
USCA1 Opinion

	




          December 9, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1624                                              FERDINAND NWANKWO,                                Plaintiff, Appellant,                                          v.                                 KIMBERLY NWANKWO AND                                   EDWARD MITCHELL,                                Defendants, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Martin F. Loughlin, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Ferdinand Nwankwo on brief pro se.               _________________               Edward M. Kaplan,  Sean M.  Dunne and Sulloway  & Hollis  on               ________________   ______________     __________________          brief for appellees.                                 ___________________                                  ___________________                 Per  Curiam.   This  case involves  two conflicting  state                 ___________          court child custody decrees.   After a bench trial,  the district          court  dismissed  one  of  plaintiff's  claims  against defendant          Kimberly  Nwanko on  jurisdictional grounds,  and the  others for          failure  to prove a claim.   The claims  against defendant Edward          Mitchell were dismissed on the merits.  As we have concluded that          all claims against Kimberly Nwanko should have been dismissed for          lack  of subject  matter jurisdiction,  we partially  reverse and          vacate  the judgment below, remanding for entry of a dismissal in          accordance with this  opinion.   We affirm the  dismissal on  the          merits of the claims against Edward Mitchell.                    Plaintiff  was  awarded  physical  custody  of  his  two          children  by a  temporary decree  from a  New Hampshire  court in          April, 1990.   At  the time  of this  order, his  wife, defendant          Kimberly  Nwanko, and the children  were residing in  Florida.  A          few months later, a Florida court awarded custody of the children          to Kimberly Nwanko, rejecting the New Hampshire court's decree on          the  ground that it had been issued without jurisdiction over the          children.   Plaintiff subsequently  obtained a permanent  custody          and divorce decree from the New Hampshire court.  Kimberly Nwanko          did not appear in the New Hampshire action.                 Although plaintiff had  appeared specially in the  Florida          action to seek  recognition of the New  Hampshire custody decree,          he did not  pursue a direct appeal.  Instead,  he returned to New          Hampshire and filed a complaint in federal district court against          Kimberly  Nwanko and her father, Edward Mitchell.   The complaint          claimed  that the federal court had jurisdiction by virtue of the          Parental Kidnapping  Prevention Act, 18 U.S.C.    1738A ("PKPA").          It  sought  an injunction  enforcing  the  New Hampshire  custody          decree and an unspecified amount in damages for interference with          plaintiff's parental  rights, emotional distress, and expenses in          seeking custody of his children.                   After  the  complaint was  referred  to  a magistrate  who          issued  a  "report and  recommendations,"  plaintiff  amended his          complaint.     In  an  apparent  attempt  to  cure  the  original          complaint's jurisdictional defects, the amended complaint made no          mention of the PKPA  nor injunctive relief.  Instead,  it alleged          diversity  jurisdiction   only,  and  sought  damages  above  the          jurisdictional amount  for three state law tort  causes of action          against  both defendants: intentional  interference with parental          custody,  intentional  infliction of  emotional  distress,  and a          claim of  uncertain legal  origin, seeking reimbursement  for the          support and care of  Fawn Mitchell, Kimberly Nwanko's child  by a          prior relationship.                     By  motion shortly thereafter, however, plaintiff renewed          his request  for an injunction under the PKPA.  And in later pre-          trial and post-trial motions  and responses to motions, plaintiff          requested  that  the district  court  enforce  the New  Hampshire          custody decree by virtue  of either or both its  federal question          and diversity jurisdiction.                                          -3-                 As  the  district  court  held,  there was  no  basis  for          original subject matter jurisdiction over the PKPA claim under 28          U.S.C.     1331, because  the PKPA  does  not provide  an implied          private  federal  cause  of  action  to  determine  which  of two          conflicting  state  custody  decrees   is  valid.    Thompson  v.                                                               ________          Thompson, 484 U.S. 174,  182, 186 (1988).  The PKPA  is addressed          ________          to the States and state courts.  Congress did not intend  thereby          to entangle the federal  courts in traditional domestic relations          questions that  "they have little  expertise to resolve."  Id. at                                                                     __          186  n.4.  If plaintiff felt aggrieved by the Florida orders, his          remedy was to appeal through the state courts. Id. at 187 ("State                                                         __          courts  faithfully administer  the Full  Faith and  Credit Clause          every  day ...  we  can  think  of  no  reason  why  the  courts'          administration of  federal law  in custody  disputes will  be any          less  vigilant;" but the Supreme Court  is available for ultimate          review of "truly intractable" deadlocks).               Nor was there subject matter jurisdiction to  enforce the New          Hampshire custody  decree  under  the  diversity  of  citizenship          statute,  28 U.S.C.   1332.  Ankenbrandt  v. Richards, 112 S. Ct.                                       ___________     ________          2206 (1992).   Ankenbrandt, decided after the lower  court issued                         ___________          its   opinion   in   this  case,   reexamined   the   theoretical          underpinnings of the "domestic relations  exception" to diversity          jurisdiction first articulated by the  Supreme Court in Barber v.                                                                  ______          Barber, 62 U.S. (21  How.) 582, 16 L. Ed. 226  (1859).  The Court          ______          determined  that,  given the  long  passage of  time  without any                                         -4-          expression of Congressional dissatisfaction, the exception is now          rooted  in the diversity statute itself.  Ankenbrandt, 112 S. Ct.                                                    ___________          at 2213.                    As reaffirmed  by the Court in  Ankenbrandt, the "domestic                                                 ___________          relations  exception"  is  a narrow  one.    In  order to  assure          decisions  by those with the greatest  judicial expertise and the          resources to  enforce them, the exception  "divest[s] the federal          courts of the power  to issue divorce, alimony and  child custody          decrees."  Id. at  2215.  But federal courts  retain jurisdiction                     __          over  cases involving  intra-family  torts, unless  abstention is          otherwise required by the Younger or Burford abstention doctrines                                    _______    _______          to avoid interference with  pending state proceedings,  important          and difficult questions of state policy, or effectuation of state          decrees.  Id. at 2216; see Younger v. Harris, 401 U.S. 37 (1971);                    __           ___ _______    ______          Pennzoil Co.  v. Texaco, Inc., 481 U.S.  1 (1987), cited by Court          ____________     ____________          as among authorities extending Younger abstention to civil cases;                                         _______          Burford v. Sun Oil Co., 319 U.S. 315 (1943); Colorado River Water          _______    ___________                       ____________________          Conservation Dist.  v. United States,  424 U.S. 800,  813 (1976),          __________________     _____________          cited by Court for basic abstention principles.                 In Ankenbrandt, the domestic  relations exception was held                    ___________          inapplicable  to a claim seeking damages against a father and his          companion  for  alleged  child  abuse.    The  claim  there  only          peripherally touched  on  domestic relations  issues because  the          plaintiff "in no way"  sought the issuance of a  divorce, custody          or alimony  decree.  Ankenbrandt, 112  S. Ct. at 2215.   Nor were                               ___________                                         -5-          there  any issues of status  to be resolved  that might interfere          with effectuation of a state court decree.  Id. at 2216.                                                       __                 By contrast, here  plaintiff's real aim, as  stated in his          original complaint, was  to obtain direct  enforcement of one  of          two conflicting state court  custody decrees.  Thus there  was no          subject   matter  jurisdiction   over  the   original  complaint.          Ankenbrandt,  112  S.  Ct.  at  2215.    And  although  plaintiff          ___________          attempted to cure the jurisdictional deficit by filing an amended          complaint  seeking only  damages, the  inherent infirmity  of the          state tort claims pleaded in that  document belied the pleading's          genuineness as a predicate  for jurisdiction.1  If there  was any          doubt,  the real purpose of  this suit quickly  reappeared in the          contradictory relief plaintiff sought by motion.                   Because  plaintiff  appeared pro  se  and  the facts  were                                              ___  __          somewhat  murky,  the  district  court  liberally  construed  his          pleadings  and  motions.   And  the  defendants apparently  never                                        ____________________          1.  From the  outset, it was a legal  impossibility for plaintiff          to  succeed on these state  law claims, because,  as he admitted,          there  was no custody decree in his favor when defendant Kimberly          Nwanko  moved with  the  children  to  Florida.    At  least  one          essential element of the claim was thus always  missing, although          the  language of  the complaint  tended  to obscure  the temporal          sequence of events.  Plante v. Engel, 124 N.H. 213, 217, 469 A.2d                               ______    _____          1299,  1302 (1983)  (tort claim  for "interference  with parental          custody" lies "where a parent has been awarded custody of a child          by  a  court  decree  and  the  noncustodial  parent  abducts the          child"); Morancy v. Morancy,  134 N.H. 493, 593 A.2d  1158 (1991)                   _______    _______          (tort  claim  for  intentional infliction  of  emotional distress          requires showing  of "outrageous" conduct).   While plaintiff may          have  believed  that  the  state  law  should  be  changed,  that          question,  too, was beyond the competence of the federal court in          a diversity case.                                          -6-          objected  for lack of subject matter jurisdiction.  But even when          the parties are content to  have the case decided on  the merits,          where the suit's  transparent purpose is to  embroil the district          court  in a  dispute involving  conflicting custody  decrees, the          suit must be dismissed for  lack of subject matter jurisdiction.4          See Mansfield, C.  & L.  M. R.  Co. v.  Swan, 111  U.S. 379,  382          ___ _______________________________     ____          (1884), quoted  in Bender  v. Williamsport  Area Sch. Dist.,  475                  __________ ______     __________________ __________          U.S. 534, 546 (1985) ("The first and fundamental question is that          of jurisdiction ... this question  the court is bound to ask  and          answer for itself, even when not otherwise suggested, and without          respect  to the  relation of  the parties  to it");  Louisville &                                                               ____________          Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (it is the duty of          ______________    _______          appellate  court to see to it that lower court's jurisdiction not          exceeded,  even when parties do not complain). See also Sutter v.                                                         ________ ______          Pitts,  639 F.2d  842 (1st  Cir. 1981)  (under former  version of          _____          domestic  relations  exception,  case  properly  dismissed  where          plaintiff's complaint  stated civil  rights action but,  with its          "constitutional  cloak removed"  actually  sought enforcement  of          probate court's custody order).   Accordingly, all claims against          Kimberly  Nwanko must  be dismissed  for  lack of  subject matter          jurisdiction.                                         ____________________          4.  The district court seemingly  recognized that the case should          have been dismissed earlier.  In ruling on a post-judgment motion          several months  later, it described  the dismissal of  the claims          against Kimberly as  "in essence" for  lack of jurisdiction,  and          the dismissal  of  the  claims  against Edward  Mitchell  as  "in          essence" on his motion for summary judgment.                                         -7-                 The claims  against Edward  Mitchell, however, stand  on a          different footing.  Those  claims do not seem to  have inevitably          involved resolution  of the  parties' status, enforcement  of any          custody   decree,  nor   interference  with  any   pending  state          proceedings. They were thus  were not barred for lack  of subject          matter  jurisdiction  by  the  domestic  relations  exception  or          related abstention  doctrines. Ankenbrandt,  112 S. Ct.  at 2215.                                         ___________          Under state law, however, they, too, were  apparently infirm from          the  outset, and might properly  have been dismissed  on a motion          for  failure to  state a  claim or, as  the district  court later          said, on a  motion for  summary judgment.   The factual  findings          underlying  the  court's  conclusion   that  plaintiff  had   not          sustained his  burden of proof against  defendant Edward Mitchell          were not clearly erroneous.  Fed. R. Civ. P. 52(a); DesRosiers v.                                                              __________          Moran, 949  F.2d 15,  19  (1st Cir.  1991).   We have  considered          _____          plaintiff's  other assertions of legal  and factual errors in the          disposition  of these  claims and  find them  without merit.   We          therefore affirm  the  judgment  dismissing  the  claims  against          Edward Mitchell on the merits.                  The   judgment   dismissing  plaintiff's   claims  against          Kimberly  Nwanko is reversed, vacated and remanded for entry of a                              ________  _______     ________          dismissal on the grounds of lack of subject matter  jurisdiction.          The   judgment  dismissing  plaintiffs'   claims  against  Edward          Mitchell is affirmed.                      ________                                         -8-
