                                                                                PUBLISH


                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT

                           -------------------------------------------

                                        No. 96-4884

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                          D. C. Docket No. 95-2588-CV-SM


WALTER L. STONE, individually, and as Natural
Guardian of S.P.S., a minor,
                                                              Plaintiff-Appellant,

     versus


GEORGENE WALL, GINA WALL MASTERSON, BROCK
GREEN,
                                      Defendants-Appellees.


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                 Appeal from the United States District Court
                    for the Southern District of Florida

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                                      (March 2, 1998)


Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD*, Senior Circuit
Judges.

_______________
*    Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit,
     sitting by designation.
PER CURIAM:

     Plaintiffs-Appellants appeal from the district court’s order

of dismissal and from the district court’s denial of Plaintiffs’

motion to vacate, alter, or amend the order of dismissal.

Because the district court erred in abstaining in this case, we

are inclined to vacate and remand. But, because uncertainty

exists about whether a cause of action exists under state law,

we certify a question to the Florida Supreme Court.



                                I.



     Plaintiff Walter Stone, a natural guardian of S.P.S., and

Plaintiff S.P.S., a   minor, filed this diversity action against

Defendants Georgene Wall, Gina Wall Masterson, and Brock

Green seeking to recover damages, costs, and attorneys’ fees

in connection with Stone’s recovery of custody of the minor

child S.P.S.

                                2
    Plaintiffs are residents of Mississippi. Stone is the parent

and natural guardian of S.P.S., his minor daughter. He was

formerly married to the mother of S.P.S., Gwen Lindgren.

Defendant Green is a resident of Virginia and is an attorney for

Wall and Masterson. Wall is a resident of Florida and is the

mother of Lindgren (grandmother of S.P.S.). Masterson is a

resident of Colorado and is Wall’s daughter (aunt of S.P.S.).

    In 1987 Stone and Lindgren were divorced in Virginia. In

1994, Stone exercised his visitation rights with S.P.S. at his

home in Mississippi. Stone says that he then was informed by

his ex-wife, Lindgren, that she had been diagnosed with brain

cancer and was not expected to live more than six months. At

Lindgren’s request, Stone allowed the child to return to Virginia

and to stay with Lindgren, for Lindgren’s final days. Plaintiffs

further allege that, when Stone returned with S.P.S. to Virginia,

Wall asked about Stone’s plans for the custody of S.P.S. upon

the death of Lindgren. Wall said that she desired that custody

                                3
of the child be given to Masterson. Stone informed Wall that he

would take full custody of S.P.S. and live in Mississippi.

    Plaintiffs allege that Defendants Green, Wall, and

Masterson acted with intent to interfere with Stone’s custody of

S.P.S. In addition, Defendants conspired, in Florida, to remove

S.P.S. from Virginia to Colorado without the consent of Stone,

who was the parent and natural guardian of S.P.S. According

to the Complaint,    Defendants (1) removed the child from

Virginia before the death of her mother; (2) refused to respond

to Stone’s inquiries about the whereabouts of his child; (3)

executed a guardianship/entrustment agreement without the

knowledge and consent of Stone; (4) concealed the

guardianship agreement from Stone; (5) continued to conceal

the child, who Stone located only by his own efforts; and (6)

refused to return the child to Stone despite repeated requests




                               4
and despite Stone’s status as the natural guardian legally

entitled to custody of the child.1

     The district court concluded that Plaintiffs failed to state a

claim (under Fed. R. Civ. Proc. 12[b][6]) and that, even if a claim

were stated, other grounds warranted abstention from the

exercise of diversity jurisdiction. Plaintiffs filed a motion to

vacate, alter, or amend the order of dismissal; the motion was

denied.




                                II.



A.   Diversity Jurisdiction and Abstention.

     1
      Stone hired a private detective to determine S.P.S.’s
location; and then he took physical custody of his child with the
knowledge of the Federal Bureau of Investigation, the
Commonwealth Attorney in Virginia, and the Cherry Hills,
Colorado Police Department.
                                 5
     The Supreme Court in Ankenbrandt v. Richards, 504 U.S.

689 (1992), reaffirmed the “domestic relations exception” to

exercising diversity jurisdiction and noted that this exception

“divests the federal courts of power to issue divorce, alimony,

and child custody decrees.” 504 U.S. at 703. In addition, the

Court wrote that even when subject-matter jurisdiction might be

proper, sufficient grounds may exist to warrant a court’s

abstention from the exercise of jurisdiction. Id. at 704. The

Court suggested that abstention in family-law disputes might

be appropriate when “the suit depended on a determination of

the status of the parties.” Id. at 706.     But, according to the

Court, “[i]t is axiomatic . . . that abstention from the exercise of

federal jurisdiction is the exception, not the rule . . . .

Abstention rarely should be invoked, because the federal

courts have a virtually unflagging obligation . . . to exercise the

jurisdiction given them.” Id. at 705 (internal quotations and

citations omitted).

                                 6
    Plaintiffs claim that this lawsuit does not seek a decree

within the Ankenbrandt exception, but merely charges

Defendants with a tort. Also, Plaintiffs stress that they do not

have (and have never had) a marital or parental relationship

with Defendants and contend that this case involves no

complicated examination of custody law. In addition, Plaintiffs

point out that the abstention issue was not raised by the

Defendants, but by the district court.

    We reverse a district court’s decision to abstain when

there is an abuse of discretion. Rindley v. Gallagher, 929 F.2d

1552, 1554 (11th Cir. 1991). We have previously considered the

domestic relations exception in Ingram v. Hayes, 866 F.2d 368

(11th Cir. 1988), where we wrote that courts should not abstain

when the following factors are absent: (1) strong state interest

in domestic relations; (2) competency of state courts in settling

family disputes; (3) the possibility of incompatible federal and

state decrees in cases of continuing judicial supervision by the

                                7
state; and (4) the problem of congested federal court dockets.

866 F.2d at 370.     We pointed out that the main point was

whether the litigation would mandate an inquiry into the

“marital or parent-child relationship.” Id.

     In considering this case, the district court acknowledged

that Plaintiffs did not fall squarely within the domestic relations

exception, but found that -- because the resolution of Plaintiffs’

claim for damages would require an examination of the facts

and circumstances of the domestic relations between the

parties -- a sufficient basis for abstention existed. Also, the

district court stressed that, even if Plaintiffs could state a claim,

abstention would be appropriate because of (1) the need to

address custody issues; (2) the federal judiciary’s lack of

experience in this legal area; and (3) the disruption to the

balancing of state policy with respect to custody law.

     The exception enunciated in Ingram is to be read narrowly

and does not -- at least, ordinarily -- include third parties in its

                                  8
scope. This case does not involve inquiry into the existence of

a disputed parent-child relationship; nor is it a dispute between

parents over a child. Here a grandmother, aunt, and their

lawyer allegedly conspired to abduct, and then abducted, a

minor child who had identifiable natural parents. Defendants

seemingly had no legal claim of custody whatsoever: they had

no court decree giving them custody of the child.2 And, the

record reflects that Defendants have never specifically argued

that they had lawful custody. Rather than seeking custody

through state courts, they just took the minor child.

        We conclude that this case is just a tort suit for money

damages.       The suit does not fit our domestic-relations-

exception precedents. And we are not inclined to extend that

exception to include these circumstances. Because abstention

    2
     During oral argument, Defendants’ lawyer stated that a
guardianship/entrustment agreement had been signed by
Lindgren before her death (transferring guardianship of S.P.S.
to her sister). The lawyer said that he was not addressing the
“legal efficacy” of this agreement on appeal.
                                 9
was inappropriate,3 we now address whether, under Florida law,

a cause of action exists for the alleged tort.




B.       Which State Law to Apply/the Rule 59 Motion.



         On appeal, Plaintiffs claim that a cause of action exists

under both Virginia and Florida law. The Complaint alleged

tortious acts within Florida. After the Complaint had already

been dismissed, Plaintiffs contended in their Rule 59 motion

that, because the action accrued in Virginia, Virginia law should


     3
   Abstention was also incorrect because the court abstained
and then decided the case on its merits. If a court states that
abstention is appropriate in a case, it should not then
adjudicate the case on its merits by granting a Rule 12(b)(6)
motion. The order of dismissal here defeats the purpose of the
abstention doctrine, which is to abstain from reaching the
merits of certain claims. See O’Hair v. White, 675 F.2d 680, 692-
93 (5th Cir. 1982); Barrett v. Atlantic Richfield Co., 444 F.2d 38,
40 (5th Cir. 1971).
                                  10
apply. Plaintiffs also state that, even if Florida law applies, both

Virginia and Florida are common law states and recognize the

common law claims of the father and minor child.

     Because this case is brought into federal court based on

diversity of the citizenship of the parties, the substantive law of

the forum must be applied (including its rules applicable to

choice-of-law problems). LaFarge Corp. v. Travelers Indem.

Co., 118 F.3d 1511, 1515 (11th Cir. 1997). Under Florida law,

courts are required to take judicial notice of the common law

and statutes of all sister states, however, “such judicial notice

can only be taken after one party has raised the issue of foreign

law through pleadings, thereby providing the other party with

reasonable notice.” Schubot v. Schubot, 363 So.2d 841, 842

(Fla. Dist. Ct. App. 1978). Foreign law is a fact to be pleaded

and proved; and when the contrary is not alleged, the law of the

sister state will be assumed to be the same as Florida law.

Collins v. Collins, 36 So.2d 417, 417 (Fla. 1948).

                                 11
    The First Amended Complaint (the complaint which was

the subject of the district court’s dismissal) alleges the

following:

    At times material . . . [Defendant Masterson] . . . committed
    tortious acts or engaged in activity within the State of
    Florida . . . which is the basis of the cause of action herein.
                                ....
    At all times material . . . [Defendant Green] committed
    tortious acts . . . within the State of Florida . . . [with
    Defendants Wall and/or Masterson], who were present in
    Dade County, Florida . . . which is the basis of the cause of
    action herein.

    Although the Complaint specifically alleged tortious acts

in Florida, Plaintiffs mentioned Virginia in the following

statements: (1) Plaintiff Stone and Lindgren were divorced in

Virginia; (2) Plaintiff Stone had custody rights to S.P.S. under

Virginia law; (3) Lindgren lived in Virginia; and (4) S.P.S. was

taken from Virginia to Colorado. At no point, however, did the

Complaint allege that Virginia law is the applicable law, or set

out what Virginia law is, or hint that Virginia law is different

from Florida law in some material respect.

                               12
     When deciding whether to dismiss the Complaint, the

district court -- given the pleadings then before it -- did not err

in concluding that it would judge the Complaint under Florida

law. And it was no abuse of discretion for the district court

later to deny the Rule 59(e) motion after the case’s dismissal.

The Rule 59 motion claimed, among other things, that the

choice of law to be applied to this cause of action was Virginia

law. But, as far as the record shows, possible application of

Virginia law was not specifically raised until the Rule 59 motion

was filed. At all pertinent times before the order of dismissal,

the district court was asked to look at Florida law. Therefore,

when it was time to raise a dispute about choice of laws, there

seems to have been no controversy about what state’s law

applied: Florida law. The purpose of a Rule 59(e) motion is not

to raise an argument that was previously available, but not

pressed. So, the question properly presented to the district




                                13
court, and now to us, is whether a cause of action exists under

Florida law.



C.   Existence of a Claim Under Florida Law.



     The test for sufficiency of the complaint was set out by the

Supreme Court in Conley v. Gibson:

     In appraising the sufficiency of the complaint we
     follow . . . the accepted rule that a complaint should
     not be dismissed for failure to state a claim unless it
     appears beyond doubt that the plaintiff can prove no
     set of facts in support of his claim which would entitle
     him to relief.

355 U.S. 41, 45-46 (1957). We review a district court's grant of

a motion to dismiss under Rule 12(b)(6) de novo. McKusick v.

City of Melbourne, Fla., 96 F.3d 478, 482 (11th Cir. 1996). In

doing so, we view the facts in the light most favorable for the

plaintiffs-appellants. Welch v. Laney, 57 F.3d 1004, 1008 (11th

Cir. 1995).



                               14
    Plaintiffs claim that this case presents an issue of first

impression and that their cause of action is based on the

common law action for interference with a parent/child

relationship or abduction. They rely on two cases and the

Restatement of Torts, Second, § 700 to establish this claim; see

Pickle v. Page, 169 N.E. 650 (N.Y. 1930); Armstrong v.

McDonald, 103 So.2d 818 (Ala. Ct. App. 1958).

    No Supreme Court of Florida decision squarely addresses

whether a cause of action exists in the circumstances

presented by this case. So, we certify the following question to

the Supreme Court of Florida for resolution:4


     4
       We are aware that Defendants objected to personal
jurisdiction and venue. And, these defenses were not
addressed by the district court. But, we have looked at the
record and are comfortable that for at least one Defendant,
Georgene Wall -- a Florida resident -- personal jurisdiction and
venue are appropriate. So, the question of whether the
Complaint states a claim should be outcome-determinative, at
least for this Defendant. Jurisdiction may also be proper for the
other Defendants. See Wilcox v. Stout, 637 So.2d 335, 336-37
(Fla. Dist. Ct. App. 1994) (if any member of a conspiracy
commits tortious act within state in furtherance of conspiracy,
                               15
    WHETHER A CAUSE OF ACTION EXISTS FOR
    INTERFERENCE WITH THE PARENT/CHILD
    RELATIONSHIP WHERE A THIRD PARTY (THAT IS, A
    NONPARENT WHO HAS NO CUSTODY RIGHTS OVER
    THAT CHILD) INTENTIONALLY ABDUCTS A MINOR CHILD
    FROM A PARENT LEGALLY ENTITLED TO THE CHILD’S
    CUSTODY.

    Our phrasing of this question is intended in no way to limit

the Supreme Court of Florida in its inquiry and consideration of

the various problems and issues posed by the entire case as

the Supreme Court perceives them to be.           To assist its

determination, the entire record and the briefs of the parties

shall be transmitted to the Supreme Court of Florida.

    QUESTION CERTIFIED.




then all conspirators are subject to jurisdiction); United States
v. Schlei, 122 F.3d 944, 975 (11th Cir. 1997) (conspiracy may be
prosecuted in the district where an overt act was committed --
overt act need not be a crime). Thus, we feel justified in asking
our colleagues on the Florida Supreme Court to consider
advising us now on this question of Florida law.
                               16
