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

United States Court of Appeals,
Eleventh Circuit.
No. 96-4884.
Walter L. STONE, individually, and as Natural Guardian of S.P.S., a minor, Plaintiff-Appellant.
v.
Georgene WALL, Gina Wall Masterson, Brock Green, Defendants-Appellees.
March 2, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 95-2588-CV-
SM), Stanley Marcus, Judge.
Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD*, Senior Circuit Judges.
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.
Plaintiffs are residents of Mississippi. Stone is the parent and natural guardian of S.P.S., his
*
Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by
designation.
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 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
and despite Stone's status as the natural guardian legally entitled to custody of the child.1
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.
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.
The Supreme Court in Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d
468 (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, 112 S.Ct. at 2215. 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, 112 S.Ct. at 2215. 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, 112 S.Ct. at 2216. 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, 112 S.Ct. at 2215 (internal
quotations and citations omitted).
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 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 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 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 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
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.
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).
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, 160 Fla. 732, 36 So.2d 417, 417 (1948).
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.
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 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, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (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).
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, 252 N.Y. 474, 169 N.E. 650 (1930); Armstrong v. McDonald, 39
Ala.App. 485, 103 So.2d 818 (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
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.
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, 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.