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USCA1 Opinion
December 9, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1624
FERDINAND NWANKWO,
Plaintiff, Appellant,
v.
KIMBERLY NWANKWO AND
EDWARD MITCHELL,
Defendants, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Ferdinand Nwankwo on brief pro se.
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Edward M. Kaplan, Sean M. Dunne and Sulloway & Hollis on
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brief for appellees.
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Per Curiam. This case involves two conflicting state
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court child custody decrees. After a bench trial, the district
court dismissed one of plaintiff's claims against defendant
Kimberly Nwanko on jurisdictional grounds, and the others for
failure to prove a claim. The claims against defendant Edward
Mitchell were dismissed on the merits. As we have concluded that
all claims against Kimberly Nwanko should have been dismissed for
lack of subject matter jurisdiction, we partially reverse and
vacate the judgment below, remanding for entry of a dismissal in
accordance with this opinion. We affirm the dismissal on the
merits of the claims against Edward Mitchell.
Plaintiff was awarded physical custody of his two
children by a temporary decree from a New Hampshire court in
April, 1990. At the time of this order, his wife, defendant
Kimberly Nwanko, and the children were residing in Florida. A
few months later, a Florida court awarded custody of the children
to Kimberly Nwanko, rejecting the New Hampshire court's decree on
the ground that it had been issued without jurisdiction over the
children. Plaintiff subsequently obtained a permanent custody
and divorce decree from the New Hampshire court. Kimberly Nwanko
did not appear in the New Hampshire action.
Although plaintiff had appeared specially in the Florida
action to seek recognition of the New Hampshire custody decree,
he did not pursue a direct appeal. Instead, he returned to New
Hampshire and filed a complaint in federal district court against
Kimberly Nwanko and her father, Edward Mitchell. The complaint
claimed that the federal court had jurisdiction by virtue of the
Parental Kidnapping Prevention Act, 18 U.S.C. 1738A ("PKPA").
It sought an injunction enforcing the New Hampshire custody
decree and an unspecified amount in damages for interference with
plaintiff's parental rights, emotional distress, and expenses in
seeking custody of his children.
After the complaint was referred to a magistrate who
issued a "report and recommendations," plaintiff amended his
complaint. In an apparent attempt to cure the original
complaint's jurisdictional defects, the amended complaint made no
mention of the PKPA nor injunctive relief. Instead, it alleged
diversity jurisdiction only, and sought damages above the
jurisdictional amount for three state law tort causes of action
against both defendants: intentional interference with parental
custody, intentional infliction of emotional distress, and a
claim of uncertain legal origin, seeking reimbursement for the
support and care of Fawn Mitchell, Kimberly Nwanko's child by a
prior relationship.
By motion shortly thereafter, however, plaintiff renewed
his request for an injunction under the PKPA. And in later pre-
trial and post-trial motions and responses to motions, plaintiff
requested that the district court enforce the New Hampshire
custody decree by virtue of either or both its federal question
and diversity jurisdiction.
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As the district court held, there was no basis for
original subject matter jurisdiction over the PKPA claim under 28
U.S.C. 1331, because the PKPA does not provide an implied
private federal cause of action to determine which of two
conflicting state custody decrees is valid. Thompson v.
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Thompson, 484 U.S. 174, 182, 186 (1988). The PKPA is addressed
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to the States and state courts. Congress did not intend thereby
to entangle the federal courts in traditional domestic relations
questions that "they have little expertise to resolve." Id. at
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186 n.4. If plaintiff felt aggrieved by the Florida orders, his
remedy was to appeal through the state courts. Id. at 187 ("State
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courts faithfully administer the Full Faith and Credit Clause
every day ... we can think of no reason why the courts'
administration of federal law in custody disputes will be any
less vigilant;" but the Supreme Court is available for ultimate
review of "truly intractable" deadlocks).
Nor was there subject matter jurisdiction to enforce the New
Hampshire custody decree under the diversity of citizenship
statute, 28 U.S.C. 1332. Ankenbrandt v. Richards, 112 S. Ct.
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2206 (1992). Ankenbrandt, decided after the lower court issued
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its opinion in this case, reexamined the theoretical
underpinnings of the "domestic relations exception" to diversity
jurisdiction first articulated by the Supreme Court in Barber v.
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Barber, 62 U.S. (21 How.) 582, 16 L. Ed. 226 (1859). The Court
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determined that, given the long passage of time without any
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expression of Congressional dissatisfaction, the exception is now
rooted in the diversity statute itself. Ankenbrandt, 112 S. Ct.
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at 2213.
As reaffirmed by the Court in Ankenbrandt, the "domestic
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relations exception" is a narrow one. In order to assure
decisions by those with the greatest judicial expertise and the
resources to enforce them, the exception "divest[s] the federal
courts of the power to issue divorce, alimony and child custody
decrees." Id. at 2215. But federal courts retain jurisdiction
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over cases involving intra-family torts, unless abstention is
otherwise required by the Younger or Burford abstention doctrines
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to avoid interference with pending state proceedings, important
and difficult questions of state policy, or effectuation of state
decrees. Id. at 2216; see Younger v. Harris, 401 U.S. 37 (1971);
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Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987), cited by Court
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as among authorities extending Younger abstention to civil cases;
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Burford v. Sun Oil Co., 319 U.S. 315 (1943); Colorado River Water
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Conservation Dist. v. United States, 424 U.S. 800, 813 (1976),
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cited by Court for basic abstention principles.
In Ankenbrandt, the domestic relations exception was held
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inapplicable to a claim seeking damages against a father and his
companion for alleged child abuse. The claim there only
peripherally touched on domestic relations issues because the
plaintiff "in no way" sought the issuance of a divorce, custody
or alimony decree. Ankenbrandt, 112 S. Ct. at 2215. Nor were
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there any issues of status to be resolved that might interfere
with effectuation of a state court decree. Id. at 2216.
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By contrast, here plaintiff's real aim, as stated in his
original complaint, was to obtain direct enforcement of one of
two conflicting state court custody decrees. Thus there was no
subject matter jurisdiction over the original complaint.
Ankenbrandt, 112 S. Ct. at 2215. And although plaintiff
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attempted to cure the jurisdictional deficit by filing an amended
complaint seeking only damages, the inherent infirmity of the
state tort claims pleaded in that document belied the pleading's
genuineness as a predicate for jurisdiction.1 If there was any
doubt, the real purpose of this suit quickly reappeared in the
contradictory relief plaintiff sought by motion.
Because plaintiff appeared pro se and the facts were
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somewhat murky, the district court liberally construed his
pleadings and motions. And the defendants apparently never
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1. From the outset, it was a legal impossibility for plaintiff
to succeed on these state law claims, because, as he admitted,
there was no custody decree in his favor when defendant Kimberly
Nwanko moved with the children to Florida. At least one
essential element of the claim was thus always missing, although
the language of the complaint tended to obscure the temporal
sequence of events. Plante v. Engel, 124 N.H. 213, 217, 469 A.2d
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1299, 1302 (1983) (tort claim for "interference with parental
custody" lies "where a parent has been awarded custody of a child
by a court decree and the noncustodial parent abducts the
child"); Morancy v. Morancy, 134 N.H. 493, 593 A.2d 1158 (1991)
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(tort claim for intentional infliction of emotional distress
requires showing of "outrageous" conduct). While plaintiff may
have believed that the state law should be changed, that
question, too, was beyond the competence of the federal court in
a diversity case.
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objected for lack of subject matter jurisdiction. But even when
the parties are content to have the case decided on the merits,
where the suit's transparent purpose is to embroil the district
court in a dispute involving conflicting custody decrees, the
suit must be dismissed for lack of subject matter jurisdiction.4
See Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382
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(1884), quoted in Bender v. Williamsport Area Sch. Dist., 475
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U.S. 534, 546 (1985) ("The first and fundamental question is that
of jurisdiction ... this question the court is bound to ask and
answer for itself, even when not otherwise suggested, and without
respect to the relation of the parties to it"); Louisville &
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Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (it is the duty of
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appellate court to see to it that lower court's jurisdiction not
exceeded, even when parties do not complain). See also Sutter v.
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Pitts, 639 F.2d 842 (1st Cir. 1981) (under former version of
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domestic relations exception, case properly dismissed where
plaintiff's complaint stated civil rights action but, with its
"constitutional cloak removed" actually sought enforcement of
probate court's custody order). Accordingly, all claims against
Kimberly Nwanko must be dismissed for lack of subject matter
jurisdiction.
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4. The district court seemingly recognized that the case should
have been dismissed earlier. In ruling on a post-judgment motion
several months later, it described the dismissal of the claims
against Kimberly as "in essence" for lack of jurisdiction, and
the dismissal of the claims against Edward Mitchell as "in
essence" on his motion for summary judgment.
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The claims against Edward Mitchell, however, stand on a
different footing. Those claims do not seem to have inevitably
involved resolution of the parties' status, enforcement of any
custody decree, nor interference with any pending state
proceedings. They were thus were not barred for lack of subject
matter jurisdiction by the domestic relations exception or
related abstention doctrines. Ankenbrandt, 112 S. Ct. at 2215.
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Under state law, however, they, too, were apparently infirm from
the outset, and might properly have been dismissed on a motion
for failure to state a claim or, as the district court later
said, on a motion for summary judgment. The factual findings
underlying the court's conclusion that plaintiff had not
sustained his burden of proof against defendant Edward Mitchell
were not clearly erroneous. Fed. R. Civ. P. 52(a); DesRosiers v.
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Moran, 949 F.2d 15, 19 (1st Cir. 1991). We have considered
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plaintiff's other assertions of legal and factual errors in the
disposition of these claims and find them without merit. We
therefore affirm the judgment dismissing the claims against
Edward Mitchell on the merits.
The judgment dismissing plaintiff's claims against
Kimberly Nwanko is reversed, vacated and remanded for entry of a
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dismissal on the grounds of lack of subject matter jurisdiction.
The judgment dismissing plaintiffs' claims against Edward
Mitchell is affirmed.
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Document Info
Docket Number： 92-1624
Filed Date： 12/9/1992
Precedential Status： Precedential
Modified Date： 3/3/2016