Brandtscheit v. Britton

• Decision Date: 24 March 1965
• Docket Number: Civ. No. 42547.
• Citation: 239 F. Supp. 652
• Court: U.S. District Court — Northern District of California
• Parties: Michaela BRANDTSCHEIT, a Minor, etc., Plaintiff, v. Harold W. BRITTON, Defendant.

239 F. Supp. 652

Michaela BRANDTSCHEIT, a Minor, etc., Plaintiff, v. Harold W. BRITTON, Defendant.

Civ. No. 42547.

United States District Court N. D. California, S. D.

March 24, 1965.

Henry M. Jonas, San Francisco, Cal., for plaintiff.

Severson, Zang, Werson, Berke & Larson, San Francisco, Cal., Kurt W. Melchior, San Francisco, Cal., appearing, for defendant.

WOLLENBERG, District Judge.

This is an action to establish paternity and to provide support for an illegitimate minor child. Plaintiff is a citizen of the Federal Republic of Germany and defendant is a citizen of the United States and of the State of California. It is claimed that the amount in controversy exceeds $10,000 and for purposes of deciding this motion such contention will be conceded. Defendant moves to dismiss on the ground this Court lacks subject matter jurisdiction.

This is a diversity action though plaintiff argues there is also federal jurisdiction by virtue of the Treaty of Friendship between the Federal Republic of Germany and the United States which became effective July 14, 1956. Nothing in the Treaty, however, confers subject matter jurisdiction on the federal courts. At most Paragraph 7 of the Protocol¹ grants the right to German citizens to file suits in forma pauperis in federal courts. This right is not any greater than the right accorded United States citizens.² Consequently, the subject matter jurisdiction of this Court must be determined by standards normally applied to diversity actions.

The general rule in diversity cases is that federal courts do not have jurisdiction in "domestic relations" cases. 1 Barron & Holtzoff (Wright ed.), § 40.1. This is a judge made rule based on a dictum in an early Supreme Court case, Barber v. Barber, 21 How. 582, 584, 16 L.Ed. 226 (1858), and on a later sweeping statement in Ex Parte Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890) that "the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States."

The rule is not absolute or conclusive because there is no direct Supreme Court holding and no clear cut definition of "domestic relations." In several border line cases federal courts have accepted jurisdiction where there was compelling reason to do so and it could reasonably be argued that the action was not simply a "domestic relations" case. Daily v. Parker, 152 F.2d 174, 162 A.L.R. 819 (7th Cir., 1945) (suit by children against their father's paramour for alienation of affections and enticement from home treated as tort); Abdul-Rahman Omar Adra v. Clift, D.C., 195 F.Supp. 857 (1961) (suit for child custody by foreigner treated as tort action since foreign law so regarded it).³ On the other hand, at least one circuit has clearly held that there is no federal jurisdiction in support actions between an illegitimate child and its putative father. Albanese v. Richter, 161 F.2d 688 (3rd Cir., 1947).

It has been suggested that a distinction should be made between cases involving "status" and those involving "property rights" with the federal courts accepting jurisdiction only of the latter. Vestal and Foster, Implied Limitations on the Diversity Jurisdiction of Federal Courts, 41 Minn. L.R. 1, 31. The difficulty is that many cases involve both. Moreover, there is no persuasive reason why jurisdiction should be decided by such an arbitrary formula. Much more persuasive is reasoning based on sound policy considerations in the light of the circumstances within which litigants find themselves. The reasoning of Judge Thomsen in Abdul-Rahman Omar Adra v. Clift, supra, 195 F.Supp. at 865, is instructive:

"The federal courts have generally declined jurisdiction in cases involving domestic relations. * * * State courts have undoubted competence and wide experience in dealing with such cases * * *. On the other hand, this case involves, among other questions, those of nationality and entry into the United States, with which federal courts are familiar. Plaintiff is a citizen of a friendly nation, with which the United States has long had cultural contacts. An alien, understandably though unjustifiably, may prefer to bring an action for a tort in a federal court rather than in a local court, and Congress has authorized him to do so in this limited class of cases. 28 U.S.C. § 1350. The importance of foreign relations to our country today cautions federal courts to give weight to such considerations and not to decline jurisdiction given by an Act of Congress unless required to do so by dominant considerations." (Emphasis supplied.)

In the present case plaintiff is a citizen of a nation with which it is of the utmost importance that friendly relations be maintained. By treaty the United States has indicated a desire to open its courts to afford redress to citizens of plaintiff's nation when they have claims against United States citizens. To deny plaintiff the opportunity to obtain redress on the ground that federal judges have traditionally declined to hear certain types of cases would not only raise understandable suspicions concerning American justice but would clearly not be in the national interest.⁴

The central question then is whether plaintiff will be denied an opportunity to seek legal redress if the federal courts decline jurisdiction. Availability of a state remedy is of course crucial in determining this question. Plaintiff concedes that she can file an action in the courts of California. However, she claims that the expense would be prohibitive. Not only would she be practically barred from bringing suit but she argues that if the federal courts refuse to take jurisdiction "in these cases, hundreds, if not thousands of children that have been procreated by members of the Army of occupation...