                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              NOV 5 2002
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 SHAMIRA NICOLAS and JANE DOE,

          Plaintiffs-Appellants,

 ELVIN L. GENTRY, Special Administrator,                       No. 00-1457
                                                                 (D. Colo.)
          Plaintiff,                                       (D.Ct. No. 00-K-1414)

 v.

 WILFRED PERKINS; RONALD PETERSON;
 SPENCER J. CRONA; LYNN VANATTA;
 JOHN ROE,

          Defendants-Appellees,

 MICHAEL D. GROSS,

          Defendant.

                          ____________________________

                             ORDER AND JUDGMENT *


Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and
LUCERO, Circuit Judge.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Shamira Nicolas, dissatisfied with her mother’s testamentary disposition,

brought thirteen federal and state law claims against various defendants while the

probate of her mother’s estate was pending in state court. The district court

dismissed the action in its entirety with a brief order based generally on principles

of comity and judicial economy. The district court also dismissed the federal

claims under Federal Rules of Civil Procedure 12(b)(6) and 9(b), and it declined

to exercise supplemental jurisdiction over the remaining state law claims. Ms.

Nicolas appeals the district court’s order. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm in part, reverse in part, and remand to the district

court for further proceedings.



                                        FACTS

      Mary M.H. Pile died in 1998, leaving a will and a living trust 1 that

apparently disinherited her daughter, the appellant, Ms. Nicolas. Because some

provisions of the will conflicted with provisions of the trust, defendant Ms.

Vanatta filed a motion to construe the trust in state probate court. While the state

probate proceedings were pending, Ms. Nicolas filed this action in federal district


      1
         Although Ms. Vanatta attached them to her brief, neither document is part of the
record on appeal. Ms. Vanatta filed two motions to append additional materials from the
state probate proceedings. We granted her second motion August 30, 2002, and now
grant the first motion, filed January 22, 2002.


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court. At the time the complaint was filed, the state probate court had yet to

appoint a personal representative for Mrs. Pile’s estate. Therefore, Ms. Nicolas

brought the claims relating to her mother’s estate on behalf of Jane Doe, the

unnamed personal representative of Mrs. Pile’s estate. 2 The defendants -- Mr.

Perkins, Ms. Vanatta, Mr. Crona, Mr. Gross, and Mr. Peterson – were involved in

the execution of the trust or the state probate proceedings, or both.



      In her complaint and amended complaint, Ms. Nicolas alleged the district

court had jurisdiction over her various claims based on diversity of citizenship,

federal question jurisdiction, or supplemental jurisdiction. All the defendants

filed motions to dismiss the complaint. The district court dismissed the complaint

in its entirety and Ms. Nicolas appeals.



                                    DISCUSSION

Abstention

      In its order dismissing Ms. Nicolas’ claims, the district court found

“Plaintiffs’ claims against Defendants arise out of their conduct in the ... probate



      2
          The state probate court subsequently appointed a Special Administrator of Mrs.
Pile’s estate. However, upon stipulation of the parties, we dismissed the Special
Administrator as a party to this appeal.


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proceedings ..., and they may be adequately addressed in state court.” The district

court then determined “as a matter of comity and judicial economy, that [the

claims] are inappropriate for review by this court.”



      In their appellate briefs, each party argues the district court relied on an

abstention or related doctrine, perhaps the Colorado River doctrine, 3 when it

dismissed the case based on principles of comity and judicial economy. Although

the district court did mention abstention and related doctrines in an order to show

cause and an addendum order, 4 its order dismissing the complaint in its entirety

does not reveal which doctrine it relied upon and provides no reasoning for its

decision. Given the lack of findings by the district court, we would be

overstepping the limits of our review if we tried to make these findings in the first

instance. Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir. 1994). Without findings

       3
           Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-20
(1976).

       4
         The district court’s order to show cause required Ms. Nicolas to address the
abstention principles developed in Burford v. Sun Oil Co., 319 U.S. 315 (1943), and the
Rooker-Feldman doctrine (see District of Columbia Court of Appeals v. Feldman, 460
U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)). (App. at 91-92.)
The district court’s addendum ordered Ms. Nicolas to distinguish her case from
McKibben v. Chubb, 840 F.2d 1525, 1529-30 (10th Cir. 1988), and the cases cited
therein. (App. at 95.) In doing so, the district court noted, “claims which are ancillary to
the challenge of a will belong in the state court’s probate proceedings, not in federal
court.” (App. at 95.)


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by the district court, “‘we are left with no means by which to judge the exercise of

the court’s discretion.’” Id. (quoting Griffen v. City of Oklahoma City, 3 F.3d 336,

340 (10th Cir. 1993)). Therefore, we must remand to the district court for more

specific findings concerning: (1) which abstention doctrine it applied, if any; (2)

which factors it considered in making its determination; and (3) the weight it gave

to each of those factors.



Dismissal of Federal Law Claims

      The Third, Fifth, and Sixth claims for relief are federal claims brought

under either the Racketeer Influenced and Corrupt Organizations Act or the Ku

Klux Klan Act. The district court found Ms. Nicolas’ allegations failed to state a

viable claim for relief under Fed. R. Civ. P. 12(b)(6) and 9(b). We review the

district court’s dismissal of Ms. Nicolas’ claims under Rule 12(b)(6) and Rule 9(b)

de novo. Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000); Schwartz v. Celestial

Seasonings, Inc., 124 F.3d 1246, 1251 (10th Cir. 1997). We accept all well-pled

allegations in the complaint as true and construe the allegations in the light most

favorable to the plaintiff. Scott, 216 F.3d at 906.



      Even taking all of Ms. Nicolas’ well-pled allegations as true, the

defendants’ activities simply do not comport with the elements of those claims; in


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addition, the allegations were not pled with the particularity necessary to satisfy

Fed. R. Civ. P. 9(b). We affirm the district court’s dismissal of the federal law

claims.



Diversity Jurisdiction

      Ms. Nicolas argues the district court had diversity jurisdiction over her state

law causes of action, pursuant to 28 U.S.C. §1332. She contends the district court

“implicitly ruled that it lacked diversity jurisdiction over her claims.” 5 The

defendants claim diversity of citizenship is lacking for these claims or, if diversity

does exist, the probate exception to diversity jurisdiction applies.



      Because the district court’s order does not address diversity jurisdiction, we

must remand to the district court to consider in the first instance whether diversity

of citizenship exists between the parties necessary to these claims. See Amazon,

Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1276-77 (10th Cir. 2001). If the district

court finds diversity jurisdiction exists as to any of the state law claims for relief,

it should then consider whether the probate exception to diversity jurisdiction

applies and, if so, whether to exercise supplemental jurisdiction over the remaining



        Ms. Nicolas is a citizen of New York and the named defendants are citizens of
          5

Colorado.


                                           -6-
state law claims.



                                CONCLUSION

      Accordingly, we AFFIRM the district court’s dismissal of Ms. Nicolas’

federal law claims and REVERSE the district court’s dismissal of her state law

claims. We REMAND to the district court for further proceedings consistent with

this order and judgment.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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