Campi

MEMORANDUM *

Reginald Boltz appeals the district court’s judgment on the grounds that: (1) *585 the court lacked subject matter jurisdiction because the “probate exception” should have applied; and (2) it erred in finding that the sale of the Fifth Avenue Property violated the terms of the Trust. We AFFIRM.

First, the probate exception does not apply in this case. In Marshall v. Marshall, 547 U.S. 293 , 126 S.Ct. 1735 , 164 L.Ed.2d 480 (2006), the Supreme Court admonished lower courts for applying the probate exception too broadly. Id. at 1748. It opined:

Id. (internal citations omitted) (emphasis added).

The instant case does not concern the probate or annulment of a testamentary instrument. Instead, it involves a cause of action alleging fraud, undue influence, and breach of fiduciary duties. Claims merely related to probate matters are not within the probate exception. Marshall, 126 S.Ct. at 1741 . Moreover, the Fifth Avenue Property is not — nor ever was — in the custody of a state probate court; indeed, the claims alleged were precipitated by the removal of the Property from the Trust and its subsequent sale to the Boltzes. Furthermore, even if state courts “have…