                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 96-4884.

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

                                                  v.

          Georgene WALL, Gina Wall Masterson, Brock Green, Defendants-Appellees.

                                           March 2, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-2588-CV-
SM), Stanley Marcus, Judge.

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

       PER CURIAM:

       Plaintiffs-Appellants appeal from the district court's order of dismissal and from the district

court's denial of Plaintiffs' motion to vacate, alter, or amend the order of dismissal. Because the

district court erred in abstaining in this case, we are inclined to vacate and remand. But, because

uncertainty exists about whether a cause of action exists under state law, we certify a question to the

Florida Supreme Court.

                                                  I.

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

diversity action against Defendants Georgene Wall, Gina Wall Masterson, and Brock Green seeking

to recover damages, costs, and attorneys' fees in connection with Stone's recovery of custody of the

minor child S.P.S.

       Plaintiffs are residents of Mississippi. Stone is the parent and natural guardian of S.P.S., his


   *
    Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by
designation.
minor daughter. He was formerly married to the mother of S.P.S., Gwen Lindgren. Defendant

Green is a resident of Virginia and is an attorney for Wall and Masterson. Wall is a resident of

Florida and is the mother of Lindgren (grandmother of S.P.S.). Masterson is a resident of Colorado

and is Wall's daughter (aunt of S.P.S.).

       In 1987 Stone and Lindgren were divorced in Virginia. In 1994, Stone exercised his

visitation rights with S.P.S. at his home in Mississippi. Stone says that he then was informed by his

ex-wife, Lindgren, that she had been diagnosed with brain cancer and was not expected to live more

than six months. At Lindgren's request, Stone allowed the child to return to Virginia and to stay

with Lindgren, for Lindgren's final days. Plaintiffs further allege that, when Stone returned with

S.P.S. to Virginia, Wall asked about Stone's plans for the custody of S.P.S. upon the death of

Lindgren. Wall said that she desired that custody of the child be given to Masterson. Stone

informed Wall that he would take full custody of S.P.S. and live in Mississippi.

       Plaintiffs allege that Defendants Green, Wall, and Masterson acted with intent to interfere

with Stone's custody of S.P.S. In addition, Defendants conspired, in Florida, to remove S.P.S. from

Virginia to Colorado without the consent of Stone, who was the parent and natural guardian of

S.P.S. According to the Complaint, Defendants (1) removed the child from Virginia before the death

of her mother; (2) refused to respond to Stone's inquiries about the whereabouts of his child; (3)

executed a guardianship/entrustment agreement without the knowledge and consent of Stone; (4)

concealed the guardianship agreement from Stone; (5) continued to conceal the child, who Stone

located only by his own efforts; and (6) refused to return the child to Stone despite repeated requests

and despite Stone's status as the natural guardian legally entitled to custody of the child.1


   1
    Stone hired a private detective to determine S.P.S.'s location; and then he took physical
custody of his child with the knowledge of the Federal Bureau of Investigation, the
Commonwealth Attorney in Virginia, and the Cherry Hills, Colorado Police Department.
        The district court concluded that Plaintiffs failed to state a claim (under Fed. R. Civ. Proc.

12[b][6]) and that, even if a claim were stated, other grounds warranted abstention from the exercise

of diversity jurisdiction. Plaintiffs filed a motion to vacate, alter, or amend the order of dismissal;

the motion was denied.

                                                   II.

A. Diversity Jurisdiction and Abstention.

        The Supreme Court in Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d

468 (1992), reaffirmed the "domestic relations exception" to exercising diversity jurisdiction and

noted that this exception "divests the federal courts of power to issue divorce, alimony, and child

custody decrees." 504 U.S. at 703, 112 S.Ct. at 2215. In addition, the Court wrote that even when

subject-matter jurisdiction might be proper, sufficient grounds may exist to warrant a court's

abstention from the exercise of jurisdiction. Id. at 704, 112 S.Ct. at 2215. The Court suggested that

abstention in family-law disputes might be appropriate when "the suit depended on a determination

of the status of the parties." Id. at 706, 112 S.Ct. at 2216. But, according to the Court, "[i]t is

axiomatic ... that abstention from the exercise of federal jurisdiction is the exception, not the rule....

Abstention rarely should be invoked, because the federal courts have a virtually unflagging

obligation ... to exercise the jurisdiction given them." Id. at 705, 112 S.Ct. at 2215 (internal

quotations and citations omitted).

        Plaintiffs claim that this lawsuit does not seek a decree within the Ankenbrandt exception,

but merely charges Defendants with a tort. Also, Plaintiffs stress that they do not have (and have

never had) a marital or parental relationship with Defendants and contend that this case involves no

complicated examination of custody law. In addition, Plaintiffs point out that the abstention issue

was not raised by the Defendants, but by the district court.
        We reverse a district court's decision to abstain when there is an abuse of discretion. Rindley

v. Gallagher, 929 F.2d 1552, 1554 (11th Cir.1991). We have previously considered the domestic

relations exception in Ingram v. Hayes, 866 F.2d 368 (11th Cir.1988), where we wrote that courts

should not abstain when the following factors are absent: (1) strong state interest in domestic

relations; (2) competency of state courts in settling family disputes; (3) the possibility of

incompatible federal and state decrees in cases of continuing judicial supervision by the state; and

(4) the problem of congested federal court dockets. 866 F.2d at 370. We pointed out that the main

point was whether the litigation would mandate an inquiry into the "marital or parent-child

relationship." Id.

       In considering this case, the district court acknowledged that Plaintiffs did not fall squarely

within the domestic relations exception, but found that—because the resolution of Plaintiffs' claim

for damages would require an examination of the facts and circumstances of the domestic relations

between the parties—a sufficient basis for abstention existed. Also, the district court stressed that,

even if Plaintiffs could state a claim, abstention would be appropriate because of (1) the need to

address custody issues; (2) the federal judiciary's lack of experience in this legal area; and (3) the

disruption to the balancing of state policy with respect to custody law.

         The exception enunciated in Ingram is to be read narrowly and does not—at least,

ordinarily—include third parties in its scope. This case does not involve inquiry into the existence

of a disputed parent-child relationship; nor is it a dispute between parents over a child. Here a

grandmother, aunt, and their lawyer allegedly conspired to abduct, and then abducted, a minor child

who had identifiable natural parents. Defendants seemingly had no legal claim of custody
whatsoever: they had no court decree giving them custody of the child.2 And, the record reflects

that Defendants have never specifically argued that they had lawful custody. Rather than seeking

custody through state courts, they just took the minor child.

        We conclude that this case is just a tort suit for money damages. The suit does not fit our

domestic-relations-exception precedents. And we are not inclined to extend that exception to

include these circumstances. Because abstention was inappropriate,3 we now address whether, under

Florida law, a cause of action exists for the alleged tort.

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

        On appeal, Plaintiffs claim that a cause of action exists under both Virginia and Florida law.

The Complaint alleged tortious acts within Florida. After the Complaint had already been

dismissed, Plaintiffs contended in their Rule 59 motion that, because the action accrued in Virginia,

Virginia law should apply. Plaintiffs also state that, even if Florida law applies, both Virginia and

Florida are common law states and recognize the common law claims of the father and minor child.

        Because this case is brought into federal court based on diversity of the citizenship of the

parties, the substantive law of the forum must be applied (including its rules applicable to

choice-of-law problems). LaFarge Corp. v. Travelers Indem. Co., 118 F.3d 1511, 1515 (11th

Cir.1997). Under Florida law, courts are required to take judicial notice of the common law and



   2
   During oral argument, Defendants' lawyer stated that a guardianship/entrustment agreement
had been signed by Lindgren before her death (transferring guardianship of S.P.S. to her sister).
The lawyer said that he was not addressing the "legal efficacy" of this agreement on appeal.
   3
    Abstention was also incorrect because the court abstained and then decided the case on its
merits. If a court states that abstention is appropriate in a case, it should not then adjudicate the
case on its merits by granting a Rule 12(b)(6) motion. The order of dismissal here defeats the
purpose of the abstention doctrine, which is to abstain from reaching the merits of certain claims.
See O'Hair v. White, 675 F.2d 680, 692-93 (5th Cir.1982); Barrett v. Atlantic Richfield Co., 444
F.2d 38, 40 (5th Cir.1971).
statutes of all sister states, however, "such judicial notice can only be taken after one party has raised

the issue of foreign law through pleadings, thereby providing the other party with reasonable notice."

Schubot v. Schubot, 363 So.2d 841, 842 (Fla.Dist.Ct.App.1978). Foreign law is a fact to be pleaded

and proved; and when the contrary is not alleged, the law of the sister state will be assumed to be

the same as Florida law. Collins v. Collins, 160 Fla. 732, 36 So.2d 417, 417 (1948).

        The First Amended Complaint (the complaint which was the subject of the district court's

dismissal) alleges the following:

        At times material ... [Defendant Masterson] ... committed tortious acts or engaged in activity
        within the State of Florida ... which is the basis of the cause of action herein.

                                                   ....

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

        Although the Complaint specifically alleged tortious acts in Florida, Plaintiffs mentioned

Virginia in the following statements: (1) Plaintiff Stone and Lindgren were divorced in Virginia;

(2) Plaintiff Stone had custody rights to S.P.S. under Virginia law; (3) Lindgren lived in Virginia;

and (4) S.P.S. was taken from Virginia to Colorado. At no point, however, did the Complaint allege

that Virginia law is the applicable law, or set out what Virginia law is, or hint that Virginia law is

different from Florida law in some material respect.

        When deciding whether to dismiss the Complaint, the district court—given the pleadings

then before it—did not err in concluding that it would judge the Complaint under Florida law. And

it was no abuse of discretion for the district court later to deny the Rule 59(e) motion after the case's

dismissal. The Rule 59 motion claimed, among other things, that the choice of law to be applied to

this cause of action was Virginia law. But, as far as the record shows, possible application of

Virginia law was not specifically raised until the Rule 59 motion was filed. At all pertinent times
before the order of dismissal, the district court was asked to look at Florida law. Therefore, when

it was time to raise a dispute about choice of laws, there seems to have been no controversy about

what state's law applied: Florida law. The purpose of a Rule 59(e) motion is not to raise an

argument that was previously available, but not pressed. So, the question properly presented to the

district court, and now to us, is whether a cause of action exists under Florida law.

C. Existence of a Claim Under Florida Law.

          The test for sufficiency of the complaint was set out by the Supreme Court in Conley v.

Gibson:

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

355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). We review a district court's grant of

a motion to dismiss under Rule 12(b)(6) de novo. McKusick v. City of Melbourne, Fla., 96 F.3d 478,

482 (11th Cir.1996).      In doing so, we view the facts in the light most favorable for the

plaintiffs-appellants. Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir.1995).

          Plaintiffs claim that this case presents an issue of first impression and that their cause of

action is based on the common law action for interference with a parent/child relationship or

abduction. They rely on two cases and the Restatement of Torts, Second, § 700 to establish this

claim; see Pickle v. Page, 252 N.Y. 474, 169 N.E. 650 (1930); Armstrong v. McDonald, 39

Ala.App. 485, 103 So.2d 818 (1958).

       No Supreme Court of Florida decision squarely addresses whether a cause of action exists

in the circumstances presented by this case. So, we certify the following question to the Supreme
Court of Florida for resolution:4

       WHETHER A CAUSE OF ACTION EXISTS FOR INTERFERENCE WITH THE
       PARENT/CHILD RELATIONSHIP WHERE A THIRD PARTY (THAT IS, A
       NONPARENT WHO HAS NO CUSTODY RIGHTS OVER THAT CHILD)
       INTENTIONALLY ABDUCTS A MINOR CHILD FROM A PARENT LEGALLY
       ENTITLED TO THE CHILD'S CUSTODY.

       Our phrasing of this question is intended in no way to limit the Supreme Court of Florida in

its inquiry and consideration of the various problems and issues posed by the entire case as the

Supreme Court perceives them to be. To assist its determination, the entire record and the briefs of

the parties shall be transmitted to the Supreme Court of Florida.

       QUESTION CERTIFIED.




   4
    We are aware that Defendants objected to personal jurisdiction and venue. And, these
defenses were not addressed by the district court. But, we have looked at the record and are
comfortable that for at least one Defendant, Georgene Wall—a Florida resident—personal
jurisdiction and venue are appropriate. So, the question of whether the Complaint states a claim
should be outcome-determinative, at least for this Defendant. Jurisdiction may also be proper for
the other Defendants. See Wilcox v. Stout, 637 So.2d 335, 336-37 (Fla.Dist.Ct.App.1994) (if any
member of a conspiracy commits tortious act within state in furtherance of conspiracy, then all
conspirators are subject to jurisdiction); United States v. Schlei, 122 F.3d 944, 975 (11th
Cir.1997) (conspiracy may be prosecuted in the district where an overt act was
committed—overt act need not be a crime). Thus, we feel justified in asking our colleagues on
the Florida Supreme Court to consider advising us now on this question of Florida law.
