20. USA – FEDERAL – LOPS – 1998 (Return ordered on appeal, District courts decision upheld) LOPS v LOPS. Father and his mother take the children to US. Children are hidden for two and a half years. The mother applied for their return under ICARA and the Hague Convention. District court orders the children returned to Germany. Father and his mother appeal to the Eleventh Circuit Court, the Circuit Court issues a stay pending a hearing. The Circuit Court affirmed the District courts order. The children returned to Germany. (See above case for district courts decision.)
Lops and Lops (11th Cir. 1998)— Fed.3d —
4 International Abduction [USA 1998]
================================================================
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:
001 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
002 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
003 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.
004 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
005 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 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. FN1
006 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.
007 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
008 Immediately following the May 10 hearing, Respondent Lops
visited with the children as authorized by Judge Giwitz. Once
Respondent Lops obtained the children 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.
009 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
010 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.
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
011 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
012 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
013 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
014 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 of the mortgage payments were made. Thus, the title to
the South Carolina home apparently remained in the seller,
arguably concealing its true ownership.
015 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. FN2 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.
016 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. . . .
017 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
018 While Respondent Lops concealed his and the children’s
whereabouts in South Carolina, the German court proceedings
continued unabated. Although Respondent 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.”
019 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
020 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 contentions and determined that
Germany was the state of habitual place of residence and that the
German court had jurisdiction.
021 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
022 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
023 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 relating to property, visitation,
support and the divorce itself” in abeyance until a final hearing
on the merits.
024 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. FN3
M. Petitioner’s Two-Year Efforts To Locate Children
025 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.
026 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]
Social Security Number in 1995 and again in 1996 but all
were negative. FN4
027 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.
028 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.
029 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. FN5 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
030 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.
031 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 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
032 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.
033 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, albeit temporarily, until the South Carolina court
could hear the merits of the ICARA petition.
C. Federal Court In Georgia
034 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.
035 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.
036 On December 23, 1997, this court granted Respondents’
“motion for emergency stay” and enjoined all parties from
removing the children from Georgia or South 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
037 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. FN6 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.
038 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.
IV. ICARA AND THE HAGUE CONVENTION
039 Congress enacted ICARA to implement the Hague Convention on
the Civil Aspects of International Child Abduction, FN7 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”].
040 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-
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.
041 Hague Convention, art. 3. The removal of a child from the
country of his or her habitual residence FN8 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).
042 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:
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.
043 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).
044 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.
045 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.
046 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
047 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, 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. FN9 The federal district court concluded that
neither res judicata nor collateral estoppel applied because
federal district courts must determine their own jurisdiction.
FN10
048 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. FN11 “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.
049 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.
FN12 Even assuming arguendo that Respondents are correct that a
state court final 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
050 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 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.
051 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.
C. Transfer Order Was Not A Final Appealable Order Under
Section 5-6-34(a)(1)
052 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.”
053 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; . . . .
054 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,
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
055 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).
056 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 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). FN13
057 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 “final”
because “once a transfer order is entered, then the case is no
longer pending in that court . . . .” Id. at 428.
058 The Georgia appellate court held that neither transfer
order was appealable. FN14 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. FN15 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 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.
058 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. FN16
E. Interstate Transfers In Georgia’s Juvenile Court Cases
059 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). FN17
In these two juvenile court cases, the Georgia appellate court
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.
060 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
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. FN18
F. Parties’ Stipulation to Transfer
061 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 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. FN19
062 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 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.
FN20
VI. ABSTENTION
063 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, 424 U.S. 800 (1976). We hold that the district
court did not abuse its discretion in declining to abstain for
several reasons. FN21
064 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 (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).
065 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.
066 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 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. FN22
Additionally, there was no threat of piecemeal litigation because
the district court could, and did, resolve all issues.
067 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.
068 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.
069 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.
070 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.
071 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. FN23
072 At a minimum, the parties were equal forum shoppers, which
neutralizes this factor in the abstention equation. FN24
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
073 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; FN25 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 affirmative defense available under ICARA
and that the district court did not err in ordering that the
children be returned to Germany with Petitioner. FN26
074 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 factual finding that the children
were not yet “well-settled” under the Hague Convention.
075 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,
FN27 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 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.” FN28
VIII. CONCLUSION
076 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 resolved. FN29 Thus, we affirm the judgment of the
district court.
AFFIRMED.
KRAVITCH, Senior Circuit Judge, dissenting:
077 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.
078 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 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.
079 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.
080 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, 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.
xxx
I.
081 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.
082 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 jurisdiction where the children reside; FN30 and
(2) transferring the case to the South Carolina court pursuant to
the parties’ stipulation. FN31
083 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. FN32 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. Lops’s mother, Anne E. Harrington,
subject to an adequate security bond. FN33 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. FN34
084 On December 3, 1997, Mrs. Lops filed in the South Carolina
court a motion to reconsider its December 2 decision regarding
temporary custody. FN35 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. FN36
085 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 federal court in
Georgia; FN37 and (2) Mrs. Lops’s suit represented an improper
attempt by a state court plaintiff to obtain removal to federal
court. FN38 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, FN39 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 . . . .
District court’s Order of December 22, 1997, at 7-11.
086 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.
087 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 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.
FN40
088 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.
089 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).
090 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).
091 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. 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).
092 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.
093 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 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).
094 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.”). FN41
B.
095 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. FN42
096 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 (1995) (describing Uniform Transfer of
Litigation Act, which Georgia has not adopted), or a specific
statutory provision concerning the interstate transfer of ICARA
cases. FN43 Similarly, the doctrine of forum non conveniens did
not permit the Georgia court’s interstate
transfer. FN44 Accordingly, the interstate transfer directive
issued by the Georgia court was unauthorized. Cf. Rogers v.
Rogers, 688 So.2d 421, 422 (Fla. 3d 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).
097 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.
098 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).
099 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)
(“[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).45
C.
100 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.
101 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 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.”).
102 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 examination of the implications
of the majority’s ruling reveals that the Georgia court’s order
was, necessarily, a final judgment with preclusive effect.
104 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.
105 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. 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.
106 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.
107 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. FN46
Georgia’s appealability statute provides in part:
(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).
109 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 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.
110 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).
111 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 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.
112 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.
113 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.
114 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.
115 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.
116 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. at
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).
117 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. FN47 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 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). FN48 This language indicates that the father
did not have to comply with Georgia’s interlocutory review
procedures. FN49 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). FN50 Therefore, Arnold
demonstrates that an interstate transfer by a Georgia trial court
is a final, not interlocutory, order for appealability purposes.
118 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 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).
119 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 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).
120 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 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).
121 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).
122 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 purposes. FN51 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.”
123 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. 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.
124 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.
125 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, 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).
126 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
claim that the Georgia court’s venue and personal jurisdiction
rulings are not entitled to preclusive effect in federal court.
FN52
F.
127 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.
128 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 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.
129 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.
130 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 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.
131 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).
III.
132 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. FN53
A.
133 Considerations of “wise judicial administration” may
warrant that a federal district court defer FN54 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; (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).
134 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 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.
135 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). FN55 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).
136 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 parties’ dispute),
overruled on other grounds, Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133 (1988). FN56
B.
137 Although the first, FN57 second, FN58 third, FN59 and
sixth FN60 factors enumerated supra do not apply and the fifth
factor ordinarily would weigh in favor of assuming jurisdiction,
FN61 all other relevant considerations compel the conclusion that
the district 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. FN62 In
light of these considerations and the fact that the South
Carolina court 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.
138 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, FN63 Second, FN64 Fifth, FN65 Seventh, FN66
Eighth, FN67 Ninth, FN68 and Tenth FN69 Circuits all have stated
explicitly that the “reactive” character of a federal suit weighs
in favor of deferring to the state court under the Colorado River
analysis.
139 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.
FN70
140 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 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 dismissing the case because, inter
alia, the plaintiff’s federal action was “reactive” to the state
court decision).
141 The majority relies on the fact that the district court
believed that it could resolve the case more quickly than the
South Carolina court. FN71 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.
142 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).
FN72
143 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 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)(“It 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). FN73
144 Relying on Shamrock and its progeny, FN74 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). FN75 Similarly, the First, FN76
Second, FN77 and Seventh FN78 Circuits all have counseled
against exercising federal jurisdiction in cases where a
plaintiff whose state court case is still pending files the same
suit in federal court. FN79
145 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. FN80
146 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.
147 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
of the state and federal court systems. FN81 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). FN82
E.
148 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
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).
149 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.
F.
150 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).
151 The reactive nature of a federal suit and the circumvention
of federal removal policy are independent elements of the
Colorado River analysis. FN83 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 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.
152 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.
Therefore, I respectfully dissent.
——————–
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.
2. Evidence before the district court revealed that while
Respondent Lops made some payments in cash, Respondent
Harrington made most tuition payments by check.
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.
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.
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.
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).
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).
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.
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 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.
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
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).
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.
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).
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 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).
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.
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.”).
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.
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).
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 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.
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 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.
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).
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.”
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.”
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.
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.
30. 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.
31. 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.
32. See R3: 6, 36-37; Appellants’ Reply Br. at 3.
33. 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.
34. 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.
35. See Appellants’ Br. at 3; Appellants’ Reply Br. at 8.
Mrs. Lops does not contest this fact.
36. 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.
37. 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.
38. See Michael Lops’s and Anne E. Harrington’s Motion to
Dismiss Order, December 10, 1997, at 3-4, 10, 12.
39. 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).
40. I also believe that no exception to Georgia’s
collateral estoppel doctrine is applicable here. See
infra Part II.F.
41. 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 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.
42. 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.
43. 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).
44. 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.”).
45. 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.
46. 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 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).
108 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.
47. 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).
48. Appeals from judgments and orders in all “domestic
relations” cases are discretionary. See O.C.G.A.
5-6-35(a)(2).
49. 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).
50. 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.
51. 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).
52. 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.”).
53. 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, 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.”).
54. 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”).
55. 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).
56. Likewise, 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)
(“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)
(“In the special circumstances of this case, sound
judicial administration requires refraining from
exercising concurrent jurisdiction.”) (emphasis added).
57. Neither the federal court nor the South Carolina court
has assumed jurisdiction over property.
58. 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.
59. 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.
60. 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).
61. 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 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).
62. 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 circumvention of federal removal policy to be
a separate factor).
63. 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).
64. See Telesco v. Telesco Fuel & Masons’ Materials, Inc.,
765 F.2d 356, 363 (2d Cir. 1985).
65. See Allen v. La. State Bd. of Dentistry, 835 F.2d 100,
105 (5th Cir. 1988).
66. 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
Moses H. Cone, 460 U.S. at 17 n.20, 103 S. Ct. at 938,
n.20.
67. See Federated Rural Elec. Ins. Corp. v. Ark. Elec.
Cooperatives, Inc., 48 F.3d 294, 299 (8th Cir. 1995).
68. See Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir.
1989).
69. See Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir.
1994).
70. 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.”).
71. 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.
72. 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.
73. 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 at 1261 (citing
28 U.S.C. 1441).
74. 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.
75. 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).
76. 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).
77. 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 suffering some failures in the earlier
state court action).
78. 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).
79. 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”).
80. The majority points to no authority suggesting the
propriety of removal by a state court plaintiff to a
federal court.
81. 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 . . .
.”).
82. 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).
83. 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.