Alliant Tax Credit 31, Inc. v. M. Vincent Murphy, III , 924 F.3d 1134 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14634
________________________
D.C. Docket No. 1:11-cv-00832-RWS
ALLIANT TAX CREDIT 31, INC,
a Florida corporation,
ALLIANT TAX CREDIT FUND XXVII, LTD.,
a Florida limited partnership,
ALLIANT TAX CREDIT TAX CREDIT XXVII, INC,
a Florida corporation,
ALLIANT TAX CREDIT XI, INC.,
a Florida corporation,
ALLIANT TAX CREDIT XI, LTD.,
a Florida limited partnership,
Plaintiffs - Counter Defendants – Appellees -
Cross Appellants,
versus
M. VINCENT MURPHY, III,
MULTIFAMILY HOUSING DEVELOPERS, L.L.C.,
a Georgia limited liability company,
COMMUNITY MANAGEMENT SERVICES, INC.,
a Georgia corporation,
GAZEBO PARK APARTMENTS OF ACWORTH, LLC,
a Georgia limited liability company,
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Defendants - Appellants - Cross Appellees,
MARILYN MURPHY,
Defendant - Counter Claimant - Appellant -
Cross Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(May 15, 2019)
Before TJOFLAT and WILLIAM PRYOR, Circuit Judges, and MURPHY, *
District Judge.
TJOFLAT, Circuit Judge:
This fraudulent-transfer case, like many such cases, is a suit about a suit. In
the first suit, Plaintiffs obtained a judgment in federal district court in Kentucky for
breach of a partnership contract. But when Plaintiffs tried to collect, they
discovered that the once-wealthy Defendant was figuratively penniless. The
surprised Plaintiffs surmised that Defendant had colluded with his former wife to
fraudulently transfer his assets to her (or to entities under her control) as part of
their divorce settlement. So Plaintiffs sued—again—this time in federal district
court in Georgia—to recover their judgment under Georgia’s fraudulent-transfer
*
Honorable Stephen J. Murphy, III, United States District Court for the Eastern District
of Michigan, sitting by designation.
2
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statute. Agreeing with Plaintiffs that fraudulent transfers had occurred, a jury
returned a verdict in their favor. The District Court entered judgment accordingly,
and this appeal and cross-appeal followed.
I.
A.
1.
The run-up to this suit began when Plaintiffs, five entities that we
collectively refer to as “Alliant,” 1 lent Defendant M. Vincent Murphy, III
investment capital to build low-income housing units that were never completed.
So Alliant sued him and other guarantors of the debt in federal court in the Eastern
District of Kentucky for breach of their partnership contract. Alliant was joined in
that suit by Alliant Tax Credit Fund 31-A, Ltd. (“Alliant 31-A”), which also lent
investment capital to Vincent. 2 Alliant and Alliant 31-A prevailed, and the District
Court for the Eastern District of Kentucky entered a judgment (the “Kentucky
judgment”) in their favor for $8,946,643. Vincent appealed, and the Court of
1
The full names are Alliant Tax Credit 31, L.L.C. (“Alliant 31”), Alliant Tax Credit Fund
XXVII, Ltd. (“Alliant XXVII, Ltd.”), Alliant Tax Credit Fund XXVII, L.L.C. (“Alliant XXVII,
L.L.C.”), Alliant Tax Credit XI, L.L.C. (“Alliant XI, L.L.C.”), and Alliant Tax Credit XI, Ltd.
(“Alliant XI, Ltd.”).
2
Alliant 31-A was dismissed by the District Court for the Northern District of Georgia
because its presence would have destroyed subject-matter jurisdiction. For this reason (and
others that will become clear), we treat Alliant 31-A separately.
3
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Appeals for the Sixth Circuit affirmed. Alliant Tax Credit Fund 31-A, Ltd. v.
Murphy, 494 F. App’x 561, 563 (6th Cir. 2012).
But the fraudulent activity that gave rise to this suit began before the
Kentucky judgment was entered.
Vincent and his wife, Marilyn Murphy, had earlier divorced in the Superior
Court of Fulton County, Georgia. The divorce decree incorporated a settlement
agreement between them. As part of the agreement, Marilyn received from
Vincent several millions of dollars in cash and commercial paper, stock shares, a
mountain cabin, household furnishings, and an apartment complex. These assets
are the basis for the fraudulent-transfer action here. When Alliant sought to collect
on the Kentucky judgment, it found that Vincent was judgment proof. So it sued
Vincent for a second time.
Alliant (but not Alliant 31-A) brought this action against Vincent, Marilyn,
Multifamily Housing Developers, L.L.C. (“Multifamily Housing”), and
Community Management Services, Inc. (“CMS”), 3 in the District Court for the
Northern District of Georgia under the Uniform Fraudulent Transfers Act (the
“UFTA”), O.C.G.A. §§ 18-2-70 to 80 (2010), amended by the Uniform Voidable
3
Alliant alleged that Multifamily Housing and CMS, both of which Marilyn controlled,
were also fraudulent transferees of some of Vincent’s assets.
4
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Transactions Act (the “UVTA”), O.C.G.A. §§ 18-2-70 to 85 (2015).4 The UFTA,
a quintessential fraudulent-transfer statute, allows creditors to void certain asset
transfers made by a debtor with the purpose of immunizing itself from collection.
See O.C.G.A. § 18-2-77 (2010). Alliant claimed that the Murphys’ divorce
settlement and Vincent’s asset transfers to Defendants were ruses to evade
Vincent’s creditors and thus sought to void those transfers. The case proceeded to
trial, and a jury returned an itemized verdict for Alliant after having found that
twenty-three transfers from Vincent to Defendants were fraudulent. The jury also
found that the Murphys were subject to punitive damages but that only Vincent had
acted with the “specific intent to cause harm.” It awarded $1,000,000 in punitive
damages against him and $100,000 in punitive damages against Marilyn.
2.
After the jury returned its verdict, the District Court for the Northern District
of Georgia entered a final judgment (the “Georgia judgment”) for Alliant. Before
describing what the judgment provided, we pause momentarily to note the
remedies available under the UFTA.
4
Georgia’s General Assembly amended the UFTA in 2015. See Uniform Voidable
Transactions Act, 2015 Ga. Laws 1019 (codified at O.C.G.A. §§ 18-2-70 to 85 (2018)). As part
of the amendment, the General Assembly changed the name of the statute. Some of the
amendments are consequential to issues we must decide on appeal. But the parties agree—and
we follow their lead—the UFTA is the version of the law we must apply. We discuss the
UVTA—note the “V” in place of the “F”—at various points throughout this opinion; we make
clear when we reference that currently enacted version of the statute.
5
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The UFTA provides creditors with both equitable and legal remedies. The
creditor may obtain, as an equitable remedy, “[a]voidance of the transfer . . . to the
extent necessary to satisfy the creditor’s claim.” See id. § 18-2-77(a)(1). Or it may
obtain, as a legal remedy, “judgment [against the transferee] for the value of the
asset transferred . . . or the amount necessary to satisfy the creditor’s claim,
whichever is less.” See id. § 18-2-78(b).
Alliant did not seek avoidance of any of the transfers made. Nor realistically
could it: Most of Vincent’s transfers were in the form of cash that has since been
turned into proceeds that are likely untraceable. Rather, it sought a money
judgment for the value of the assets transferred. Said differently, it sought the
legal remedy available under the UFTA.
The Georgia judgment, which purported to implement the jury’s verdict,
provided that Alliant would receive the sum of $10,137,285.84, which consisted of
the amount of the Kentucky judgment ($8,946,643), interest on that judgment
($90,642.84), and the punitive-damages awards against Vincent and Marilyn
($1,000,000 and $100,000, respectively). The District Court for the Northern
District of Georgia also issued a writ of execution that directed the U.S. Marshal to
seize Defendants’ assets to satisfy the judgment. 5
5
In ordering the U.S. Marshal to seize the items identified in the judgment, the District
Court appeared to be entering an in rem judgment, as if Alliant had brought suit against the
fraudulently conveyed assets or their proceeds themselves. The Court should have entered an in
6
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3.
Following the entry of the Georgia judgment, Marilyn satisfied the judgment
in full, and Alliant moved to alter or amend the judgment, see Fed. R. Civ. P. 60, to
allow prejudgment interest under Georgia law. The District Court for the Northern
District of Georgia denied this motion, reasoning that (1) Alliant’s UFTA claim
was unliquidated—that is, not reduced to a fixed sum—until the Georgia judgment
was entered and (2) under Georgia law, entitlement to prejudgment interest for
unliquidated claims requires compliance with the Unliquidated Damages Interest
Act, O.C.G.A. § 51-12-14 (2018), whose procedures Alliant had not followed.
Defendants appealed the judgment entered pursuant to the verdict, and Alliant
cross-appealed the order denying prejudgment interest.
B.
This appeal and cross-appeal require us to decide numerous discrete issues.
We first take up justiciability problems in Part II. We then turn to the merits,
addressing Defendants’ arguments on appeal in Parts III through V and Alliant’s
arguments on cross-appeal in Part VI. We conclude in Part VII.
II.
personam judgment against Vincent and Marilyn individually and issued writs of execution
against their assets or writs of garnishment against their accounts. This error does not matter for
our purposes, however, because the parties treated the judgment as though it were entered in
personam.
7
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We begin by addressing two jurisdictional bars to the District Court’s power
to entertain this suit: mootness and subject-matter jurisdiction.6 We then address
non-jurisdictional bars. Defendants challenge the Court’s decision not to abstain
from exercising its jurisdiction on three prudential grounds. First, that even if the
parties are diverse of citizenship, this case falls within the domestic-relations
exception to diversity jurisdiction. Second, that by entertaining this suit, the Court
violated the Rooker-Feldman doctrine. 7 And third, that Alliant is collaterally
estopped from attacking the transfers as fraudulent.
A.
The first question, given Marilyn’s full satisfaction of the Georgia judgment:
Are this appeal and cross-appeal moot? After oral argument, we asked the parties
to brief this question and having reviewed their responses, we are satisfied that the
case remains a case or controversy within the meaning of Article III. See U.S.
Const. art. III, § 2, cl. 1.
“What matters [for mootness] is whether the parties’ actions objectively
manifest an intent to abandon the issues on appeal.” RES-GA Cobblestone, LLC v.
Blake Constr. & Dev., LLC, 718 F.3d 1308, 1315 (11th Cir. 2013). So payment
6
Unless otherwise stated, our use of “District Court” from this point forward refers to the
Court below—the District Court for the Northern District of Georgia.
7
Rooker v. Fid. Tr. Co., 263 U.S. 413, 44 S. Ct. 149 (1923), and D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983).
8
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moots an appeal “only if the parties mutually intended a final settlement of all the
claims in dispute and a termination of the litigation.” McGowan v. King, Inc., 616
F.2d 745, 747 (5th Cir. 1980) (per curiam). 8
This case continues to breathe life. In Alvarez Perez v. Sanford-Orlando
Kennel Club, Inc., 518 F.3d 1302 (11th Cir. 2008), we applied the Supreme
Court’s decision in United States v. Hougham, 364 U.S. 310, 81 S. Ct. 13 (1960),
and held that an appeal and cross-appeal situated much like the ones before us
today were not moot. There, the plaintiff’s counsel signed satisfaction-of-
judgment documents that were subsequently filed in the district court, but the
plaintiff did not expressly reserve his right to appeal. 518 F.3d at 1305. But there,
as here, the parties “continued to pursue their appeals.” Id. at 1307. There, as
here, the parties “filed supplemental letter briefs addressing the merits.” Id. And
there, as here, a party “inform[ed] us of a change in status involving one of the
defendants.” Id. In other words, “[i]nstead of filing a motion to dismiss the appeal
as soon as a satisfaction was filed in the district court, both parties continued to
litigate the case in this Court as though nothing had changed.” Id. at 1308.
In fact, Marilyn merely did the effective equivalent of posting a supersedeas
bond—an act that by itself does not moot a case. See Fed. R. Civ. P. 62(b).
8
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
9
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When a judgment is appealed, both the winning and losing parties face risk
in the period between the time judgment is entered and the time it is affirmed or
reversed. The winning party seeks immediate satisfaction of the judgment because
assets available at the time judgment is entered might disappear by the time it is
affirmed. And the losing party seeks delayed satisfaction of judgment for a
parallel reason: Assets available at the time judgment is entered might disappear by
the time it is reversed. A supersedeas bond insures both parties against these
respective risks. It permits a judgment debtor to “avoid the risk of satisfying the
judgment only to find that restitution is impossible after reversal on appeal” and
“secures the prevailing party against any loss sustained as a result of being forced
to forgo execution on a judgment during the course of an ineffectual appeal.”
Poplar Grove Planting & Ref. Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189,
1191 (5th Cir. 1979).
But posting a supersedeas bond does not moot an appeal. See Dale M. ex
rel. Alice M. v. Bd. of Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307, 237
F.3d 813, 815 (7th Cir. 2001) (Posner, J.) (“A judgment creditor who pays the
judgment pending appeal instead of posting a supersedeas bond (which would
automatically stay collection) is entitled to the return of its money if the decision is
reversed, and so the payment does not moot the appeal unless the appellant has
relinquished his right to seek repayment if he wins.” (citation omitted)).
10
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Marilyn’s choice to pay the judgment does not render this case moot any
more than would her decision to post a supersedeas bond; she simply waived the
protection a bond would provide. Cf. 11 Charles Alan Wright et al., Federal
Practice and Procedure § 2905, at 724−25 (3d ed. 2012) (“[A] person who cannot
furnish a supersedeas bond does not lose the right to appeal, although he does
assume the risk of getting his money back again if the judgment is reversed.”).
In short, the “objective manifestations of both parties clearly indicate that
they intended to pursue their positions in the appeal and cross-appeal.” Alvarez
Perez, 518 F.3d at 1308. We turn now to subject-matter jurisdiction.
B.
Defendants maintain that the District Court lacked jurisdiction to entertain
the dispute because the parties were not diverse of citizenship.
The District Court’s subject-matter jurisdiction has continued to present
difficulties in this case. Defendants appealed the Georgia judgment, and two
months later, this Court sua sponte asked the parties to address subject-matter
jurisdiction because diversity jurisdiction was not evident from the pleadings. In
response, Alliant moved to amend its complaint to simply allege the citizenships of
all relevant entities. Defendants, in turn, moved to remand the case to the District
Court for a factual determination of subject-matter jurisdiction in the first instance.
After reviewing the parties’ responses and motions, we remanded the case to the
11
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District Court so that it might “fully resolve the question of the court’s subject-
matter jurisdiction over this action.” Alliant Tax Credit Fund 31-A, Ltd. v.
Murphy, No. 15-14634-GG, slip op. at 1 (11th Cir. Apr. 10, 2017) (per curiam).
On remand, Alliant filed a memorandum on Plaintiffs’ citizenships.
Plaintiffs are a mixture of limited-liability companies and limited partnerships. 9
Some of Plaintiffs’ members and partners are natural persons, but some are other
limited-liability companies, other partnerships, corporations, banks, and trusts.
Alliant traced these entities’ citizenships, too. It included with its memorandum to
the District Court affidavits, declarations, and authenticated documents.
Defendants responded that Alliant’s submissions were insufficient to confirm that
all relevant entities were accounted for, as well as to confirm those entities’
citizenships. The Court observed that though Alliant had initially claimed that the
sole citizenship of all five Plaintiffs was Florida, Alliant conceded in its
memorandum that Plaintiffs were also citizens of California, Delaware, the District
of Columbia, Illinois, Nebraska, New York, Ohio, and Texas. So the Court
required further documentary evidence of citizenship. For natural persons, it asked
for drivers licenses; for corporations, it asked for annual reports and articles of
incorporation or governance documents; for limited partnerships and limited-
9
Alliant 31, L.L.C., Alliant XXVII, L.L.C., and Alliant XI, L.L.C. are limited-liability
companies. Alliant XXVII, Ltd. and Alliant XI, Ltd. are limited partnerships.
12
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liability companies, it asked for agreements; for banks, it asked for articles of
association; and for trusts, it asked for organizational documents.
After this jurisdictional discovery was complete, the District Court set out its
findings as to the parties’ citizenships:
Plaintiffs
• Alliant 31 was a citizen of Florida, California, and Illinois.
• Alliant XXVII, Ltd. was a citizen of Florida, California, Illinois, and the
District of Columbia.
• Alliant XXVII, L.L.C. was a citizen of Florida, California, and Illinois.
• Alliant XI, L.L.C. was a citizen of Florida, California, and Illinois.
• Alliant XI, Ltd. was a citizen of Florida, California, Illinois, Delaware,
New York, Texas, Nevada, and Ohio.
Defendants
• Vincent was a citizen of Georgia.
• CMS was a citizen of Georgia.
• Multifamily Housing was a citizen of Georgia.
• Marilyn was a citizen of Georgia.
As such, it concluded that Alliant had established subject-matter jurisdiction by a
preponderance of the evidence.
Defendants, still unsatisfied that diversity jurisdiction was present, moved
this Court for leave to file supplemental briefing on the District Court’s factual
13
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findings, its failure to sustain evidentiary objections, its admission into evidence of
unreliable documents, and its failure to allow adversarial discovery. We granted
Defendants’ motion, Alliant Tax Credit Fund 31-A, Ltd. v. Murphy, No. 15-14634-
GG, slip op. at 2 (11th Cir. Nov. 9, 2017) (single-judge order), and now address
these jurisdictional issues.
1.
First, Defendants argue that the record contains insufficient evidence to
support the District Court’s findings on the citizenships of two inter vivos trusts,
whose names we have redacted.10 They contend that the trusts’ citizenships derive
from their beneficiaries and that Alliant has not fully accounted for those
beneficiaries.
Whether subject-matter jurisdiction exists presents a mixed question of law
and fact. We review de novo a district court’s legal conclusions. Calderon v.
Baker Concrete Constr., Inc., 771 F.3d 807, 810 (11th Cir. 2014). But we review
for clear error “any factual determinations necessary to establish jurisdiction,”
Dudley v. Eli Lilly & Co., 778 F.3d 909, 911 (11th Cir. 2014), including “findings
regarding domicile,” McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir.
2002) (per curiam). The party invoking federal jurisdiction “must prove, by a
10
These trusts are members of a limited-liability company that is a member of another
limited-liability company that is a partner of a limited partnership that in turn is a member or
partner of each of the five Plaintiffs in this case.
14
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preponderance of the evidence, facts supporting the exercise of jurisdiction.”
Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1363–64 (11th Cir. 2018).
A “traditional trust” holds the citizenship of its trustee, not of its
beneficiaries. See Americold Realty Tr. v. Conagra Foods, Inc., 136 S. Ct. 1012,
1016 (2016); see also Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719,
730 (2d Cir. 2017) (“[F]or . . . traditional trusts, it is the citizenship of the trustees
holding the legal right to sue on behalf of the trusts, not that of beneficiaries, that is
relevant to jurisdiction.”). A “traditional trust . . . generally describes a fiduciary
relationship regarding property where the trust cannot sue and be sued as an entity
under state law.” Wang ex rel. Wong v. New Mighty U.S. Tr., 843 F.3d 487, 495
(D.C. Cir. 2016). So whether a trust is “traditional” requires us to refer to the “law
of the state where the trust is formed.” Id.; see also, e.g., id. (holding that under
District of Columbia law, a trust lacked separate “juridical person status” and thus
could not “sue and be sued as an entity”); Loubier, 858 F.3d at 731 (holding that
under Florida law, a trust was not a “distinct juridical entit[y]” and thus was
“incapable of being haled into court except through [its] trustee[]”).
The two trusts here were formed in Wisconsin, and under Wisconsin law, a
trust is represented in litigation through its trustee. See Wis. Stat. § 701.0106
(stating that the trust code incorporates the “common law of trusts”). Because the
code does not confer “juridical person status” on a trust itself, see New Mighty U.S.
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Tr., 843 F.3d at 495, the trusts are traditional trusts whose citizenships are those of
their trustees. The trustee of both trusts is a natural person who is domiciled in
Florida. As such, she is a Florida citizen. See McCormick, 293 F.3d at 1257.
In short, Alliant has proven diversity jurisdiction by a preponderance of the
evidence because if the trustee is diverse of Defendants, the trusts themselves are
too.
2.
Second, Defendants argue that the District Court erred by admitting the
sworn affidavits of three persons who held leadership positions with various
members or partners of the five Plaintiffs. We review a district court’s admission
of evidence for abuse of discretion. Williams v. Mast Biosurgery USA, Inc., 644
F.3d 1312, 1316 (11th Cir. 2011).
Defendants argue that the affidavits lack foundation, see Fed. R. Evid. 602,
because the affiants failed to state that only they could change the memberships of
their respective entities. But the relevant question for foundation purposes is
whether the affiants had “personal knowledge” of the matter sworn to. See id.
Each person laid a foundation for his respective affidavit by stating his position
with the relevant entity and that he had access to that entity’s records. As leaders,
rather than as minor functionaries, they were well within their wheelhouses to
16
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swear to the entities’ compositions. Defendants’ argument goes to the weight of
the evidence, not to its admissibility.
In short, the District Court was well within its discretion to admit the
affidavits.
3.
Third, Defendants challenge the operating agreements for Alliant XXVII,
L.L.C. and Alliant XI, L.L.C. on which one affiant relies. They point to missing or
wholly redacted pages and font inconsistencies among the pages. As such, they
argue that the documents were inadmissible because they could not be
authenticated, see Fed. R. Evid. 901, and because they were hearsay that did not
comport with the business-records exception, see Fed. R. Evid. 803(6).
We need not reach these issues because even in a record devoid of this
evidence, the District Court’s factual findings on these entities’ citizenships was
not clearly erroneous. For both entities, Alliant submitted the later-issued
certificates of conversion from corporations to limited-liability companies. Those
documents indicate that both Alliant XXVII, L.L.C. and Alliant XI, L.L.C. have
only one member and one general partner. So Defendants’ theory that other
entities lurk in those entities’ structures is unfounded.
4.
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Fourth, Defendants argue that the District Court should have permitted them
to obtain through additional jurisdictional discovery (1) the documentary evidence
that Alliant filed in Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Community
Housing, LLC, 713 F. App’x 821 (11th Cir. 2017) (per curiam), 11 and (2) a copy of
the partnership agreement between Alliant 31 and Alliant 31-A. 12 We review a
district court’s denial of jurisdictional discovery for abuse of discretion.
Culverhouse v. Paulson & Co., 813 F.3d 991, 993 (11th Cir. 2016).
Defendants’ underlying grievance is that Alliant cannot be trusted because it
has misrepresented its citizenship in other litigation, including litigation in this
circuit. And because one district judge in this circuit required certain documents of
Alliant, the District Judge in this (unrelated) case should have too.
To be sure, parties have a “‘qualified right to jurisdictional discovery,’
meaning that a district court abuses its discretion if it completely denies a party
jurisdictional discovery.” Am. Civil Liberties Union of Fla., Inc. v. City of
11
Alliant XI, L.L.C., a Plaintiff here, was also a party to that case.
12
We deal with this second request later. Defendants argue that the record contains
insufficient evidence that Alliant 31 meets the amount-in-controversy requirement. See 28
U.S.C. § 1332(a) (requiring that a controversy “exceed[] the sum or value of $75,000, exclusive
of interest and costs”). Alliant 31 and Alliant 31-A were awarded $1,478,489 via the Kentucky
judgment. Defendants claim that each has partial ownership in that amount and that Alliant 31
has not proven that its own interest is at least $75,000. We explain later on, however, that
Alliant 31 was entitled to sue for the full amount because it was a joint−judgment creditor. See
infra p. 25. As such, the amount-in-controversy requirement is met.
18
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Sarasota, 859 F.3d 1337, 1341 (11th Cir. 2017) (citations omitted) (quoting Eaton
v. Dorchester Dev., Inc., 692 F.2d 727, 729 n.7 (11th Cir. 1982)).
The District Court here did not abuse its discretion. It did not “completely
deny” Defendants jurisdictional discovery. To the contrary, it ordered Alliant to
produce additional documentary evidence after we remanded the case. Moreover,
just because one judge permitted a discovery request does not mean another judge
was obligated to do so. Defendants overlook a basic principle of appellate review:
Two district judges can reach two different determinations of what discovery to
permit, and under abuse-of-discretion review, we are required to affirm both
decisions unless one judge has “made a clear error of judgment” or “applied the
wrong legal standard.” See Josendis v. Wall to Wall Residence Repairs, Inc., 662
F.3d 1292, 1307 (11th Cir. 2011) (quoting Guideone Elite Ins. Co. v. Old Cutler
Presbyterian Church, Inc., 420 F.3d 1317, 1325 (11th Cir. 2005)); see also id. at
1306−07 (“Discretion means the district court has a ‘range of choice, and that its
decision will not be disturbed as long as it stays within that range and is not
influenced by any mistake of law.’” (quoting Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337 (11th Cir. 2005))). In other words, one district
judge is not required to follow his brethren in lockstep on discovery matters, just as
he is not required to follow him in lockstep on any other decision. See United
States v. Cerceda, 172 F.3d 806, 812 n.6 (11th Cir. 1999) (en banc) (per curiam)
19
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(“The opinion of a district court carries no precedential weight, even within the
same district.”). So we do not evaluate this Judge’s decision in light of another’s
decision.
In short, nothing about the District Court’s finding of subject-matter
jurisdiction, procedurally or substantively, permits reversal. The Court’s
factfinding was not clearly erroneous. Its evidentiary conclusions were not legally
incorrect. And its decision not to entertain additional discovery was not an abuse
of discretion.
That’s it for the jurisdictional wrinkles, but Defendants offer three other
reasons for why the District Court should have evaded the merits.
C.
Defendants maintain that the District Court was required to abstain under the
domestic-relations exception to diversity jurisdiction. We review for abuse of a
discretion a district court’s abstention decision under the domestic-relations
exception. Stone v. Wall, 135 F.3d 1438, 1441 (11th Cir. 1998) (per curiam),
certified question answered, 734 So. 2d 1038 (Fla. 1999). 13
“The federal judiciary has traditionally abstained from deciding cases
concerning domestic relations.” Ingram v. Hayes, 866 F.2d 368, 369 (11th Cir.
13
Though Stone involved a decision to abstain, we see no reason to differently review a
decision not to abstain.
20
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1988) (per curiam). The doctrine imposes two limits on our power. First, we may
not “issue divorce, alimony, and child custody decrees.” Stone, 135 F.3d at 1440
(quoting Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S. Ct. 2206, 2215
(1992)). Second, “even when subject-matter jurisdiction might be proper,” we
abstain from exercising jurisdiction when “sufficient grounds” exist. Id.
Here, the District Court did not issue a divorce, alimony, or child-custody
decree. And Defendants do not cite—and our research does not reveal—a single
case when this Court has held that abstention was appropriate when a party to the
federal-court proceeding was not a party to the state-court proceeding. Cf., e.g., id.
at 1441 (“The exception enunciated in Ingram is to be read narrowly and does
not—at least, ordinarily—include third parties in its scope.”). In Stone, for
example, we held that abstention was inappropriate when a father and his daughter
sued the father’s ex-sister- and ex-mother-in-law for tortious interference of his
custodial rights. Id. Those defendants were not parties to the state-court
proceeding and “had no legal claim of custody whatsoever.” Id. Alliant was not a
party to the divorce proceedings in the Georgia Superior Court and like the Stone
plaintiffs, did nothing more than “charge[] Defendants with a tort.” See id. at
1440.
In short, the District Court did not abuse its discretion in exercising diversity
jurisdiction. Cf. Kirby v. Mellenger, 830 F.2d 176, 179 (11th Cir. 1987) (per
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curiam) (“The less a case is a ‘core’ domestic relations case, e.g., one for a divorce
or a simple child custody dispute, the less discretion the district court has to refuse
to exercise its jurisdiction.”).
D.
Defendants argue that Alliant is collaterally estopped from proving that
Marilyn did not give “reasonably equivalent value” for the transfers, which is an
element of a UFTA claim. See O.C.G.A. § 18-2-74(a)(2) (2010). In adjudicating
the Murphys’ divorce, the Georgia Superior Court was required to ensure that the
distribution of property between them was “equitable.” See Payson v. Payson, 552
S.E.2d 839, 841 (Ga. 2001); see also O.C.G.A. § 19-5-13 (2018). Defendants
insist that Alliant cannot now challenge the transfers as fraudulent under the UFTA
because the Superior Court already decided that issue in their favor.
Under the full-faith-and-credit statute, see 28 U.S.C. § 1738, a district court
must afford “preclusive effect to a state court judgment to the same extent as
would courts of the state in which the judgment was entered.” Graham v. R.J.
Reynolds Tobacco Co., 857 F.3d 1169, 1181 (11th Cir. 2017) (en banc) (quoting
Kahn v. Smith Barney Shearson Inc., 115 F.3d 930, 933 (11th Cir. 1997)), cert.
denied, 138 S. Ct. 646 (2018). So we look to the preclusive effect that Georgia law
would give the divorce decree. Under Georgia law, issue preclusion, or collateral
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estoppel by another name, requires “identity of the parties or their privies.”
Waldroup v. Greene Cty. Hosp. Auth., 463 S.E.2d 5, 7 (Ga. 1995) (per curiam).
Nothing about the divorce decree precludes Alliant from challenging the
adequacy of value that Marilyn gave for the transfers because it was not a party to
the divorce proceeding. And neither Vincent nor Marilyn represented Alliant’s
interests when they fraudulently transferred assets between themselves to
immunize Vincent from collection. Cf. Smith v. Wood, 154 S.E.2d 646, 649–50
(Ga. Ct. App. 1967) (“Privity connotes those who are in law so connected with a
party to the judgment as to have such an identity of interest that the party to the
judgment represented the same legal right . . . .” (emphasis added) (quoting Hixson
v. Kansas City, 239 S.W.2d 341, 344 (Mo. 1951) (en banc))).
E.
Defendants relatedly argue that the District Court was required to abstain
because Alliant’s suit is a collateral attack on a provision of the divorce decree—
namely the Georgia Superior Court’s determination that the distribution of
property was fair to the parties. Defendants’ argument, though unartfully
articulated, is that the Rooker-Feldman doctrine applies. Rooker-Feldman bars a
“party losing in state court . . . from seeking what in substance would be appellate
review of the state judgment in a United States district court, based on the losing
party’s claim that the state judgment itself violates the loser’s federal rights.”
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Johnson v. De Grandy, 512 U.S. 997, 1005–06, 114 S. Ct. 2647, 2654 (1994). But
Alliant was not a party to the divorce proceeding, so Rooker-Feldman has no
application here. See id. at 1006, 114 S. Ct. at 2654 (holding that Rooker-Feldman
was inapplicable when a party in federal court was “not a party in the state court”
because it was in “no position” to seek review of the state court’s judgment and
thus “[did] not directly attack[] it in [the federal] proceeding”). 14
Having found that the District Court was permitted to entertain this suit, we
now turn to the first merits question: whether the Court awarded one Plaintiff,
Alliant 31, relief to which it was not entitled.
III.
Defendants argue that $1,478,489 of the Georgia judgment against it was
improper because Alliant 31 was not allowed to collect any of that amount without
joining Alliant 31-A as a co-plaintiff. As explained, Alliant 31-A was dismissed
earlier in the litigation. See supra note 2. By way of background, the Kentucky
judgment was for $8,946,643 overall. As part of that overall total, however, the
District Court for the Eastern District of Kentucky awarded relief to Alliant 31 and
14
Furthermore, it is unclear whether Rooker-Feldman even applies to a privy. See Lance
v. Dennis, 546 U.S. 459, 466 n.2, 126 S. Ct. 1198, 1202 n.2 (2006) (per curiam) (“[W]e need not
address whether there are any circumstances, however limited, in which Rooker–Feldman may
be applied against a party not named in an earlier state proceeding—e.g., where an estate takes a
de facto appeal in a district court of an earlier state decision involving the decedent.”). We do
not reach this question because as we already explained, Alliant was not a privy to the divorce
proceedings. See supra pp. 22−23.
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Alliant 31-A in an amount of $1,478,489. Defendants argue that Alliant 31 (1) was
permitted to prosecute a UFTA claim for its share of the $1,478,489 only and (2)
because it failed to establish that share, it was entitled to collect none of it. To
assess this argument, we describe the property interests that Alliant 31 had in the
Kentucky judgment that it could enforce in this UFTA action.
To determine the meaning of a judgment, we apply “[o]rdinary principles of
construction.” Gurley v. Lindsley, 459 F.2d 268, 275 (5th Cir.), mandate
withdrawn, 466 F.2d 498 (5th Cir. 1972) (per curiam).
The Kentucky judgment, on its face, states that “[j]udgment is hereby
entered in favor of Plaintiffs, Alliant Tax Credit Fund 31-A, Ltd. . . . and Alliant
Tax Credit 31, Inc.” Alliant Tax Credit Fund 31-A, Ltd. v. Nicholasville Cmty.
Hous., LLC, No. 5:07-cv-00388-KKC-REW, slip op. at 1 (E.D. Ky. Aug. 31, 2010)
(order amending judgment), ECF No. 204. Through this judgment, Alliant 31 and
Alliant 31-A became joint−judgment creditors because the legal right to enforce
the judgment was entered in each of their favors. As a joint creditor, Alliant 31
had a claim to the full $1,478,489 because a joint creditor “is entitled, along with
another creditor, to demand payment from a debtor.” Joint Creditor, Black’s Law
Dictionary 375 (7th ed. 1999). The District Court committed no error when it
awarded Alliant this amount. Though Alliant 31-A might have a claim to part of
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the $1,478,489, and though it might have a contribution action against Alliant 31,
nothing prevented Alliant 31 from suing for the full amount.
We turn now to the burden of proof under the UFTA.
IV.
Defendants argue that the District Court erroneously instructed the jury on
the burden of proof, stating that the correct burden under the UFTA is clear-and-
convincing evidence, not a preponderance of the evidence.15 We disagree that a
UFTA claim is subject to this heightened burden of proof.
First, preponderance of the evidence is the default standard in civil
proceedings. O.C.G.A. § 24-14-3 (2018). Tellingly, Georgia law expressly carves
out two civil actions that are subject to the clear-and-convincing standard, neither
of which are actions under the UFTA. Id. (first citing id. § 51-1-29.5 (medical
malpractice claims arising out of emergency care); then citing id. § 51-12-5.1
(punitive-damages claims)). Because Georgia’s General Assembly subjected two
specific causes of action to the clear-and-convincing standard, we decline to infer
that claims under the UFTA are also exempted from the preponderance-of-
evidence default. Cf. Estate of Cummings v. Davenport, 906 F.3d 934, 942 (11th
15
Georgia’s General Assembly amended the UFTA in 2015 and changed the statute’s
name to the UVTA. In so doing, it specifically provided that preponderance is the burden of
proof. O.C.G.A. § 18-2-74(d) (2018); see also id. § 18-2-75(d). The parties agree we must
apply the UFTA, however, which lacks this enunciation.
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Cir. 2018) (“The expression of one thing implies the exclusion of others.”
(alteration omitted) (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts § 10, at 107 (2012))), petition for cert. filed, No.
18-1191 (U.S. Mar. 13, 2019).
Second, the UVTA merely clarifies what had always been the law under the
UFTA. Cf. Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir.
1999) (“[A]n amendment containing new language may be intended ‘to clarify
existing law . . . .’” (quoting United States v. Sepulveda, 115 F.3d 882, 885 n.5
(11th Cir. 1997))). The official commentary to the Uniform Law Commission’s
Voidable Transactions Act, which Georgia’s UVTA was modeled on, explains that
the UVTA “rejects [states] that have imposed an extraordinary [evidentiary]
standard, typically ‘clear and convincing evidence.’” 16 Unif. Voidable
Transactions Act § 4 cmt. n.10 (Unif. Law Comm’n 2014). Defendants give us no
reason to believe that Georgia was one such state. Indeed, they point to no
decision applying Georgia law that has ever imposed a higher burden of proof in a
fraudulent-transfer action.
In short, the District Court correctly instructed the jury on the burden of
proof. With that issue decided, we turn to the punitive-damages awards.
16
Georgia courts look to this commentary when interpreting Georgia’s fraudulent-
transfer law. Bishop v. Patton, 706 S.E.2d 634, 640 (Ga. 2011).
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V.
Defendants argue that the punitive-damages awards were improper because
punitive damages may be awarded only in addition to compensatory damages,
which were not awarded here. Marilyn argues alternatively that even if punitive
damages were proper, the District Court erred by forcing her to pay the award
against Vincent from her kitty.
A.
In addition to recovering the value of its claim, a fraudulent-transfer creditor
can also recover compensatory damages—that is, damages that result from the
fraudulent transfer itself. Defendants submit that Alliant could not recover
punitive damages because it was awarded no compensatory damages. Neither the
punitive-damages statute, the caselaw, nor the policy that underpins punitive
damages supports their argument.
Alliant invoked the District Court’s diversity jurisdiction, which requires us
to apply Georgia substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58
S. Ct. 817, 822 (1938). In determining the contents of Georgia law, decisions of
the Supreme Court of Georgia and the Georgia Court of Appeals control. See
Bravo v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009) (per curiam)
(“[F]ederal courts are bound by decisions of a state’s intermediate appellate courts
unless there is persuasive evidence that the highest state court would rule
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otherwise.” (quoting King v. Order of United Commercial Travelers of Am., 333
U.S. 153, 158, 68 S. Ct. 488, 491 (1948))).
The punitive-damages statute articulates two restrictions on punitive
damages, neither of which is violated by the awards here. A court may award
punitive damages “only in such tort actions in which it is proven by clear and
convincing evidence that the defendant’s actions showed . . . fraud.” O.C.G.A.
§ 51-12-5.1(b) (2018). As relevant here, moreover, an award of punitive damages
may not exceed $250,000 unless the defendant “acted, or failed to act, with the
specific intent to cause harm.” Id. §§ 51-12-5.1(f), (g). Check and check: The jury
found fraud by clear-and-convincing evidence. And it found that Vincent had
acted with specific intent to cause harm. Because the jury did not find that Marilyn
had acted with specific intent to cause harm, the punitive damages against her were
properly capped at the statutory maximum of $250,000.
The Georgia Court of Appeals has repeatedly stated, moreover, that punitive
damages are available in fraudulent-transfer actions without once stating that
compensatory damages are a prerequisite to recovering them. See Interfinancial
Midtown, Inc. v. Choate Constr. Co., 806 S.E.2d 255, 264 (Ga. Ct. App. 2017)
(“Georgia law allowing the recovery of general and punitive damages for
fraudulent conveyances survived the enactment of Georgia’s UFTA.”); Stinchcomb
v. Wright, 628 S.E.2d 211, 215 (Ga. Ct. App. 2006) (“Punitive damages may be
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awarded upon a finding of conversion or fraudulent conveyance.”); Cavin v.
Brown, 538 S.E.2d 802, 806 (Ga. Ct. App. 2000) (“[P]unitive damages are
available in fraudulent conveyance actions . . . .”).
Stinchcomb in particular negates Defendants’ theory that compensatory
damages are a prerequisite for punitive damages. The defendant there argued that
an award of attorneys’ fees and punitive damages was improper because the jury
had awarded only specific performance, not compensatory damages. 628 S.E.2d at
215. The court rejected that argument, holding, “Since the [plaintiffs] proved their
claims of fraudulent conveyance and were awarded specific performance, the trial
court’s award of attorney fees and punitive damages was proper.” Id. at 215–16.
Vincent and Marilyn state that the award of specific performance distinguishes that
case from this case. As an initial matter, that assertion is factually incorrect
because the District Court ordered Marilyn to turn over the fraudulently transferred
assets or their proceeds. But even if the Court had invoked the legal remedy under
the UFTA, as it should have, Stinchcomb would still control. Whether a court
orders turnover of the assets or enters a money judgment for their value hinges
only on whether the assets or their proceeds are traceable. If they are, turnover is
appropriate; if they aren’t, a money judgment should be entered. Either way, the
need to deter the transfer is the same. We explain this idea more below.
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One policy of punitive damages is deterrence. 1 Dan B. Dobbs, Dobbs Law
of Remedies § 3.11(3), at 475−76 (2d ed. 1993). Without punitive damages,
nothing other than costs would deter a debtor from attempting to fraudulently
transfer his assets. If he gets caught, so be it: The cost would simply be what was
owed in the first place. See, e.g., SE Prop. Holdings, LLC v. Judkins, No. 1:17-
CV-00413-TM-B, 2019 WL 177981, at *10 (S.D. Ala. Jan. 11, 2019) (“Without an
award of punitive damages or attorneys’ fees, there would be no deterrence to a
debtor weighing whether to make a fraudulent transfer. This is because the debtor
would only lose the same asset he would have lost if he had not made a fraudulent
transfer.”); Kekona v. Bornemann, 349 P.3d 361, 372 (Haw. 2015) (“[A]t worst the
fraudulent debtor is forced to pay what he or she already owed. Without the
possibility of significant punitive damages, it would be difficult to deter this
conduct.”). It thus makes sense that the UFTA would permit recovery for punitive
damages. See Dobbs, supra, § 3.11(10), at 516 (“[T]he need for punishment or
deterrence may be increased by reason of the very fact that the defendant will have
no liability for compensatory damages.”).
In short, the absence of compensatory damages did not preclude the award
of punitive damages.
B.
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Marilyn’s alternative argument—that she should not be responsible for
paying Vincent’s punitive-damages award—is meritorious.
Under the UFTA, a creditor may obtain “judgment [against the transferee]
for the value of the asset transferred . . . or the amount necessary to satisfy the
creditor’s claim, whichever is less.” O.C.G.A. § 18-2-78(b) (2010). After the jury
returned its verdict, the District Court should have entered two judgments—one
against Marilyn (the transferee) and one against Vincent (the transferor):
• A money judgment against Marilyn for $9,137,285.84 (the amount of the
claim, plus her $100,000 in punitive damages).
• A money judgment against Vincent for $1,000,000 (the amount of his
punitive damages).
The Court erred when it required Marilyn to pay Vincent’s money judgment—
awarded for his wrongdoings, mind you—out of her pocket. But Alliant
complicates what seems to be a straightforward result.
Alliant asserts that its “claim” within the meaning of § 18-2-78(b) includes
the $100,000 in punitive damages awarded against Vincent. Said differently, the
District Court should have entered a single money judgment against Marilyn, the
entirety of which she would be personally responsible for. We are unsurprised that
Alliant brings us not one case from any jurisdiction where a court has interpreted a
fraudulent-transfer “claim” to include damages awarded for the transfer itself. We
undertake our own analysis, however, and for two reasons, we cannot agree with
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Alliant’s assertion. First, a fraudulent-transfer action is derivative of some other
right to relief. Alliant’s approach would collapse into one the action and the claim
that gave rise to that action. And second, the UVTA, which Georgia’s General
Assembly replaced the UFTA with in 2015, confirms that “claim” excludes relief
awarded for the fraudulent transfer itself. We discuss both reasons in turn.
First, a fraudulent-transfer action is predicated on a claim that already exists.
See Dobbs, supra, § 2.8(1), at 191−92. Alliant incurred a claim to the amount of
the Kentucky judgment. Alliant then brought this UFTA action to recover the
value of that claim. In the process, Alliant incurred a new, second claim against
Vincent when the Georgia jury awarded Alliant punitive damages for Vincent’s
fraud. This second claim is extrinsic to the claim on which the UFTA action was
predicated.
Second, the UVTA confirms that “claim” under the UFTA cannot
encompass relief for the fraudulent transfer itself. Cf. Piamba Cortes, 177 F.3d at
1283 (“[A]n amendment containing new language may be intended ‘to clarify
existing law.’” (quoting Sepulveda, 115 F.3d at 885 n.5)). In replacing the UFTA
with the UVTA, Georgia’s General Assembly amended the definition of claim to
include the following italicized language: “‘Claim,’ except for claim for relief,
means a right to payment . . . .” O.C.G.A. § 18-2-71(3) (2018) (emphasis added).
The UVTA thus distinguishes “claim” and “claim for relief.” Whereas the “claim
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for relief” is the UFTA action itself, “claim” is the predicate on which that action is
based. As described below, this change merely clarified what had already been the
law under the UFTA.
Georgia’s General Assembly inserted into the UVTA two new subsections
on burden-of-proof and choice-of-law rules that govern a fraudulent-transfer
action. These subsections are the only places where “claim for relief” appears in
the UVTA. They provide that
• a UVTA plaintiff “has the burden of proving the elements of the claim
for relief by a preponderance of the evidence” and that
• “[a] cause of action in the nature of a claim for relief under [the UVTA]
is governed by the law of the jurisdiction in which the debtor is located
when the transfer is made or the obligation is incurred.”
Id. §§ 18-2-74(d), -80(b) (emphasis added). But inserting these two subsections
would risk confusion under Alliant’s reading of “claim”: Do the burden-of-proof
and choice-of-law rules apply to the UFTA action, the predicate claim, or both?
Recognizing this risk, the General Assembly amended the definition of “claim” to
make explicit what had long been implicit: The “claim for relief” and the “claim”
are two separate things. Cf. Scalia & Garner, supra, § 40, at 257 (stating that the
“presumption that a change in language produces a change in meaning” does not
apply when codifications “revise the wording of the prior statute to provide for
consistency of expression”).
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In short, because Alliant’s claim did not include the punitive damages
awarded against Vincent, the Georgia judgment is reversed to the extent it allowed
Alliant to recover those damages from Marilyn. We now turn to Alliant’s cross-
appeal.
VI.
Alliant cross-appeals the District Court’s denial of prejudgment interest
under Georgia law from the date the Kentucky judgment was entered to the date
the Georgia judgment was entered.
Recall that the District Court awarded Alliant post-judgment interest. Under
federal law, the Kentucky judgment accrued interest from the moment that
judgment was entered until it was paid. See 28 U.S.C. § 1961. By the time the
Georgia judgment incorporated the Kentucky judgment, the post-judgment interest
on the latter had accrued to $90,642.89. No one disputes that Alliant is entitled to
that amount. But Alliant wants prejudgment interest, too. The parties agree that
Alliant’s entitlement to prejudgment interest hinges on Alliant’s UFTA claim
being “liquidated” under Georgia law. We explain below that the claim was not
liquidated as to Marilyn—from whom recovery must be had—so the Court was
correct to deny Alliant prejudgment interest.
Absent “affirmative countervailing federal interests,” the availability and
amount of prejudgment interest is governed by state law. AIG Baker Sterling
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Heights, LLC v. Am. Multi-Cinema, Inc., 508 F.3d 995, 1001–02 (11th Cir. 2007)
(quoting Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1307 (11th Cir. 2002)).
Under Georgia law, “[a]ll liquidated demands, where by agreement or otherwise
the sum to be paid is fixed or certain, bear interest from the time the party shall
become liable and bound to pay them; if payable on demand, they shall bear
interest from the time of the demand.” O.C.G.A. § 7-4-15 (2018). “[T]he sole
prerequisite for an award of prejudgment interest on a liquidated claim is that a
demand be made before the entry of final judgment, so that the opposing party has
an opportunity to contest an award of interest.” Gwinnett County v. Old Peachtree
Partners, LLC, 764 S.E.2d 193, 200 (Ga. Ct. App. 2014).
The only point in dispute is whether Alliant’s claim to the amount of the
Kentucky judgment was liquidated.
A sum is liquidated when it is “fixed or certain based on . . . operation of
law.” Those Certain Underwriters at Lloyds London v. DTI Logistics, Inc., 686
S.E.2d 333, 339 (Ga. Ct. App. 2009). The full amount of the Kentucky judgment,
$8,946,643, was fixed by law as to Vincent on the date the District Court for the
Eastern District of Kentucky entered judgment for that amount against him. But
Marilyn is a different story. The conduct for which Marilyn is liable is receipt of
the transferred assets when she (1) did not act in good faith and (2) did not give
reasonably equivalent value for them. See O.C.G.A. § 18-2-78(a) (2010). Because
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the jury was required to determine the values of each of those assets, the amount
for which she is personally liable did not become liquidated until the District Court
entered the Georgia judgment.
In short, Alliant is not entitled to any prejudgment interest under Georgia
law because its claim for $8,946,643 was not previously liquidated as to Marilyn.
VII.
For these reasons, the District Court’s judgment is AFFIRMED in part and
REVERSED in part. We REMAND for further proceedings not inconsistent with
this opinion.
SO ORDERED.
37