Lops v. Lops

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-9381
________________________
D. C. Docket No. 1:97-CV-298
CHRISTINE LOPS,
Petitioner-Appellee,
versus
MICHAEL LOPS,
ANNE E. HARRINGTON,
Respondents-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 7, 1998)
Before COX and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
HULL, Circuit Judge:
Petitioner-Appellee Christine Lops filed a petition under the International Child
Abduction Remedies Act (“ICARA”), 42 U.S.C. § 11601-10, seeking return of her
two minor children to Germany. After conducting evidentiary hearings, the district
court found that Petitioner’s former husband, Respondent Michael Lops, and his
mother, Respondent Anne Harrington, wrongfully removed Petitioner’s minor
children from Germany to the United States in violation of Petitioner’s custody rights.
As authorized under ICARA, the district court ordered the children’s return to
Germany with Petitioner. Respondents appeal. After review, we affirm.
I. FACTS
The issues in this appeal necessitate first a detailed review of the district court’s
findings of fact and the evidence supporting them.
A. On January 31, 1995, Petitioner Initiates Divorce And Custody Proceedings In
Germany
Petitioner and Respondent Lops were married in Germany in June 1991. Until
they separated in January 1995, they lived with their two minor daughters, Claire and
Carmen Lops, in Rodgau, Germany. On January 31, 1995, Petitioner initiated divorce
and custody proceedings in the German family court for the district that was the
marital and habitual residence of the parties. Alleging that Respondent Lops
physically abused her, Petitioner sought sole custody of the children. From January
1995 to early May 1995, Petitioner and the children visited relatives and friends in
Belgium.
2
On May 2, 1995, Petitioner and Respondent Lops appeared with counsel for
their first hearing before the family court in Germany. Respondent Lops also sought
sole custody of the children. Since the parties could not reach a custody agreement,
Judge Rudolf Giwitz, the German family court judge, instructed the parties to appear
with the children the following week. Even though Petitioner had returned to
Germany with the children in early May 1995, the animosity between Petitioner and
Respondent Lops had increased due to Petitioner’s taking the children to Belgium for
four months without Respondent Lops’s consent.
B. On May 10, 1995, Parties Agree To Share Custody At German Family Court
Hearing
On May 10, 1995, the parties appeared again with counsel and the children
before Judge Giwitz. At this “isolated proceeding of custody” hearing under German
law, Judge Giwitz heard from each party and interviewed the children. In a letter
written from Judge Giwitz to the district court, Judge Giwitz indicated that Petitioner
expressed concerns that Respondent Lops would follow through on earlier threats to
abduct the children and take them to the United States. Judge Giwitz’s letter further
3
states that Respondent Lops dispelled these concerns by arguing that he was firmly
rooted in Germany and had no further connection with the United States.1
As a result of the German family court proceeding, the parties agreed to share
joint legal custody, with Petitioner retaining primary physical custody. Respondent
Lops was allowed visitation rights based on his assurance to Judge Giwitz that he
would return the children to Petitioner.
The parties’ agreement regarding custody of the children resulted in a
suspension of the German family court proceedings. Judge Giwitz approved of
Respondent Lops’s having a short visitation with the children immediately following
the hearing, with the understanding that Respondent Lops would return the children
that evening to Petitioner. The German court considered the parties’ custody
agreement announced in court as binding on both parties.
C. On May 10, 1995, Respondent Lops Violates Custody Agreement
Immediately following the May 10 hearing, Respondent Lops visited with the
children as authorized by Judge Giwitz. Once Respondent Lops obtained the children
1
Judge Giwitz’s correspondence and all of the German courts’ orders, and their
English translations, were entered in the record at the evidentiary hearing. After
observing that the German documents were translated by Petitioner’s German counsel,
a partisan individual, the district court noted that a neutral translator subsequently had
affirmed that the translations were accurate in most respects.
4
physically, he did not return the children to Petitioner as agreed, and understood by
Petitioner and Judge Giwitz, only hours earlier. Petitioner objected and initiated
efforts to contest this unilateral alteration of the parties’ agreement announced before
Judge Giwitz.
Over the next two weeks, Petitioner resided with Respondent Lops’s aunt and
visited the children daily in the marital residence, but she was never allowed to remain
alone with the children. During this time, there was also some attempt at marital
reconciliation, which soon failed.
D. On May 30, 1995, Respondents Fraudulently Obtain New Passports For The
Children
Unbeknownst to Petitioner, Respondents planned to remove the children from
Germany, but could not because the children’s passports were in Petitioner’s
possession. The district court determined that Respondents misrepresented to
Consulate officials that Petitioner had abandoned the children and thereby obtained
new passports for the children on May 30, 1995. The district court expressly found,
and the evidence showed, that Petitioner never abandoned the children and that she
had parental custody rights not only by operation of German law but also by the
agreement before and approved by the German family court judge.
5
E. On May 30, 1995, Petitioner Reopens Custody Proceedings In German Family
Court, And On June 1, 1995, Respondent Lops Takes Children From Germany
To Spain
On May 30, 1995, the same day Respondents obtained new passports for the
children, Petitioner reopened the suspended custody proceedings before Judge Giwitz.
However, on June 1, 1995, without Petitioner’s knowledge or consent and in violation
of the parties’ custody agreement in Judge Giwitz’s court, Respondent Lops took the
children from Germany to Spain, where they stayed until approximately June 25,
1995. While Respondent Lops and the children were in Spain, Respondent
Harrington, Respondent Lops’s mother, remained at the former marital residence in
Rodgau, Germany.
F. On June 27, 1995, Respondent Harrington Takes Children To The United
States
Respondent Lops and the children returned to Germany on June 25, 1995. Only
two days later, Respondent Harrington took the children to the United States, without
Petitioner’s knowledge or consent and in violation of her custody rights under German
law and the parties’ custody agreement in Judge Giwitz’s court.
G. On July 3, 1995, German Family Court Conducts Another Hearing
6
Judge Giwitz held another custody hearing on July 3, 1995. Neither
Respondent Lops nor his counsel revealed to the German family court, or Petitioner,
that his mother, Respondent Harrington, had already taken the children to the United
States, or that Respondent Lops was packing his furniture and belongings to leave for
the United States only days later.
H. On July 8, 1995, Respondent Lops Joins Children In The United States But
Conceals Whereabouts
On July 8, 1995, Respondent Lops left for the United States. Initially,
Respondent Lops and the children stayed with Respondent Harrington in her home in
Martinez near Augusta, Georgia. In early August 1995, Respondent Lops and the
children moved into a home purchased by Respondent Harrington across Georgia’s
border in North Augusta, South Carolina. The district court described the transaction
for “this curiously purchased house” as “peculiar.” The purchase contract called for
a down payment and a twenty-year mortgage, but Respondent Harrington was not to
receive an executed deed to the home for twenty years. Instead, the seller of the home
remained its owner, and the lender held the deed from the seller to Respondent
Harrington. The deed was to be transferred to Respondent Harrington only after all
7
of the mortgage payments were made. Thus, the title to the South Carolina home
apparently remained in the seller, arguably concealing its true ownership.
The district court found that over the next two and one-half years Respondent
Lops and his mother, Respondent Harrington, took other more significant measures
to conceal his and the children’s whereabouts from Petitioner. For example,
Respondent Lops had no checking account and personally transacted business only
in cash, including at times the children’s private school tuition.2 Respondent Lops
drove a $30,000 van registered under Respondent Harrington’s name. Despite the fact
that he earned an annual six-figure income as a foreign exchange broker in Germany,
Respondent Lops did not obtain any employment in the United States, which would
have required him to disclose his social security number. Instead, he worked as a part-
time independent contractor with House Rentals owned by his stepfather, Wayne
Harrington. Respondent Lops, Mr. Harrington, and Mr. Harrington’s company did
not have any real estate licenses.
2
Evidence before the district court revealed that while Respondent Lops made
some payments in cash, Respondent Harrington made most tuition payments by check.
8
Respondent Lops never reported any income or paid any federal or state income
taxes in the United States during 1995, 1996, or 1997. In short, Respondent Lops had
no “electronic identity.” As the district court aptly noted in its findings of fact:
Mr. Lops has no conventional credit, no credit cards, engages only in
cash transactions; pays no utilities; his mother takes care of those; has no
lease with his mother. This is a curious existence. . . .
Notwithstanding his significant income reduction, Respondent Lops maintained a
comfortable lifestyle, reportedly by borrowing from friends and family; yet, no loans
had any documentation. Although living and driving in South Carolina for over two
years, Respondent Lops never obtained a South Carolina driver’s licence, nor did any
insurance policy list Respondent Lops as an authorized driver of the van. The district
court’s findings of fact concluded:
. . . I see Mr. Michael Lops in a situation or in a position or pattern of
continuing deception and even if every word that he says about his
income and his business affairs is to be believed he is committing either
four or five misdemeanors to maintain this pattern and to conceal, at least
himself, from any authority.
I. On August 31, 1995, German Court Issues A “Certificate Of Unlawfulness,”
And Then Petitioner Files A Request For Return Of Children Under Hague
Convention
While Respondent Lops concealed his and the children’s whereabouts in South
Carolina, the German court proceedings continued unabated. Although Respondent
9
Lops was never present in court, his counsel was. After a hearing on August 31, 1995,
attended by Respondent Lops’s attorney, the German court issued a “Certificate of
Unlawfulness.” The “Certificate of Unlawfulness” found that Respondent Lops had
not returned the children following a period of visitation, “contrary to the Agreement
settled in the presence of the Family Judge.” In that Certificate, the German court
further found that Respondent Lops violated Petitioner’s custody rights and was acting
unlawfully. Likewise, the district court also found that “Respondents removed the
children from the country of their habitual residence in breach of custody rights which
Petitioner was actually exercising at the time of removal.”
In September 1995, Petitioner filed a “Request for Return” of the children under
the Hague Convention with the Central Authority in Germany.
J. On September 26, 1995, German Family Court Awards Petitioner Temporary
Sole Custody Of The Children
On September 26, 1995, Judge Giwitz conducted another custody hearing.
Respondent Lops’s attorney again appeared and contended that Petitioner should not
have sole custody of the children due to her own misconduct and that the German
court lacked jurisdiction. Since the children had lived in Germany with their parents
since birth, Judge Giwitz’s September 26 order rejected Respondent Lops’s
10
contentions and determined that Germany was the state of habitual place of residence
and that the German court had jurisdiction.
The district court found that the orders of the German courts regarding custody
were valid and further showed that Respondent Lops had violated Petitioner’s custody
rights. In the September 26, 1995 order, Judge Giwitz recited the history of the case,
including the parties’ agreement announced before him on May 10, 1995. Judge
Giwitz’s order specifically found that Petitioner had been the most important person
in the children’s lives, that the children had developed well in the care of their mother,
and that Petitioner was able to educate the children. In contrast, Respondent Lops’s
behaviors, including his misrepresentations to the court and violations of the parties’
custody agreement, persuaded Judge Giwitz to find in his September 26 order that
Respondent Lops was concerned more with his own interests than the children’s
welfare, and, that Respondent Lops was not able to educate the children properly.
Consequently, the German family court awarded Petitioner sole temporary custody
of the children. Respondent Lops’s attorney appealed Judge Giwitz’s order.
K. On January 11, 1996, German Appellate Court Affirms Grant Of Custody To
Petitioner
11
On January 11, 1996, a German appellate court affirmed Judge Giwitz’s
temporary grant of sole custody to Petitioner, holding that the children’s habitual
residence was Germany. On January 18, 1996, Petitioner petitioned the German
family court for a final divorce and permanent custody. On October 7, 1996, the
German family court pronounced final judgment awarding Petitioner a final divorce
and permanent sole custody of both children.
L. In August 1996, Respondent Lops Initiates Divorce Action In South Carolina
Despite the German appellate court’s affirming Judge Giwitz’s award of
custody to Petitioner and his counsel’s participating in the German court proceedings,
Respondent Lops filed a divorce action in August 1996 in the Family Court of Aiken
County, South Carolina. Respondent Lops claims that he attempted service upon
Petitioner by mailing papers to her last known German address and that Petitioner
failed to respond. Petitioner denies ever receiving them. On September 20, 1996, the
South Carolina court entered a pendente lite order pursuant to the Uniform Child
Custody Jurisdiction Act based on the residence of Respondent Lops and the children.
The South Carolina court’s order awarded Respondent Lops sole temporary custody
of the children pending final hearing on the divorce, and held “[a]ll other issues
12
relating to property, visitation, support and the divorce itself” in abeyance until a final
hearing on the merits.
The district court made no findings of fact about what actually happened in this
South Carolina divorce action, but rather considered the prior German court orders
valid and controlling as to the habitual residence of the children in 1995 and as to who
had custody at the time of the removal of the children from Germany. Indeed, the
South Carolina divorce action never proceeded to final judgment, while the German
divorce and custody action did. Also, the German appellate court affirmed the
German family court’s award of custody to Petitioner before Respondent Lops
initiated the South Carolina divorce action. The district court did not err in giving
priority to the German court’s orders and final judgment in deciding that Petitioner
had custody of the children at the time of Respondents’ removal of the children from
Germany to the United States.3
3
The divorce action in the South Carolina court subsequently was stayed in
February 1998 pending the outcome of the appeal in this case. Also, we could not
locate a final custody or divorce decree by the South Carolina court in the record.
Instead, a South Carolina court order, dated January 28, 1998, states that regarding
“the action for Divorce which is pending in this court . . ., regardless of previous
service, Chistiane [sic] Lops . . . [was] served with the Summons and Complaint on
January 6, 1998. . . . [t]he last day for answering or otherwise responding to the
Complaint will be February 5, 1998.” This further indicates that the South Carolina
divorce action has not proceeded to final judgment.
13
M. Petitioner’s Two-Year Efforts To Locate Children
The record is replete with evidence of Petitioner’s two-year campaign to locate
her children. For example, the district court found that from 1995 to 1997 Petitioner
employed the assistance of approximately eleven state, national, and international
agencies, including Interpol, the United States State Department, and the Georgia
Bureau of Investigation (“GBI”). These agencies searched records (1) in Georgia,
where Respondent Harrington lives; (2) in Virginia, where Respondent Lops’s sister
lives; and (3) in New York, where Respondent Lops’s adoptive father lives.
The GBI conducted drive-by checks at Respondent Harrington’s home. The
GBI contacted local school officials and checked credit and employment tax records.
These and many other concerted efforts, including the State Department’s initiating
database searches such as credit agency reports and the Federal Parent Locator
Service, were to no avail. One memo, dated August 9, 1996, from “Interpol
Washington” to “Interpol Wiesbaden” in Germany is illustrative of the agencies’
efforts:
Begin message: At the present time, we cannot locate Mr. Michael
Raymond Lops and the two children, Carmen and Claire, anywhere in
the State of Georgia. The two girls have not been enrolled in school and
no sighting has been made of them at their Grandmother’s house in
Martinez, Georgia. Several checks have been made on Mr. Lops [sic]
14
Social Security Number in 1995 and again in 1996 but all were
negative.4
Additionally, the district court noted that there was disputed evidence that
Respondent Harrington was contacted by officials in December 1996, but denied
knowing the whereabouts of the children. A memo, dated December 12, 1996, from
the United States National Central Bureau to the Diplomatic Security Service of the
Department of State, states as follows:
Incidentally, Lops’ mother, who resides in Martinez, Georgia, refuses to
admit knowing where [Respondent Lops] and the children can be found.
I can locate no other trace as to their current whereabouts.
Ultimately, officials contacted the District Attorney’s office in Georgia’s Augusta
Judicial Circuit, where Respondent Harrington lives. The District Attorney’s office
received authorization from the Superior Court of Columbia County, Georgia, also
located in the Augusta Judicial Circuit, to place a wiretap on Respondent Harrington’s
telephone. Through wiretaps, officials ascertained the whereabouts of Respondent
Lops and the children, as well as when the children would be at Respondent
Harrington’s home in Georgia.
4
The children were enrolled in private school in South Carolina, which is why
they could not be located in any public or private school in Georgia.
15
On November 3, 1997, as a result of the GBI’s requesting custody of the
children, the Superior Court of Columbia County, Georgia issued an order directing
law enforcement to seize the children and surrender custody to the Georgia
Department of Family and Children Services (“DFACS”). On November 5 or 6,
1997, DFACS took custody of the children at Respondent Harrington’s home.5
Petitioner took a leave of absence from work and immediately came to the United
States.
II. PROCEDURAL HISTORY
A. Superior Court Of Columbia County, Georgia
On November 12, 1997, Petitioner filed a petition, pursuant to the Hague
Convention and ICARA, in the Superior Court of Columbia County, Georgia (the
“Georgia court”). Petitioner filed her petition in that forum because that Georgia court
had issued the wiretap and seizure orders and because the children were in Columbia
County, Georgia, in the custody of Georgia DFACS.
After a hearing, another judge of that same Georgia court entered an order,
dated November 15, 1997, finding lack of jurisdiction in Georgia and transferring the
5
The Georgia court’s November 15 order states that the children were picked
up on November 6, 1997. However, the parties’ briefs indicate that the children were
picked up on November 5, 1997.
16
case to South Carolina. Instead of dismissing the case, the Georgia court transferred
the case to the neighboring court a few miles away in South Carolina, stating in its
order that the parties “stipulated to a transfer of the proceedings verses [sic] dismissal
and refiling in the event this Court found no authority for exercising jurisdiction in
Georgia.”
B. Family Court Of Aiken County, South Carolina
The Family Court of Aiken, South Carolina (the “South Carolina court”) held
a brief hearing on November 26, 1997, but determined that it could not hear the merits
of the ICARA petition until January 16, 1998. In a later order (which Respondents
state was entered on December 2, 1997, but which is dated December 11, 1997), the
South Carolina court directed that the children be released temporarily from the
custody of DFACS in Georgia and placed in the temporary custody of Respondent
Harrington in Georgia and that the passports of the children, Respondent Lops, and
Respondent Harrington be surrendered.
The Georgia court had transferred the case to South Carolina because the
children and Respondent Lops had resided in South Carolina before Georgia DFACS
picked up the children. However, the South Carolina court then ordered DFACS in
Georgia to release the children to reside in Georgia with Respondent Harrington,
17
albeit temporarily, until the South Carolina court could hear the merits of the ICARA
petition.
C. Federal Court In Georgia
On December 3, 1997, Petitioner filed an ICARA petition in the federal district
court for the Southern District of Georgia located in Augusta, Georgia. On December
3, 1997, the district court issued an order directing that the custody of the children
remain with Georgia DFACS pending further order of the court.
Expediting the case as ICARA and the Hague Convention require, the district
court conducted two full days of evidentiary hearings on December 12 and 19, 1997.
After closing arguments on December 22, 1997, the court orally entered detailed
findings of fact and conclusions of law from the bench, plus a written final judgment
finding that Respondents had wrongfully removed the children from Germany in
violation of Petitioner’s custody rights and ordering that the children should be
returned to the custody of Petitioner for return to Germany. The children were
released to Petitioner.
On December 23, 1997, this court granted Respondents’ “motion for emergency
stay” and enjoined all parties from removing the children from Georgia or South
18
Carolina until further order of this court. From December 23, 1997 to the present, the
children have resided with Petitioner in Georgia. This court also expedited the appeal.
III. EVIDENCE SUPPORTED DISTRICT COURT’S FINDINGS OF FACT
Respondents’ first contention on appeal is that the district court’s factual
findings are clearly erroneous. We reject that contention because substantial evidence
supports all of the district court’s factual findings.6 In particular, the district court’s
pivotal factual finding that Respondents wrongfully removed the children from
Germany in violation of Petitioner’s custody rights is amply supported by the
evidence in this record.
In light of the overwhelming evidence of wrongful removal in violation of
Petitioner’s custody rights, Respondents’ appeal focuses more on the legal issues
regarding whether the district court was precluded from hearing this ICARA petition
due to either collateral estoppel or the abstention doctrine. Respondents also contend
that even if they wrongfully removed the children, the district court erred in returning
the children to Germany because Respondents proved the “well-settled” affirmative
defense to an ICARA petition. We first discuss ICARA and the Hague Convention.
6
We review the district court’s factual findings for clear error and its legal
conclusions de novo. Lykes Bros., Inc. v. United States Army Corps of Engineers, 64
F.3d 630, 634 (11th Cir. 1995).
19
IV. ICARA AND THE HAGUE CONVENTION
Congress enacted ICARA to implement the Hague Convention on the Civil
Aspects of International Child Abduction,7 a treaty to which the United States and
Germany are signatories. 42 U.S.C. § 11601(b)(1). The goals of the Convention are
“to secure the prompt return of children wrongfully removed to or retained in any
Contracting State” and “to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in other Contracting States.” The
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25,
1980, art. 1, T.I.A.S. No. 11670, 19 I.L.M. 1501, 1501 [hereinafter “Hague
Convention”].
Article 3 of the Hague Convention provides that the removal or retention of a
child is wrongful where it violates the custody rights of another person that were
actually being exercised at the time of the removal or retention or would have been
exercised but for the removal or retention, as follows:
The removal or the retention of a child is to be considered wrongful
where—
7
“The Convention on the Civil Aspects of International Child Abduction, done
at The Hague on October 25, 1980, establishes legal rights and procedures for the
prompt return of children who have been wrongfully removed or retained, as well as
for securing the exercise of visitation rights.” 42 U.S.C. § 11601(a)(4).
20
a it is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under the law
of the State in which the child was habitually resident immediately
before the removal or retention; and
b at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised
but for the removal or retention.
Hague Convention, art. 3. The removal of a child from the country of his or her
habitual residence8 is “wrongful” under the Hague Convention if the petitioner “is, or
otherwise would have been, exercising custody rights to the child under that country’s
law at the moment of removal.” Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.
1996) (citing Hague Convention, art. 3).
Under ICARA, a person may file a petition for the return of a child in any court
authorized to exercise jurisdiction “in the place where the child is located at the time
the petition is filed,” as follows:
8
Respondents argue that the children were with Petitioner in Belgium from
January 1995 to May 1995, that their “habitual residence” was Belgium, even though
they returned to Germany in early May 1995, and that the Hague Convention and
ICARA do not apply because Belgium is not a signatory to the Hague Convention.
The federal district court correctly rejected Respondents’ argument and did not err in
finding that the children’s habitual residence since birth had been Germany and still
was in Germany at the time of the wrongful removal. Both the German family court
and the German appellate court likewise rejected Respondent Lops’s contention that
the children’s habitual residence was Belgium and that the German courts lacked
jurisdiction.
21
Any person seeking to initiate judicial proceedings under the Convention
for the return of a child . . . may do so by . . . filing a petition . . . in any
court which has jurisdiction of such action and which is authorized to
exercise its jurisdiction in the place where the child is located at the time
the petition is filed.
42 U.S.C. § 11603(b). ICARA further provides that a petitioner has the burden to
show by a preponderance of the evidence that the petitioner was exercising custody
rights at the time of the removal and that the removal was wrongful. 42 U.S.C. §
11603(e)(1)(A); Friedrich, 78 F.3d at 1064. If a petitioner meets this burden, ICARA
requires that “[c]hildren who are wrongfully removed or retained . . . are to be
promptly returned unless one of the narrow exceptions set forth in the Convention
applies.” 42 U.S.C. § 11601(a)(4).
A court considering an ICARA petition has jurisdiction to decide the merits
only of the wrongful removal claim, not of any underlying custody dispute. Friedrich,
78 F.3d at 1063; see also Feder v. Evans-Feder, 63 F.3d 217, 221 & n.5 (3d Cir. 1995);
Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995). The Hague Convention is
intended to “restore the pre-abduction status quo and to deter parents from crossing
borders in search of a more sympathetic court.” Friedrich, 78 F.3d at 1064; see also
Feder, 63 F.3d at 221; Rydder, 49 F.3d at 372.
22
Finally, Article 11 of the Hague Convention contemplates that courts shall
expedite ICARA proceedings, stating:
The judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of the commencement of the
proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central Authority of the
requesting State, shall have the right to request a statement of the reasons
for the delay. If a reply is received by the Central Authority of a
requested State, that Authority shall transmit the reply to the Central
Authority of the requesting State, or to the applicant, as the case may be.
Hague Convention, art. 11. Against this ICARA background, we turn to Respondents’
collateral estoppel argument.
V. COLLATERAL ESTOPPEL
A. Georgia Court’s Transfer Order Erroneously Imposed Residency Test On
ICARA
Respondents’ collateral estoppel argument is based solely on the Georgia
court’s interlocutory order, entered November 15, 1997, transferring Petitioner’s
ICARA petition from a Georgia trial court to a South Carolina trial court. The federal
district court in Georgia properly found that it had jurisdiction over the ICARA
petition because the children, picked up at Respondent Harrington’s home in Georgia,
23
were in Georgia DFACS’s custody at the time the petition was filed and thus were
“located” under ICARA in the same place as the district court. The district court also
correctly determined that Respondents had more than sufficient contacts with Georgia
to satisfy due process requirements.9 The federal district court concluded that neither
res judicata nor collateral estoppel applied because federal district courts must
determine their own jurisdiction.10
9
Respondent Harrington resides in Martinez, Georgia. Regarding Respondent
Lops, the district court found that “on the evidence that I have heard, contrary to the
much abbreviated record that was developed before Judge Allgood, these children
have a dual residence at least between Anne Harrington’s residence in Columbia
County and Michael Lops’ house that he occupies, courtesy of his mother, in North
Augusta.” Respondent Lops and the children regularly went back and forth between
Augusta and Martinez, Georgia, and North Augusta, South Carolina. To the extent
he worked, Respondent Lops worked for House Rentals, which the district court also
found had offices in Georgia, either in Richmond or Columbia County. The record
before the district court was replete with other evidence that Respondents had more
than sufficient contacts with Georgia to satisfy due process requirements.
10
We review the district court’s determination that res judicata and collateral
estoppel do not apply de novo. See Richardson v. Miller, 101 F.3d 665, 667-68 (11th
Cir. 1996). The district court’s conclusions of law state:
In determining its own jurisdiction a federal district court is not bound
by res judicata. Nor are the parties bound by any collateral estoppel with
respect to the factual findings made by any other court. Indeed, it is the
duty of a federal district court to determine a sufficiency of jurisdictional
facts to properly decide or ascertain its own jurisdiction.
On appeal, the parties correctly focus on collateral estoppel since this case involves
24
In contrast, the Georgia court’s transfer order incorrectly applied a traditional
residency test and erroneously concluded (a) that the children were not “located” in
Georgia under ICARA, and (b) that it lacked personal jurisdiction over Respondent
Lops and the children.11 “Located” under ICARA does not require a showing of
residency but contemplates the place where the abducted children are discovered. 42
U.S.C. § 11603(b). Thus, the children were “located” in Georgia for purposes of
ICARA. There was also ample evidence supporting the district court’s finding that
Respondents had more than sufficient contacts with Georgia to satisfy due process
requirements.
issue preclusion and not claim preclusion.
11
The November 3, 1997 order directing the children to be picked up at
Respondent Harrington’s home and placed in the custody of Georgia DFACS was
issued by Superior Court Judge Bernard J. Mulherin, Sr., of the Superior Court of
Columbia County, Georgia. However, Judge Robert L. Allgood, of that same court,
presided over the ICARA action Petitioner filed in the Superior Court of Columbia
County, Georgia. In his November 15, 1997 order, Judge Allgood determined that
despite “the actual physical seizure of the children in Georgia,” there were insufficient
contacts in Georgia for personal jurisdiction over the children and Respondent Lops,
and thus Judge Allgood transferred the matter to the Family Court of Aiken County,
South Carolina. The district court also correctly found that the children’s dual
residence with Respondent Harrington in Georgia yielded more than sufficient
contacts with Georgia to satisfy due process requirements. See supra note 9.
25
Nonetheless, Respondents contend that under the doctrine of collateral estoppel,
the Georgia court’s prior determination, even if erroneous, that jurisdiction did not lie
in Georgia barred the federal district court in Georgia from later finding it had
jurisdiction over Respondents and the children in order to hear the ICARA petition.
Respondents cite several cases for the proposition that when the issue of personal
jurisdiction has been fully litigated and finally decided by a state court, that decision
must be given full faith and credit in federal court. However, unlike the case before
us, each decision cited by Respondents involves a final judgment entered by the state
court.12 Even assuming arguendo that Respondents are correct that a state court final
12
Each decision cited by Respondents and the dissent involved an actual final
dismissal and/or a final judgment entered in the state court action. See Underwriters
Nat’l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Ass’n.,
455 U.S. 691, 706 (1982) (Indiana state court final order settling and dismissing all
claims); Durfee v. Duke, 375 U.S. 106, 111 (1963) (Nebraska state court final order
in quiet title action with no appeal); American Surety Co. v. Baldwin, 287 U.S. 156,
166 (1932) (Idaho state court final judgment on supersedeas bond affirmed on appeal);
Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 524-26 (1931) (Missouri
state court final default judgment with no appeal); Deckert v. Wachovia Student Fin.
Servs., 963 F.2d 816, 819 (5th Cir. 1992) (Texas state court final order dismissing case
for lack of personal jurisdiction); Harbuck v. Marsh Block & Co., 896 F.2d 1327,
1329 (11th Cir. 1990) (New York state court final order granting permanent stay of
arbitration with dismissed appeal); Wiggins v. Pipkin, 853 F.2d 841, 842 (11th Cir.
1988) (Florida state court final order dismissing case for lack of personal jurisdiction);
American Steel Bldg. Co. v. Davidson & Richardson Constr. Co., 847 F.2d 1519,
1521 (11th Cir. 1988) (Texas state court final default judgment); Rubaii v. Lakewood
Pipe of Texas, 695 F.2d 541, 543 (11th Cir. 1983) (Florida state court final order
26
judgment regarding personal jurisdiction may bar a federal court’s reconsidering that
issue in certain circumstances, the doctrine of collateral estoppel is inapplicable here
because the Georgia court’s interlocutory transfer order was not a final judgment and
was not an otherwise final appealable order under Georgia law.
B. Collateral Estoppel Requires A Final Judgment Or A Final Appealable Order
Under the Full Faith and Credit Act, federal courts generally should respect
state court judgments, even where erroneous. 28 U.S.C. § 1738; Matsushita Elec.
Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 373 (1996). In deciding whether the
Georgia court’s transfer order is entitled to preclusive effect, this court must determine
first whether that order was a “final judgment” under Georgia law. See Gresham Park
dismissing case for lack of personal jurisdiction); see also United States v. Timmons,
672 F.2d 1373, 1378 (11th Cir. 1982) (federal court final judgment in condemnation
action).
In contrast, this case does not involve a final judgment or dismissal but only an
interlocutory transfer order. The dissent acknowledges that “[t]he wrinkle here is that
the Georgia court did not simply dismiss the case.” The dissent then dismisses this
“wrinkle” as insignificant and advocates that the Georgia courts would still view this
interlocutory transfer order as effectively a dismissal and consider the transfer order
a final judgment. However, this ignores the fact that Georgia courts have not viewed
or recharacterized transfer orders as dismissals but directly have held that transfer
orders in civil cases are not final appealable orders because the case is still pending
in the court below. See Fulton County Dep’t of Family and Children Servs. v.
Perkins, 259 S.E.2d 427 (Ga. 1978); Wright v. Millines, 442 S.E.2d 304, 304 (Ga. Ct.
App. 1994); Griffith v. Georgia Bd. of Dentistry, 333 S.E.2d 647, 647 (Ga. Ct. App.
1985).
27
Community Org. v. Howell, 652 F.2d 1227, 1242 (5th Cir. Unit B Aug. 10, 1981);
First Nat’l Bank of Dublin v. Colonial Fire Underwriters Ins. Co., 160 Ga. 166, 167
(1925). A final judgment is required before any possibility of application of the
doctrine of res judicata or collateral estoppel may arise. Quinn v. State, 471 S.E.2d
337, 339 (Ga. Ct. App. 1996), aff’d, 485 S.E.2d 483 (Ga. 1997); Green v. Transport
Ins. Co., 313 S.E.2d 761, 763 (Ga. Ct. App. 1984). No Georgia case has held that a
transfer order represents a final judgment in the transferring court, much less given
preclusive effect to a transfer order.
Nonetheless, we recognize that under Georgia law finality for preclusion
purposes may also be measured by the same standard as finality for appealability
purposes. See Gresham Park Community Org. v. Howell, 652 F.2d 1227, 1241-42 (5th
Cir. Unit B Aug. 10, 1981); see also Culwell v. Lomas & Nettleton Co., 248 S.E.2d
641, 642 (Ga. 1978); Dep’t of Corrections v. Robinson, 455 S.E.2d 323, 324 (Ga. Ct.
App. 1995). Therefore, in order to determine whether the transfer order was final for
preclusion purposes, we must also examine whether the transfer order could be
considered a final appealable order. Close examination of Georgia law reveals that
the Georgia court’s transfer order was also not a final appealable order for several
reasons.
28
C. Transfer Order Was Not A Final Appealable Order Under Section 5-6-34(a)(1)
First, a transfer order, especially one entered only ten days after a case begins,
is an inherently interlocutory order and not appealable. Under Georgia law, the only
way this interlocutory transfer order may be converted into a final appealable order
is if it falls under this Georgia statute: O.C.G.A. § 5-6-34(a)(1), entitled in part
“Judgments and rulings deemed directly appealable.”
Section 5-6-34 provides that an order becomes directly appealable when the
case is “no longer pending in the court below,” as follows:
(a) Appeals may be taken to the Supreme Court and the Court of
Appeals from the following judgments and rulings of the superior courts,
the constitutional city courts, and such other courts or tribunals from
which appeals are authorized by the Constitution and laws of this state:
(1) All final judgments, that is to say, where the case is
no longer pending in the court below, except as provided in
Code Section 5-6-35; . . . .
O.C.G.A. § 5-6-34(a)(1) (emphasis supplied). The “in the court below” language in
§ 5-6-34(a)(1) is generally used to refer to a trial court as distinguished from an
appellate court. A literal reading of § 5-6-34(a)(1) supports the conclusion that an
order transferring a case from a trial court to a different trial court is not appealable,
because that case is still “pending in the court below.” This is especially true here,
29
given the fact that the parties stipulated to a transfer to another trial court, as opposed
to a dismissal of the case.
D. Georgia Courts Follow General Rule That Transfer Orders In Civil Cases Are
Not Final Judgments
Second, Georgia courts repeatedly have held that transfer orders are not final
appealable orders under § 5-6-34(a)(1) because a case transferred from one trial court
to another trial court is still “pending in the court below.” See, e.g., Wright v.
Millines, 442 S.E.2d 304, 304 (Ga. Ct. App. 1994); Griffith v. Georgia Bd. of
Dentistry, 333 S.E.2d 647, 647 (Ga. Ct. App. 1985).
For example, in Griffith, the action was transferred from a trial court in one
jurisdiction to a trial court in a different jurisdiction. The Georgia appellate court
dismissed the appeal, concluding that “[t]he subject transfer order is not a final
judgment as the case is still pending in the court below, albeit a different court from
the one ordering the transfer.” 333 S.E.2d at 647 (emphasis supplied). The appellate
court held that “[t]he order is thus interlocutory and not appealable . . . .” Id. This
same result prevailed in Wright, which held that the appeal of a transfer of a civil case
from one trial court to a different trial court was “premature as there is no final
judgment and the case remains pending in the trial court, albeit the Superior Court of
30
Douglas County to which the case was transferred rather than the Superior Court of
Fulton County where plaintiff filed his notices of appeal.” 442 S.E.2d at 304(emphasis supplied).13
Finally, Georgia’s general rule that transfer orders are not “final appealable
orders” also adheres when an order transfers a case to a different type of trial “court
below.” Fulton County Dep’t of Family and Children Servs. v. Perkins, 259 S.E.2d
427 (Ga. 1978). Perkins, a child custody case closest in point, merits full review.
After Georgia DFACS took custody of their child, the foster parents in Perkins filed
a complaint in the superior court for authorization to adopt the child and for a writ of
habeas corpus returning the child. The court dismissed all claims but the habeas
petition and then transferred the case to the juvenile court, which earlier had asserted
jurisdiction over matters relating to custody of the child. Following the transfer, the
juvenile court vacated its earlier order asserting jurisdiction and transferred the case
back to the superior court. DFACS appealed contending both transfer orders were
13
Both Griffith and Wright involved transfers from one court jurisdiction to a
separate and distinct court jurisdiction. Wright involved a transfer from the Superior
Court of Fulton County in the Atlanta Judicial Circuit in Judicial District 5 to the
Superior Court of Douglas County in the Douglas Judicial Circuit in Judicial District
10. Griffith involved a transfer from the Superior Court of Bibb County in the Macon
Judicial Circuit in Judicial District 3 to the Superior Court of Fulton County in the
Atlanta Judicial Circuit in Judicial District 5.
31
“final” because “once a transfer order is entered, then the case is no longer pending
in that court . . . .” Id. at 428.
The Georgia appellate court held that neither transfer order was appealable.14
The appellate court first acknowledged that an order transferring a criminal case from
a juvenile court to a superior court may be a final appealable order because it
concludes all matters in the juvenile court and changes the nature of the proceeding.
Id. at 428-29.15 The court explained that a transfer order in divorce, alimony, or
habeas corpus (custody) cases changes the forum but does not change the nature of
the proceeding. Id. at 429. The court concluded that despite the transfer of forum,
“[a] transfer of a child custody case is a continuation of that proceeding whereas a
transfer of a juvenile for trial of a crime as an adult is not a continuation of the same
proceeding.” Id. (emphasis supplied). Even though the transferring court loses
14
The issue in Perkins was whether the transfer orders appealed from were final
orders within the meaning of then-existing Ga. Code Ann. §§ 24A-3801 and 6-701.
259 S.E.2d at 428. In 1981, these code sections were renumbered, respectively, as
O.C.G.A. § 15-11-64 and O.C.G.A. § 5-6-34, the latter of which is at issue in this
case. The court held that the transfer orders were “not final and hence . . . not
appealable without a certificate of immediate review.” Id. at 429.
15
The court was referring to J.T.M. v. State of Georgia, 236 S.E.2d 764 (Ga. Ct.
App. 1977), which held that an order transferring a criminal case from a juvenile court
to a superior court for final disposition is a final appealable order. Id. at 765; see also
Rivers v. State of Georgia, 493 S.E.2d 2, 4 (Ga. Ct. App. 1997).
32
jurisdiction and the case is no longer pending in that court, Georgia courts repeatedly
have held that an order transferring a civil case from one trial court to another trial
court is not appealable because the case is still pending in a court below, albeit a
different court below.
As in Perkins, Griffith, and Wright, the transfer of this civil case to another trial
court, albeit a South Carolina trial court, is a continuation of the same civil proceeding
originally initiated in the Georgia trial court. This case, if anything, presents an even
stronger case for a finding of non-appealability under Georgia law because the parties
stipulated to the transfer and a continuation of the proceedings, as opposed to a
dismissal. The Georgia court’s transfer order in this civil case changed only the forum
and not the nature of the proceeding in the court below, and thus is not a final
appealable order under Georgia law.16
16
The dissent concludes that Petitioner was judicially estopped from contending
that venue was proper and that personal jurisdiction was present in Georgia. To reach
this conclusion, the dissent argues that Petitioner stipulated that venue was improper
and that personal jurisdiction was wanting in Georgia. However, Petitioner never
made any such stipulation about venue or personal jurisdiction. Instead, the Georgia
court’s order recites that the parties “stipulated to a transfer of the proceedings verses
[sic] dismissal and refiling in the event this Court found no authority for exercising
jurisdiction in Georgia.” Petitioner consented to transfer in the event the Georgia
court rejected her contentions and found no authority for exercising jurisdiction in
Georgia. Petitioner’s argument to the district court that venue was proper, and
jurisdiction present, was not inconsistent at all with the same arguments Petitioner
33
E. Interstate Transfers In Georgia’s Juvenile Court Cases
We note that two Georgia decisions have allowed orders transferring juveniles,
adjudicated as delinquent in Georgia, to another state to be appealable, but those cases
involve “adjudicatory orders” on the merits of the case and are not applicable here.
In the Interest of T.L.C., 467 S.E.2d 885 (Ga. 1996); G.W. v. State of Georgia, 210
S.E.2d 805 (Ga. 1974).17 In these two juvenile court cases, the Georgia appellate court
made to the Georgia court. Judicial estoppel does not apply. Even Respondents admit
Petitioner stipulated for the case to be transferred to South Carolina and Respondents
do not contend that Petitioner ever stipulated that venue was improper or personal
jurisdiction in Georgia was lacking.
17
The dissent also cites Arnold v. Jordan, 378 S.E.2d 139 (Ga. Ct. App. 1989),
involving an interstate transfer order, but the Arnold court “granted the father’s
application for discretionary review.” 378 S.E.2d at 141. O.C.G.A. § 5-6-34(b)
provides that the courts “may thereupon, in their discretion, permit an appeal to be
taken” from certain interlocutory orders or non-final judgments. The dissent
concludes that Arnold involves discretionary review of domestic relations cases under
O.C.G.A. § 5-6-35(a)(2) and not discretionary review of an interlocutory order or non-
final judgment under O.C.G.A. § 5-6-34(b). Arnold cites no statute or decision after
its statement granting discretionary review. Thus, Arnold’s reference to
“discretionary review” could be read to cover both types of discretionary review.
Even if the “discretionary review” in Arnold was under only § 5-6-35(a)(2), the
parties in Arnold did not consent to a transfer as opposed to a dismissal as the parties
did here, which is an important factual distinction. Also, Georgia courts have held
that intrastate transfer orders in certain cases are directly appealable which undermines
the dissent’s proposed interstate versus intrastate bright-line distinction. Rivers v.
State of Georgia, 493 S.E.2d 4 (Ga. Ct. App. 1997); J.T.M. v. State of Georgia, 236
S.E.2d 764, 765 (Ga. Ct. App. 1977).
34
allowed juveniles to appeal the “adjudicatory order” transferring their case to another
state for disposition because that adjudicatory order also decided the merits of the
case, determined whether the juveniles had committed the acts charged, and
adjudicated them as delinquent. See O.C.G.A. §§ 15-11-33 and 15-11-35. However,
these quasi-criminal juvenile cases do not cite or discuss O.C.G.A. § 5-6-34(a)(1), and
never discuss whether the case is still pending “in the court below.” Instead, these
cases adopt an equal protection analysis because the juveniles had been adjudicated
delinquent, and denying them an opportunity to appeal a finding of guilt denies the
juveniles equal protection of the laws. Id. at 806.
In any event, the facts in this case are materially different from those in G.W.
and T.L.C. Here, the parties stipulated to the transfer of the case to South Carolina,
thus waiving any right to appeal in Georgia and, a fortiori, waiving any equal
protection argument. The parties’ stipulation alone makes these juvenile court cases
inapplicable. In addition, there was no determination on the merits of Petitioner’s
substantive claims, but only a preliminary determination that the Georgia state court
was not the proper forum to hear the merits of the case. At a minimum, these juvenile
court cases in G.W. and T.L.C. are not persuasive authority for the interpretation a
35
federal court should give to § 5-6-34(a)(1) because they do not cite or discuss this
statute. Instead, the civil cases discussed earlier are more closely in point.18
F. Parties’ Stipulation to Transfer
Finally, the parties’ unique stipulation to the transfer here makes this transfer
order particularly non-appealable under Georgia law. This case remained, by
stipulation, in the court below, albeit a different court below. We see no reason a
Georgia court would be inclined to hold that parties may convert this inherently
18
After acknowledging that intrastate transfers from one trial court to a different
trial court are not final appealable orders because Georgia courts hold the case is still
pending in the court below, the dissent broadly asserts that interstate transfer orders
are treated entirely differently by the Georgia courts. However, the Georgia courts
have not created a different rule for transfer orders intrastate versus interstate. For
example, in G.W., the Georgia Supreme Court could have, but did not, create a bright-
line rule distinguishing between intrastate transfers and interstate transfers. If the
Georgia Supreme Court had wanted to make a new or different rule for all interstate
transfers, the court could have noted that, because the case was transferred out of state,
it was “no longer pending in any court below.” However, the G.W. opinion does not
cite or discuss § 5-6-34(a)(1) and does not address whether the case was “no longer
pending in the court below.” Instead, the court employed an equal protection analysis
to allow a non-resident juvenile adjudicated delinquent to appeal that adjudication.
Similarly, the Georgia Supreme Court, in T.L.C., did not cite or discuss § 5-6-
34(a)(1), or whether the case still was pending in the court below. Rather, the Georgia
Supreme Court merely cited G.W. in reaching the same conclusion as G.W. when
facing facts materially indistinguishable from G.W. The T.L.C. court did not expand
G.W., but rather quoted only from the last sentence of G.W. in support of its
conclusion that the litigant in T.L.C. had a right to appeal immediately the
adjudicatory order in that case.
36
interlocutory transfer order under § 5-6-34(a)(1) to a final appealable order when they
stipulated to the transfer as opposed to a dismissal.19
We conclude that Georgia courts would not consider this transfer order in this
type of case a final appealable order under § 5-6-34(a)(1) because the case was
transferred from one trial court to another trial court and remained pending “in the
court below.” Section 5-6-34(a)(1) does not state “no longer pending in the same
court” or “no longer pending in a court in Georgia” or “no longer pending in the court
19
The dissent contends that the Georgia trial court lacked authority to transfer
the case to South Carolina, and thus the dissent recharacterizes the transfer order as
a dismissal. Since a transfer order is interlocutory and not appealable under Georgia
law, the dissent recharacterizes the transfer order as a dismissal in order to make it a
final judgment and appealable. There is no statutory or decisional authority for the
dissent’s proposition that this transfer order should be treated somehow as an effective
dismissal.
Further, the parties’ consent to the transfer not only provides the authorization
but also waives any right to complain about any error in transferring the case to South
Carolina. Respondents wanted the case to go to the South Carolina court, which in
turn accepted jurisdiction. Whether the South Carolina court was required to take
jurisdiction is not a question we have to face or resolve.
Alternatively, the dissent argues that since the Georgia court lacked authority
to transfer the case, the transfer order was “a nullity.” We are aware of no authority
which permits, much less compels, us to conclude that a “null” transfer can be
considered a “final judgment” for purposes of collateral estoppel. To the contrary,
something that is null has no legal or binding force. See BLACK’S LAW DICTIONARY
1067 (6th Ed. 1990) (defining “nullity” as “an act or proceeding in a cause which the
opposite party may treat as though it had not taken place, or which has absolutely no
legal force or effect.”).
37
that issued the order on appeal,” but states only “no longer pending in the court
below.” We should not add qualifying or limiting terms to an otherwise clear state
statute. This is also not the construction the Georgia courts have placed on this statute
when considering transfer orders in civil cases. We find that the Georgia courts would
hold that this type of transfer order, entered only ten days after this civil case was
filed, was not a final appealable order under § 5-6-34(a)(1) because the transfer
changed only the forum and not the nature of the proceeding and because the parties
stipulated to the transfer, as opposed to a dismissal.20
VI. ABSTENTION
We next address Respondents’ argument that the exercise of wise judicial
administration required the district court, as a matter of law, to abstain due to the
parallel South Carolina action. See Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Co., 460 U.S. 1 (1983); Colorado River Water Conservation Dist. v. United States,
20
Georgia courts also recognize that the application of collateral estoppel may
be avoided where it would result in “manifest injustice” to a party. See Fierer v. Ashe,
249 S.E.2d 270, 273 (Ga. Ct. App. 1978). Thus, alternatively, Georgia courts, at a
minimum, would find that manifest injustice results if preclusive effect is given to this
transfer order where the parties stipulated to the transfer and where the Georgia court
erroneously interpreted federal law.
38
424 U.S. 800 (1976). We hold that the district court did not abuse its discretion in
declining to abstain for several reasons.21
First, “[a]bstention from the exercise of federal jurisdiction is the exception, not
the rule.” Colorado River, 424 U.S. at 813. When a parallel state court action exists,
the Supreme Court has emphasized that “[t]he doctrine of abstention, under which a
District Court may decline to exercise or postpone the exercise of its jurisdiction, is
an extraordinary and narrow exception to the duty of a District Court to adjudicate a
controversy properly before it.” Id. (quoting County of Allegheny v. Frank Mashuda
Co., 360 U.S. 185, 188-89 (1959)). “[T]he pendency of an action in the state court is
no bar to proceedings concerning the same matter in the Federal court having
jurisdiction . . . .” Id. at 817 (quoting McClelland v. Carland, 217 U.S. 268, 282
21
We review the district court’s decision whether to abstain for abuse of
discretion. See Rindley v. Gallagher, 929 F.2d 1552, 1554 (11th Cir. 1991).
The dissent correctly notes that the Colorado River doctrine is not a traditional
form of abstention, see Colorado River, 424 U.S. at 817, but is based on
“considerations of ‘wise judicial administration, giving regard to conservation of
judicial resources and comprehensive disposition of litigation.’” Id. (quoting Kerotest
Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952)). However, since
prior decisions of this court label a federal court’s deference to a parallel state court
litigation as a type of abstention, we do likewise. See, e.g., Lake Lucern Civic Ass’n
v. Dolphin Stadium Corp., 878 F.2d 1360, 1373 (11th Cir. 1989); Forehand v. First
Alabama Bank of Dothan, 727 F.2d 1033, 1035 (11th Cir. 1984); Fountain v.
Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038, 1046 (11th Cir. 1982).
39
(1910)). Instead, the Supreme Court has emphasized “the virtually unflagging
obligation of the federal courts to exercise the jurisdiction given them.” Id. at 817
(emphasis supplied).
Second, all relevant factors support the district court’s decision to hear the
ICARA petition and not abstain. When a parallel state court action pends, the
Supreme Court has outlined six factors for federal courts to consider in determining
whether to abstain and dismiss a federal action: (1) whether one of the courts has
assumed jurisdiction over any property in issue; (2) the inconvenience of the federal
forum; (3) the potential for piecemeal litigation; (4) the order in which the forums
obtained jurisdiction; (5) whether federal or state law will be applied; and (6) the
adequacy of each forum to protect the parties’ rights. Moses H. Cone, 460 U.S. at 15-
16, 23-27; Colorado River, 424 U.S. at 818. No one factor is per se determinative.
Moses H. Cone, 460 U.S. at 16. How each factor is weighed depends on the facts of
each case. Id.Here, neither the state nor the federal court had jurisdiction over any property
in issue, rendering the first factor inapplicable. The remaining factors all counsel
against abstention. The federal forum in Georgia was particularly convenient because
the children were in the custody of Georgia DFACS and Respondent Harrington lives
40
in Georgia. Even Respondent Lops’s residence in North Augusta, South Carolina was
on the Georgia and South Carolina border and only a few miles from the federal
district court in Augusta, Georgia. Although both state and federal courts adequately
could protect the parties’ rights, ICARA is a federal statute enacted to implement a
treaty entered into by the federal government. Federal law provides the rule of
decision in this case, which counsels against abstention by the federal district court.22
22
The district court found this factor, as well as others, favored its declining to
abstain:
I have had some concerns . . . relating to the parallel state proceedings
that were originated in Georgia and subsequently transferred to the
Family Court of South Carolina. I do not know of any concept that
would bar the prosecution of both of these cases at the same time.
....
Interestingly, because of the apparent heavy schedule of the Family
Court of South Carolina, a hearing date could not be established until
January 15, 1998. Because of the less demanding schedule apparently,
this Court has been able to act and seeks to conclude the matter this 22nd
day of December.
....
I will be the first, in most instances, to give great deference to a pending
proceeding in state court. However, the mere pendency of a parallel
proceeding does not require the dismissal of a federal suit. This case, in
my view, does not require dismissal of the federal action. Indeed, in my
view, it is more appropriate for the federal court to proceed to
disposition. After all, the act and the treaty, which the Petitioner seeks
to enforce, are creatures of the federal sovereign as opposed to any
state’s sovereignty.
The apparent election of the forum by the Petitioner can be and
41
Additionally, there was no threat of piecemeal litigation because the district court
could, and did, resolve all issues.
Respondents contend that the South Carolina court’s having jurisdiction first
strongly favored abstention here. However, the Supreme Court has explained that the
factor of which court first obtained jurisdiction involves more than a chronological
assessment of whether the state or federal action was filed first. Rather, the question
is whether proceedings are further along in one jurisdiction than in the other. Moses
H. Cone, 460 U.S. at 21-22; Noonan South, Inc. v. County of Volusia, 841 F.2d 380,
382 (11th Cir. 1988). At the time the district court decided the case, the South
Carolina case had just begun. More importantly, ICARA requires expedited judicial
proceedings. The ICARA petition was transferred to the South Carolina court on
November 15, 1997, but that court indicated on November 26 that it was not able to
schedule a hearing on the merits of the wrongful removal until January 16, 1998.
has been easily explained because the Georgia Court’s [sic] were already
involved through the efforts of the Georgia Bureau of Investigation to
locate the children. And, indeed, Judge Mulherin of the Augusta Judicial
Circuit, including Columbia County, had entered the order by which the
trap and trace order was permitted with respect to the telephone calls.
These observations, coupled with the fact that the case primarily
involved the interpretation and application of federal law, impel me to
continue in this matter to a dispositive level in this ICARA petition
action.
42
The district court, on the other hand, was prepared to, and did, expedite the
ICARA petition as required by ICARA. The ICARA petition was filed in the district
court on December 3. The district court conducted two full days of evidentiary
hearings on December 12 and 19 and heard closing arguments on December 22, after
which the district court immediately dictated comprehensive findings of fact and
conclusions of law, covering sixty-four pages of transcript in the record, and entered
final judgment. This is what ICARA contemplates.
Respondents also argue that Petitioner, unhappy with the South Carolina court’s
releasing the children from Georgia DFACS to Respondent Harrington in Georgia,
forum shopped and essentially “removed” her ICARA petition to federal court.
Respondents ignore that they were the original forum shoppers. Respondents first
tried to forum shop this case away from the German courts, where Petitioner initiated
custody proceedings. A German family court had jurisdiction first. Respondent Lops
left Germany and wrongfully removed the children from Germany to try to avoid the
German court’s order and jurisdiction over him and the children. After Respondent
Lops lost on the merits and on the jurisdiction issues before both the German family
court and German appellate court, Respondent Lops forum shopped and filed a
divorce action in South Carolina in 1996.
43
While Petitioner normally should select one forum and stay there, the record
established that Petitioner’s filing in federal court in Georgia was motivated in large
part by the South Carolina court’s inability to hear her ICARA petition in an expedited
manner as prescribed by ICARA and the Hague Convention. The dissent advocates
that Petitioner’s sole motivation for filing in federal court was because she was
“apparently dissatisfied by a temporary custody decision of the South Carolina court”
and that the district court failed to consider the “reactive nature of Mrs. Lops’s suit.”
However, the record shows that the district court specifically considered the parallel
state court proceedings but determined that the concurrent actions were in part caused
by “the apparent heavy schedule” of the South Carolina court and Petitioner’s inability
to obtain a hearing until January 16 in the South Carolina court – over two months
after her ICARA petition was transferred to South Carolina. The district court also
recognized that Article 11 of the Hague Convention contemplates an immediate
emergency hearing in international child abduction cases and a judicial decision
within six weeks. Unlike the South Carolina state court, the district court was able to
expedite the matter under the federal ICARA statute and thus the district court
exercised its discretion to hear the case.
44
On appeal, the issue is not what we would have done but whether the district
court abused its discretion in making its decision not to abstain. The district court
fully considered the fact that a parallel South Carolina action existed, but exercised
its discretion not to defer because the state court action had just begun, the South
Carolina court, due to an “apparent heavy schedule,” was not able to expedite the case
when the federal court could, the construction of a federal statute was involved, and
the federal forum was convenient to all parties. The district court acted because the
federal law in issue contemplates an expedited hearing but the South Carolina court
was failing to act expeditiously.23
23
The different approaches by the dissent versus the district court to the
abstention, or “wise judicial administration,” issue appear to stem in part from the
district court’s view that Georgia law enforcement officials were heavily involved and
the ICARA petition alleging international child abduction required expedited review
but the South Carolina court could not hear the case due to its “apparent heavy
schedule.” In contrast, the dissent finds “[n]o such extenuating circumstances existed
here, however.” Nonetheless, the dissent acknowledges that “[t]his case involves legal
claims of significant human importance,” which is exactly why the district court
expedited the case when the South Carolina court failed to schedule a hearing
expeditiously in this international child abduction case.
The dissent also emphasizes that Petitioner continued to file pleadings in the
South Carolina court action; however, after the district court ruled, Petitioner filed a
motion to dismiss the South Carolina action and the Supreme Court of South Carolina
ultimately stayed the South Carolina action. The record also reflects that since her
children were in Georgia DFACS custody, Petitioner obtained a leave of absence from
work in Germany and immediately flew to the United States to regain the custody of
her children awarded by the German courts and that once in Georgia Petitioner’s main
45
At a minimum, the parties were equal forum shoppers, which neutralizes this
factor in the abstention equation.24 Application of these Colorado River and Moses
H. Cone factors readily reveals why the district court did not abuse its discretion in
hearing the case, in declining to abstain, and in expediting the case to final judgment.
VII. RESPONDENTS’ AFFIRMATIVE DEFENSE BASED ON
ICARA’S WELL-SETTLED EXCEPTION
goal was to obtain an expedited hearing on the merits of her international child
abduction petition under ICARA as opposed to selecting a particular court or forum
for that hearing. The district court recognized this, rejected Respondents’ claims of
forum shopping, and expedited the case as ICARA and the Hague Convention require.
The dissent’s harsh indictment of Petitioner for “egregious manipulation of ICARA’s
system of concurrent jurisdiction” is not supported by the district court’s findings of
fact and does not take into account the fact that the district court acted because it
found that the South Carolina court was failing to act expeditiously because of its
“apparent heavy schedule.” See supra note 22.
24
Respondents decry Petitioner’s forum shopping but ignore not only their own
forum shopping but also the misrepresentations made to accomplish their forum
shopping. The district court found that Respondent Lops made misrepresentations to
the German court and other officials by stating he would return the children to
Petitioner after a few hours on May 10, 1995, and by not advising the German family
court judge in the July 3, 1995 hearing that his mother already had wrongfully
removed the children to the United States on June 27, 1995, and that he was already
packing up his furniture and planning to leave on July 8, 1995, and by advising
consulate officials on May 30, 1995 that Petitioner had abandoned the children in
order to obtain new passports and wrongfully remove the children from Germany.
The district court noted that a collateral effect of its decision is to give full faith and
credit to the court orders in Germany.
46
Once Petitioner satisfied her burden to show that a wrongful removal from
Germany had occurred, the children must be returned to Germany unless Respondents
established that any of the Hague Convention’s affirmative defenses apply. 42 U.S.C.
§ 11603(e)(2); Friedrich, 78 F.3d at 1067. Respondents contend that the children
should not be returned to Germany because they showed that the ICARA petition was
filed more than one year after the wrongful removal of the children and that the
children are now “well-settled” in their new environment. See Hague Convention, art.
12;25 see also Friedrich, 78 F.3d at 1067. After reviewing the evidence at trial, we
conclude that the district court correctly determined that Respondents had not
established an affirmative defense under the “well-settled” exception or any other
25
Article 12 states:
Where a child has been wrongfully removed or retained in terms of
Article 3 and, at the date of the commencement of the proceedings before
the judicial or administrative authority of the Contracting State where the
child is, a period of less than one year has elapsed from the date of the
wrongful removal or retention, the authority concerned shall order the
return of the child forthwith. The judicial or administrative authority,
even where the proceedings have been commenced after the expiration
of the period of one year referred to in the preceding paragraph, shall
also order the return of the child, unless it is demonstrated that the child
is now settled in its new environment.
Hague Convention, art. 12. Respondents must establish this exception by a
preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(B).
47
affirmative defense available under ICARA and that the district court did not err in
ordering that the children be returned to Germany with Petitioner.26
Although the petition was not filed within one year of the wrongful removal,
the district court first determined that this one-year time limit, which in some respects
is similar to a statute of limitations, may be equitably tolled. In doing so, the district
court found that it is difficult to “conceive of a time period arising by a federal statute
that is so woodenly applied that it is not subject to some tolling, interruption, or
suspension, if it is shown or demonstrated clearly enough that the action of an alleged
wrongdoer concealed the existence of the very act which initiates the running of the
important time period.” We are not required to reach the issue of whether equitable
tolling may apply under ICARA because the evidence supported the district court’s
26
Respondents also contend that they established other affirmative defenses
under ICARA by showing that Petitioner had consented, or at least acquiesced by her
conduct, to the children’s removal and that there was a significant risk of
psychological harm if the children were returned to Germany after two and one-half
years in the United States. Respondents have not shown that the district court erred
in finding Respondents had not established these defenses. In particular, the evidence
amply supported the district court’s express factual findings that Petitioner had valid
custody rights to the children, that Petitioner had persistently prosecuted and protected
her custody rights in the German courts, and that Petitioner never consented or
acquiesced to the removal but made concerted efforts to locate the children through
international, national, and local agencies. Also, in finding that Respondents had not
established any ICARA defenses, the district court succinctly noted that “the very idea
of these children being placed in a position or status of pawns in the parents’
skirmishes is, I will have to say, repugnant or deplorable. And this proceeding today
and its conclusion is only the natural sequel of the initial decision made in May or
June of 1995 to bring the children to the United States without the recognition of the
mother’s rights as accorded by German law and our treaty.”
48
factual finding that the children were not yet “well-settled” under the Hague
Convention.
The district court found that “well-settled” means more than having a
comfortable material existence. In determining whether the children were “well-
settled,” the district court properly considered many relevant factors, including but not
limited to several peculiar circumstances surrounding the children’s living
environment, Respondent Harrington’s being more involved with the children in
certain areas than Respondent Lops,27 the active measures Respondents were
undertaking to keep Respondent Lops’s and the children’s whereabouts concealed
from Petitioner and the German (and other) authorities, and the fact that Respondent
Lops could be prosecuted for his violations of state and federal law because he was
committing “four and five misdemeanors . . . to conceal, at least himself, from any
authority.” Other evidence adequately supported the district court’s finding that the
children were not “well-settled” as contemplated under ICARA and Article 12 of the
27
The evidence indicated that although Respondent Lops worked only a few
hours each week, Respondent Harrington picked the children up from school each day
and attended more to the nurture and needs of the children. The district court found
that Respondent Harrington was “in virtual control of the financial and other affairs
of this family. I see that the grandmother [Respondent Harrington] is a co-partner, co-
participant in the abduction and in the maintenance of these appearances whose only
object could be to conceal the existence of the origins of the children.”
49
Hague Convention. Therefore, we conclude that the district court also did not err in
its finding that Respondents had not established that the children were “well-settled.”28
VIII. CONCLUSION
We conclude that the district court correctly ordered that the two minor
children, Claire Lops and Carmen Lops, be returned to the custody of Petitioner for
immediate return to Germany. In accordance with the terms of ICARA and the
Convention, the district court’s judgment also correctly resolves only Petitioner’s
wrongful removal claim and remands any matter regarding the underlying custody
dispute to be resolved by German courts where the litigation between the parties first
began and should be
28
Respondents also contend (1) that the district court erred in failing to consider
the 1996 order in the divorce case Respondent Lops brought in a South Carolina court
which awarded custody of the children to Respondent Lops; (2) that the district court
did not give Respondents a full and fair hearing; (3) that the district court violated
Respondent Lops’s procedural and substantive due process rights; and (4) that the
district court erred in awarding Petitioner costs, fees, and expenses allowed by 42
U.S.C. § 11607(b)(3). After review, we conclude that each contention lacks merit.
50
resolved.29 Thus, we affirm the judgment of the district court.
AFFIRMED.
KRAVITCH, Senior Circuit Judge, dissenting:
This case involves legal claims of significant human importance. In her petition
brought under the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C.
§§ 11601-11610, Mrs. Lops alleges that Mr. Lops wrongfully abducted their
daughters, and she requests that the two girls be returned to her custody.
This court, however, must determine whether the district court was the proper
court to hear the merits of the case. ICARA vests concurrent jurisdiction in state and
federal courts. See 42 U.S.C. § 11603(a). Initially, Mrs. Lops chose to file her
ICARA petition in the Superior Court of Columbia County, Georgia (“the Georgia
court”), rather than in a federal district court. The Georgia court ruled that venue and
29
The dissent acknowledges “the apparent soundness of the district court’s
ruling on the merits of the ICARA petition” and does not quarrel with our conclusions
that the evidence and law supported the district court’s findings that Respondents
wrongfully removed the children from Germany to the United States in violation of
Petitioner’s custody rights, that Respondents failed to show that the children were
“well-settled” in the United States, and that the children should be returned to
Germany. The dissent also agrees “that the Georgia court misinterpreted the ICARA
statute” and does not contest our conclusion that the Georgia court’s transfer order
erroneously held that jurisdiction did not lie in Georgia over Respondents and the
children. Instead, the dissent advocates only that the federal district court should have
dismissed the case based on collateral estoppel or under the abstention doctrine based
on “wise judicial administration.” Therefore, these two issues have been discussed
in more detail in this decision.
51
personal jurisdiction did not lie in Georgia and, pursuant to the parties’ stipulation,
directed that the case be transferred to the Family Court of Aiken County, South
Carolina (“the South Carolina court”), which assumed jurisdiction over the case.
Then, apparently dissatisfied by a temporary custody decision of the South Carolina
court and while that action was still pending, Mrs. Lops filed an identical ICARA
petition with the United States District Court for the Southern District of Georgia
(“the district court”), which, after ruling that venue and personal jurisdiction did exist
in Georgia, proceeded to determine the merits of Mrs. Lops’s ICARA petition.
Because I conclude that the district court should not have exercised jurisdiction over
the case, I respectfully dissent.
In my view, the district court was required to accept the Georgia court’s
determinations that venue and personal jurisdiction determinations were lacking in
Georgia. I believe that the majority, in holding to the contrary, misinterprets Georgia
collateral estoppel law and undermines the Full Faith and Credit Act, 28 U.S.C. §
1738. See infra Part II.
Moreover, even if the district court was not precluded from hearing the case,
the district court abused its discretion by failing to stay the case in deference to the
South Carolina court. Such deference was required in light of the reactive nature of
Mrs. Lops’s federal suit and Mrs. Lops’s circumvention of federal removal policy.
Accordingly, even if preclusion principles do not apply, this court, in the interests of
“wise judicial administration,” Colo. River Water Conservation Dist. v. United States,
52
424 U.S. 800, 817, 96 S. Ct. 1236, 1246 (1976) (quotation omitted), should vacate the
district court’s judgment and order that it stay Mrs. Lops’s federal action, see infra
Part III.
I.
Because I believe that the majority has omitted a few relevant details, I include
a brief summary of the facts pertinent to my dissent. In 1995, Mr. Lops took his two
daughters from Germany, where they were living with Mrs. Lops, to live with him in
South Carolina. On November 6, 1997, Georgia law enforcement officials, acting
pursuant to court order, seized the children, who were temporarily at the home of Mr.
Lops’s mother in Columbia County, Georgia, and placed the children in the custody
of the Georgia Department of Family and Children Services.
On November 12, Mrs. Lops filed an ICARA petition in the Georgia state court
seeking the return of her two children to Germany. On November 14, the Georgia
court issued an order: (1) holding that venue and personal jurisdiction were lacking
in Georgia and that the case should have been brought in South Carolina, the
53
jurisdiction where the children reside;1 and (2) transferring the case to the South
Carolina court pursuant to the parties’ stipulation.2
On November 26, the South Carolina court held an initial hearing, during which
it informed the parties that it would hear the merits of the ICARA petition on January
16, 1998.3 On December 2, 1997, the South Carolina court informed the parties that
during the pendency of the ICARA proceedings the children would be placed with Mr.
1
The Georgia court stated that 42 U.S.C. § 11603(b) (stating that ICARA
petition should be filed “in any court which has jurisdiction of such action and which
is authorized to exercise its jurisdiction in the place where the child is located at the
time the petition is filed”) reflected Congress’s intent that ICARA petitions “be filed
in the state where the child or children have primarily resided, not necessarily where
they are found.” Georgia court’s Order of November 14, 1997, at 5. The children’s
permanent residence was in South Carolina, even though they were physically located
in Georgia when Mrs. Lops filed suit. Thus, the court held that under ICARA Mrs.
Lops should have filed suit in a South Carolina court. Id. at 5-7. This holding appears
to constitute a ruling that venue did not lie in Georgia.
The Georgia court also determined that it could not exercise personal
jurisdiction over Mr. Lops or the children:
But for the actual physical seizure of the children in Georgia, there has
been no other minimally sufficient contact between the State of Georgia
and the children or Mr. Lops which would rise to a sufficient level to
meet [the] due process requirement for this Court to exercise jurisdiction
in this matter.
Id. at 6.
2
The court stated, “All parties stipulated to a transfer of the proceedings verses
[sic] dismissal and refiling in the event this Court found no authority for exercising
jurisdiction in Georgia.” Georgia court’s Order of November 14, 1997, at 7 n.2. The
South Carolina court’s first written order states that Mrs. Lops’s ICARA petition was
then filed in the South Carolina court. See South Carolina court’s Order of December
11, 1997, at 1-2.
3
See R3: 6, 36-37; Appellants’ Reply Br. at 3.
54
Lops’s mother, Anne E. Harrington, subject to an adequate security bond.4 In a
subsequent written order, the South Carolina court confirmed the January 16 hearing
date and the award of temporary custody to Mr. Lops’s mother.5
On December 3, 1997, Mrs. Lops filed in the South Carolina court a motion to
reconsider its December 2 decision regarding temporary custody.6 Also on December
3, Mrs. Lops filed an ICARA petition in the federal district court. She did not move
to dismiss the South Carolina court action at this time.7
Mr. Lops then moved to dismiss Mrs. Lops’s federal suit on the grounds, inter
alia, that: (1) the Georgia state court’s jurisdictional ruling had preclusive effect in
4
See Michael Lops’s and Anne E. Harrington’s Motion to Dismiss Order,
December 10, 1997, at 2, 7; Appellants’ Br. at 3; Appellants’ Reply Br. at 8; see also
Invoice of John L. Creson attached to Christine Lops’s Motion for Attorney Fees and
Costs, January 22, 1998, at 5 (“12/2/97 . . . Telephone conference with Judge
Nuessle’s office.”). Mrs. Lops does not contest this fact.
5
See South Carolina court’s Order of December 11, 1997, at 2-4. The court
also provided that “[i]f the Court finds that there has been a wrongful removal or
detention then a further hearing has been scheduled for January 31, [1998,] determine
[sic] whether any defense to return of the children to the Petitioner under the Hague
[sic] or applicable State or Federal [sic] may be applicable.” Id. at 3. This additional
hearing actually was held on February 3, 1998.
6
See Appellants’ Br. at 3; Appellants’ Reply Br. at 8. Mrs. Lops does not
contest this fact.
7
Mrs. Lops did not attempt to dismiss her South Carolina state court action
until “within 48 hours of the January 16, 1998,” hearing held by the South Carolina
court. See South Carolina court’s Order of January 27, 1998, at 2.
55
federal court in Georgia;8 and (2) Mrs. Lops’s suit represented an improper attempt
by a state court plaintiff to obtain removal to federal court.9 On December 22, the
district court, in an oral order, denied Mr. Lops’s motion to dismiss. The district court
explicitly rejected the Georgia court’s analysis of the ICARA statute,10 and it also
stated:
In determining its own jurisdiction a federal district court is not bound
by res judicata. Nor are the parties bound by any collateral estoppel with
respect to the factual findings made by any other court. Indeed, it is the
duty of a federal district court to determine a sufficiency of jurisdictional
facts to properly decide or ascertain its own jurisdiction.
****
I have had some concerns . . . relating to the parallel state proceedings
that were originated in Georgia and subsequently transferred to the
Family Court of South Carolina. I do not know of any concept that
would bar the prosecution of both of those cases at the same time.
****
This case, in my view, does not require dismissal of the federal action.
Indeed, in my view, it is more appropriate for the federal court to
proceed to disposition. After all, the act and the treaty, which the
Petitioner seeks to enforce, are creatures of the federal sovereign as
opposed to any state’s sovereignty.
****
Accordingly, it is my finding and conclusion . . . that this federal district
court is possessed of jurisdiction to decide the matter in its entirety . . . .
8
See Michael Lops’s Motion to Dismiss, December 19, 1997, at 1, ¶ 3; see also
Michael Lops’s and Anne E. Harrington’s Motion to Dismiss Order, December 10,
1997, at 3-4, ¶ 9-10.
9
See Michael Lops’s and Anne E. Harrington’s Motion to Dismiss Order,
December 10, 1997, at 3-4, ¶¶ 10, 12.
10
See District court’s Order of December 22, 1997, at 7-8 (concluding that an
ICARA petition should be filed in the jurisdiction where the children are “located,”
see 42 U.S.C. § 11603(b), rather than where they reside).
56
District court’s Order of December 22, 1997, at 7-11.
On January 16, 1998, the South Carolina court held the scheduled hearing on
the merits of Mrs. Lops’s ICARA petition. In a subsequent order pendente lite, the
South Carolina court noted that Mrs. Lops had made an untimely attempt to file a
motion to dismiss in the South Carolina court. See South Carolina court’s Order of
January 27, 1998, at 2 (denying Mrs. Lops’s motion to dismiss because it was filed
“within 48 hours” of the South Carolina court’s substantive ICARA hearing on
January 16, 1997, in plain violation of the court’s “requisite 5 day notice
requirement”). On January 17, Mrs. Lops filed a motion in district court requesting
that the district court stay the South Carolina court proceedings. On February 3, the
South Carolina court held an additional hearing on the merits of Mrs. Lops’s ICARA
petition. On February 13, the district court granted Mrs. Lops’s motion to stay the
South Carolina court proceedings, and shortly thereafter the Supreme Court of South
Carolina stayed the South Carolina court proceedings pending resolution of the federal
action.
II.
If the Georgia court simply had dismissed Mrs. Lops’s ICARA petition for lack
of venue and personal jurisdiction, then the federal district court in Georgia would
have been precluded from assuming jurisdiction over Mrs. Lops’s subsequent ICARA
petition. See infra Part II.A. The Georgia court, however, after ruling that venue and
personal jurisdiction were lacking in Georgia, did not dismiss the case but rather
57
purported to transfer it to South Carolina. In my view, the fact that the Georgia
court’s order contained an interstate transfer directive does not alter the preclusive
effect of the Georgia court’s venue and personal jurisdiction rulings. First, the
Georgia court was not authorized to transfer the case to another state, and thus its
order must be considered a simple dismissal, plainly a final judgment under Georgia
law. See infra Part II.B. Second, even assuming that the Georgia court had the
authority to order an interstate transfer, I believe that the rationale of Georgia
collateral estoppel doctrine, see infra Part II.C, and the plain language of Georgia
statutory provisions and case-law, see infra Part II.D and Part II.E, compel the
conclusion that the Georgia court’s order was a final judgment entitled to preclusive
effect.11
Although no case squarely addresses the issues in this case, I believe that all
relevant legal authority demands the same conclusion: The Georgia court’s order was
a final judgment entitled to preclusive effect under Georgia law. Because the majority
fails to apply collateral estoppel to the Georgia court’s decision, I consider the
majority’s holding a troubling precedent for federal courts’ compliance with the Full
Faith and Credit Act, 28 U.S.C. § 1738.
A.
11
I also believe that no exception to Georgia’s collateral estoppel doctrine is
applicable here. See infra Part II.F.
58
The preclusive effect of a Georgia court’s judgment is governed by Georgia
preclusion law. As the Supreme Court has explained, the Full Faith and Credit Act,
28 U.S.C. § 1738, “mandate[s] that the ‘judicial proceedings’ of any State ‘shall have
the same full faith and credit in every court within the United States . . . as they have
by law or usage in the courts of such State . . . from which they are taken.’”
Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 373, 116 S. Ct. 873, 877
(1996) (quoting 28 U.S.C. § 1738). Accordingly, “[f]ederal courts may not employ
their own rules . . . in determining the effect of the state judgment, but must accept the
rules chosen by the State from which the judgment is taken.” 516 U.S. at 373, 116
S. Ct. at 877 (internal quotation omitted).
Georgia collateral estoppel doctrine follows black-letter principles. Relying on
the Restatement (Second) of Judgments (1982) (“Restatement”), the Georgia Supreme
Court recently explained,
[C]ollateral estoppel applies where an issue of fact or law is actually
litigated and determined by a valid judgment, and the determination is
essential to the judgment. That determination is then conclusive in a
subsequent action between the same parties.
Kent v. Kent, 265 Ga. 211, 211, 452 S.E.2d 764, 766 (1995) (citing Restatement
§ 27).
Under Georgia law, collateral estoppel applies only where the antecedent
judgment was a final judgment. See, e.g., Quinn v. State, 221 Ga.App. 399, 400, 471
S.E.2d 337, 339 (1996), aff’d, 268 Ga. 70, 485 S.E.2d 483 (1997); Greene v. Transp.
59
Ins. Co., 169 Ga.App. 504, 506, 313 S.E.2d 761, 763 (1984). If a trial court’s
judgment is not appealed, that order becomes final when the time to seek appellate
review has expired. See Reid v. Reid, 201 Ga.App. 530, 533, 411 S.E.2d 754, 756
(1991).
The Georgia court’s November 14 order, which ruled that venue and personal
jurisdiction were lacking in Georgia, was not appealed. The order became final for
collateral estoppel purposes on December 15. See O.C.G.A. § 5-6-38(a) (stating that
notice of appeal must be filed within 30 days after entry of judgment). Under Georgia
law, therefore, the Georgia court’s judgment became final one full week before
December 22, when the district court ruled on Mr. Lops’s motion to dismiss. The
timing prerequisites for collateral estoppel thus were satisfied.
If the Georgia court simply had dismissed the case for lack of venue and
personal jurisdiction, then its order plainly would have had preclusive effect on other
Georgia courts. As described in the Restatement, if a court dismisses a case for
improper venue, collateral estoppel bars the plaintiff from attempting to bring the
same suit in the same jurisdiction. See Restatement § 20 cmt. b illus. 1. Similarly, if
a court dismisses a case for lack of personal jurisdiction, the specific jurisdictional
determination of that court is binding on subsequent courts. See N. Ga. Elec.
Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429, 433 (11th Cir. 1993)
(discussing federal collateral estoppel principles; “Although the dismissal of a
complaint for lack of jurisdiction does not adjudicate the merits so as to make the case
60
res judicata on the substance of the asserted claim, it does adjudicate the court’s
jurisdiction, and a second complaint cannot command a second consideration of the
same jurisdictional claim.”) (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.
1980)). Accordingly, had the Georgia court simply dismissed the instant case for lack
of venue and personal jurisdiction, collateral estoppel principles would have barred
Mrs. Lops from refiling the same case in any Georgia state court. Cf. Tyndale v.
Mfrs. Supply Co., 209 Ga. 564, 74 S.E.2d 857 (1953) (holding that the second court
was bound by the first court’s determination that service was improper).
Because Georgia preclusion law governs the preclusive effect of a Georgia
court’s judgment in federal courts, see 28 U.S.C. § 1738, collateral estoppel likewise
would have barred Mrs. Lops from bringing the same case before a federal district
court in Georgia if the Georgia court simply had dismissed the case on the grounds
that venue and personal jurisdiction were lacking in Georgia. See, e.g, Harbuck v.
Marsh Block & Co., 896 F.2d 1327, 1329 (11th Cir. 1990) (“Where the question of
personal jurisdiction has been fully and fairly litigated and finally decided in state
court . . . that decision must be accorded full faith and credit in the federal court.”).12
12
See also Wiggins v. Pipkin, 853 F.2d 841, 842 (11th Cir. 1988); Rubaii v.
Lakewood Pipe of Tex., Inc., 695 F.2d 541, 543 (11th Cir. 1983); Deckert v.
Wachovia Student Fin. Servs., Inc., 963 F.2d 816, 819 (5th Cir. 1992). In each of
Wiggins, Rubai, and Deckert, the court ruled that a state court order dismissing an
action for lack of personal jurisdiction barred the plaintiff from bringing a diversity
suit based on the same cause of action in federal court in the same state. In those
cases, the state courts’ personal jurisdiction determinations had preclusive effect on
the federal courts because a federal courts sitting in diversity determine personal
61
B.
The wrinkle here is that the Georgia court did not simply dismiss the case.
Based on its venue and personal jurisdiction rulings, the Georgia court directed that
the case be transferred to South Carolina: “All parties stipulated to a transfer of the
proceedings verses [sic] dismissal and refiling in the event this Court found no
authority for exercising jurisdiction in Georgia.” Georgia court’s Order of November
14, 1997, at 7 n.2. I believe, however, that the Georgia court lacked the authority to
transfer Mrs. Lops’s ICARA petition to the South Carolina court. Thus, I conclude
that the Georgia court’s order constituted a simple dismissal, plainly a final judgment
with preclusive effect.13
The Georgia court was not authorized to transfer Mrs. Lops’s ICARA petition
to the court of another state. The federal ICARA statute itself does not sanction
interstate transfers. Likewise, Georgia does not have a general statutory provision
allowing state courts to transfer cases to other states, cf. 20 Am.Jur. 2d Courts § 130
jurisdiction in the same way that the state courts do: by following state law. Similarly,
the federal district court in this case had to determine venue and personal jurisdiction
in the same way that the Georgia state court did: by examining the ICARA statute and
federal due process guarantees. Thus, just as collateral estoppel precluded the federal
district courts in Wiggins, Rubai, and Deckert from revisiting the state courts’
jurisdictional rulings, so collateral estoppel should have precluded the federal district
court in this case from revisiting the Georgia court’s venue and personal jurisdiction
rulings.
13
In Parts II.C, II.D, and II.E, infra, I will demonstrate that even if the interstate
transfer directive was effective, the Georgia court’s order was a final judgment with
corresponding preclusive effect.
62
(1995) (describing Uniform Transfer of Litigation Act, which Georgia has not
adopted), or a specific statutory provision concerning the interstate transfer of ICARA
cases.14 Similarly, the doctrine of forum non conveniens did not permit the Georgia
court’s interstate transfer.15 Accordingly, the interstate transfer directive issued by the
Georgia court was unauthorized. Cf. Rogers v. Rogers, 688 So.2d 421, 422 (Fla. 3d
14
Instead, Georgia law only authorizes interstate transfers in certain narrowly
defined situations. For example, O.C.G.A. § 15-11-44 authorizes the transfer of a
child to the state of the child’s residence if the child is adjudicated to be delinquent
under the Uniform Juvenile Court Act. Also, the Uniform Child Custody Jurisdiction
Act authorizes Georgia courts to stay child custody cases brought under that Act on
the condition that a proceeding “be promptly commenced in another named state,”
see O.C.G.A. § 19-9-47(e)(2), and permits Georgia courts to forward relevant
information to the receiving court, see O.C.G.A. § 19-9-47(h). See Mulle v. Yount,
211 Ga.App. 584, 586, 440 S.E.2d 210, 213 (1993) (stating that O.C.G.A. § 19-9-47
authorizes interstate transfers).
15
Forum non conveniens permits a court to resist imposition upon its
jurisdiction even when jurisdiction is authorized by the letter of a statute. See Smith
v. Bd. of Regents of the Univ. Sys. of Ga., 165 Ga.App. 565, 565, 302 S.E.2d 124,
125 (1983). Forum non conveniens was inapplicable here because no specific Georgia
statutory provision authorizes the doctrine in ICARA cases. See Holtsclaw v.
Holtsclaw, 269 Ga. 163, 163-64, 496 S.E.2d 262, 263 (Ga. 1998) (stating that because
the courts of Georgia have no inherent authority to decline to exercise jurisdiction
granted by the Georgia Constitution, the doctrine of forum non conveniens is only
available pursuant to specific Georgia statutory provisions). Forum non conveniens
also is inappropriate where, as here, the court determines that it lacks jurisdiction over
the action. See, e.g., Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure,
§ 2.31, at 105 (3d ed. 1985) (“The forum non conveniens rule has application only if
the court has jurisdiction, by virtue of ‘minimum contacts’ or on some other basis. If
the jurisdictional contacts are lacking, the court must dismiss the action for that
reason, even if an alternative forum were more convenient.”).
Moreover, even if forum non conveniens had been appropriate here, the
doctrine would not have permitted the Georgia court to transfer the case to another
state. Id. at 107 (“The courts of one state . . . may not transfer cases to courts of
another state, and dismissal is the only device for implementing forum non conveniens
on an interstate basis.”).
63
DCA 1997) (reversing an interstate transfer order that was not authorized under state
law); United Carolina Bank v. Martocci, 416 Pa.Super. 16, 22-23, 610 A.2d 484,
487-88 (1992) (holding that Pennsylvania’s intrastate transfer law does not authorize
interstate transfers); Bliss v. Bliss, 343 Pa.Super. 17, 21, 493 A.2d 780, 782 (1985)
(same).
Because the Georgia court entered an interstate transfer directive despite
lacking the authority to do so, that directive is considered a nullity, see Thomas v.
Thomas, 221 Ga. 652, 652, 146 S.E.2d 724, 725 (1966); Skinner v. Skinner, 172
Ga.App. 609, 610, 323 S.E.2d 905, 906 (1984), and “may be attacked any where and
any time in any court,” see Palmer v. Bunn, 218 Ga. 244, 245, 127 S.E.2d 372, 373
(1962). The Georgia court explicitly stated that the transfer directive was an
alternative to simply dismissing the case. See Georgia court’s Order of November 14,
1997, at 7 n.2. Thus, this court must characterize the Georgia court’s order, absent the
invalid transfer directive, to be a dismissal. See In re Marriage of Clark, 232
Ill.App.3d 342, 347, 597 N.E.2d 240, 243 (1992) (reasoning that because Illinois law
only authorized intrastate transfers, the trial court’s order transferring the case to
another state constituted a simple dismissal); see also In re Marriage of Kelso, 173
Ill.App.3d 746, 751, 527 N.E.2d 990, 992 (1988) (describing a motion for interstate
transfer as “more properly, a motion to dismiss”). As a dismissal, the Georgia court’s
order was a final judgment with preclusive effect.
64
Apparently conceding that no federal or Georgia law authorizes the interstate
transfer of an ICARA case, the majority contends that the parties, through their
stipulation, gave the Georgia court the power to transfer the case. Georgia black-letter
law, however, long has been clear: Parties by agreement cannot provide a court with
authority that it otherwise would have lacked. See Dix v. Dix, 132 Ga. 630, 632, 64
S.E. 790, 791 (1909) (“It is rudimentary law that parties can not, by consent express
or implied, give jurisdiction to a court; that as to the subject-matter the court is limited
by the powers conferred upon it by law, and can not be given additional power or
jurisdiction by consent of the parties or by waiver.”), cited in Mitchell v. Mitchell, 220
Ga.App. 682, 683, 469 S.E.2d 540, 542 (1996).
Finally, the majority argues that Mr. Lops, having stipulated to the transfer, may
not challenge its legality. A null order of a Georgia court, however, “may be attacked
any where and any time in any court.” See Palmer v. Bunn, 218 Ga. 244, 245, 127
S.E.2d 372, 373 (1962). Moreover, it is Mrs. Lops, not Mr. Lops, who has altered her
legal position. Mr. Lops consistently has contended that this case should have been
brought in South Carolina, not Georgia. By contrast, Mrs. Lops, having stipulated to
the transfer of the case to South Carolina based on the Georgia court’s finding that
venue and jurisdiction were lacking in Georgia, filed suit in the federal district court
in Georgia, where she argued that venue and jurisdiction did exist in Georgia.
Georgia preclusion law prohibited Mrs. Lops from changing her position in this
manner. See Thompson v. Thompson, 237 Ga. 509, 509, 228 S.E.2d 886, 887 (1976)
65
(“[P]arties to stipulations and agreements entered into in the course of judicial
proceedings will not be permitted to take positions inconsistent therewith in the
absence of fraud, duress or mistake.”); Ghrist v. Fricks, 219 Ga.App. 415, 417, 465
S.E.2d 501, 504 (1995) (applying collateral estoppel to the mother’s statement of
paternity contained in a settlement agreement because “[p]arties to stipulations and
agreements entered into in the course of judicial proceedings are estopped from taking
positions inconsistent therewith”) (quotation omitted).16
C.
Even assuming, arguendo, that the Georgia court’s interstate transfer directive
was effective, the Georgia court’s order was a final judgment entitled to preclusive
effect. In my view, Georgia’s collateral estopppel doctrine does not permit a contrary
conclusion.
The purpose of Georgia collateral estoppel doctrine is judicial economy. As the
Georgia Supreme Court has explained, collateral estoppel “applies where an issue of
fact or law is actually litigated and determined by a valid judgment, and the
determination is essential to the judgment.” Kent v. Kent, 265 Ga. 211, 211, 452
16
Contrary to the majority’s characterization of my dissent, my position is not
that Mrs. Lops “stipulated that venue was improper and that personal jurisdiction was
wanting in Georgia.” Rather, Mrs. Lops’s stipulation was based on the Georgia
court’s judgment that venue and personal jurisdiction were lacking in Georgia.
Because the basis for Mrs. Lops’s stipulation in the Georgia court was inconsistent
with her later arguments regarding venue and personal jurisdiction in the district court,
the principle of collateral estoppel applies. See Ghrist, 219 Ga.App. at 417, 465
S.E.2d at 504.
66
S.E.2d 764, 766 (1995) (citing Restatement § 27). By according preclusive effect to
final judgments, see Quinn v. State, 221 Ga.App. 399, 400, 471 S.E.2d 337, 339
(1996), aff’d, 268 Ga. 70, 485 S.E.2d 483 (1997), Georgia’s collateral estoppel law
serves to protect “litigants from the burden of relitigating an identical issue with the
same party or his privy and [to promote] judicial economy by preventing needless
litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649
(1979), quoted in Matter of Gill, 181 B.R. 666, 670 (Bankr. N.D. Ga. Apr. 14, 1995)
(describing the rationale for Georgia’s collateral estoppel doctrine); see Bowman v.
Bowman, 215 Ga. 560, 561-62, 111 S.E.2d 226, 227-28 (1959) (concluding that the
need for finality justifies the imposition of res judicata; stating that the ancient maxim
“It is of advantage to the public that there be an end of litigation” represents a policy
“so essential as not to admit of question or dispute”); Lankford v. Holton, 196 Ga.
631, 633, 27 S.E.2d 310, 312 (1943) (“One of the prime objects of judicial procedure
is to forever settle and end disputes between litigants, and courts never look with favor
on the unnecessary prolongation of litigation, and particularly disapprove attempts to
ignore or evade binding judgments.”).
This court must accord preclusive effect to the Georgia court’s venue and
personal jurisdiction rulings in order to fulfill the purpose of Georgia collateral
estoppel doctrine. The Georgia court “actually litigated and determined” the issues
of venue and personal jurisdiction, which were “essential to [its] judgment.” Kent,
265 Ga. at 211, 452 S.E.2d at 766 (citing Restatement § 27). Moreover, an
67
examination of the implications of the majority’s ruling reveals that the Georgia
court’s order was, necessarily, a final judgment with preclusive effect.
Under the majority’s holding, if a state or federal court in Georgia transfers a
case to another state for lack of venue and personal jurisdiction, then the plaintiff may
bring the same action again in any state or federal court in Georgia and relitigate the
issues of venue and personal jurisdiction. Indeed, if that court transfers the case again
for the same reason, the plaintiff may refile once more in state or federal court in
Georgia and relitigate the same issues. According to the majority’s logic, only when
a transferred case reaches final judgment in another state would the plaintiff become
unable to relitigate the issues of venue and personal jurisdiction before state or federal
courts in Georgia.
The majority’s holding is thus contrary to judicial economy, the core purpose
of Georgia collateral estoppel doctrine. See Matter of Gill, 181 B.R. 666, 670 (Bankr.
N.D. Ga. Apr. 14, 1995) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99
S.Ct. 645, 649 (1979)); Bowman v. Bowman, 215 Ga. 560, 561-62, 111 S.E.2d 226,
227-28 (1959); Lankford v. Holton, 196 Ga. 631, 633, 27 S.E.2d 310, 312 (1943).
Indeed, it also is contrary to principles of preclusion long-established in Anglo-
American jurisprudence. See Restatement Ch. 1 at 11 (“The convention concerning
finality of judgments has to be accepted, certainly if there is to be practical meaning
to the idea that legal disputes can be resolved by legal process.”). Unlike the majority,
I do not believe that another Superior Court of the State of Georgia would allow Mrs.
68
Lops to refile her ICARA suit and relitigate the Georgia court’s venue and personal
jurisdiction rulings. Instead, that Superior Court would recognize the Georgia court’s
original order to be a final judgment with preclusive effect. Accordingly, I conclude
that the district court was required to dismiss the case pursuant to the Full Faith and
Credit Act, 28 U.S.C. § 1738.
D.
My conclusion also is compelled by a close examination of Georgia law
concerning the finality requirement of collateral estoppel doctrine. As the majority
notes, no Georgia court has ruled whether an order containing an interstate transfer
directive is a final judgment to be accorded preclusive effect. This apparent gap in the
law is quite understandable, however. As described in Part II.B, supra, Georgia courts
generally are not authorized to transfer cases to another state. Logically, therefore,
Georgia courts have had little opportunity to determine the preclusive effect of
interstate transfer orders. Nonetheless, I believe that the Georgia Supreme Court, if
faced with the question, would rule that the Georgia court’s order in this case was a
final judgment for collateral estoppel purposes.
Under Georgia law, judgments that are final for collateral estoppel purposes
include, but are not limited to, those judgments that are final for appealability
purposes.17 Georgia’s appealability statute provides in part:
17
Relying on Culwell v. Lomas & Nettleton Co., 248 S.E.2d 641 (Ga. 1978),
this court has stated that, under Georgia law, “finality for res judicata purposes is
69
(a) Appeals may be taken to the Supreme Court and the Court of Appeals
from the following judgments and rulings of the superior courts, the
constitutional city courts, and such other courts or tribunals from which
appeals are authorized by the Constitution and laws of this state:
(1) All final judgments, that is to say, where the case is no longer
pending in the court below, except as provided in Code Section 5-
6-35.
See O.C.G.A. § 5-6-34 (emphasis added). Accordingly, I turn to the question of
whether a Georgia court’s order transferring a case to another state causes the case to
be “no longer pending in the court below.” O.C.G.A. § 5-6-34(a)(1).
Without citing any authority for its conclusion, the majority states that “the
court below” refers to any trial court, including the trial court of another state. In my
measured by the same standard as finality for appealability purposes” and that the
finality requirement is not “relaxed for purposes of collateral estoppel.” See Gresham
Park Community Org. v. Howell, 652 F.2d 1227, 1242 & n.43 (5th Cir. Unit B Aug.
10, 1981); Culwell, 248 S.E.2d at 642 (1978) (stating that the entry of a judgment as
to one or more but fewer than all of the claims and parties is neither an appealable
final judgment nor a judgment entitled to res judicata effect unless the trial court
makes an express direction for the entry of the final judgment and a determination that
no just reason for delaying the finality of the judgment exists); see also Dep’t of
Corrections v. Robinson, 216 Ga.App. 508, 509, 455 S.E.2d 323, 324 (1995) (“A
superior court order remanding a case back to an administrative tribunal is not an
appealable final judgment and thus is not binding for res judicata purposes.”)
(citations omitted).
Certain judgments, however, may be final for purposes of preclusion even
though they are not appealable final judgments. In Studdard v. Satcher, Chick,
Kapfer, Inc., 217 Ga.App. 1, 456 S.E.2d 71 (1995), the court noted that although a
voluntary dismissal with prejudice is a final judgment for res judicata purposes, see
id. at 2 n.2, 456 S.E.2d at 73 n.2 (citing Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d
678 (1991)), “we have found no cases which clearly hold that a voluntary dismissal
with prejudice constitutes a ‘final judgment’ as that term is used in the appellate
practice act,” Studdard, 456 S.E.2d at 73 n.2. Based on Gresham Park and Studdard,
I conclude that judgments that are final for collateral estoppel purposes include, but
are not limited to, those judgments that are final for appealability purposes.
70
view, however, the plain language, legislative history, and judicial interpretations of
O.C.G.A. § 5-6-34(a)(1) all demand the conclusion that “the court below” refers to a
lower court in the State of Georgia. Therefore, a Georgia court’s order that effectively
transfers a case to another state renders the case “no longer pending in the court
below.” Such an order is a final judgment for appealability purposes and,
consequently, for collateral estoppel purposes.
A plain reading of the statute indicates that the phrase “the court below” in
O.C.G.A. § 5-6-34(a)(1) refers to a lower court of the State of Georgia. Section 5-6-
34(a)(1) and the immediately preceding § 5-6-34(a), considered together, have three
elements. First, they describe the courts to which an “[a]ppeal[] may be taken,”
namely the Georgia Supreme Court and the Georgia Court of Appeals. See O.C.G.A.
§ 5-6-34(a). Second, they describe the courts from which an appeal may be taken,
namely “the superior courts, the constitutional city courts, and such other courts or
tribunals from which appeals are authorized by the Constitution and laws of this
state.” O.C.G.A. § 5-6-34(a). Third, they establish when an appeal may be taken,
namely when “the case is no longer pending in the court below.” O.C.G.A. § 5-6-
34(a)(1).
The logical meaning of “the court below” in § 5-6-34(a)(1) is the court from
which an appeal is taken to the Georgia Supreme Court or the Georgia Court of
Appeals. According to § 5-6-34(a), the court from which such an appeal is taken is
necessarily a lower court of the State of Georgia: a superior court, a constitutional
71
city court, or one of the “other courts or tribunals from which appeals are authorized
by the Constitution and laws of this state.” Thus, a case is only “pending in the court
below” for purposes of O.C.G.A. § 5-6-34(a)(1) if it is pending in a lower court of the
State of Georgia.
The Georgia court’s order purported to transfer the case in its entirety to the
South Carolina court. Assuming, as does the majority, that this transfer directive was
effective, the Georgia court’s order rendered the case “no longer pending” in the lower
courts of the State of Georgia. Thus, according to the plain language of O.C.G.A. § 5-
6-34(a)(1), the Georgia court’s order was a final judgment.
The legislative history of O.C.G.A. § 5-6-34(a)(1) reinforces this conclusion.
The statutory precursor of O.C.G.A. § 5-6-34(a)(1) was Ga. Code Ann. § 6-701,
which provided in part:
No cause shall be carried to the Supreme Court or Court of Appeals upon
any bill of exceptions while the same is pending in the court below,
unless the decision or judgment complained of, if it had been rendered
as claimed by the plaintiff in error, would have been a final disposition
of the cause or final as to some material party thereto.
The structure of Ga. Code Ann. § 6-701 reveals that “the court below” refers to the
court from which an appeal is taken to the Supreme Court or Court of Appeals.
Because it is beyond dispute that an appeal cannot be taken to these courts from courts
outside of the State of Georgia, “the court below” necessarily refers to a lower court
within the State of Georgia.
72
When O.C.G.A. § 5-6-34(a)(1) replaced Ga. Code Ann. § 6-701, see 1965 Ga.
Laws at 18, § 1, the meaning of “the court below” did not change. As the Georgia
Court of Appeals has ruled, O.C.G.A. § 5-6-34(a)(1) only restates the original
language of Ga. Code Ann. § 6-701 “in somewhat different terminology . . . . [N]o
change in result was intended.” Munday v. Brissette, 113 Ga.App. 147, 151, 148
S.E.2d 55, 60, 222 Ga. 162, rev’d on other grounds, 222 Ga. 162, 149 S.E.2d 110(1966) (citing E. Freeman Leverett, The Appellate Procedure Act of 1965, 1 Ga. State
Bar Journal 451, 456 (1965)). Accordingly, the legislative history of O.C.G.A. § 5-6-
34(a)(1) also supports the conclusion that “the court below” refers to a lower court in
the State of Georgia.
Finally, Georgia case-law confirms this interpretation of “the court below.”
Georgia appellate courts have held that an intrastate transfer from one Georgia
Superior Court to another is not a final judgment and therefore not appealable. See
Wright v. Millines, 212 Ga.App. 453, 454, 442 S.E.2d 304, 304 (1994); Griffith v. Ga.
Bd. of Dentistry, 175 Ga.App. 533, 533, 333 S.E.2d 647, 647 (1985); see also Ga.
Const. of 1983, art. VI, § 1, ¶ 8; Georgia Uniform Transfer Rules. The rationale for
this rule is that from the perspective of the Georgia appellate courts, a case that is
transferred from one Georgia Superior Court to another remains “pending in the court
below.” In Griffith, for example, the court explained that an order transferring a case
from one Georgia Superior Court to another was not a final judgment because the case
remained pending in a “court below” the Georgia Court of Appeals. See 175 Ga.App.
73at 533, 333 S.E.2d at 647 (“The subject transfer order is not a final judgment as the
case is still pending in the court below, albeit a different court from the one ordering
the transfer.”). By contrast, a case that is transferred to another state’s court is no
longer appealable to a Georgia appellate court. Thus, from the perspective of the
Georgia appellate courts, an interstate transfer order renders a case “no longer pending
in the court below” and is a final judgment appealable under O.C.G.A. § 5-6-34(a)(1).
The sparse Georgia case-law concerning interstate transfer orders further
bolsters my conclusion that such orders are final judgments for appealability purposes.
Even though Georgia courts generally are not authorized to transfer cases to another
state, see supra Part II.B, relevant cases have arisen under two Georgia statutes that
do provide for interstate transfers. First, Georgia’s Uniform Child Custody
Jurisdiction Act (“UCCJA”) provides that a court with jurisdiction under the UCCJA
may transfer the case to another state if it finds that Georgia is an inconvenient forum
and that a court of another state would be more appropriate.18 In Arnold v. Jordan,
190 Ga.App. 8, 378 S.E.2d 139 (1989), the Georgia Court of Appeals reviewed a
Georgia Superior Court’s order that a child custody case be transferred to Texas
pursuant to the UCCJA. See id. at 10, 378 S.E.2d at 141. In describing its assumption
18
See O.C.G.A. § 19-9-47(e)(2) (authorizing Georgia courts to stay child
custody cases brought under the UCCJA on the condition that a similar proceeding be
brought in the court of another named state); O.C.G.A. § 19-9-47(h)(permitting
Georgia courts to forward relevant information to receiving courts in other states);
see also Mulle v. Yount, 211 Ga.App. 584, 586, 440 S.E.2d 210, 213 (1993) (stating
that O.C.G.A. § 19-9-47 authorizes interstate transfers).
74
of jurisdiction over the case, the Georgia Court of Appeals stated simply that it had
“granted the father’s application for discretionary review.” Id. (emphasis added).19
This language indicates that the father did not have to comply with Georgia’s
interlocutory review procedures.20 Cf. Avera v. Avera, 268 Ga. 4, 4, 485 S.E.2d 731,
732 (1997) (reviewing on appeal the trial court’s order in a divorce action and stating,
“This court granted Wife’s application for interlocutory discretionary review of the
trial court’s order.”) (emphasis added).21 Therefore, Arnold demonstrates that an
interstate transfer by a Georgia trial court is a final, not interlocutory, order for
appealability purposes.
A second statute, Georgia’s Uniform Juvenile Court Act (“UJCA”), authorizes
a court to transfer a child to the state of the child’s residence if the child is adjudicated
to be delinquent. See O.C.G.A. § 15-11-44. The Georgia Supreme Court has ruled
that such interstate transfers are appealable final judgments. See In the Interest of
19
Appeals from judgments and orders in all “domestic relations” cases are
discretionary. See O.C.G.A. § 5-6-35(a)(2).
20
A party seeking discretionary review from an interlocutory order must
comply with interlocutory review procedures, such as obtaining from the trial court
a certificate of immediate review pursuant to O.C.G.A. § 5-6-34(b). See Scruggs v.
Ga. Dep’t of Human Resources, 261 Ga. 587, 588, 408 S.E.2d 103, 104 (1991); see
also Wieland v. Wieland, 216 Ga.App. 417, 418, 454 S.E.2d 613, 614 (1995)
(dismissing a discretionary appeal from an interlocutory order because the appellant
failed to comply with interlocutory review procedures).
21
Avera thus belies the majority’s assertion that “Arnold’s reference to
‘discretionary review’ could be read to” mean that the interstate transfer order in
Arnold was an interlocutory order.
75
T.L.C., 266 Ga. 407, 407, 467 S.E.2d 885, 886 (1996); G.W. v. State, 233 Ga. 274,
275-76, 210 S.E.2d 805, 807 (1974). In my view, T.L.C. and G.W. provide further
support for the conclusion that the Georgia court’s interstate transfer order in this case
was a final judgment under O.C.G.A. § 5-6-34(a)(1).
The test for determining whether juvenile court orders are final judgments and
thus appealable is the same standard found in O.C.G.A. § 5-6-34(a)(1). See O.C.G.A.
§ 15-11-64 (“In all cases of final judgments of a juvenile court judge, appeals shall be
taken to the Courts of Appeals or the Supreme Court in the same manner as appeals
from the superior court.”); J.T.M. v. State, 142 Ga.App. 635, 636, 236 S.E.2d 764, 765
(1977) (applying the standard of whether the case is “no longer pending in the court
below,” see O.C.G.A. § 5-6-34(a)(1), in determining whether a juvenile court
judgment is an appealable final judgment). Even though a juvenile court order
adjudicating delinquency and transferring the case to another court within Georgia for
disposition is not a final judgment, see D.C.E. v. State, 130 Ga.App. 724, 724-25, 204
S.E.2d 481, 481-82 (1974); In the Interest of G.C.S., 186 Ga.App. 291, 291, 367
S.E.2d 103, 104 (1988), a juvenile court order adjudicating delinquency and
transferring the case to another state for disposition is a final judgment, see In the
Interest of T.L.C., 266 Ga. 407, 407, 467 S.E.2d 885, 886 (1996); G.W. v. State, 233
Ga. 274, 275-76, 210 S.E.2d 805, 807 (1974). Noting the constitutional imperative
of according appellate review to juveniles whose cases are transferred out of state, the
76
G.W. court explained that an interstate transfer order is an appealable final judgment
because it is the last order to be issued by any Georgia court regarding the case:
The judgment appealed from in this case was the final judgment to be
entered in the case by any court in Georgia and therefore, unlike the
cases relied upon where the case was transferred to another Georgia
court for final disposition, it was subject to review without a certificate
authorizing immediate review.
233 Ga. at 275-76, 210 S.E.2d at 807 (emphasis added); see also T.L.C., 266 Ga. 407,
467 S.E.2d at 886 (citing G.W., 233 Ga. at 275-76, 210 S.E.2d at 807).
The majority attempts to limit the holdings of G.W. and T.L.C. on the grounds
that the G.W. court mentioned equal protection concerns prior to reaching its
conclusion. Subsequent opinions that have described the G.W. court’s holding
regarding final judgments, however, do not even mention equal protection. In T.L.C.,
for example, the court simply cited the G.W. court’s conclusion that an interstate
transfer order was appealable because it was “the final judgment to be entered in the
case by any court in Georgia.” See T.L.C., 266 Ga. 407, 467 S.E.2d at 886 (citing
G.W., 233 Ga. at 275-76, 210 S.E.2d at 807). Similarly, the Georgia Court of Appeals
recently described T.L.C. and G.W. as follows:
In our view, the order appealed from in the case sub judice is not a final
order, for it does not render a judgment of adjudication and disposition
on the allegations contained in the petition for delinquency. Rather, it
holds all charges in abeyance during a period of good behavior. Upon
successful completion of that period of good behavior, all charges will
be dismissed. Compare In the Interest of T.L.C., 266 Ga. 407, 467
S.E.2d 885 (adjudication of delinquency and transfer to the juvenile
court of Russell County, Alabama, was directly appealable because it
“was the final judgment to be entered in the case by any court in
77
Georgia....”); G.W. v. State of Ga., 233 Ga. 274, 276, 210 S.E.2d 805(adjudication of delinquency and transfer to county of residence of
nonresidents of Georgia was the “final judgment to be entered in the case
by any court in Georgia and therefore, unlike the cases ... where the case
was transferred to another Georgia court for final disposition, ... was
subject to review without a certificate authorizing immediate review.”).
Since the order appealed from is not the final judgment to be entered in
the case by any court in Georgia, this appeal is premature, and the case
must be dismissed without prejudice.
In Interest of M.T., 223 Ga.App. 615, 616, 478 S.E.2d 428, 429 (1996); see also
Sanchez v. Walker County Dept. of Family and Children Servs., 235 Ga. 817, 818,
221 S.E.2d 589, 589 (1976).
Accordingly, although the G.W. court did refer to equal protection concerns,
G.W. and its progeny stand for the proposition that an interstate transfer order, being
the last order entered by any court in Georgia, is a final judgment for appealability
purposes. Because the test for determining whether juvenile court orders are
appealable final judgments is the same standard employed under O.C.G.A. § 5-6-
34(a)(1), see O.C.G.A. § 15-11-64; J.T.M. v. State, 142 Ga.App. 635, 636, 236 S.E.2d
764, 765 (1977), these cases from the juvenile court context reinforce my conclusion
that an order containing an interstate transfer directive is an appealable final judgment
under O.C.G.A. § 5-6-34(a)(1).
As the majority points out, an intrastate transfer order that changes the
fundamental nature of a proceeding also is deemed a final judgment for appealability
78
purposes.22 This observation, however, casts no doubt whatsoever on my conclusion
that an effective interstate transfer order is a final judgment under O.C.G.A. § 5-6-
34(a)(1) because it renders the case “no longer pending in the court below.”
Accordingly, all relevant evidence from Georgia law points unambiguously to
the same conclusion: A case is “pending in the court below,” see O.C.G.A. § 5-6-
34(a)(1), only if it remains in one of the lower Georgia courts. Conversely, if a
Georgia court issues a legitimate interstate transfer order, that order renders the case
“no longer pending in the court below,” and thus the order is appealable, see O.C.G.A.
22
For example, an intrastate transfer of a criminal case from juvenile to superior
court is an appealable final judgment. See Rivers v. State, 229 Ga.App. 12, 13, 493
S.E.2d 2, 4 (1997); J.T.M. v. State of Ga., 142 Ga.App. 635, 636, 236 S.E.2d 764, 765
(1977). As the Georgia Supreme Court has explained,
J.T.M. v. State of Ga. . . . deals with the appealability of a transfer order
in a criminal context which determines whether the defendant will be
treated as a juvenile and tried for delinquency under the applicable
juvenile provisions, or whether he will be treated as an adult and
prosecuted under the criminal laws of this state. . . . [A] criminal transfer
order . . . is determinative as to the ‘juvenile’ aspect of the case and thus
may be final and reviewable.
Fulton County Dep’t of Family & Children Servs. v. Perkins, 244 Ga. 237, 239, 259
S.E.2d 427, 428-29 (1978). Distinguishing J.T.M., the Perkins court held that an
intrastate transfer of a child custody case from juvenile to superior court is not a final
judgment because it “changes the forum but [] not [] the nature of the proceeding, to
wit: the determination of child custody.” See 244 Ga. at 239-40, 259 S.E.2d at 429.
Despite the fact that Perkins involves only an intrastate transfer, the majority
cites Perkins for the proposition that an interstate transfer order is not a final judgment
because it changes only the forum and not the nature of the proceeding. I believe that
the majority’s attempted reliance on Perkins is misplaced. Perkins only indicates that
certain intrastate transfer orders are appealable final judgments. Perkins is not
relevant, even tangentially, to the question of whether an interstate transfer order
renders a case “no longer pending in the court below” under O.C.G.A. § 5-6-34(a)(1).
79
§ 5-6-34(a)(1), and entitled to preclusive effect, see Gresham Park Community Org.
v. Howell, 652 F.2d 1227, 1242 & n.43 (5th Cir. Unit B Aug. 10, 1981). Therefore,
even assuming, arguendo, that the Georgia court’s interstate transfer directive was
effective, the district court should have accorded preclusive effect to the Georgia
court’s venue and personal jurisdiction determinations.
E.
The fact that the parties conditionally stipulated to the interstate transfer does
nothing to alter my conclusion that the Georgia court’s order was a final judgment
with preclusive effect. Collateral estoppel “applies where an issue of fact or law is
actually litigated and determined by a valid judgment, and the determination is
essential to the judgment.” Kent v. Kent, 265 Ga. 211, 211, 452 S.E.2d 764, 766
(1995) (citing Restatement § 27). Here, the parties stipulated to the interstate transfer
in the event that the court determined that it lacked jurisdiction over the case. Because
the Georgia court’s venue and personal jurisdiction rulings were “essential to the
judgment,” collateral estoppel necessarily applies to those rulings.
Indeed, the parties’ conditional stipulation only strengthens my conclusion that
the Georgia court’s order must be accorded preclusive effect. The transfer to which
Mrs. Lops stipulated was based on the Georgia court’s rulings that venue and personal
jurisdiction were lacking in Georgia. Georgia preclusion principles prohibited Mrs.
Lops from refiling the same action in a state or federal court in Georgia and claiming
that venue and personal jurisdiction existed in Georgia. See Thompson v. Thompson,
80
237 Ga. 509, 509, 228 S.E.2d 886, 887 (1976) (“[P]arties to stipulations and
agreements entered into in the course of judicial proceedings will not be permitted to
take positions inconsistent therewith in the absence of fraud, duress or mistake.”);
Ghrist v. Fricks, 219 Ga.App. 415, 417, 465 S.E.2d 501, 504 (1995) (applying
collateral estoppel to mother’s statement of paternity contained in settlement
agreement because “[p]arties to stipulations and agreements entered into in the course
of judicial proceedings are estopped from taking positions inconsistent therewith”)
(quotation omitted); see also Great Atl. Ins. Co. v. Morgan, 161 Ga.App. 680, 683,
288 S.E.2d 287, 289 (1982) (stating that collateral estoppel applies to consent
judgments).
Finally, even assuming that Mrs. Lops, by stipulating to the transfer, lost the
right to appeal the Georgia court’s venue and personal jurisdiction rulings, those
rulings are nonetheless binding on subsequent courts. As the Georgia Supreme Court
stated in Kent,
We need not determine whether the contempt court’s order was, on its
face, appealable. It was the husband’s duty to obtain an appealable order
on that issue, and to the extent he did not, he cannot now argue that
collateral estoppel should not apply.
265 Ga. at 212 n.3, 452 S.E.2d at 766 n.3 (emphasis added). Thus, even assuming that
Mrs. Lops failed to obtain an appealable order from the Georgia court, she may not
81
claim that the Georgia court’s venue and personal jurisdiction rulings are not entitled
to preclusive effect in federal court.23
F.
The majority, citing Fierer v. Ashe, 147 Ga.App. 446, 249 S.E.2d 270 (1978),
would hold in the alternative that this court should apply the “manifest injustice”
exception to the collateral estoppel doctrine. I disagree. In Fierer, the court noted that
certain courts have “occasionally rejected or qualified [preclusion principles] in cases
in which an inflexible application would have violated an overriding public policy or
resulted in manifest injustice to a party.” See id. at 449-50, 249 S.E.2d at 273 (citing
1B Moore’s Federal Practice 783, ¶ O.405(11)). The Fierer court, however,
characterized the manifest injustice exception as “narrow” and “obscure,” see 147
Ga.App. at 450, 249 S.E.2d at 273, and, without deciding whether the exception
applied in the securities context, ruled that the appellees failed to meet their burden
of proof, see id.In my view, applying such a “narrow” and “obscure” exception to the facts of
this case would be a grave mistake. Rather than appeal the Georgia court’s venue and
23
The Georgia court’s order, which transferred the case pursuant to Mrs. Lops’s
stipulation, was similar to a voluntary dismissal with prejudice. A voluntary dismissal
with prejudice is a final judgment for preclusion purposes, see Fowler v. Vineyard,
261 Ga. 454, 456, 405 S.E.2d 678, 680 (1991), even though it may not be appealable,
see Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga.App. 1, 2 n.2, 456 S.E.2d 71, 73
n.2 (1995) (“[W]e have found no cases which clearly hold that a voluntary dismissal
with prejudice constitutes a ‘final judgment’ as that term is used in the appellate
practice act.”).
82
jurisdictional rulings, Mrs. Lops herself stipulated that the case be transferred to the
South Carolina court. Subsequently, dissatisfied by the South Carolina court’s oral
statement on December 2 that it would place the children with Mr. Lops’s mother
during the pendency of the proceedings, Mrs. Lops brought suit in federal district
court in Georgia. Mrs. Lops’s actions constitute a flagrant attempt to use the federal
court system to circumvent the Georgia court’s venue and personal jurisdiction
rulings. Accordingly, applying the manifest injustice exception in Mrs. Lops’s favor
would be most inappropriate.
Moreover, the apparent soundness of the district court’s ruling on the merits of
the ICARA petition does not suggest that reversing the district court’s decision would
be manifestly unjust. The South Carolina court has not yet ruled on the merits of Mrs.
Lops’s ICARA petition, and Mrs. Lops has not suggested that the South Carolina
court lacks competence to determine an ICARA petition. If the facts in this case are
as the district court found them, then the South Carolina court would have reached the
same conclusion. For this court to presume otherwise would constitute an affront to
the efficacy of the South Carolina court system.
The majority also states that the Georgia court’s order should not be accorded
preclusive effect because the order was based on an erroneous interpretation of the
ICARA statute. Although I agree that the Georgia court misinterpreted the ICARA
statute, I dispute the majority’s interpretation of Georgia preclusion law. Georgia
courts consistently and unambiguously have held that even erroneous judgments must
83
be accorded preclusive effect. See Chilivis v. Dasher, 236 Ga. 669, 670, 225 S.E.2d
32, 33-34 (1976) (stating that collateral estoppel applies “regardless of the correctness
of [the] rulings”); Kilgo v. Keaton, 227 Ga. 563, 564, 181 S.E.2d 821, 822 (1971)
(giving preclusive effect to a prior judgment “however irregular or erroneous”);
Johnston v. Duncan, 227 Ga. 298, 298, 180 S.E.2d 348, 349 (1971) (holding that res
judicata applies “[r]egardless of the correctness of [the former] decision”); Lankford
v. Holton, 196 Ga. 631, 633-34, 27 S.E.2d 310, 312 (1943) (stating that the
importance of finality requires giving preclusive effect even to erroneous decisions).
In my view, the majority has misrepresented Georgia law by holding to the contrary.
All relevant legal authority thus confirms that the district court should not have
assumed jurisdiction over this case. The Georgia court explicitly held that venue was
improper in Georgia and that personal jurisdiction did not lie in Georgia. Even
assuming that the Georgia court had the authority to transfer the case to South
Carolina, the case, once transferred, was “no longer pending in the courts below,”
O.C.G.A. § 5-6-34(a)(1), because Georgia appellate courts no longer had jurisdiction
over it. Under Georgia law, therefore, the Georgia court’s order was a final judgment
that barred Mrs. Lops from relitigating the issues of venue and personal jurisdiction
in any Georgia state court. Accordingly, Mrs. Lops was barred from suing again in
federal district court in Georgia. See Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516
U.S. 367, 373, 116 S. Ct. 873, 877 (1996) (interpreting the Full Faith and Credit Act,
28 U.S.C. § 1738, as mandatory).
84
III.
Even if the district court was not precluded from assuming jurisdiction over this
case, the district court was faced with the question of whether to stay the case in
deference to the South Carolina court pursuant to the doctrine enunciated in Colo.
River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236 (1976),
and related cases. Because Mrs. Lops’s federal suit was reactive to the state court
proceedings, see infra Part III.C, and contrary to federal removal policy, see infra Part
III.D, I conclude that the district court abused its discretion in failing to stay the
instant action in deference to the South Carolina court. Furthermore, given that the
South Carolina court already has held hearings on the merits of Mrs. Lops’s ICARA
petition, see infra Part III.E, we should vacate the district court’s judgment and direct
it to stay Mrs. Lops’s federal action, see infra Part III.F.24
24
Although the Supreme Court expressly has reserved the question of whether
a stay or dismissal is appropriate when the Colorado River doctrine is invoked, see
Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545, 570 n.21, 103 S. Ct. 3201,
3215 n.21 (1983), the Court has hinted strongly that a district court, in deferring to the
state court, should keep the federal forum open if necessary, see id.; see also Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28, 103 S. Ct. 927, 943
(1983). The choice between a stay and a dismissal will have no practical effect if all
issues are in fact resolved by the state proceeding. See Bd. of Educ. of Valley View
Community Unit Sch. Dist. No. 365U v. Bosworth, 713 F.2d 1316, 1322 (7th Cir.
1983). In the event that issues remain unresolved in the state court, however, only a
stay ensures that the federal court will meet its “unflagging duty” to exercise its
jurisdiction, see Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246, because, unlike a
dismissal, a stay avoids the risk that the plaintiff will be time-barred from reinstating
the federal suit, see Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 698
(7th Cir. 1985).
Accordingly, I believe that the district court should have stayed, not dismissed,
85
A.
Considerations of “wise judicial administration” may warrant that a federal
district court defer25 to parallel state proceedings. See Colo. River, 424 U.S. at 818,
96 S.Ct. at 1246 (quotation omitted). In light of the “virtually unflagging” obligation
of the federal courts to exercise their jurisdiction, see id. at 817, 96 S. Ct. at 1246,
such deference to state courts should occur only under “exceptional” circumstances
and when warranted by “the clearest of justifications,” id. at 818-19, 96 S. Ct. at 1246-
47. The Colorado River Court listed four illustrative factors to be considered in
determining whether exceptional circumstances exist: (1) whether one of the courts
has assumed jurisdiction over property; (2) the inconvenience of the federal forum;
the instant action. See Attwood v. Mendocino Coast Dist. Hosp., 886 F.2d 241, 245
(9th Cir. 1989)(holding that a stay is the proper procedural mechanism for a district
court to employ when deferring to a parallel state-court proceeding); LaDuke v.
Burlington N. R.R. Co., 879 F.2d 1556, 1562 (7th Cir. 1989) (same); see also Noonan
S., Inc. v. County of Volusia, 841 F.2d 380, 383 (11th Cir. 1988) (“The dismissal of
an action in deference to parallel state proceedings is an extraordinary step that should
not be undertaken absent a danger of a serious waste of judicial resources.”).
25
The Colorado River doctrine is not a recognized form of abstention. See
Colo. River, 424 U.S. at 817, 96 S.Ct. at 1246. Unlike traditional abstention
doctrines, which rest on “regard for federal-state relations” and “considerations of
proper constitutional adjudication,” the Colorado River doctrine is based on
“considerations of ‘[w]ise judicial administration, giving regard to conservation of
judicial resources and comprehensive disposition of litigation.’” Id. (quoting Kerotest
Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S. Ct. 219, 221
(1952)). Accordingly, I use the term “deference” rather than “abstention” to describe
the Colorado River doctrine. See Fed. Deposit Ins. Corp. v. Nichols, 885 F.2d 633,
637 (9th Cir. 1989). But see Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 309 n.3
(1st Cir. 1986) (describing the Colorado River doctrine as “a fourth category of
abstention”).
86
(3) the potential for piecemeal litigation; and (4) the order in which the fora obtained
jurisdiction. See id. at 818, 96 S. Ct. at 1246-47. In Moses H. Cone Mem’l Hosp. v.
Mercury Constr., 460 U.S. 1, 19, 23-26, 103 S. Ct. 927, 938, 941-42 (1983), the Court
reaffirmed the “exceptional-circumstances” test of Colorado River and mentioned
additional factors, including: (5) whether state or federal law will be applied; and (6)
the adequacy of the state court to protect the parties’ rights. The Moses H. Cone
Court also stated that it found “considerable merit” in the idea “that the vexatious or
reactive nature of either the federal or the state litigation may influence the decision
whether to defer to a parallel state litigation under Colorado River.” 460 U.S. at 18
n. 20, 103 S. Ct. at 938 n.20. Other courts have held that federal removal policy bars
a plaintiff whose initial suit is pending in state court from filing the same suit against
the same defendant in federal court. See, e.g., Am. Int’l Underwriters (Philippines),
Inc. v. Continental Ins. Co., 843 F.2d 1253, 1260-61 (9th Cir. 1988).
A district court evaluating the Colorado River “exceptional-circumstances test,”
see Moses H. Cone, 460 U.S. at 19, 103 S.Ct. at 938, must be mindful that the specific
factors enumerated in Colorado River and Moses H. Cone are not exclusive, see Fox
v. Maulding, 16 F.3d 1079, 1082 (10th Cir. 1994); Travelers Indem. Co. v. Madonna,
914 F.2d 1364, 1367 (9th Cir. 1990); Interstate Material Corp. v. City of Chicago, 847
F.2d 1285, 1288 (7th Cir. 1988), and that
the decision whether to dismiss a federal action because of parallel state-
court litigation does not rest on a mechanical checklist, but on a careful
balancing of the important factors as they apply in a given case, with the
87
balance heavily weighted in favor of the exercise of jurisdiction. The
weight to be given to any one factor may vary greatly from case to case,
depending on the particular setting of the case.
Moses H. Cone, 460 U.S. at 16, 103 S. Ct. at 937. Accordingly, the district court must
weigh all relevant considerations “in a pragmatic, flexible manner with a view to the
realities of the case at hand.” Moses H. Cone, 460 U.S. at 21, 103 S. Ct. at 940.
A district court’s refusal to defer to a state court is not immediately appealable
under 28 U.S.C. § 1291 or 28 U.S.C. § 1292(a)(1). See Gulfstream Aerospace Corp.
v. Mayacamas Corp., 485 U.S. 271, 108 S. Ct. 1133 (1988).26 A district court’s
refusal to defer to a state court is ultimately reviewable on appeal from final judgment,
however. See, e.g., Legal Econ. Evaluations, Inc. v. Metropolitan Life Ins. Co., 39
F.3d 951, 956 (9th Cir. 1994); TransDulles Cent., Inc. v. USX Corp., 976 F.2d 219,
224 (4th Cir. 1992); Schneider Nat’l Carriers, Inc. v. Carr, 903 F.2d 1154, 1156-1158
(7th Cir. 1990); Hartford Acc. & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903
F.2d 352, 360 & n.7 (5th Cir. 1990).
26
In ruling that a district court’s refusal to defer to a state court pursuant to the
Colorado River doctrine was not immediately appealable under 28 U.S.C. § 1291,
which provides for appeals from “final decisions of the district courts,” the Gulfstream
Aerospace Court ruled that the refusal is “inherently tentative” and thus is not a
conclusive determination, as required by the first element of the three-pronged test
established by Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454,
2458 (1978). See 485 U.S at 277-78, 108 S. Ct. at 1137. Notably, the Supreme Court
did not address whether the denial of a motion to stay or dismiss an action pursuant
to the Colorado River doctrine meets the third prong of the Coopers & Lybrand test:
whether the order is “effectively unreviewable on appeal from a final judgment.”
Gulfstream Aerospace, 485 U.S. at 276-78, 108 S. Ct. at 1137 (citing Coopers &
Lybrand, 437 U.S. at 468, 98 S. Ct. at 2458).
88
We review for abuse of discretion a district court’s decision not to defer to a
state court under the Colorado River doctrine. See Gov’t Employees Ins. Co. v.
Simon, 917 F.2d 1144, 1148 (8th Cir. 1990). Under this standard, a district court will
be reversed if it has “made a clear error of judgment, or has applied an incorrect legal
standard.” SunAmerica Corp. v. Sun Life Assur. Co. of Can., 77 F.3d 1325, 1333
(11th Cir.) (citations omitted), cert. denied, __ U.S. __, 117 S. Ct. 79 (1996).
Although abuse of discretion is a relatively relaxed standard, see Dopp v. Pritzker, 38
F.3d 1239, 1253 (1st Cir. 1994), it is “not a toothless one,” see McNeil v. Lowney,
831 F.2d 1368, 1373 (7th Cir. 1987). Review for abuse of discretion implies neither
that the district court’s judgment is unreviewable, see Moses H. Cone, 460 U.S. at 19,
103 S.Ct. at 938, nor that this court “may merely rubber-stamp a district judge’s
discretionary determinations,” Dopp, 38 F.3d at 1253. Accordingly, in certain
circumstances, a district court’s decision not to defer to the state court pursuant to the
Colorado River doctrine will constitute an abuse of discretion. See Microsoftware
Computer Sys. v. Ontel Corp., 686 F.2d 531 (7th Cir. 1982) (holding that the district
court abused its discretion in refusing to stay a federal diversity action pending the
outcome of an identical state court suit, where the state court suit was filed first and
there was no indication that the state courts could not fully and fairly resolve the
89
parties’ dispute), overruled on other grounds, Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133 (1988).27
B.
27Likewise, in affirming district courts’ decisions to defer to state courts, courts
of appeals have implied that such deference was mandatory, not permissive, in light
of the particular circumstances involved. See, e.g., Am. Int’l Underwriters
(Philippines), Inc. v. Continental Ins., 843 F.2d 1253, 1260 (9th Cir. 1988) (“[I]t is
clear that the rationale that prohibits plaintiffs from removing cases to federal court
under 28 U.S.C. § 1441 also bars AIU from bringing this repetitive lawsuit in federal
court.”) (emphasis added); Levy v. Lewis, 635 F.2d 960, 966 (2d Cir. 1980) (“[I]n the
special circumstances of this case, sound judicial administration requires refraining
from exercising concurrent jurisdiction.”) (emphasis added).
90
Although the first,28 second,29 third,30 and sixth31 factors enumerated supra do
not apply and the fifth factor ordinarily would weigh in favor of assuming
jurisdiction,32 all other relevant considerations compel the conclusion that the district
28
Neither the federal court nor the South Carolina court has assumed
jurisdiction over property.
29
Whether the federal forum is inconvenient depends “on the physical
proximity of the federal forum to the evidence and witnesses.” Am. Bankers Ins. v.
First State Ins., 891 F.2d 882, 885 (11th Cir. 1990). The federal court, like the South
Carolina court, was close to the relevant evidence and witnesses.
30
In Colorado River, the Court ruled that deference to the state court’s water
rights proceedings was appropriate in light of the McCarran Amendment, 43 U.S.C.
§ 666, which expressed a federal policy against piecemeal litigation because it allowed
the United States to be joined as a party in state court actions regarding water rights.
See 424 U.S. at 819-20, 96 S.Ct. at 1247-48. One could argue that the district court,
by hearing Mrs. Lops’s ICARA petition, promoted piecemeal litigation because the
South Carolina court had before it Mr. Lops’s divorce and custody complaint, as well
as Mrs. Lops’s ICARA petition. Unlike the McCarran Amendment, however,
ICARA, does not express a Congressional intent against piecemeal litigation. Thus,
the piecemeal litigation factor does not weigh strongly in favor of deferring to the
South Carolina court.
31
Under Moses H. Cone, the inadequacy of state court proceedings may counsel
against deferring to the state court. See 460 U.S. at 26, 103 S. Ct. at 942. The mere
adequacy of state court proceedings, however, does not counsel in favor of deferral.
See Noonan S., Inc. v. County of Volusia, 841 F.2d 380, 382 (11th Cir. 1988). Here,
as the majority concedes, both the South Carolina court and the federal district court
“adequately could protect the parties’ rights.” Accordingly, the sixth factor is
rendered neutral. See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d
529, 536 (1st Cir. 1991).
32
Mrs. Lops’s ICARA petition is based on federal law, and the presence of
federal-law issues weighs against surrendering jurisdiction to state courts. See Moses.
H. Cone, 460 U.S. at 26, 103 S. Ct. at 942. This factor, however, is of less
significance where, as here, see 42 U.S.C. § 11603(a), the federal law in question
grants concurrent jurisdiction to state and federal courts, see Moses H. Cone, 460 U.S.
at 26, 103 S. Ct. at 942 (stating that “the source-of law factor has less significance
91
court abused its discretion by failing to defer to the South Carolina court. First, Mrs.
Lops’s federal suit was “reactive,” see Moses H. Cone, 460 U.S. at 18 n. 20, 103 S. Ct.
at 938 n.20, because Mrs. Lops was motivated to file in federal court by an adverse
decision of the South Carolina court. See infra Part III.C. Second, Mrs. Lops’s
federal suit was an attempt to circumvent federal removal policy, see 28 U.S.C.
§ 1441(a), because it was identical to her ICARA petition pending in the South
Carolina court. See infra Part III.D. Courts of appeals that have addressed these two
considerations have found them to be relevant to the Colorado River analysis, either
as independent elements of the fourth Colorado River factor -- namely, the order in
which the fora obtained jurisdiction -- or as separate Colorado River factors in their
own right.33 In light of these considerations and the fact that the South Carolina court
here than in [Will v. Calvert Fire Ins. Co., 437 U.S. 655, 98 S. Ct. 2552 (1978)], since
the federal courts’ jurisdiction to enforce the Arbitration Act is concurrent with that
of the state courts”). Moreover, courts of appeals have upheld district court decisions
to defer jurisdiction to state courts even on questions of federal law where the
plaintiff’s federal suit is repetitive of the plaintiff’s state suit, see LaDuke v.
Burlington N. R.R. Co., 879 F.2d 1556, 1561 (7th Cir. 1989) (affirming the district
court’s decision to defer to the state court where the federal plaintiff had brought the
same suit initially in the state court and had not dismissed the state case; noting that
the state and federal actions were both FELA suits over which state and federal courts
exercise concurrent jurisdiction), or otherwise implicates Colorado River factors, see
Am. Disposal Servs., Inc. v. O’Brien, 839 F.2d 84, 86-88 (2d Cir. 1988) (affirming
the district court’s dismissal of a federal civil rights complaint because, inter alia, the
state court proceedings were farther advanced).
33
Compare Gonzalez v. Cruz, 926 F.2d 1, 4 (1st Cir. 1991) (analyzing both
considerations as elements of the fourth Colorado River factor), with Telesco v.
Telesco Fuel & Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir. 1985)
(considering “vexatious or reactive nature” of litigation to be a separate Colorado
River factor), and Am. Int’l Underwriters, 843 F.2d at 1260-61 (deeming
92
already has held hearings on the merits of the ICARA petition, see infra Part III.E, I
believe that “wise judicial administration,” Colo. River, 424 U.S. at 818, 96 S.Ct. at
1246 (quotation omitted), counsels that we vacate the district court’s judgment and
direct the district court to stay Mrs. Lops’s federal action, see infra Part III.F.
C.
Courts must apply the fourth Colorado River factor, like all of the factors, “in
a pragmatic, flexible manner with a view to the realities of the case at hand.” 460 U.S.
at 21, 103 S. Ct. at 940. Although “priority should not be measured exclusively by
which complaint was filed first, but rather in terms of how much progress has been
made in the two actions,” Moses H. Cone, 460 U.S. at 21, 103 S. Ct. at 940, courts
also should consider “the vexatious or reactive nature of either the federal or the state
litigation,” Id. at 18 n. 20, 103 S. Ct. at 938 n.20. Indeed, the First, 34 Second, 35
Fifth,36 Seventh,37 Eighth,38 Ninth,39 and Tenth40 Circuits all have stated explicitly that
circumvention of federal removal policy to be a separate factor).
34
See Elmendorf Grafica, Inc. v. D.S. Am. (East), Inc., 48 F.3d 46, 50, 53 n.4
(1st Cir. 1995); Gonzalez v. Cruz, 926 F.2d 1, 4 (1st Cir. 1991); Villa Marina Yacht
Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 15 (1st Cir. 1990), appeal after remand, 947
F.2d 529, 534 (1st Cir. 1991); Fuller Co. v. Ramon I. Gil., Inc., 782 F.2d 306, 309-10
(1st Cir. 1986).
35
See Telesco v. Telesco Fuel & Masons’ Materials, Inc., 765 F.2d 356, 363
(2d Cir. 1985).
36
See Allen v. La. State Bd. of Dentistry, 835 F.2d 100, 105 (5th Cir. 1988).
37
See Medema v. Medema Builders, Inc., 854 F.2d 210, 213 (7th Cir. 1988);
Calvert Fire Ins. Co. v. Am. Mut. Reins. Co., 600 F.2d 1228 (7th Cir. 1979), cited in
93
the “reactive” character of a federal suit weighs in favor of deferring to the state court
under the Colorado River analysis.
On December 2, the South Carolina court informed the parties that it planned
to place the children with Mr. Lops’s mother, subject to an adequate security bond,
during the pendency of the ICARA proceedings. On December 3, Mrs. Lops filed a
motion to reconsider this matter in the South Carolina court, and, on the same day, she
filed an identical ICARA petition in the federal district court. This timing leaves little
doubt that Mrs. Lops’s federal court suit was a reaction to what she viewed as an
unfavorable custody decision by the South Carolina court.41
In my opinion, the district court should have viewed the reactive nature of Mrs.
Lops’s suit to be an important consideration in favor of deferring to the South
Moses H. Cone, 460 U.S. at 17 n.20, 103 S. Ct. at 938, n.20.
38
See Federated Rural Elec. Ins. Corp. v. Ark. Elec. Cooperatives, Inc., 48 F.3d
294, 299 (8th Cir. 1995).
39
See Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir. 1989).
40
See Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir. 1994).
41
Information contained in Mrs. Lops’s request for attorney’s fees confirms the
causal relationship between the South Carolina’s oral custody ruling of December 2
and Mrs. Lops’s immediate decision to file suit in federal court. See Invoice of John
L. Creson attached to Christine Lops’s Motion for Attorney Fees and Costs, January
22, 1998, at 5-6 (“12/2/97 . . . Telephone conference with Judge Nuessle’s office;
Telephone conference with client and Linda Gardener re: same. . . . Telephone
conference with Dan Butler and Dave Thelen re: possible order returning child to
grandmother and district court suit; Receipt and review draft U.S. District court
suit.”).
94
Carolina court. Substantial precedent from other circuits supports this view. See
Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d 529, 534 (1st Cir. 1991)
(stating that the district court did not err in counting “the motivation factor against
retaining jurisdiction” where the district court found that the plaintiff’s decision to
switch to federal court stemmed from the plaintiff’s unsuccessful effort to obtain a
preliminary injunction in the state court); Nakash v. Marciano, 882 F.2d 1411, 1417
(9th Cir. 1989) (affirming the district court’s decision to stay the federal action; stating
that the plaintiff’s attempt to avoid the state court’s adverse rulings by filing suit in
federal court weighed strongly in favor of deferring to the state court); Allen v. La.
State Bd. of Dentistry, 835 F.2d 100, 105 (5th Cir. 1988) (affirming the district court’s
stay where the sequence of events indicated that the plaintiff’s federal suit was
“vexatious and reactive”); Fuller Co. v. Ramon I. Gil., Inc., 782 F.2d 306, 309-10 (1st
Cir. 1986) (applying the Colorado River factors in the declaratory judgment context;
affirming the district court’s dismissal, in part due to displeasure at the practice of
filing a federal action in reaction to an adverse ruling in the state court); Telesco v.
Telesco Fuel & Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir. 1985) (affirming
the dismissal of a federal suit filed by a state court plaintiff; stating that deference to
the state court is appropriate where the same party is the plaintiff in both courts and
sues in the federal court on the same cause of action after suffering some failures in
the earlier state court action); see also Redner v. City of Tampa, 723 F. Supp. 1448,
1454 (M.D. Fla. 1989) (adopting the Magistrate Judge’s recommendation and
95
dismissing the case because, inter alia, the plaintiff’s federal action was “reactive” to
the state court decision).
The majority relies on the fact that the district court believed that it could
resolve the case more quickly than the South Carolina court.42 The district court,
however, apparently did not fully consider the inevitable, time-consuming procedural
tangle created by allowing the same case to proceed in two separate fora. Moreover,
even if the district court reasonably believed that it could resolve the issue more
efficiently than the state court, the district court should have required Mrs. Lops to
move to dismiss her state court action before the district court proceeded to evaluate
the merits of the case. Allowing Mrs. Lops to litigate both the state and federal
actions simultaneously was plainly contrary to “wise judicial administration.” Colo.
River, 424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted); see LaDuke v.
Burlington N. R.R. Co., 879 F.2d 1556, 1561 (7th Cir. 1989) (affirming the district
court’s decision to defer to the state court where the plaintiff brought the suit initially
in state court and then, without dismissing the state case, filed the same action in
federal court).
D.
42
The majority points to no evidence indicating that the district court actually
considered the reactive nature of Mrs. Lops’s federal suit in reaching its determination
not to defer to the state court.
96
In my view, the district court also erred by failing to recognize that Mrs. Lops’s
federal suit effectively constituted removal to federal court by a state court plaintiff,
a result contrary to federal removal policy. See Am. Int’l Underwriters (Philippines),
Inc. v. Continental Ins. Co., 843 F.2d 1253, 1260-61 (9th Cir. 1988). Even though
“priority should not be measured exclusively by which complaint was filed first, but
rather in terms of how much progress has been made in the two actions,” Moses H.
Cone, 460 U.S. at 21, 103 S. Ct. at 940, a repetitive federal suit counsels in favor of
deferring to the state court even if the federal action is filed when the state court
proceeding is still in its initial stages. See LaDuke v. Burlington N. R.R. Co., 879
F.2d 1556, 1561 (7th Cir. 1989).43
According to the federal removal statute, 28 U.S.C. § 1441, only defendants
have the right to remove cases from state to federal court:
Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the United
43
In LaDuke, the Seventh Circuit affirmed the district court’s decision to defer
the exercise of jurisdiction even though the state court assumed jurisdiction only
shortly before the plaintiff filed the same suit in federal court. 879 F.2d at 1561. The
court concluded:
The state action apparently did not make a great deal of progress prior to
the filing of the federal action . . . . However, it is important to note in
considering this factor in this case that Mr. LaDuke filed both the state
action and the federal action. It was his choice to file in state court first.
It was also his choice not to dismiss the state action after he commenced
the federal action. . . . [T]he relevant Colorado River factors strongly
support the district court’s decision not to exercise jurisdiction over Mr.
LaDuke’s federal action . . . .
Id.97
States have original jurisdiction, may be removed by the defendant or
defendants, to the district court of the United States . . . .
28 U.S.C. § 1441(a) (emphasis added). The Supreme Court has held that the
predecessor to 28 U.S.C. § 1441, 28 U.S.C. § 71, was intended to eliminate the
plaintiff’s removal right. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
104-09, 61 S. Ct. 868, 870-72 (1941); H.Rep. No. 1078, 49th Cong., 1st Sess. 1
(1887)(“[I]t is believed to be just and proper to require the plaintiff to abide his
selection of a forum.”), quoted in Shamrock Oil, 313 U.S. at 106 n.2, 61 S. Ct. at 871
n.2. Likewise, the Ninth Circuit has held that 28 U.S.C. § 1441 “reflect[s] a
Congressional intent that a plaintiff should not be permitted to alter the forum that it
selects to litigate its claim against a particular defendant”. See Am. Int’l
Underwriters, 843 F.2d 1253 at 1261; see also Diaz v. Sheppard, 85 F.3d 1502, 1505
(11th Cir. 1996) (ruling that 28 U.S.C. § 1441 must be construed narrowly, with doubt
construed against removal).44
44
The only relevant difference between the statute examined in Shamrock Oil
and the current removal statute, 28 U.S.C. § 1441, is that the old statute allowed
plaintiff removal in circumstances involving local prejudice against the plaintiff. See
Am. Int’l Underwriters, 843 F.2d at 1261 (citing 28 U.S.C. § 71). The current
removal statute does not have even this limited right of removal. See 843 F.2d at1261 (citing 28 U.S.C. § 1441).
98
Relying on Shamrock and its progeny,45 the Ninth Circuit has concluded that
a plaintiff who first sues in state court may not subsequently file the identical lawsuit
in federal court. See Am. Int’l Underwriters, 843 F.2d at 1261 (“After considering the
rationale set forth in the removal cases discussed above, we find that AIU should not
be permitted to accomplish, by the refiling of its state court complaint, what would
clearly be prohibited if AIU tried to remove to state court.”)(emphasis in original).46
Similarly, the First,47 Second,48 and Seventh49 Circuits all have counseled against
45
See Or. Egg Producers v. Andrew, 458 F.2d 382, 383 (9th Cir. 1972) (“A
plaintiff who commences his action in a state court cannot effectuate removal to a
federal court even if he could have originated the action in a federal court and even
if a counterclaim is thereafter filed that states a claim cognizable in a federal court.”),
cited in Am. Int’l Underwriters, 843 F.2d at 1260.
46
See also In re Pac. Enters. Secs. Litig., 47 F.3d 373, 376 (9th Cir. 1995)
(reasserting the rule of Am. Int’l Underwriters that a plaintiff “may not file a lawsuit
in state court and then file the same suit in federal court”); accord Fed. Deposit Ins.
Corp. v. Nichols, 885 F.2d 633, 637-38 (9th Cir. 1989)(stating that removal policy
was not relevant where the state suit was no longer pending when the plaintiff filed
the federal action).
47
See Gonzalez v. Cruz, 926 F.2d 1, 4 (1st Cir. 1991) (stating that the filing of
a second lawsuit by the same plaintiff may weigh against the exercise of federal
jurisdiction, especially where the plaintiff was attempting to circumvent removal
policy); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 14 (1st Cir.
1990) (“Other courts faced with second lawsuits brought by the same plaintiff have
considered that factor relevant in upholding district court decisions to dismiss the
federal case.”), appeal after remand, 947 F.2d 529, 536 (1st Cir. 1991) (stating that
removal policy was not relevant where the plaintiff first dismissed a defendant from
the state suit and then sued that defendant in federal court).
48
See Telesco v. Telesco Fuel & Masons’ Materials, Inc., 765 F.2d 356, 363
(2d Cir. 1985) (affirming the dismissal of the federal suit filed by a state court
plaintiff; stating that deference to the state court is appropriate where the same party
is plaintiff in both courts and sues in the federal court on the same cause of action after
99
exercising federal jurisdiction in cases where a plaintiff whose state court case is still
pending files the same suit in federal court.50
I find this reasoning compelling. Accordingly, I would hold that where a
plaintiff’s state court case is still pending, the plaintiff presumptively may not file the
identical suit against the identical defendant in federal court. I therefore believe that
the majority’s ruling undermines the purpose of federal removal policy.51
suffering some failures in the earlier state court action).
49
See LaDuke v. Burlington Northern R.R. Co., 879 F.2d 1556, 1561 (7th Cir.
1989) (affirming the district court’s decision to defer to the state court where the
federal plaintiff had brought the same suit initially in state court and had not dismissed
the state case). But see Votkas, Inc. v. Cent. Soya Co., Inc., 689 F.2d 103, 107-08
(7th Cir. 1982) (affirming the district court’s decision not to stay a federal diversity
action where the plaintiff previously had filed an identical suit in state court in the
state where the district court sits).
50
See also Lorentzen v. Levolor Corp., 754 F. Supp. 987, 993 (S.D.N.Y. 1990)
(staying the federal proceeding in light of, inter alia, the plaintiff’s attempt “to change
his original choice of forum in violation of the federal policy against plaintiff removal
and forum-shopping”); Ryder Truck Rental v. Acton Foodservices Corp., 554 F. Supp.
277, 281 (C.D. Cal. 1983) (“Having elected state court, plaintiff should be bound by
its choice absent compelling reasons to seek relief in another forum.”); Ystueta v.
Parris, 486 F. Supp. 127, 128-29 (N.D. Ga. 1980) (stating that this circuit’s precedents
permit a district court to stay a federal suit that is substantially duplicated by a
pending state action between the same parties); Note, “Federal Court Stays and
Dismissals in Deference to Parallel State Court Proceedings: The Impact of Colorado
River,” 44 U. Chi. L. Rev. 641, 666-67 (1977) (stating that the federal removal statute
arguably expresses a policy determination limiting plaintiff to initial forum,
“counterbalanc[ing] the obligation to exercise jurisdiction in the subsequent repetitive
lawsuit”).
51
The majority points to no authority suggesting the propriety of removal by
a state court plaintiff to a federal court.
100
Under certain limited circumstances, a district court may be justified in
exercising jurisdiction even though the federal plaintiff originally filed the same suit
in state court and the state action is still pending. For example, consider a plaintiff
who files suit in state court and then, upon being advised by the state court that no
hearing on the case would occur for a year, moves in state court to dismiss. If the
state court refuses to dismiss the action, the plaintiff should be able to seek relief in
federal court despite the pendency of the state court action.
No such extenuating circumstances existed here, however. Mrs. Lops filed suit
in district court without first moving to dismiss her state court case. Despite the fact
that the district court reached a final judgment on the merits of Mrs. Lops’s ICARA
petition on December 22, 1997, it was not until the middle of January of 1998 that
Mrs. Lops moved to dismiss her state court action, and even then she did not comply
with the timing requirements of the South Carolina court. See South Carolina court’s
Order of January 27, 1998, at 2 (stating that Mrs. Lops’s motion to dismiss was filed
“within 48 hours” of the South Carolina court’s substantive ICARA hearing on
January 16, 1997, in plain violation of the court’s “requisite 5 day notice
requirement”). In my view, the district court should not have allowed Mrs. Lops
to continue to litigate the same action in both fora. By failing to require Mrs. Lops to
move to dismiss her state court action, the district court condoned Mrs. Lops’s abuse
101
of the state and federal court systems.52 Cf. Villa Marina Yacht Sales, Inc. v. Hatteras
Yachts, 947 F.2d 529, 536 (1st Cir. 1991) (stating that federal removal policy was not
relevant where the plaintiff first dismissed a defendant from the state suit and then
sued that defendant in federal court); Fed. Deposit Ins. Corp. v. Nichols, 885 F.2d
633, 637-38 (9th Cir. 1989)(stating that federal removal policy was not relevant where
the state suit was no longer pending when the plaintiff filed the federal action).53
E.
The Colorado River inquiry, governed by considerations of “wise judicial
administration,” must give “regard to conservation of judicial resources.” Colo. River,
424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted). Accordingly, in reviewing the
district court’s refusal to defer pursuant to Colorado River, we must take into
consideration the totality of circumstances at the time of our decision, not simply the
situation at the time the district court refused to stay the state court action. See
52
Counsel for Mr. Lops made this very argument to the district court on
December 12, 1997. See R3: 12 (“If, in fact, Ms. Lops wanted to be in front of the
federal court she has a remedy. All she has to do is dismiss her case, but she hasn’t
done that. In fact, she is still filing motions in the South Carolina case . . . .”).
53
The majority seeks to justify Mrs. Lops’s attempt to circumvent federal
removal policy on the grounds that Mr. Lops and his mother were the “original forum
shoppers” because they “first tried to forum shop this case away from the German
courts, where [Mrs. Lops] had initiated custody proceedings.” Such equitable
considerations regarding antecedent proceedings in other courts are entirely
inapplicable in the Colorado River analysis. Our sole inquiry should be whether the
district court’s deferral to the South Carolina court was required by principles of “wise
judicial administration.” Colo. River, 424 U.S. at 818, 96 S.Ct. at 1246 (citation
omitted).
102
Schneider Nat’l Carriers, Inc. v. Carr, 903 F.2d 1154, 1156 n.* (7th Cir. 1990); Lumen
Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 697 n.4 (7th Cir. 1985); Bd. of
Educ. of Valley View Community Unit School Dist. No. 365U v. Bosworth, 713 F.2d
1316, 1321-22 (7th Cir. 1983). For example, if the state court action remains in its
preliminary stages by the time this court is ready to resolve the federal case on appeal,
the fourth Colorado River factor would weigh in favor of affirming the district court’s
decision not to defer to the state court. See United States v. Adair, 723 F.2d 1394,
1400-07 (9th Cir. 1984).
Likewise, if the state court action has proceeded significantly by the time the
federal case reaches us on appeal, then we must take this change of circumstances into
account, as well. See Ill. Bell Tel. Co. v. Ill. Commerce Comm’n, 740 F.2d 566,
569-71 (7th Cir. 1984) (“The purpose of the Colorado River doctrine, however, is the
conservation of state and federal judicial resources. Where the progress of the state
suit has changed significantly since the motion to stay the federal suit was filed, it
would defeat that purpose to ignore the subsequent events.”). The South Carolina
court already has assumed jurisdiction over Mrs. Lops’s ICARA petition and, more
important, has held its substantive hearings regarding the merits of her petition.
Because the South Carolina court is thus poised to issue a ruling in this matter, the
factor of “how much progress has been made in the two actions,” Moses H. Cone,
460 U.S. at 21, 103 S. Ct. at 940, does not weigh against deferring to the South
Carolina court.
103
F.
Although the fact that Mrs. Lops’s state and federal cases pose questions of
federal law ordinarily would weigh against deferring to the South Carolina court, see
Moses H. Cone, 460 U.S. at 23-26, 103 S. Ct. at 941-42, I believe that the reactive
nature of Mrs. Lops’s federal suit and Mrs. Lops’s circumvention of federal removal
policy compel this court to vacate the district court’s judgment and direct it to stay
Mrs. Lops’s federal action. To hold otherwise would be to condone litigation
practices completely at odds with “wise judicial administration.” Colo. River, 424
U.S. at 818, 96 S.Ct. at 1246 (quotation omitted).
The reactive nature of a federal suit and the circumvention of federal removal
policy are independent elements of the Colorado River analysis.54 In this case, Mrs.
Lops’s federal ICARA petition was both reactive and in violation of federal removal
policy. The relevant factors thus weigh quite heavily in favor of deferring to the
South Carolina court, see Telesco v. Telesco Fuel & Masons’ Materials, Inc., 765 F.2d
356, 363 (2d Cir. 1985) (stating that deference to state court is appropriate where the
same party is plaintiff in both courts and sues in the federal court on the same cause
of action after suffering some failures in the earlier state court action), regardless of
54
Because some reactive federal suits are brought by dissatisfied state court
defendants, not all reactive federal suits involve the circumvention of federal removal
policy. See, e.g., Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir. 1989).
Similarly, not all federal lawsuits brought by state court plaintiffs in violation of
federal removal policy are reactive to adverse state court rulings; some such federal
lawsuits simply are attempts to achieve two bites at the judicial apple.
104
the fact that federal law is at issue in both proceedings, see LaDuke v. Burlington N.
R.R. Co., 879 F.2d 1556, 1561 (7th Cir. 1989) (affirming the district court’s decision
to defer to the state court where the federal plaintiff had brought the same suit initially
in the state court and had not dismissed the state case; noting that the state and federal
actions were both FELA suits over which state and federal courts exercise concurrent
jurisdiction). Because Mrs. Lops’s actions constituted a sufficiently flagrant abuse of
the concurrent system of jurisdiction accorded to state and federal courts under
ICARA, see 42 U.S.C. § 11603(a), I conclude that the district court abused its
discretion by failing to defer to the South Carolina court. Only by vacating the district
court’s judgment and directing it to stay Mrs. Lops’s federal action can this court
ensure that litigation practices in this circuit remain consistent with “wise judicial
administration.” Colo. River, 424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted).
IV.
In my view, the Full Faith and Credit Act, 28 U.S.C. § 1738, required the
district court to accept the Georgia court’s determinations that venue and personal
jurisdiction were lacking in Georgia. Even if the district court was not precluded from
hearing the case, however, I would hold that the district court abused its discretion by
failing to stay the case in deference to the South Carolina court. To rule otherwise not
only undermines the authority of the courts of Georgia to issue binding judgments, but
also condones Mrs. Lops’s egregious manipulation of ICARA’s system of concurrent
jurisdiction.
105
Therefore, I respectfully dissent.
106