Unpublished Disposition, 934 F.2d 324 (9th Cir. 1989)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1989)

Gary KINNEY, Sharon Kinney, Andrea Bodell, by and throughher Guardian ad Litem, Mary Bodell, Mary Bodell,Plaintiffs-Appellants,v.CITY OF SIMI VALLEY, a political subdivision of the State ofCalifornia, the County of Ventura, a political subdivisionof the State of California, Steve Phillips, D.A.Investigator Baily, Officer Klamser, Officer Galloway,Steven Land and Does 1 through XX, inclusive, Defendants-Appellees.

No. 89-56241.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 11, 1990.*Decided May 31, 1991.

Before POOLE, CANBY and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Plaintiffs Sharon Kinney, and Gary and Mary and Andrea Bodell, appeal the district court's dismissal of this action pursuant to the doctrine of equitable abstention as to the county and municipal defendants, and for lack of personal jurisdiction over the individual defendant, Steven Land. We affirm the dismissal as to the county and municipal defendants, and reverse the dismissal as to defendant Land.

BACKGROUND

The Kinneys and Land are embroiled in a dispute over custody of Michelle Land, natural daughter of Land and Sharon Kinney. Pursuant to a Maine judgment of divorce, Land had been granted sole legal and physical custody of Michelle. Despite that judgment, Sharon Kinney removed Michelle to California. Upon ascertaining Michelle's whereabouts in the City of Simi Valley, California, Land arranged with the Ventura County District Attorney for the return of Michelle. According to the Kinneys' complaint, that return was effectuated without any legal authority and with excessive force (including the temporary abduction of an unrelated minor, also a plaintiff in this action).

The Kinneys filed this action, pursuant to 42 U.S.C. § 1983, alleging, inter alia, that the actions of the various defendants deprived them of the care, joy, support, custody and management of their child in violation of the first and fourteenth amendment rights. They also allege that the official defendants entered their residence unreasonably and without due process of law, that in so doing the officials unlawfully restrained them and unlawfully used force and violence against them, and that the officials unlawfully seized and imprisoned the unrelated minor, Andrea Bodell.

The district court, "on the basis of the doctrine of equitable abstention," granted the official defendants' motion for dismissal pursuant to Fed. R. Civ. P. 12(b) (6). The district court later dismissed the action against Land for lack of personal jurisdiction. This appeal followed.

DISCUSSION

The Kinneys argue that the district court clearly had subject matter jurisdiction over their action. It is true that the "domestic relations" exception to federal jurisdiction is a narrow one, essentially precluding the federal courts from decreeing divorces or annulments or awarding the custody of children. Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982). There is, however, a broader class of cases involving domestic relations where the federal court has jurisdiction but may choose to abstain from exercising it. Those cases are ones "where domestic relations problems are involved tangentially to other issues determinative of the case." Id. Accord, Bossom v. Bossom, 551 F.2d 474, 475 (2d Cir. 1976) (federal courts may decline to exercise jurisdiction over matters "on the verge" of the domestic relations exception if the interests of justice would be served by state court resolution) (cited favorably in Csibi, supra).

"Equitable abstention involves the discretionary exercise of a court's equity powers, [and] is reviewed only for an abuse of discretion." Stock West v. Confederated Tribes, 873 F.2d 1221, 1229 (9th Cir. 1989). Here, the district court was well within its discretion in choosing to abstain from deciding a dispute which was at its core, a custody dispute. The district court could fairly have concluded that "the interests of justice" would be served by requiring this dispute to be adjudicated in state court. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1975) ("Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import ... It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.")

California, like many states, is grappling with the problems that ensue from custody disputes where parents evade or defy the judgments of its (or a foreign state's) family courts. California has enacted legislation dealing with parental child abduction (Calif. Penal Code Sec. 278) and the authority of its law enforcement and other officials--including District Attorneys--to intervene in such situations. See, e.g. Calif. Civil Code Sec. 4604. This action presents those very issues--the authority and procedures required and permitted under California law. The resolution of this action would necessarily embroil the federal court in matters of paramount state concern and expertise. As we recently held:

The strong state interest in domestic relation matters, the superior competency of state courts in settling family disputes because regulation and supervision of domestic relations within their borders is entrusted to the states, and the possibility of incompatible federal and state court decrees in cases of continuing judicial supervision by the state, makes federal abstention in these cases appropriate.

Coats v. Woods, 819 F.2d 236, 237 (9th Cir.), cert. denied, 484 U.S. 802 (1987),

This action, essentially, makes two claims: that the taking of Michelle violated the Kinneys' federally protected rights; and that the manner in which Michelle was taken (and Andrea Bodell restrained) violated other federally protected rights. Resolution of each of those claims falls well within the area of permissible abstention described by Coats.

As to whether the taking of Michelle violated the Kinneys' rights, the complaint charges that the defendants "violat [ed] [the Kinneys'] custodial and familial interests and unlawfully deprived the Kinneys of the "care, joy, support, custody and management of Michelle." Complaint, p 35. For relief, the Kinneys ask the court to "issue a preliminary injunction directing defendants to return Michelle Land to the custody of the plaintiffs," Complaint, p 4(a), and to "issue a permanent injunction mandating that defendants return Michelle Land in accordance with paragraph 4(a) above." Id., at 4(c).

This aspect of the Kinneys' claim calls for abstention, not only because of "the strong state interest in domestic relation matters, [and] the superior competency of state courts in settling family disputes," Coats, 819 F.2d at 237, but also because of "the possibility of incompatible federal and state court decrees," Id. In the latter regard, Maine has already issued a judgment granting custody to Steven Land, and, simultaneous to this action, the Kinneys are pursuing, in the courts of Maine, a modification of that custody order. These simultaneous actions present a serious risk of inconsistent judgments, and invite an intrusion by the federal court into areas of well-established state concern.

The aspect of the Kinneys' claim which challenges the manner in which Michelle was taken also qualifies for equitable abstention.2  Whether the defendants lawfully or unlawfully abducted Michelle Land primarily requires interpretation and application of California law on the scope of official powers in this kind of situation. One California statute, for example, provides:

In any case where a custody or visitation decree has been entered by a court of competent jurisdiction and the child is taken or detained by another person in violation of the decree, the district attorney shall take all actions necessary to locate and return the child, and the person who violated the decree and the child, and to assist in the enforcement of the custody or visitation decree ...

Calif. Civil Code, section 4606(b).

We therefore affirm the district court's exercise of equitable abstention.3  In light of that disposition we need not address the various immunities asserted by the defendants.

On October 6, 1989, the district court dismissed the Kinneys' action against Steven Land for lack of personal jurisdiction. Shortly before that time, both the Kinneys and Land were of the view that the district court's June 30, 1989 dismissal on equitable abstention grounds disposed of the case as to Land. Indeed, Land agreed that "his motion [was] moot and should be taken off calendar." ER at 187. Their view was in error.

The district court's June 30th dismissal on equitable abstention grounds specifically named as its beneficiaries those who had brought that motion and Land was not one of them. The district court clearly--and correctly--thought the case was alive as to Land. Indeed, the failure of the district court to dismiss against all defendants on June 30th prompted this court to dismiss the Kinney's first appeal (No. 89-55807) for lack of a final judgment.

On the merits of Land's motion to dismiss, however, the district court erred. In coming to California and asking California authorities to retrieve his daughter pursuant to their Californian statutory authority, Land purposely availed himself of the benefits and protections of California law. This case arises out of those forum-related activities, and it is reasonable to expect Land to respond to this lawsuit in California. Thus, the district court had personal jurisdiction over Land. FDIC v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir. 1987). On remand, of course, the district court will be free to address the question of equitable abstention as to Mr. Land.

Conclusion

The district court's dismissal on equitable abstention grounds as to the county and municipal defendants is AFFIRMED. The district court's dismissal of the complaint against Land for lack of personal jurisdiction is REVERSED and remanded.

The county and municipal defendants are entitled to costs. As between the Kinneys and Land, each party will bear its own costs.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

A threshold issue relates to the procedural posture of the district court's dismissal. The defendants moved for dismissal pursuant to Rule 12(b) (6). If material outside the pleadings is accepted and considered by the district court, then it must convert the motion to one for summary judgment. Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th Cir. 1982) cert. denied, 487 U.S. 1251 (1984)

Here, the moving parties submitted supporting declarations, and exhibits bringing into evidence material extraneous to the Kinneys' complaint. It is further evident that the district court relied on that extraneous matter in dismissing the case, since the Order Granting Motion to Dismiss was explicitly entered "after having considered the memoranda of the parties, the exhibits, declarations and affidavits submitted by the parties." We therefore, treat the district court's order as being a grant of summary judgment. See Quang Van Han v. Bowen, 882 F.2d 1453, 1455 (9th Cir. 1989).

 2

The Bodells' claims, arising out of the temporary seizure of Andrea Bodell, approaches the point at which equitable discretion becomes inappropriate. Nevertheless, we decline to find that discretion was abused here. Whether these officials, in restraining an innocent bystander, violated their authority under California law is still a question more properly resolved by California courts, especially because the bulk of this litigation between the Kinneys and the appellants here must be tried before California courts. The extent of the officials' emergency authority to restrain a bystander, and the reasonableness of that restraint, may depend in part on the scope of their underlying authority to effect the seizure of Michelle Kinney, and the reasonableness of its exercise

 3

The abuse of discretion standard by which we review the district court here obviates the need for us to determine whether Coats is more on point with the present case than the arguably contrary case of McIntyre v. McIntyre, 771 F.2d 1316 (9th Cir. 1985). A brief examination of those cases reveals that reliance on the later Coats would not be "an erroneous conclusion of law," and, hence, an abuse of discretion. Hunt v. National Broadcasting Co. Inc., 872 F.2d 289, 292 (9th Cir. 1989)