1981). As the Supreme Court has stated:
Despite the requisite diversity of parties and amount in controversy, federal courts generally do not have diversity jurisdiction over matters affecting state probate proceedings, other than to establish claims and to determine the rights of those asserting an interest in the estate. Moore v. Lindsey, 662 F.2d 354, 360-61 (5th Cir. 1981). As the Supreme Court has held,
Nevertheless, "[a]n exception to the general rule that federal courts are without jurisdiction to entertain matters affecting probate proceedings . . . exists where a state by statute or custom gives parties a right to bring an action in courts of general jurisdiction." Moore v. Lindsey, 662 F.2d 354, 361 (5th Cir. 1981); see also Hurst v. Regis Low. Ltd., 878 F. Supp. 981, 986 (S.D. Tex. 1995); Dunaway v. Clark, 536 F. Supp. 664, 670 (D. Ga. 1982). In Texas, "[a] statutory probate court has concurrent jurisdiction with the district court in all actions by or against a person in the person's capacity as a personal representative. . . ."
In support of this argument, Plaintiffs point out that Plaintiff William L. Lemery, an incapacitated adult, is represented in this action by his guardian, Galen Yarbrough. According to Plaintiffs, the guardianship aspect of this suit brings their claims within the jurisdiction of the Texas probate courts and consequently, invokes an exception to federal subject matter jurisdiction. In response, Ford cites the Fifth Circuit's decision in Moore v. Lindsey, 662 F.2d 354 (5th Cir. 1981), for the proposition that this lawsuit falls outside the scope of the probate exception. The Court agrees with Ford.
"Since the reach of the Georgia Long Arm statute is a question of Georgia state law, federal courts are required to construe it as would the Georgia Supreme Court." Moore v. Lindsey, 662 F.2d 354, 358 (5th Cir. 1981). Thus, unless either the tortious act or the tortious injury actually occurs in Georgia, the Long Arm statute would not apply to an action sounding in tort and this Court would not have personal jurisdiction over the non-resident defendant.
In a diversity action, a federal court has personal jurisdiction over a non-resident defendant to the extent permitted by the forum state's long-arm statute. Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir. Unit B 1981). The Georgia long-arm statute provides for the exercise of "personal jurisdiction over any nonresident . . . if in person or through an agent, he: (1) Transacts any business within this state; . . . or (4) Owns, uses, or possesses any real property situated within this state."
The reach of the Florida long-arm statute is a question of Florida law. Therefore, federal courts are required to construe it as would the Florida Supreme Court. Oriental Imports Exports, Inc. v. Maduro Curiel's Bank, N.V., 701 F.2d 889, 890-91 (11th Cir. 1983); Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir. Unit B 1981). In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), this court adopted as binding precedent all decisions of Unit B of the former Fifth Circuit.
Id. Finally, Steph senior has indicated that he would like an accounting of the trust since 1977. A petition for accounting is a state probate matter which will typically not be entertained by a federal court. Moore v. Lindsey, 662 F.2d 354, 361 (5th Cir. 1981). However, this decision does not limit Steph senior's right to petition the Texas probate courts for such relief.
Because the reach of the Florida long-arm statute is a question of Florida state law, federal courts are required to construe it as would the Florida Supreme Court. See Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir. Unit B 1981); Jetco Electronic Industries, Inc. v. Gardiner, 478 F.2d 1228, 1282 (5th Cir. 1978). The Florida long-arm statute is strictly construed, and the person invoking jurisdiction under it has the burden of proving facts which clearly justify the use of this method of service of process. Bank of Wessington v. Winters Government Securities Corporation, 361 So.2d 757, 759 (Fla.Dist.Ct.App. 1978); Elmex Corp. v. Atlantic Federal Savings and Loan Association, 825 So.2d 58, 61 (Fla.Dist.Ct.App. 1976).
A federal district court sitting in diversity has personal jurisdiction over the defendant to the extent permitted by state law. Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir. 1981);Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 377 (5th Cir. 1980); Washington v. Northon Manufacturing, Inc., 588 F.2d 441, 444 (5th Cir.), cert. denied, 442 U.S. 942, 99 S.Ct. 2886, 61 L.Ed.2d 313 (1979); 19 C. Wright, A. Miller E. Cooper, Federal Practice and Procedure ยง 4511 (1982). Since the Florida courts have determined that Florida lacks jurisdiction over Lakewood Pipe for the contract claims, the doctrine of res judicata bars further litigation on this matter in any federal district court sitting in Florida.