Minot v. Eckardt-Minot

• Decision Date: 07 January 1994
• Docket Number: ECKARDT-MINO,No. 563,D,563
• Parties: Jeffrey R. MINOT, and Jeffrey R. Minot, as the Parent and Custodian of Stephen Rafael Minot, Plaintiff-Appellee, v. Astridefendant-Appellant. ocket 93-7393.
• Court: U.S. Court of Appeals — Second Circuit

Page 590

13 F.3d 590

Jeffrey R. MINOT, and Jeffrey R. Minot, as the Parent and Custodian of Stephen Rafael Minot, Plaintiff-Appellee, v. Astrid ECKARDT-MINOT, Defendant-Appellant.

No. 563, Docket 93-7393.

United States Court of Appeals, Second Circuit.

Argued Nov. 10, 1993.

Decided Jan. 7, 1994.

Cynthia Knox, New York City (Stuart R. Wolk, Wolk, Neuman & Maziarz, New York City), for defendant-appellant.

Charles W. Gerdts, III, New York City (Diana L. Weiss, Donovan Leisure Newton & Irvine, New York City), for plaintiff-appellee.

Before: NEWMAN, Chief Judge, CARDAMONE and GOODWIN, ^* Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal concerns the propriety of abstention in the context of a diversity tort suit implicating state domestic relations law. This issue arises on the appeal of defendant-appellant Astrid Eckardt-Minot from the April 19, 1993, judgment of the District Court for the Southern District of New York (Michael B. Mukasey, Judge) remanding the removed action of plaintiff-appellee Jeffrey Minot to New York State Supreme Court. Though we are somewhat troubled by an abstention-based remand in this context, we conclude that the District Court exercised its discretion properly and therefore affirm.

Background

This case vividly demonstrates the unfortunate consequences that often result from a contentious custody battle. In this instance, the sad human drama has spilled into federal court, raising close questions of federal jurisdiction and federal appellate practice along the way.

Eckardt-Minot and Minot were married in 1986, in Heidelberg, West Germany, though they apparently moved to New York soon after. The parties' only child, Stephen Rafael Minot ("Stephen"), was born in New York in 1987. Eckardt-Minot later decided to separate from her husband and return to Germany. After arranging to have her belongings moved from the marital residence, Eckardt-Minot relocated to Germany with Stephen; the parties apparently agreed initially that she would have custody of Stephen. Eckardt-Minot returned to New York with Stephen for visits in November of 1988 and again in February of 1989.

While in New York on the second visit, Eckardt-Minot was served with a New York Supreme Court summons and complaint in an action for divorce, along with a temporary restraining order prohibiting her from leaving New York with Stephen pending a hearing scheduled four days later. Eckardt-Minot immediately returned to Germany with Stephen, and promptly instituted an action for custody of Stephen in the Family Court of Heidelberg. Meanwhile, after conducting hearings without Eckardt-Minot, New York Supreme Court Justice Kristin Booth Glen awarded temporary custody of Stephen to Minot and ordered Eckardt-Minot to discontinue the German custody action and return with the child from Germany. Thereafter, Justice Glen entered a judgment that (1) granted Minot a divorce, (2) concluded that New York had jurisdiction over this custody dispute, (3) awarded permanent custody of Stephen to Minot, and (4) ordered Eckardt-Minot to facilitate Stephen's return to New York.

On the same day that judgment was entered in the New York action, the Family Court of Heidelberg awarded temporary custody of Stephen to Eckardt-Minot, though this decision was later reversed by a German appellate court. The issue of custody was remanded to the Heidelberg Family Court, and according to Eckardt-Minot's counsel, the Family Court has recently again awarded custody to Eckardt-Minot. Meanwhile, Justice Glen had written to Judge Fried of the Heidelberg Family Court requesting that he dismiss Eckardt-Minot's custody action so that a "complete and impartial hearing" could be held in New York Supreme Court.

In April of 1992, Minot commenced the instant action in New York state court seeking damages for Eckardt-Minot's violations of his rights under the New York custody orders. This action, brought personally and on Stephen's behalf, alleges torts of intentional infliction of emotional distress, damage to family relationship, violation of civil rights, and other similar claims. Later in April, Eckardt-Minot's German attorney wrote a letter to Justice Glen, giving his account of the entire case and suggesting that Minot obtained the New York orders through fraud. In this letter, Eckardt-Minot's counsel requested that Justice Glen "review" her judgment, and "take appropriate steps in order to avoid injustice by annulling judgments which were obtained by fraud." Then, in May of 1992, Eckardt-Minot removed this case to the U.S. District Court for the Southern District of New York based on diversity of citizenship, and Minot later moved to remand the case back to state court.

In April of 1993, the District Court granted Minot's remand motion. Relying on Ankenbrandt v. Richards, --- U.S. ----, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992), the District Court held that the "domestic relations exception" to diversity jurisdiction was inapplicable to what was in essence a tort claim, and thus the court had subject matter jurisdiction. Nevertheless, the Court concluded that abstention was appropriate because of the family-law nature of the dispute and because Eckardt-Minot's "motion to reopen the custody case and redefine the domestic relationship is still pending in state court before Justice Glen."

Discussion

1. Proper Mode for Review--Direct Appeal or Mandamus?

We first consider whether we have appellate jurisdiction, notwithstanding Minot's explicit decision not to contest our jurisdiction.

The statute that provides for remands after removals states that, with one exception that is not relevant here, a remand "is not reviewable on appeal or otherwise." 28 U.S.C. Sec. 1447(d) (1988). The Supreme Court has held, however, that the prohibition of appellate review in section 1447(d) applies only to remand orders issued pursuant to section 1447(c), which provides for remand when a case has been removed "improvident[ly] and without jurisdiction." See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1976). Thus, since the District Court invoked abstention doctrines, rather than a jurisdictional defect, to justify its remand, section 1447(d) does not bar appellate review. See Corcoran v. Ardra Insurance Co., 842 F.2d 31, 33-34 (2d Cir.1988); see also Doughty v. Underwriters at Lloyd's, 6 F.3d 856, 860 (1st Cir.1993).

Nevertheless, though some form of appellate review of the District Court's remand decision is permitted, the proper means for doing so is still in question. Eckardt-Minot has appealed from the District Court's remand order. However, this Court's decision in Corcoran might be read to suggest that a petition for mandamus is the only proper means for challenging a remand order in this context. See Corcoran, 842 F.2d at 34-35; see also Pas v. Travelers Insurance Co., 7 F.3d 349, 353 (3d Cir.1993) (citing Corcoran for the proposition that discretionary remands are reviewable only by mandamus). Yet, Corcoran explained that when a district court's remand conclusively determines a collateral question (such as where the merits of a litigation will be resolved), that decision is appealable under the collateral-order doctrine. See Corcoran, 842 F.2d at 35 (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)).

We recently applied the Corcoran decision in Travelers Insurance Co. v. Keeling, 996 F.2d 1485 (2d Cir.1993). We held that a direct appeal was appropriate for review of that portion of a remand order that conclusively determined that the merits of two claims would be decided in state court. See id. at 1489. Thus, the rule in this Circuit is now clearly established: direct appeal is available from a remand order that conclusively determines which forum will decide the merits of a dispute. ¹ Since the remand order in this case conclusively determined that a state court would decide the merits of the underlying dispute, direct appeal of the remand decision is appropriate.

2. Use of Abstention to Remand

Turning to the merits, we first note our general concern with employing abstention doctrines to remand a case properly removed to federal court on the basis of diversity jurisdiction. Though abstention may sometimes justify a remand of a removed case, see, e.g., Corcoran, 842 F.2d at 36-37 (approving abstention based on the principles announced in Burford v. Sun Oil Co., 319 U.S. 315, 334, 63 S.Ct. 1098, 1107, 87 L.Ed. 1424 (1943)), caution is warranted in diversity cases. The possibility of prejudice to out-of-state litigants, which provides whatever diminishing justification for federal diversity jurisdiction remains, suggests that courts should be wary of using judicially-crafted abstention doctrines to deny out-of-state litigants a federal forum that they prefer. See generally Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 31-44, 79 S.Ct. 1070, 1074-81, 3 L.Ed.2d 1058 (1959) (Brennan, J., dissenting); Burford, 319 U.S. at 336-48, 63 S.Ct. at 1108-1114 (Frankfurter, J., dissenting). Further, though the extent of prejudice against out-of-state litigants is often justifiably doubted, "the spectre of local bias ... surfaces with unfortunate frequency" in the context of inter-jurisdictional custody disputes, see DiRuggiero v. Rodgers, 743 F.2d 1009, 1019 (3d Cir.1984), especially in a dispute of international dimensions. Moreover, "[i]t is axiomatic ... that 'abstention from the exercise of federal jurisdiction is the exception, not the rule.' ... Abstention should rarely be invoked, because the federal courts have a 'virtually unflagging obligation ... to exercise the jurisdiction given them.' " Ankenbrandt v. Richards, --- U.S. ----, 112 S.Ct. 2206, 2215, 119 L.Ed.2d 468 (1992) (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976)). Thus, the reasons for...