Stone v. Wall , 135 F.3d 1438 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 96-4884
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D. C. Docket No. 95-2588-CV-SM
WALTER L. STONE, individually, and as Natural
Guardian of S.P.S., a minor,
Plaintiff-Appellant,
versus
GEORGENE WALL, GINA WALL MASTERSON, BROCK
GREEN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 2, 1998)
Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD*, Senior Circuit
Judges.
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* Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit,
sitting by designation.
PER CURIAM:
Plaintiffs-Appellants appeal from the district court’s order
of dismissal and from the district court’s denial of Plaintiffs’
motion to vacate, alter, or amend the order of dismissal.
Because the district court erred in abstaining in this case, we
are inclined to vacate and remand. But, because uncertainty
exists about whether a cause of action exists under state law,
we certify a question to the Florida Supreme Court.
I.
Plaintiff Walter Stone, a natural guardian of S.P.S., and
Plaintiff S.P.S., a minor, filed this diversity action against
Defendants Georgene Wall, Gina Wall Masterson, and Brock
Green seeking to recover damages, costs, and attorneys’ fees
in connection with Stone’s recovery of custody of the minor
child S.P.S.
2
Plaintiffs are residents of Mississippi. Stone is the parent
and natural guardian of S.P.S., his minor daughter. He was
formerly married to the mother of S.P.S., Gwen Lindgren.
Defendant Green is a resident of Virginia and is an attorney for
Wall and Masterson. Wall is a resident of Florida and is the
mother of Lindgren (grandmother of S.P.S.). Masterson is a
resident of Colorado and is Wall’s daughter (aunt of S.P.S.).
In 1987 Stone and Lindgren were divorced in Virginia. In
1994, Stone exercised his visitation rights with S.P.S. at his
home in Mississippi. Stone says that he then was informed by
his ex-wife, Lindgren, that she had been diagnosed with brain
cancer and was not expected to live more than six months. At
Lindgren’s request, Stone allowed the child to return to Virginia
and to stay with Lindgren, for Lindgren’s final days. Plaintiffs
further allege that, when Stone returned with S.P.S. to Virginia,
Wall asked about Stone’s plans for the custody of S.P.S. upon
the death of Lindgren. Wall said that she desired that custody
3
of the child be given to Masterson. Stone informed Wall that he
would take full custody of S.P.S. and live in Mississippi.
Plaintiffs allege that Defendants Green, Wall, and
Masterson acted with intent to interfere with Stone’s custody of
S.P.S. In addition, Defendants conspired, in Florida, to remove
S.P.S. from Virginia to Colorado without the consent of Stone,
who was the parent and natural guardian of S.P.S. According
to the Complaint, Defendants (1) removed the child from
Virginia before the death of her mother; (2) refused to respond
to Stone’s inquiries about the whereabouts of his child; (3)
executed a guardianship/entrustment agreement without the
knowledge and consent of Stone; (4) concealed the
guardianship agreement from Stone; (5) continued to conceal
the child, who Stone located only by his own efforts; and (6)
refused to return the child to Stone despite repeated requests
4
and despite Stone’s status as the natural guardian legally
entitled to custody of the child.1
The district court concluded that Plaintiffs failed to state a
claim (under Fed. R. Civ. Proc. 12[b][6]) and that, even if a claim
were stated, other grounds warranted abstention from the
exercise of diversity jurisdiction. Plaintiffs filed a motion to
vacate, alter, or amend the order of dismissal; the motion was
denied.
II.
A. Diversity Jurisdiction and Abstention.
1
Stone hired a private detective to determine S.P.S.’s
location; and then he took physical custody of his child with the
knowledge of the Federal Bureau of Investigation, the
Commonwealth Attorney in Virginia, and the Cherry Hills,
Colorado Police Department.
5
The Supreme Court in Ankenbrandt v. Richards, 504 U.S.
689 (1992), reaffirmed the “domestic relations exception” to
exercising diversity jurisdiction and noted that this exception
“divests the federal courts of power to issue divorce, alimony,
and child custody decrees.” 504 U.S. at 703. In addition, the
Court wrote that even when subject-matter jurisdiction might be
proper, sufficient grounds may exist to warrant a court’s
abstention from the exercise of jurisdiction. Id. at 704. The
Court suggested that abstention in family-law disputes might
be appropriate when “the suit depended on a determination of
the status of the parties.” Id. at 706. But, according to the
Court, “[i]t is axiomatic . . . that abstention from the exercise of
federal jurisdiction is the exception, not the rule . . . .
Abstention rarely should be invoked, because the federal
courts have a virtually unflagging obligation . . . to exercise the
jurisdiction given them.” Id. at 705 (internal quotations and
citations omitted).
6
Plaintiffs claim that this lawsuit does not seek a decree
within the Ankenbrandt exception, but merely charges
Defendants with a tort. Also, Plaintiffs stress that they do not
have (and have never had) a marital or parental relationship
with Defendants and contend that this case involves no
complicated examination of custody law. In addition, Plaintiffs
point out that the abstention issue was not raised by the
Defendants, but by the district court.
We reverse a district court’s decision to abstain when
there is an abuse of discretion. Rindley v. Gallagher, 929 F.2d
1552, 1554 (11th Cir. 1991). We have previously considered the
domestic relations exception in Ingram v. Hayes, 866 F.2d 368(11th Cir. 1988), where we wrote that courts should not abstain
when the following factors are absent: (1) strong state interest
in domestic relations; (2) competency of state courts in settling
family disputes; (3) the possibility of incompatible federal and
state decrees in cases of continuing judicial supervision by the
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state; and (4) the problem of congested federal court dockets.
866 F.2d at 370. We pointed out that the main point was
whether the litigation would mandate an inquiry into the
“marital or parent-child relationship.” Id.In considering this case, the district court acknowledged
that Plaintiffs did not fall squarely within the domestic relations
exception, but found that -- because the resolution of Plaintiffs’
claim for damages would require an examination of the facts
and circumstances of the domestic relations between the
parties -- a sufficient basis for abstention existed. Also, the
district court stressed that, even if Plaintiffs could state a claim,
abstention would be appropriate because of (1) the need to
address custody issues; (2) the federal judiciary’s lack of
experience in this legal area; and (3) the disruption to the
balancing of state policy with respect to custody law.
The exception enunciated in Ingram is to be read narrowly
and does not -- at least, ordinarily -- include third parties in its
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scope. This case does not involve inquiry into the existence of
a disputed parent-child relationship; nor is it a dispute between
parents over a child. Here a grandmother, aunt, and their
lawyer allegedly conspired to abduct, and then abducted, a
minor child who had identifiable natural parents. Defendants
seemingly had no legal claim of custody whatsoever: they had
no court decree giving them custody of the child.2 And, the
record reflects that Defendants have never specifically argued
that they had lawful custody. Rather than seeking custody
through state courts, they just took the minor child.
We conclude that this case is just a tort suit for money
damages. The suit does not fit our domestic-relations-
exception precedents. And we are not inclined to extend that
exception to include these circumstances. Because abstention
2
During oral argument, Defendants’ lawyer stated that a
guardianship/entrustment agreement had been signed by
Lindgren before her death (transferring guardianship of S.P.S.
to her sister). The lawyer said that he was not addressing the
“legal efficacy” of this agreement on appeal.
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was inappropriate,3 we now address whether, under Florida law,
a cause of action exists for the alleged tort.
B. Which State Law to Apply/the Rule 59 Motion.
On appeal, Plaintiffs claim that a cause of action exists
under both Virginia and Florida law. The Complaint alleged
tortious acts within Florida. After the Complaint had already
been dismissed, Plaintiffs contended in their Rule 59 motion
that, because the action accrued in Virginia, Virginia law should
3
Abstention was also incorrect because the court abstained
and then decided the case on its merits. If a court states that
abstention is appropriate in a case, it should not then
adjudicate the case on its merits by granting a Rule 12(b)(6)
motion. The order of dismissal here defeats the purpose of the
abstention doctrine, which is to abstain from reaching the
merits of certain claims. See O’Hair v. White, 675 F.2d 680, 692-
93 (5th Cir. 1982); Barrett v. Atlantic Richfield Co., 444 F.2d 38,
40 (5th Cir. 1971).
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apply. Plaintiffs also state that, even if Florida law applies, both
Virginia and Florida are common law states and recognize the
common law claims of the father and minor child.
Because this case is brought into federal court based on
diversity of the citizenship of the parties, the substantive law of
the forum must be applied (including its rules applicable to
choice-of-law problems). LaFarge Corp. v. Travelers Indem.
Co., 118 F.3d 1511, 1515 (11th Cir. 1997). Under Florida law,
courts are required to take judicial notice of the common law
and statutes of all sister states, however, “such judicial notice
can only be taken after one party has raised the issue of foreign
law through pleadings, thereby providing the other party with
reasonable notice.” Schubot v. Schubot, 363 So.2d 841, 842
(Fla. Dist. Ct. App. 1978). Foreign law is a fact to be pleaded
and proved; and when the contrary is not alleged, the law of the
sister state will be assumed to be the same as Florida law.
Collins v. Collins, 36 So.2d 417, 417 (Fla. 1948).
11
The First Amended Complaint (the complaint which was
the subject of the district court’s dismissal) alleges the
following:
At times material . . . [Defendant Masterson] . . . committed
tortious acts or engaged in activity within the State of
Florida . . . which is the basis of the cause of action herein.
....
At all times material . . . [Defendant Green] committed
tortious acts . . . within the State of Florida . . . [with
Defendants Wall and/or Masterson], who were present in
Dade County, Florida . . . which is the basis of the cause of
action herein.
Although the Complaint specifically alleged tortious acts
in Florida, Plaintiffs mentioned Virginia in the following
statements: (1) Plaintiff Stone and Lindgren were divorced in
Virginia; (2) Plaintiff Stone had custody rights to S.P.S. under
Virginia law; (3) Lindgren lived in Virginia; and (4) S.P.S. was
taken from Virginia to Colorado. At no point, however, did the
Complaint allege that Virginia law is the applicable law, or set
out what Virginia law is, or hint that Virginia law is different
from Florida law in some material respect.
12
When deciding whether to dismiss the Complaint, the
district court -- given the pleadings then before it -- did not err
in concluding that it would judge the Complaint under Florida
law. And it was no abuse of discretion for the district court
later to deny the Rule 59(e) motion after the case’s dismissal.
The Rule 59 motion claimed, among other things, that the
choice of law to be applied to this cause of action was Virginia
law. But, as far as the record shows, possible application of
Virginia law was not specifically raised until the Rule 59 motion
was filed. At all pertinent times before the order of dismissal,
the district court was asked to look at Florida law. Therefore,
when it was time to raise a dispute about choice of laws, there
seems to have been no controversy about what state’s law
applied: Florida law. The purpose of a Rule 59(e) motion is not
to raise an argument that was previously available, but not
pressed. So, the question properly presented to the district
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court, and now to us, is whether a cause of action exists under
Florida law.
C. Existence of a Claim Under Florida Law.
The test for sufficiency of the complaint was set out by the
Supreme Court in Conley v. Gibson:
In appraising the sufficiency of the complaint we
follow . . . the accepted rule that a complaint should
not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle
him to relief.
355 U.S. 41, 45-46 (1957). We review a district court's grant of
a motion to dismiss under Rule 12(b)(6) de novo. McKusick v.
City of Melbourne, Fla., 96 F.3d 478, 482 (11th Cir. 1996). In
doing so, we view the facts in the light most favorable for the
plaintiffs-appellants. Welch v. Laney, 57 F.3d 1004, 1008 (11th
Cir. 1995).
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Plaintiffs claim that this case presents an issue of first
impression and that their cause of action is based on the
common law action for interference with a parent/child
relationship or abduction. They rely on two cases and the
Restatement of Torts, Second, § 700 to establish this claim; see
Pickle v. Page, 169 N.E. 650 (N.Y. 1930); Armstrong v.
McDonald, 103 So.2d 818 (Ala. Ct. App. 1958).
No Supreme Court of Florida decision squarely addresses
whether a cause of action exists in the circumstances
presented by this case. So, we certify the following question to
the Supreme Court of Florida for resolution:4
4
We are aware that Defendants objected to personal
jurisdiction and venue. And, these defenses were not
addressed by the district court. But, we have looked at the
record and are comfortable that for at least one Defendant,
Georgene Wall -- a Florida resident -- personal jurisdiction and
venue are appropriate. So, the question of whether the
Complaint states a claim should be outcome-determinative, at
least for this Defendant. Jurisdiction may also be proper for the
other Defendants. See Wilcox v. Stout, 637 So.2d 335, 336-37
(Fla. Dist. Ct. App. 1994) (if any member of a conspiracy
commits tortious act within state in furtherance of conspiracy,
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WHETHER A CAUSE OF ACTION EXISTS FOR
INTERFERENCE WITH THE PARENT/CHILD
RELATIONSHIP WHERE A THIRD PARTY (THAT IS, A
NONPARENT WHO HAS NO CUSTODY RIGHTS OVER
THAT CHILD) INTENTIONALLY ABDUCTS A MINOR CHILD
FROM A PARENT LEGALLY ENTITLED TO THE CHILD’S
CUSTODY.
Our phrasing of this question is intended in no way to limit
the Supreme Court of Florida in its inquiry and consideration of
the various problems and issues posed by the entire case as
the Supreme Court perceives them to be. To assist its
determination, the entire record and the briefs of the parties
shall be transmitted to the Supreme Court of Florida.
QUESTION CERTIFIED.
then all conspirators are subject to jurisdiction); United States
v. Schlei, 122 F.3d 944, 975 (11th Cir. 1997) (conspiracy may be
prosecuted in the district where an overt act was committed --
overt act need not be a crime). Thus, we feel justified in asking
our colleagues on the Florida Supreme Court to consider
advising us now on this question of Florida law.
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