*3 Germany HULL, Judges, though had returned Petitioner Circuit Before COX and early May KRAVITCH, Judge. with the children Senior Circuit animosity Respon- Judge Respon- between Petitioner authorized Giwitz. Once dent physically, increased due Petitioner’s dent obtained the children taking Belgium children for four he did return the children Petitioner Respondent Lops’s months agreed, without consent. and understood Petitioner and Giwitz, only Judge hours earlier. Petitioner May Agree B. On Parties To objected and initiated efforts to contest this Custody Family Share At German parties’ agree- unilateral alteration of the Hearing Judge ment announced before Giwitz. May parties appeared On weeks, Over the next two Petitioner resid- again with counsel children and the before Respondent Lops’s ed with aunt visited Judge proceeding At Giwitz. this “isolated residence, daily children the marital *4 law, custody” hearing under German but never she was allowed to remain alone Judge party each Giwitz heard from and time, During the children. this there interviewed the children. In a letter written attempt was also some at marital reconcilia- court, from Judge Giwitz to the district tion, which failed. soon Judge Giwitz indicated that Petitioner ex- pressed Respondent Lops concerns that 30, 1995, D. May Respondents On Fraudu- through would follow on earlier threats to Passports lently New For Obtain The abduct children them and take Children Judge United States. Giwitz’sletter further Petitioner, Respondents Unbeknownst Respondent Lops dispelled states that these planned to remove the from children Germa- by arguing firmly concerns that he was root- ny, pass- but could because the children’s Germany ed in and had further no connection ports possession. were in Petitioner’s with the United States.1 Respondents district court determined that family As a result the German court misrepresented to officials Consulate proceeding, agreed joint to share Petitioner had abandoned the children and custody, legal retaining pri- with Petitioner thereby passports obtained new for the chil- mary physical custody. Respondent Lops May dren on 1995. The district court rights visitation allowed based on his found, showed, expressly and the evidence Judge assurance to Giwitz that he would that never Petitioner abandoned children return the children to Petitioner. parental custody rights and that she had only by operation of by German law but also agreement parties’ regarding custody agreement before approved and suspension of the children resulted in a of the family judge. German family proceedings. German Judge Gi- approved Respondent Lops’s witz having SO, 1995, May E. Reopens On Petitioner immediately short visitation with the children Custody Proceedings German Fami- following hearing, understanding with the Court, ly Respon- And On June Respondent Lops return the would chil- Lops dent Takes From Children Germa- evening dren that to Petitioner. The Ger- ny Spain To parties’ man court considered the agreement binding announced in as 30, 1995, May day Respon- On the same parties. both dents passports obtained new for the chil- dren, reopened suspended Petitioner cus- May Respondent Lops C. On Vio- tody proceedings Judge before Giwitz. Custody Agreement lates However, on June without Petition- Immediately following May hearing, knowledge er’s consent and violation of Respondent Lops parties’ custody agreement visited with children in Judge Gi- counsel, individual, Judge correspondence partisan 1. Giwitz’s and all man the district orders, English German courts' and their transla- subsequent- court noted that a neutral translator tions, were entered in the at the record evidentia- ly had affirmed that the translations were accu- ry hearing. observing After that the German respects. rate in most were documents translated Petitioner’s Ger- Instead, years. tweniy home for deed Lops took the chil- Respondent witz’s owner, remained its they seller of the home Spain, Germany to dren from the seller held the deed lender June stayed approximately until Respondent Harrington. The deed was to children Respondent Lops and the While Harrington Respondent Harrington, Re- be transferred to Spain, Respondent mother, mortgage payments were at the after all of the remained spondent Lops’s Thus, title to the Rodgau, made. South Carolina Germa- residence former marital seller, ar- apparently remained in home ny. ownership. concealing its true guably Harring- Respondent F. On June found that over the next The district court To The United Takes Children ton years Respondent and one-half two States mother, Harrington, Respondent took his the children re- Respondent significant measures conceal other more Only Germany on June turned Peti- his the children’s whereabouts later, Harrington Respondent took days two example, Respondent Lops For tioner. States, without to the United the children personally checking transact- no account in vio- knowledge or consent and Petitioner’s cash, including only in at times ed business custody rights under German lation of her private school tuition.2 Re- the children’s *5 agreement in custody parties’ law and the $30,000 regis- Lops van spondent drove Judge Giwitz’s Harrington’s Respondent name. tered under earned an annual Despite the fact that he 3, 1995, Family Court July German G. On six-figure foreign exchange bro- income as a Hearing Another Conducts Lops Germany, Respondent in did not ker custody hearing Judge held another Giwitz States, any employment the United obtain Respondent Lops July 1995. Neither on required him disclose which would have fami- revealed to German Instead, nor his counsel security number. he his social mother, Petitioner, court, his Re- ly or independent part-time contrac- worked already Harrington, had taken spondent stepfa- owned his tor with House Rentals States, that Re- or to the United children Lops, ther, Harrington. Respondent Wayne his furniture and Lops packing spondent Harrington’s com- Harrington, and Mr. Mr. United States belongings to leave licenses. any not have real estate pany did only days later. any in- reported Respondent Lops never or state income paid or come 8, 1995, Laps Respondent Joins July H. On during States in the United taxes But In The States Con- United Children short, Lops Respondent no In or 1997. ceals Whereabouts identity.” the district court As “electronic July Respondent Lops left for On findings of fact: aptly noted its Respondent Initially, the United States. credit, no Lops no conventional Mr. stayed Respon- Lops and the children cards, cash transac- engages credit Harrington in her home in Martinez dent utilities; tions; his mother takes pays no Georgia. early August In Augusta, near those; moth- has no lease with his care of Lops the children 1995, Respondent existence---- This is a curious er. by Respondent purchased into a home moved significant income re- Notwithstanding his Georgia’s in North Harrington border across com- duction, Respondent Lops maintained The district court Augusta, Carolina. South by borrowing lifestyle, reportedly curiously fortable “this transaction for described the yet, family; no loans had pur- from friends “peculiar.” purchased house” as living Although any documentation. payment called for a down chase contract years, for over two driving in Carolina Respondent mortgage, but twenty-year and a obtained a South Respondent Lops never an executed Harrington was not receive cash, Harrington Respondent made most tuition court revealed that before the district 2. Evidence payments check. payments in Respondent Lops some made while licence, custody any insur- sole of the children due to her own Carolina driver’s nor did misconduct and that the German court lacked policy Respondent Lops ance as an au- list jurisdiction. the children had lived Since thorized driver of the van. The district birth, Germany parents with their since findings of fact concluded: Judge September rejected Giwitz’s 26 order ... I see Mr. Michael in a situation Respondent Lops’s and deter- contentions continuing position pattern or in a Germany of habitu- mined that deception every if that he and even word al that the court had residence and German says income and his business about his jurisdiction. committing affairs is to be he is believed The district court found that the orders either four or five misdemeanors to main- custody regarding the German courts conceal, pattern tain this and to at least Respondent valid and further showed that himself, any authority. custody rights. had violated Petitioner’s order, Judge September In the Gi- August I. German Court Is- On case, including history witz recited the Unlawfulness,” sues A “Certificate Of parties’ agreement announced before him Request A And Then Petitioner Files May Judge spe- on Giwitz’s order Hague For Return Children Under Of cifically had been the found Petitioner Convention lives, important person in the children’s most Respondent Lops While concealed his developed that the children had well children’s whereabouts South Car- mother, care of their and that Petitioner was olina, proceedings the German court contin- contrast, able to educate the children. Although Respondent Lops ued unabated. behaviors, Respondent Lops’s including his present was never his counsel was. misrepresentations to the court and viola- hearing August After a attend- parties’ agreement, per- tions of the by Respondent Lops’s attorney, ed the Ger- Judge September *6 suaded Giwitz to find his man court issued a “Certificate of Unlawful- Respondent Lops 26 order that was con- more ness.” The “Certificate of Unlawfulness” cerned with his own interests than welfare, and, Respondent children’s Respondent Lops found that had not re- Lops was not able to educate the children following period turned the children properly. Consequently, family the German visitation, “contrary Agreement set- temporary court awarded Petitioner sole cus- presence Family Judge.” in of the tled tody Respondent Lops’s of the children. at- Certificate, In that the German court fur- torney appealed Judge Giwitz’sorder. Respondent Lops ther found that violated custody rights acting Petitioner’s and was 11, 1996, January Appellate K. On German Likewise, unlawfully. court also district Custody Grant To Pe- Affirms Of “Respondents found that removed the chil- titioner country dren from the of their habitual resi- 11, 1996, January appellate On a German custody rights in Pe- dence breach of Judge temporary court affirmed Giwitz’s actually exercising titioner was at the time Petitioner, grant custody holding of sole of removal.” the children’s habitual residence was September In a “Re- Petitioner filed 18, 1996, Germany. January On Petitioner quest for1Return” of the children under the petitioned family court for a final German Hague Convention with the Central Authori- permanent custody. divorce and On October ty Germany. in 7,1996, family pronounced the German court judgment awarding final Petitioner a final Family September German J. On permanent custody divorce and sole of both Temporary Court Awards Petitioner children. Custody Sole The Children Of August Lops Respondent L. Initi- September Judge On Giwitz con- ates Divorce Action In South Carolina custody hearing. Respon- ducted another Lops’s attorney again appeared dent and Despite appellate the German court’s af- firming Judge custody contended that Petitioner should not have Giwitz’s award example, in participating children. For district his counsel’s Petitioner and Respondent proceedings, the German em- found that from 1995 1997 Petitioner in August in action filed a divorce ployed approximately elev- assistance County, Family Aiken South Court of state, national, agencies, en and international Respondent Lops that he claims Carolina. including Interpol, the United States State by mailing upon attempted Petitioner service Department, and Bureau of In- papers to her last known German address (“GBI”). vestigation agencies These respond. Peti- and Petitioner failed (1) Georgia, searched records where Re- receiving Sep- On ever them. tioner denies (2) lives; spondent Virginia, Harrington tember the South Carolina lives; and Respondent where sister pendente pursuant to the entered a lite order York, Respondent Lops’s in New Act Custody Jurisdiction Uniform Child adoptive father lives. Respondent based on the residence of children. The South Carolina court’s drive-by The GBI cheeks at Re- conducted Respondent Lops tempo- sole order awarded Harrington’s spondent The GBI con- home. rary custody pending final the children local cred- tacted school officials checked divorce, hearing “[a]ll other on the and held employment it and tax records. These and visitation, sup- relating property, issues efforts, including the many other concerted abeyance until port divorce itself’ and the initiating Department’s database State hearing on merits. a final agency reports searches such as credit findings of court made no district Service, the Federal Parent Locator happened this actually fact about what memo, August no avail. One dated action, but rather South Carolina divorce Washington” to “Interpol “Interpol Wi- prior court orders considered the German Germany is illustrative of the esbaden” resi controlling as to the habitual valid and agencies’ efforts: children 1995 and to who dence of the custody at the time of the removal time, message: present Begin At the we Indeed, Germany. children from Raymond Lops Michael cannot locate Mr. proceeded to action never Carolina divorce children, Claire, and the two Carmen judgment, the German divorce while Georgia. anywhere in the State of Also, custody action did. the German girls have not been enrolled school two family appellate affirmed the German of them sighting and no has been made Petitioner award of before *7 Martinez, in house their Grandmother’s Lops initiated the South Car Respondent Georgia. have been made Several checks did The district court olina divorce action. Security Social Number [sic] on Mr. priority in to the giving not err German deciding in again final in 1996 but all were court’s orders and in 1995 and custody that Petitioner of the children negative.4 Respondents’ of chil removal the time Additionally, court noted that the district Germany to dren from the United States.3 disputed Respondent evidence there To Locate in De- Harrington M. Petitioner’s Two-Year officials was contacted Efforts Children knowing the where- but denied cember memo, De- A dated abouts the children. Pe- replete record is with evidence of The 12, 1996, from the States United two-year campaign to locate her cember titioner’s responding day answering to the for or otherwise in South Carolina court 3. The divorce action February pend- subsequently stayed February fur- Complaint in 1998.” This will be Also, ing appeal in of the this case. the outcome Carolina divorce indicates that the South ther custody or we locate a final divorce could not proceeded judgment. has not action Carolina court in record. decree Instead, the South order,' dated South Carolina court private in school in children enrolled 4. The regarding January ac- "the states that Carolina, why they could not be which is South pending in for Divorce which is this court tion any public private Geor- or school in located in service, ..., regardless previous Chistiane [sic] gia. the Summons and [was] ... served with January Complaint [T]he 1998---- last on Diplomatic Georgia transferring in and the case Bureau to the tion National Central State, dismissing the Security Department Carolina. Instead of Service of the South case, Georgia court transferred the case as follows: states away neighboring miles few mother, Incidentally, Lops’ who resides Carolina, stating in its order that the South Martinez, Georgia, refuses to admit know- “stipulated pro- to a transfer of [Respondent Lops] chil- ing where and the refiling in ceedings and [sic] verses dismissal I can locate no other dren can be found. authority no the event this Court found to their current whereabouts. trace as exercising Georgia.” Ultimately, officials contacted the District Attorney’s Georgia’s Augusta office in Judi- Circuit, Harrington Respondent cial Family County, B. Court Aiken South Of Attorney’s office
lives. The District received Carolina Superior authorization from the Court Co- Aiken, Family Court of South Car- County, Georgia, in the also located lumbia court”) (the held a olina “South Carolina Circuit, Augusta place wiretap Judicial hearing on but brief November Harrington’s telephone. Respondent the merits determined that it could not hear Through wiretaps, officials ascertained 16,1998. January of the ICARA until Respondent Lops whereabouts of (which Respondents In a later order children, as well as when the children would 2, 1997, but was entered on December Respondent Harrington’s be at home 11, 1997), is dated December the South Car- Georgia. that the children re- olina court directed On November result of the custody temporarily leased from the children, custody requesting of the GBI’s tempo- Georgia placed DFACS County, Superior Georgia of Columbia Court rary Respondent Harrington in custody of directing issued an order law enforcement to passports chil- and that the custody seize the children and surrender dren, Respondent Lops, Respondent Georgia Department Family and Chil- Harrington be surrendered. (“DFACS”). dren Services On November 5 of the chil- DFACS took court had transferred the Respondent Harrington’s dren at home.5 the children South Carolina because Petitioner took a leave absence work Respondent Lops had resided immediately came to the United States. picked up Carolina before DFACS However,
the children. the South Carolina II. PROCEDURAL HISTORY court then ordered DFACS release the children to reside in A.Superior County, Columbia Of Harrington, temporarily, Respondent albeit until the South Carolina court could hear filed a On November Petitioner petition. merits of the ICARA *8 petition, pursuant Hague to the Convention ICARA, Superior of Court Colum- Federal Court In C. (the court”). County, Georgia “Georgia bia petition in that Petitioner filed her forum 3, 1997, December Petitioner filed an On that issued the because had petition in the federal district court wiretap and seizure orders and because the for the Southern District of located County, Georgia, children were Columbia 3, 1997, Augusta, Georgia. On December custody Georgia of DFACS. directing the district court issued an order custody remain with hearing, judge After a another of that that the of the children order, pending Georgia DFACS further order of the same court entered an dated jurisdic- finding lack of November up picked The November 15 order states the children were on November
5. picked up that the children were on November 1997. However, parties’ briefs indicate proved the Respondents Veil-set- because Expediting case as ICARA and peti- to an ICARA require, the district tled” affirmative defense Hague Convention evidentiary hear- days full of first discuss ICARA and the two tion. We conducted After Hague 12 and ings December on Convention. 22,1997, the on December
closing arguments findings fact orally of entered detailed THE IV. ICARA AND HAGUE bench, plus a of from the law and conclusions CONVENTION Respon- finding that written 'wrongfully the children removed dents Congress implement enacted ICARA cus- Germany in violation of Petitioner’s from Aspects on Hague the Civil Convention ordering tody rights children Abduction,7 treaty of International Child custody of Petition- returned should be Germany United States and are which the Germany. The children for return er 11601(b)(1). signatories. 42 U.S.C. to Petitioner. were released goals “to secure the of Convention are granted wrongfully this court re- On December of prompt return children stay” emergency Respondents’ any “motion Contracting or retained in moved to removing the enjoined custody all from rights and “to ensure that State” un- Carolina or South children law one access under the Contract- From Decem- of this court. til further order ing effectively respected in other are State have 23,1997 present, the children ber Contracting Hague Convention States.” Georgia. This with Petitioner resided Aspects on of International Child the Civil appeal. expedited the court also Abduction, No. Oct. art. T.I.A.S. [hereinafter 19 I.L.M. DIS- III. EVIDENCE SUPPORTED “Hague Convention”]. FINDINGS OF TRICT COURT’S FACT Hague Convention Article 3 removal or retention appeal provides first that the Respondents’ contention it custo findings wrongful are violates the court’s factual child is that the district reject were actual dy rights person that contention of another clearly erroneous. We supports all of of the removal ly being evidence at the time because substantial exercised par- findings.6 In have court’s factual would been exercised the district or retention or retention, ticular, pivotal factual follows: the district court’s or but for removal wrongfully re- Respondents finding that of a child is or the retention The removal Germany in viola- the children from moved wrongful where— considered custody rights amply tion of Petitioner’s rights custody is in breach in this record. supported the evidence or person, an institution attributed to overwhelming light evidence alone, body, jointly either or other of Petitioner’s wrongful removal violation law of the State which under the Respondents’ appeal focuses rights, habitually immediate- resident child was legal regarding whether more on the issues retention; ly the removal before hearing precluded district or retention b at the time of removal petition due either collateral this ICARA exercised, actually ei- rights were Respon- those doctrine. estoppel or the abstention alone, jointly or or would have been they wrong- even if ther also contend that dents re- removal or children, but for the so exercised fully the district court removed the *9 Germany tention. returning children to erred in legal rights and findings establishes October factual review the district court's We legal procedures prompt novo. of children conclusions de return for clear error its for Bros., retained, Army Corps Lykes wrongfully Inc. United States removed or have been who Cir.1995). (11th Eng'rs, 64 F.3d securing the exercise of visitation as as well 11601(a)(4). § rights.” 42 U.S.C. Aspects Inter- on the Civil 7. "The Convention Abduction, Hague at The on Child done national Convention, crossing parents a borders
Hague
art. 3. The removal of
deter
Fried
country
sympathetic
or her habitual
a more
court.”
child from the
of his
search of
Feder,
rich,
1064;
Hague
63 F.3d
“wrongful”
is
under the
78 F.3d at
see also
residence8
“is,
221;
petitioner
Rydder,
if the
or otherwise
U.S.C.
Respondents’
estoppel argu
collateral
peti
solely
considering
A
an ICARA
ment is based
order,
jurisdiction
only interlocutory
entered November
to decide the merits
tion has
claim,
peti
wrongful
transferring
Petitioner’s ICARA
removal
not
Friedrich,
to a
underlying custody dispute.
78 tion from a
trial court
Evans-Feder,
1063;
The federal district
Feder
Carolina trial court.
F.3d at
see also
(3d
Cir.1995);
Ryd
Georgia properly
court in
found that
221 & n. 5
63 F.3d
the ICARA
because
Rydder, 49 F.3d
Cir.
over
der v.
1995).
children, picked up
Respondent Har
Hague
Convention is intended
rington’s
Georgia,
pre-abduction
quo and to
home
“restore the
status
argue
since birth had
Respondents
the children were with
children's habitual residence
Belgium
January
May
Germany
Germany
1995 to
Petitioner in
was in
at the
been
and still
Belgi-
that their “habitual residence”
wrongful removal. Both the German
time of the
um,
Germany
though they
even
returned
family
appellate court
court and the German
Hague
early May
and that the
Convention
Respondent Lops’s
rejected
contention
likewise
Belgium
apply
ICARAdo not
because
Belgi-
that the children’s habitual residence
Hague
signatory
Convention. The feder-
jurisdic-
that the German courts lacked
um and
correctly rejected Respondents'
al district court
tion.
finding
argument
did
err in
that the
*10
also
purposes
the
for
ICARA. There was
at
time the
DFACS’s
“located” under
ample
supporting
filed and thus were
evidence
the
was
district
place
in
same
as the district
ICARA
finding
Respondents
more
court’s
that
had
correctly
court also
de-
court.
district
Georgia
sufficient contacts with
satis-
than
had more than
Respondents
that
termined
process requirements.
fy due
satisfy
Georgia to
contacts with
due
sufficient
Nonetheless, Respondents
that
contend
process requirements.9 The federal district
estoppel,
under the doctrine of collateral
judicata
res
nor
court concluded that neither
determination,
if
Georgia
prior
court’s
even
estoppel applied because federal
collateral
erroneous,
jurisdiction
in
that
did
lie
jur-
own
district courts must determine their
in
Georgia
the federal
barred
district
isdiction.10
jurisdiction
Georgia
finding it
from later
had
contrast,
Georgia
In
Respondents
over
and the children in order
incorrectly applied a traditional
resi-
order
petition. Respondents
hear the ICARA
(a)
erroneously
dency test and
concluded
that
proposition
for
cite several cases
were not “located”
children
jurisdiction
personal
the issue of
when
(b)
personal
it lacked
under
finally
by
fully litigated
been
decided
jurisdiction
Respondent Lops and the
over
court,
given full
state
that decision must be
“Located” under
ICARA does
children.11
However,
faith and credit
showing
residency
require
but con-
us,
unlike the case before
each decision cited
place
the abducted chil-
templates the
11603(b). by Respondents
judgment
a final
involves
dren are discovered.
U.S.C.
assuming
Thus,
by
court.12 Even
the children were “located”
entered
state
Martinez,
directing
Harrington
Respondent
11. The November
1997 order
9.
resides in
picked up Respondent Harring-
Respondent
children to be
at
Georgia. Regarding
Lops, the dis-
custody Georgia
placed
ton’s
home
"on the evidence that I
trict court found that
Judge
Superior
Ber-
heard,
DFACS was issued
Court
contrary to the much abbreviated
have
Mulherin, Sr.,
Superior
nard
Court
J.
Allgood,
developed
Judge
before
record that
However, Judge
County, Georgia.
Columbia
children have a dual residence
least
these
Allgood,
presided
same
Robert L.
Harrington's
between Anne
residence
Colum-
ICARA action Petitioner filed in
over the
County
Lops’
and Michael
house that he
bia
County, Georgia.
Superior Court of Columbia
mother,
occupies, courtesy
Augus-
his
in North
order, Judge Allgood
In his November
Respondent
regularly
Lops and
children
ta."
despite
physical
"the
sei-
determined that
actual
Augusta and Mar-
went back and forth between
Georgia," there were
zure of the children in
tinez, Georgia,
Augusta,
and North
South Car-
jur-
personal
insufficient contacts
Respondent
To the
he
olina.
extent
worked.
Lops,
Respondent
over the children and
isdiction
Rentals,
the dis-
worked for House
Judge Allgood
transferred the matter
and thus
Georgia,
also
had offices in
trict court
found
Family
County,
Car-
of Aiken
County.
in Richmond or Columbia
either
correctly
also
found
olina. The district court
replete
with
record before
district court
Respon-
children's dual residence with
that the
Respondents
more
other evidence that
than
yielded
Harrington
than
more
dent
satisfy
with
due
sufficient contacts
satisfy due
contacts with
sufficient
process requirements.
supra
process requirements.
9.
See
note
determination
We review
district court's
by Respondents
cited
and the
Each decision
judicata
estoppel do not
that res
and collateral
an actual final dismissal
dissent involved
and/or
Miller,
apply de
novo.
Richardson
judgment
action.
entered in the state court
a final
1996).
667-68
Cir.
The district
F.3d
Nat'l Assurance Co. v. North
See Underwriters
law
court's conclusions of
state:
Guar.
& Accident & Health Ins.
Carolina Life
determining
Ass'n.,
a federal
its own
1366-
455 U.S.
S.Ct.
judicata.
(1982) (Indiana
is not bound
res
district court
arguendo that are correct judgment regarding per- a state court final a transfer order. jurisdiction may
sonal
bar
federal
reconsidering
in certain circum-
issue
Nonetheless,
recognize that under
we
stances,
estoppel is
the doctrine of collateral
finality
preclusion purposes
Georgia law
for
Georgia court’s
inapplicable here because the
standard
may
be measured
the same
also
interlocutory
not a final
transfer order was
purposes. See
finality
appealability
final
judgment and was not an otherwise
Howell,
Org.
Community
Park
v.
Gresham
Georgia law.
appealable order under
(5th
1227,
B
1241-42
Cir. Unit
652 F.2d
1981);
&
Aug.10,
see also Culwell v. Lomas
Requires A Final
Estoppel
B. Collateral
641,
Co.,
242,
242
248 S.E.2d
Nettleton
Ga.
Judgment
Appealable
A
Order
Or Final
Robinson,
(1978); Dep’t
v.
642
Corrections
the Full Faith and Credit
Under
(1995).
323,
508,
324
Ga.App.
216
455 S.E.2d
Act,
respect
generally
courts
should
Therefore,
determine whether the
in order to
judgments,
where errone
state court
even
preclusion pur
was final for
transfer order
1738;
Matsushita Elec.
ous. 28 U.S.C.
poses, we must also examine whether
Co.,
Epstein,
Indus.
Ltd. v.
516 U.S.
a final
transfer order could be considered
(1996).
877,
873,
In
State,
399,
339
Ga.App.
221
471 S.E.2d
interlocutory
con-
this
transfer order
(1996), aff'd,
485
483
268 Ga.
S.E.2d
appealable order is if it
verted into a final
Co.,
(1997);
Transport
169
Green v.
Ins.
(1984).
this
statute: O.C.G.A.
falls under
No
Ga.App.
313 S.E.2d
763
5—6—34(a)(1),
“Judgments
part
entitled in
order
Georgia cáse
held that a transfer
directly
rulings
appealable.”
judgment in the transfer-
deemed
represents a final
contrast,
517, 517-18,
(Missouri
not involve a final
this case does
protection
because
Transfer
adjudicated delinquent,
denying
and
been
Finally,
unique stipulation
parties’
the
opportunity
appeal
finding
a
them an
to
the transfer
this transfer or
to
here makes
juveniles equal protection of
guilt
the
denies
particularly non-appealable
Geor
der
under
Id. at 806.
the
laws.
remained, by stipulation,
gia law. This case
below,
event,
in
a
any
the
this case are
in the court
albeit
different
facts
in G.W. Georgia
reason a
materially
below. We
no
different from those
Here,
parties
stipulated
may
hold that
T.L.C.
to the would be inclined to
the
Carolina,
interlocutory
thus
inherently
this
transfer
case to
convert
the
South
5-6-34(a)(l)
and,
any
Georgia
appeal-
§
a
waiving
right
appeal
to
in
order under
to
final
fortiori, waiving
equal protection ar-
they stipulated to
any
a
able order when
the trans
stipulation
to
gument.
parties’
opposed
alone
fer as
a dismissal.19
Rather,
Supreme
directly appealable
Georgia
below.
the
Court
in certain cases are
orders
proposed
merely
reaching
the
inter-
in
the same conclu-
which undermines
dissent’s
cited G.W.
bright-line
facing
materially
versus intrastate
distinction.
sion as G.W. when
facts
indis-
(1997);
Georgia,
tinguishable
v. State
493 S.E.2d
did
Rivers
from G.W. The T.L.C. court
Georgia,
Ga.App.
G.W.,
State
only
J.T.M. v.
expand
quoted
from the
but rather
(1977).
S.E.2d
support of
last sentence of G.W.in
its conclusion
right
appeal
litigant
the
T.L.C.had a
to
that
in
acknowledging
18.
that intrastate transfers
After
immediately
adjudicatory
the
order in that case.
are
one trial court to a different trial court
Georgia
appealable
because
not final
orders
Georgia
trial
The dissent contends that
pending
in the court
courts hold the case
still
authority
case
to transfer the
court lacked
below,
broadly
asserts that interstate
dissent
Carolina,
thus the dissent recharacter-
entirely differently
transfer orders are treated
dismissal. Since a
izes the transfer order
a
However,
courts.
interlocutory
appealable
and not
transfer order is
created a different rule
trans-
courts have not
law,
the dissent recharacterizes
under
For exam-
fer orders intrastate versus interstate.
in order to make
order as a dismissal
the transfer
G.W,,
Supreme
ple,
have,
Court could
in
the
not,
appealable. There is no
it a final
bright-line rule
did
create a
distin-
but
authority
statutory
for the dissent's
or decisional
guishing
between intrastate transfers
inter-
proposition
order should be
that this transfer
Georgia Supreme
If the
state transfers.
dismissal.
as an effective
treated somehow
or
rule for
had wanted to make
new different
Further,
transfers,
parties’
to the transfer not
consent
court could have not-
all interstate
that,
only provides
but
waives
the authorization
also
out of
ed
because the case was transferred
state,
any
longer
any
right
in
pending
complain about
error
trans-
in
it was "no
However,
Respondents
opinion
ferring
does not cite
Carolina.
below.”
G.W.
to South
5-6-34(a)(l)
go
§
not address
Carolina
or discuss
does
the case to
the South
wanted
longer
pending
accepted jurisdiction.
the case was “no
whether
which in turn
Instead,
employed an
required
below.”
the court
Carolina court was
Whether the South
analysis
equal protection
to allow non-resident
question we have to
take
is not a
appeal
juvenile adjudicated delinquent
or
face
resolve.
adjudication.
Alternatively,
argues
since the
dissent
Court,
authority
Georgia
case,
to transfer the
court lacked
Similarly,
Supreme
5—6—34(a)(1),
nullity.” We
T.L.C.,
"a
are
the transfer order was
or
did not cite or discuss
authority
permits, much less
pending
aware
no
still
in the court
whether the case
Dist.
River Water Conservation
not Colorado
Georgia courts would
We conclude that
States,
96 S.Ct.
type
U.S.
in this
of United
this transfer order
consider
(1976).
the dis-
hold that
5-6-
We
appealable
order under
L.Ed.2d
case a
34(a)(1)
its discretion
was transferred
court did not abuse
because the case
trict
reasons.21
declining
to another trial court
to abstain for several
from one trial court
below.”
pending “in the court
and remained
“[ajbstention
First,
the exer
5-6-34(a)(l)
long-
state “no
does not
Section
exception,
jurisdiction is the
cise of federal
longer
pending in the
court” or “no
er
same
River, 424
U.S.
the rule.” Colorado
longer
Georgia”
or “no
pending
a court
parallel
96 S.Ct. at
When
the order on
pending
the court
issued
exists,
Supreme Court has
court action
longer pending
only “no
appeal,” but states
of absten
emphasized that
doctrine
“[t]he
not add
court below.” We should
tion,
de
a District Court
under which
limiting
an otherwise
qualifying terms to
postpone the exercise
exercise or
cline to
This is also not
clear state statute.
extraordinary and nar
jurisdiction, is an
its
placed
have
courts
construction
duty
exception
of a District Court
row
considering transfer
statute when
on this
adjudicate
controversy properly before
find that the Geor-
orders
civil cases. We
Allegheny v.
(quoting County
it.”
Id.
type of trans-
gia
would hold that this
courts
185,188-89,
Co.,
Frank Mashuda
360 U.S.'
order,
days after this
entered
ten
fer
(1959)).
3 L.Ed.2d
S.Ct.
filed,
appealable
not a final
civil case was
in the state
pendency of an action
“[T]he
*15
5-6-34(a)(l)
because the
order under
concerning
proceedings
the
is no bar to
changed only the forum and not the
transfer
having
in the Federal court
same matter
proceeding and because the
nature of the
817,
at 1246
jurisdiction____” Id. at
96 S.Ct.
transfer,
opposed
parties stipulated to the
Carland, 217 U.S.
(quoting
v.
McClelland
to a dismissal.20
501, 505,
25. Article 12 states:
plorable.
proceeding
and its con-
And this
sequel
only
the initial
wrongfully
clusion
the natural
has been
removed or
Where
child
and,
bring
May
to
decision made in
or June
of Article 3
at the date
retained
terms
proceedings
United States without the
be-
the children
recognition
the commencement of
by
rights as
judicial
authority
of the
accorded
or
mother’s
fore the
administrative
is,
treaty.”
Contracting
German law and our
State where the child
(and
German
and the
from Petitioner
filed within
eealed
Although
was not
other)
Respon-
removal,
authorities,
that
and the fact
wrongful
the district
year
one
of the
for his viola-
one-year
prosecuted
time
that this
dent
could be
court first determined
he
limit,
to a
law because
respects
is similar
state and federal
which
some
tions of
limitations, may
equitably
committing
and five misdemeanors
“four
statute
so,
himself,
any
conceal,
found
from
au-
doing
In
the district court
tolled.
...
at least
sup-
time
adequately
to “conceive of a
that
it is difficult
evidence
thority.” Other
arising by
finding
statute that is so
that
period
a federal
the district
ported
subject
woodenly applied that
as contem-
not “well-settled”
were
children
if it
interruption,
suspension,
tolling,
12 of the
some
and Article
plated under ICARA
clearly enough
Therefore,
or demonstrated
is shown
we conclude
Hague Convention.
alleged wrongdoer con-
the action of an
that
in its
also did not err
the district court
that
very act
of the
cealed the existence
not estab-
Respondents
finding that
running
important
time
initiates the
of the
“well-set-
children were
that
lished
required
reach the
are not
period.” We
tled.”28
tolling may apply
equitable
issue of whether
sup-
the evidence
under
ICARA because
CONCLUSION
VIII.
finding that
factual
ported the district court’s
correct-
the district court
conclude that
We
un-
yet
“well-settled”
the children were
children,
minor
ly
that
the two
ordered
Hague Convention.
der the
returned
Lops, be
and Carmen
Claire
“well-settled”
court found that
The district
custody
for immediate
of Petitioner
ma-
having
than
a comfortable
means more
Germany.
In accordance with
return to
determining
whether
terial existence.
Convention, the
and the
terms of ICARA
“well-settled,” the district
the children were
correctly re-
judgment also
district court’s
many relevant
properly
considered
wrongful
only
removal
Petitioner’s
solves
factors,
to several
including but not limited
regarding the
remands
matter
claim and
surrounding the chil-
peculiar circumstances
custody dispute
be resolved
underlying
environment, Respondent Har-
living
dren’s
litigation between
courts where the
German
chil-
being
involved with the
rington’s
more
began and should be re-
first
Respondent
areas
than
dren
certain
Thus,
judgment of
affirm the
solved.29
we
Respondents
Lops,27 the active measures
the district
Respondent
undertaking
keep
AFFIRMED.
con-
children’s whereabouts
and the
11607(b)(3).
Af-
penses
42 U.S.C.
although Respon-
allowed
that
evidence indicated
27. The
review,
week,
that each contention
ter
we conclude
each
Lops worked
a few hours
dent
up
Harrington picked
lacks merit.
Respondent
the children
day
attended .more to
school each
The district
acknowledges
apparent
needs of the children.
nurture and
"the
29.The
dissent
Harrington
"in
Respondent
ruling
court found
on the
of the district court's
soundness
quar-
and other affairs
petition”
the financial
virtual control of
and does not
of the ICARA
merits
grandmother
family.
[Re-
I
that the
of this
the evidence and
our conclusions that
rel with
co-partici-
spondent Harrington]
co-partner,
findings
is a
supported the district court's
law
pant
wrongfully
and in
maintenance
in the abduction
the children
Respondents
removed
only object could be to
appearances
Germany
these
whose
States in violation
to the United
origins
the chil-
rights,
Respondents
custody
the existence
conceal
of Petitioner's
were "well-set-
dren.”
that the children
failed to show
States,
children
and that the
tled” in the United
Germany.
The dissent
be returned
that the district
should
Respondents also contend
misinterpret-
agrees "that the
failing
also
the 1996 order
to consider
court erred
our
and does not contest
Lops brought
ed the ICARA statute”
Respondent
in the divorce
Georgia court's transfer or-
that the
conclusion
which awarded
Carolina court
*19
(2)
erroneously
jurisdiction did not lie
held that
Lops;
the
der
Respondent
to
of the children
Respondents
Georgia
and the children.
in
over
give Respondents a full and
district court did not
Instead,
only that the feder-
(3)
the dissent advocates
hearing;
district court violated
that the
fair
the case
have dismissed
al district court should
Lops's procedural
substantive
Respondent
and
estoppel
the absten-
(4)
or under
on collateral
rights;
court
based
process
and
that the district
due
costs, fees,
judicial administra-
based on "wise
awarding
ex-
tion doctrine
Petitioner
erred in
Act,
KRAVITCH,
mines the Full Faith and
Judge,
Credit
Circuit
Senior
§
II.
UiS:C. 1738. See
Part
dissenting:
infra
signifi-
legal claims of
This case involves
Moreover, even if the district court was
petition
In
importance.
her
cant human
case,
precluded
hearing
the
the
not
brought
Child Ab-
under the International
failing
its
district court abused
discretion
(“ICARA”), 42
Act
U.S.C.
duction Remedies
stay
ease in deference to the
South
11.601-11610,
Lops alleges
§§
Mrs.
that Mr.
required
Carolina court. Such deference
daughters,
wrongfully abducted their
Lops
light
Lops’s
in
the reactive nature Mrs.
girls
two
be re-
requests that the
and she
Lops’s
federal suit and Mrs.
circumvention
custody.
turned to her
policy. Accordingly,
if
federal removal
even
court,
preclusion
apply,
however,
principles do
this
determine
This
must
judicial
proper
in the interests
“wise
administra-
court was the
whether
district
tion,”
merits
ICARA
Colo. River
Conservation Dist.
hear the
case.
Water
States,
jurisdiction in
fed-
United
U.S.
96 S.Ct.
vests concurrent
11603(a).
(1976)
Ini-
(quotation
See U.S.C.
47 L.Ed.2d
eral courts.
omitted),
tially,
file
ICARA
Lops chose to
her
Mrs.
should vacate the district court’s
Superior
stay
of Columbia
petition
Lops’s
in
Court
order that it
Mrs.
(“the
court”),
Georgia
Georgia
action,
County,
rather
Part III.
infra
Georgia
court. The
than in a federal district
jurisdic-
personal
ruled that venue and
I.
and,
Georgia
pursuant
in
tion
not lie
did
majority
Because I believe that
stipulation,
the case
parties’
directed that
details,
I
omitted
few relevant
include
Family
Court of Aiken
be transferred to
my
summary
pertinent
facts
brief
(“the South Carolina
County, South Carolina
Lops
In
took
two
Mr.
his
dissent.
court”),
jurisdiction
assumed
over*
which
Germany,
daughters
they
where
were
Then, apparently
dissatisfied
case.
living
Lops,
with Mrs.
to five with him in
custody
of the
temporary
decision
South Car-
South Carolina. On November
action was still
olina court and while that
officials,
Georgia
acting pur-
law enforcement
Lops
an identical ICARA
pending, Mrs.
filed
children,
order,
suant to
seized the
who
District
petition with the United States
temporarily
Lops’s
were
at the home of Mr.
Georgia
District of
for the Southern
County, Georgia, and
in Columbia
mother
(“the
court”), which,
ruling
after
district
placed
in
the children
jurisdiction
personal
did exist
venue
Georgia
Family and
Department of
Children
Georgia, proceeded to
the merits
determine
Services.
I
petition. Because
of Mrs.
ICARA
district court should not
conclude that
Lops
filed an
On November
ease, I
jurisdiction over the
have exercised
petition
Georgia
in the
state court
respectfully dissent.
seeking
return of her two children
Georgia
view,
required Germany.
On November
my
the district court was
(1) holding
issued an order:
that venue
accept the
court’s determinations
jurisdiction
lacking in
jurisdiction
personal
were
personal
that venue and
ease
have been
majori
I
and that the
should
lacking Georgia.
believe that-the
jurisdiction
Carolina, the
contrary, misinterprets
brought
ty,
holding
South
residing;1 and
where the children were
estoppel law and undele
collateral
Therefore,
or children have
in the state where the child
these two issues have
tion."
.been
resided,
necessarily
they
detail in this decision.
are
primarily
discussed more
Order of November
found.”
court's
that 42 U.S.C.
1. The
court stated
permanent
The children’s
residence
11603(b)
petition
(stating
that ICARA
should
Carolina,
though they were
even
jurisdiction of
court which has
be filed "in
physically
when Mrs.
located
authorized to
such action and
is
exercise
Thus,
under
the court held that
filed suit.
place
where the child
its
filed
in a
should have
suit
ICARA Mrs.
filed”)
reflected
located at the time
Congress's
holding
Id. at 5-7. This
South Carolina
petitions
"be filed
intent that ICARA
*20
to dismiss Mrs.
Lops
Mr.
then moved
transferring
case to the South Carolina
alia,
inter
grounds,
on the
Lops’s federal suit
stipulation.2
parties’
pursuant
to the
(1)
jurisdic-
that:
the South Carolina
On November
ruling
preclusive effect
federal
tional
in-
hearing, during which it
an initial
held
Lops’s suit
Georgia;8 and Mrs.
court in
it
hear
parties
would
formed
by
attempt
a state
represented
improper
an
January
petition on
of the ICARA
merits
removal
plaintiff
to obtain
2,1997, the South Car-
On December
1998.3
22, the district
December
court.9 On
parties
during
informed the
olina court
order,
Lops’s motion to
denied Mr.
in an oral
proceedings the
pendency of the ICARA
reject-
explicitly
The district court
dismiss.
Lops’s
Mr.
placed
be
children would
analysis
Georgia court’s
of the ICARA
ed the
mother,
subject
Harrington,
to an
Anne E.
statute,10
it also stated:
security
subsequent
In a
adequate
bond.4
jurisdiction
feder-
determining its
own
order,
court con-
written
the South Carolina
by
judica-
not bound
res
al district court is
January
hearing date and the
firmed
by any
are the
bound
ta. Nor
Lops’s
Mr.
temporary
award of
respect
fac-
estoppel with
collateral
mother.5
any
findings
other court.
tual
made
Indeed,
duty
of a federal district
it is
3, 1997,
Lops
Mrs.
filed
December
On
sufficiency
jurisdic-
court to determine a
a motion to recon-
Carolina court
the South
properly decide or ascertain
tional facts to
regarding tem-
2 decision
sider its December
jurisdiction.
its own
custody.6
on December Mrs.
porary
Also
Lops filed
ICARA
petition
the federal
[*]
[*]
[*]
[*]
relating to
concerns ...
I have had some
did not move
dismiss
district court. She
proceedings
that were
parallel
time.7
court action at this
the South Carolina
of December
ruling
See South Carolina court’s Order
appears
that venue did not
5.
to constitute a
11, 1997,
provided that
at 2-4. The court also
Georgia.
lie in
wrong-
that there
been a
the Court finds
”[i]f
determined that
court also
hearing
detention then a further
ful removal or
jurisdiction
personal
over Mr.
could not exercise
31, [1998,]
January
deter-
for
has been scheduled
Lops or the children:
return of the
whether
defense to
[sic]
mine
physical
actual
seizure of the chil-
But for the
Hague [sic]
children to the Petitioner under
Georgia, there has been no other mini-
dren in
appli-
applicable
[sic]
or
State
Federal
mally
State of
contact between the
sufficient
hearing actual-
at 3. This additional
cable.” Id.
Lops
or Mr.
and the children
ly
February
1998.
was held on
[the]
a sufficient level to meet
would rise to
process requirement
this Court to exer-
due
for
3; Appellants’ Reply
Appellants’
Br.
jurisdiction
6. See
Br. at
cise
in this matter.
Id. at 6.
Lops
at 8.
does not contest this fact.
Mrs.
stated,
parties stipulated to a
2. The court
"All
attempt
to dismiss her South
Mrs.
did not
proceedings
dismissal
[sic]
verses
court action until "within
Carolina state
refiling
this Court found no
in the event
16, 1998,” hearing
January
held
hours of the
exercising jurisdiction Georgia.”
authority
See South Carolina
the South Carolina court.
14, 1997,
of November
at
court’s Order
January
at 2.
court's Order of
court’s first written
7 n.2. The South Carolina
Lops’s
petition was
that Mrs.
order states
Dismiss,
Lops's Motion to
Decem-
8. See Michael
court. See
filed
the South Carolina
then
n
1, 3;¶
Lops's
ber
at
see also Michael
Order of December
South Carolina court's
Harrington’s Motion to Dismiss
and Anne E.
Order,
1997, at 1-2.
1997, 3-4, ¶¶
at
9-10.
December
6, 36-37; Appellants' Reply Br. at 3.
3. See R3:
Harrington’s
Lops’s
Michael
and Anne E.
9. See
Order,
at
Motion to Dismiss
December
Harrington's
Lops’s and Anne E.
4. See Michael
¶¶
3-4,
Order, December
at
to Dismiss
Motion
3;
2, 7;
Reply
Appellants’
Appellants’
Br.
Br. at
8;
court’s Order of December
10. See District
John L. Creson attached
at
see also Invoice of
(concluding
7-8
that an ICARA
Attorney
Fees and
Christine
Motion for
Costs,
("12/2/97
where the
should be filed in the
January
at 5
... Tele-
office.”).
"located,”
11603(b),
42 U.S.C.
Judge
children are
phone
Nuessle’s
conference with
reside).
they
rather than
not contest this fact.
does
*21
subsequently
II.
originated
Georgia
Family
South
transferred
simply
Georgia
If the
had dismissed
any concept
I
not know of
Carolina.
do
Lops’s
petition for
Mrs.
ICARA
lack of venue
prosecution
the
of both
that would bar
personal jurisdiction,
the
then
federal
eases at the same time.
those
in Georgia
district court
would have been
After
This
my
federal court
dismissal of the federal action.
Petitioner seeks
[*]
state’s
[*]
view,
[*]
ease,
all,
[*]
sovereignty.
the
it is more
act
sovereign
my
to
to
proceed
view,
enforce,
the
appropriate'for
as
does
treaty,
opposed
to
are creatures
disposition.
Indeed, in
require
any
the
the
precluded
See
not alter the
Mrs.
ever,
tained an interstate transfer
dismiss
infra
fact that the
after
Lops’s subsequent
the case but rather
it to
Part II.A.
ruling
preclusive
South Carolina.
assuming
lacking Georgia,
Georgia
that venue and
The
effect of the
Georgia
court’s
ICARA
jurisdiction
directive
purported
order
my
personal
petition.
Georgia
did not
view,
how-
does
over
con-
to
District
Accordingly,
ter in its
possessed of
sion ...
[*]
[*]
[*]
court’s Order of
[*]
entirety----
that this federal district
jurisdiction to
it is
my finding
December
decide
and conclu-
the mat-
court is
thorized to transfer the case to another
ings.
under
simple
Second,
court’s venue and
and thus
First,
Georgia
dismissal,
even
its
order must be considered
assuming
law.
Georgia
plainly
personal jurisdiction
.
See infra
court was not au-
a final
n
the Part
judgment
Georgia
state,
II.B.
rul-
at 7-11.
authority
an
court had
order
inter-
transfer, I
believe
the rationale
January
the South Carolina
On
doctrine,
Georgia
estoppel
collateral
see infra
hearing
mer-
on the
court held
scheduled
II.C,
plain
Georgia
language
Part
and the
In a
Lops’s
petition.
of Mrs.
its
ICARA
case-law,
statutory provisions and
.see infra
lite,
pendente
subsequent order
South
II.E, compel
Part II.D and Part
the conclu-
Lops had
court noted that Mrs.
Carolina
sion that
court’s order was
untimely attempt
to file a motion
made an
judgment
preclusive
entitled to
effect.11
court. See
dismiss
the South Carolina
Although
squarely
no
addresses
January
Carolina court’s Order
South
case,
in this
I
that all
issues
believe
relevant
(denying
Lops’s
motion to
Mrs.
authority
legal
the same conclusion:
demands
it was filed “within 48 hours”
dismiss because
judg-
order
a final
court’s
substantive
Carolina court’s
preclusive effect under
ment entitled to
16,1997,
January
plain
hearing ICARA
majority
law. Because
fails
“requisite day
court’s
notice
violation of the
apply
estoppel
collateral
January
requirement”).
Mrs.
On
decision,
majority’s
I consider the
court’s
requesting
motion in district court
filed a
troubling
holding
precedent
for federal
stay the South Car-
that the district court
compliance
the Full Faith and
courts’
February
proceedings.
On
olina court
Act,
Credit
U.S.C.
hear-
court held
additional
South Carolina
Lops’s
ing on the merits Mrs.
A.
February
district court
petition. On
stay
preclusive
effect of a
granted
motion
the South
shortly
governed by Georgia preclusion
proceedings,
Carolina
explained,
Supreme
Supreme
Court has
Court of South Car-
law. As
thereafter
Act,
pro-
Faith and
28 U.S.C.
stayed
the Full
Credit
olina
the South Carolina
‘judicial pro-
pending
“mandate[s]
the federal
ceedings
resolution of
ceedings’
State ‘shall have the same
action.
exception Georgia's
Part II.F.
I
believe that no
also
infra
estoppel
applicable
here.
collateral
doctrine
simply
had dismissed
every
If the
court within the
full faith and credit
they
juris-
...
have
law or
personal
United States
for lack of venue and
the case
...
of such State
usage in the courts
diction,
plainly would have
*22
then its order
Elec.
they are taken.’” Matsushita
which
Georgia courts.
on other
preclusive effect
367, 373,
Co.,
Epstein,
Ltd. v.
516 U.S.
Indus.
Restatement,
if
As described
(1996)
873, 877,
directive issued Rogers Rogers, v. have lacked. Dix v. otherwise would unauthorized. Cf. (1909) (Fla. 1997) Dix, (reversing 64 S.E. So.2d 3d DCA Ga. (“It not, rudimentary parties order that was not that can interstate transfer law law); give by implied, jurisdic under state United Car- express authorized consent or Martocci, Pa.Super. court; subject-matter olina Bank v. to a as to the tion 22-23, (holding by powers A2d 487-88 conferred court is limited Pennsylvania’s law, intrastate transfer law given upon byit and can not be addition transfers); does not authorize interstate power al consent of the or Bliss, Pa.Super. 493 A.2d waiver.”), Bliss v. cited in Mitchell (1985) (same). Mitchell, Ga.App. 469 S.E.2d (1996). in court entered an Because despite lacking the transfer directive terstate Finally, majority argues Lops, that Mr. so, authority is consid to do directive transfer, having stipulated to the Thomas, nullity, ered a see Thomas challenge A null legality. order of a its (1966); Ga. 146 S.E.2d however, Georgia court, “may be attacked *24 Skinner, 610, 609, 172 Ga.App. Skinner v. any any any in where and time court.” See 905, (1984), “may 323 906 and S.E.2d Bunn, 244, 245, 127 Palmer 218 Ga. v. S.E.2d any any in any and time attacked where 372, (1962). Moreover, Lops, it is 373 Mrs. Bunn, court,” 244, 245, v. 218 see Palmer Ga. Lops, legal Mr. has altered not who her (1962). 372, Georgia 127 373 S.E.2d position. Lops consistently Mr. has contend explicitly stated that the transfer di brought ed that should have been in this case simply rective an to dismiss was alternative contrast, Carolina, Georgia. By not ing Georgia the case. See court’s Order of Lops, having stipulated to Mrs. the transfer 14, 1997, Thus, 7 n.2. at this court November Carolina on the case to South based order, Georgia must characterize the court’s Georgia finding juris that venue court’s and directive, absent transfer to be a the invalid lacking Georgia, diction in in were filed suit Clark, Marriage re 232 dismissal. See In of Georgia, in the federal district court 342, 347, Ill.App.3d 173 597 Ill.Dec. jurisdiction argued she that venue and did (1992) (reasoning N.E.2d 243 that be Georgia preclusion in Georgia. exist law intrastate cause Illinois law authorized prohibited changing po Mrs. her transfers, transferring court’s order the trial Thompson sition this manner. See v. simple the state constituted a case to another Thompson, 228 237 Ga. S.E.2d Kelso, dismissal); Marriage also In re see of (1976) (“[Pjarties stipulations 887 to and 123 527 Ill.App.3d Ill.Dec. agreements into in the entered course of (1988) (describing N.E.2d a motion judicial permitted proceedings will not be properly, for interstate transfer “more positions take inconsistent therewith dismiss”). dismissal, motion As a fraud, mistake.”); or absence of duress Georgia judgment was a court’s order final Fricks, GaApp. v. Ghrist preclusive with effect. (1995) (applying collateral S.E.2d Apparently conceding estoppel pater or mother’s statement no federal to the nity agreement Georgia trans in a settlement be law authorizes interstate contained ease, “[pjarties stipulations agree majority fer of contends cause an ICARA through judicial ments in the course parties, stipulation, their entered into estopped taking gave Georgia power proceedings posi are therewith”) however, law, Georgia (quotation tions inconsistent the case. black-letter omitted).16 long by agreement clear: Parties has been jurisdiction lacking Georgia. majority’s Contrary Because characterization dissent, my my position stipulation that Mrs. the basis Mrs. in the Geor- for "stipulated improper that venue was argu- gia with her inconsistent later court was Georgia.” personal jurisdiction wanting was personal regarding ments venue and Rather, stipulation Lops's based on the principle in the district of collateral judgment personal that venue and court’s isdiction, judg- were “essential to [its] C. Kent, 452 S.E.2d at ment.” Ga. assuming, arguendo, that the Geor- Even 27). Moreover, (citing an Restatement gia interstate transfer directive court’s majori- implications examination of effective, was a court’s order ty’s ruling reveals that the preclusive effect. judgment final entitled to was, judgment necessarily, a order final view, estoppel my Georgia’s collateral doc- preclusive effect. contrary permit conclusion. trine does estop Georgia’s collateral purpose majority’s holding, if a Under the state judicial economy. As the pel doctrine is federal court transfers a case explained, collat Georgia Supreme and personal another state for lack of venue estoppel “applies where issue fact eral jurisdiction, plaintiff may bring the then the litigated actually and determined or law is again in or federal same action judgment, and the determination valid relitigate issues Kent, judgment.” essential to the Kent Indeed, jurisdiction. if personal venue and 764, 766 265 Ga. 452 S.E.2d again that court transfers the case 27). (citing By according Restatement reason, plaintiff refile once same judgments, preclusive effect final court in more state or federal State, Quinn Ga.App. relitigate According to the the same issues. (1996), aff'd, 268 Ga. S.E.2d majority’s logic, only when a transferred (1997), estop Georgia’s collateral S.E.2d 483 reaches another “litigants from pel protect law serves reliti- plaintiff would the become unable to relitigating an identical issue with burden of juris- gate personal issues venue and privy promote] party [to the same or his or federal courts in Geor- diction before state by preventing judicial economy needless liti *25 gia. Shore, Hosiery Co. 439 gation.” Parklane v. 326, 645, majority’s holding contrary 99 S.Ct. 58 L.Ed.2d to U.S. thus Gill, (1979),quoted in 181 B.R. judicial economy, purpose 552 Matter core the of Geor- of 1995) (de (Bankr.N.D.Ga. Apr.14, 670 gia’s doctrine. estoppel collateral See Matter Georgia’s (Bankr.N.D.Ga. scribing Gill, the rationale for collateral B.R. 670 of Bowman, doctrine); estoppel see Bowman v. Hosiery v. Apr.14,1995) (citing Parklane Co. 560, 561-62, 227-28 Shore, 215 Ga. S.E.2d U.S. S.Ct. (1959) finality (concluding Bowman, that for the need (1979)); v. Bowman L.Ed.2d 552 judicata; justifies imposition the of res stat 560, 561-62, 227-28 215 Ga. S.E.2d “It ing that the ancient maxim is of advan Holton, (1959); 196 Ga. Lankford tage public that there be an end of (1943). Indeed, it also is S.E.2d litigation” represents policy essential as “so preclusion long-es- contrary principles of to dispute”); question to of Lank admit jurisprudence. Anglo-American tablished in Holton, 631, 633, 27 S.E.2d 196 Ga. (“The 1 at 11 conven- See Restatement Ch. ford (1943) (“One prime objects of the finality judgments to concerning tion judicial is to and end procedure forever settle prac- if to accepted, certainly there is be be litigants, and disputes between courts never legal disputes meaning to the idea that tical unnecessary prolonga favor on the look with process.”). legal Unlike can be resolved disapprove litigation, particularly tion of that another majority, I do not believe the ignore binding judg to or evade attempts Georgia would Superior State ments.”). to refile her ICARA suit allow per- relitigate Georgia court’s venue and the preclusive to court must accord effect This Instead, jurisdiction rulings. that Su- sonal personal juris- Georgia the court’s venue Georgia recognize the perior Court would rulings purpose fulfill in order to the diction judgment to be a final original order estoppel court’s Georgia collateral doctrine. Accordingly, I con- “actually litigated preclusive effect. Georgia court and deter- to required jur- the district court was personal of venue and clude that mined” the issues Ghrist, applies. Ga.App. at S.E.2d at 504. estoppel the Constitution and laws this pursuant Full Faith the dismiss case Act, state: § 1738. and Credit 28 U.S.C. say, (1) judgments, that is All longer pending case is where the no D. below, provided in except My compelled by conclusion also is a close Code Section 5-6-35. Georgia concerning law examination added). § See O.C.G.A. (emphasis 5-6-34 finality requirement estoppel of collateral Accordingly, question I turn to the of wheth- notes, majority As no doctrine. transferring a er a court’s order containing an order court has ruled whether causes case to be “no to another state interstate directive is a final transfer longer below.” pending preclusive judgment to be accorded effect. 5-6-34(a)(l). § O.C.G.A. quite apparent gap This in the law is under- any citing authority for its conclu- Without standable, however. As described in Part sion, majority court be- states that “the II.B, supra, are generally courts including low” trial refers authorized cases to another state. my view, another trial court of state. therefore, Georgia Logically, courts have had however, plain language, legislative histo- opportunity preclusive little to determine ry, judicial interpretations O.C.G.A. effect of interstate transfer orders. None- 5—6—34(a) all conclusion that demand the theless, Georgia Supreme I believe that a lower court “the court below” refers Court, question, if faced with the would rule Georgia. Therefore, State of order that this case effectively transfers a case court’s order estoppel judgment
was a final for collateral longer state renders case “no another purposes. pending in the court below.” Such an order law, judgments purposes are appealability Under is a final include, purposes and, estoppel consequently, estoppel final for collateral for collateral to, judgments purposes. are not limited those but appealability purposes.17 are final for Geor- plain reading A of the statute indicates
gia’s appealability provides part: statute phrase that the “the court below” O.C.G.A. (a) 5-6-34(a)(l) Appeals may Supreme taken to the refers a lower court *26 5-6-34(a)(l) Appeals
Court and the Court of
from the
Georgia. Section
State of
and
following
5-6-34(a),
judgments
rulings
immediately
§
and
the
preceding
of
the
con-
courts,
city
superior
together,
the constitutional
sidered
have
three
elements.
courts,
First,
to which an
they
other courts
tribu-
describe the
such
or
courts
taken,”
appeals
“[a]ppeal[ may
namely
are
be
the Geor-
]
nals from which
authorized
Co.,
Relying
appealable
judgment
&
an
final
Culwell v. Lomas Nettleton
bunal is not
242,
(1978),
binding
judicata purposes.”)
thus
(citations omitted).
for
242 Ga.
Thus, Georgia Arnold demonstrates perspective of the from the courts, by Georgia trial court is a appellate- an interstate transfer order terstate transfer final, longer pending interlocutory, appealabili- for renders a case “no order judgment appeal- a final ty and is purposes. court below” 5-6-34(a)(l). § able under O.C.G.A. statute, Georgia’s A Uniform Juve second Georgia concerning sparse case-law The (“UJCA”), nile authorizes a court Court Act transfer orders further bolsters interstate the state of child’s to transfer a child to my are final conclusion that such orders adjudicated if the child is to be residence judgments appealability purposes. Even for § delinquent. 15-11-44. See O.C.G.A. generally Georgia courts are not au- though Georgia Supreme has ruled that such Court state, to transfer cases another thorized appealable judg transfers are final interstate II.B, relevant have aris- supra see Part cases of T.L.C., 266 Ga. ments. In the Interest See pro- Georgia that do en two statutes under 407, 407, (1996); G.W. v. 467 S.E.2d First, transfers. Geor- vide for interstate State, 275-76, 210 S.E.2d 233 Ga. Custody Act gia’s Jurisdiction Uniform Child (1974). view, my T.L.C. In and G.W. (“UCCJA”) juris- provides that a court with for the provide support further conclusion transfer the diction under UCCJA Georgia court’s interstate ease state if finds that to another judgment a final under order this case was forum and that a court of is an inconvenient 5-6-34(a)(l). § O.C.G.A. appropriate.18 would be more another state determining juvenile whether test for Arnold, Jordan, Ga.App. v. judgments final thus court orders are (1989), Ap- Court of S.E.2d 139 appealable the same standard found peals Superior Court’s reviewed 5-6-34(a)(l). § § O.C.G.A. See O.C.G.A. 15- custody trans- order that a child case be (“In judgments 11-64 cases of final of a all pursuant to the ferred to Texas UCCJA. juvenile judge, appeals shall be taken 378 S.E.2d 141. In describ- See id. at Appeals Supreme or the Courts of ing assumption of over its appeals Court same manner as case, Appeals stated court.”); State, superior v. J.T.M. appli- simply “granted the father’s that it had Ga.App. S.E.2d (em- discretionary review.” Id. cation for (applying of whether the case is the standard added).19 phasis language This indicates below,” longer pending “no the court see comply did not have to the father 5-6-34(a)(l), determining § O.C.G.A. interlocutory review Georgia’s procedures.20 juvenile ap- whether a is an Avera, 268 Ga. Avera v. 485 S.E.2d Cf. pealable judgment). though Even (1997) (reviewing appeal the trial juvenile adjudicating delinquency court order stating, action order in a divorce court’s transferring the case another court granted application Wife’s for “This court disposition is not a final interlocutory discretionary the tri- within review of added).21 State, order.”) judgment, Ga.App. (emphasis v. al see D.C.E. 19-9-47(e)(2) (authorizing tory procedures, obtaining such as review See O.C.G.A. stay child cases courts the trial a certificate of immediate review 5-6-34(b). brought the UCCJA on the condition that under pursuant Scruggs to O.C.G.A. brought proceeding be in the court of Resources, similar Dep't Ga. Human Ga. state); § 19-9- another named O.C.G.A. (1991); also 408 S.E.2d Wieland Georgia courts rele- 47(h)(permitting to forward Wieland, Ga.App. 454 S.E.2d receiving courts in other vant states); information (1995) (dismissing discretionary appeal *28 614 a Yount, 584, Ga.App. Mulle v. see also 211 interlocutory appel- order because from an 210, 586, (stating 213 that 440 S.E.2d interlocutory comply with review lant failed to § authorizes trans- O.C.G.A. 19-9-47 interstate procedures). fers). majority's judgments 21.Avera belies the assertion that in all thus Appeals and orders discretionary. ‘discretionary cases are to review' "domestic relations” “Arnold's reference 5-6-35(a)(2). § See O.C.G.A. that the interstate trans- could be read to” mean interlocutory an fer in Arnold was order. order discretionary seeking an party review from A comply interlocutory must with interlocu- order
957
(1974);
481,
period
724-25,
during
good
Upon
a
of
behavior.
724,
481-82
204 S.E.2d
G.C.S.,
Ga.App.
completion
period
of
186
successful
that
In the Interest of
(1988),
juvenile
behavior,
charges
good
a
all
will be dis-
367 S.E.2d
adjudicating delinquency and
Compare In
court order
missed.
the Interest of
T.L.C.,
for
transferring
(adju-
the case to another state
protection.
example,
In
for
the court'
appealability
Be-
judgment
for
purposes.
simply cited the G.W. court’s conclusion
juve-
determining
the test for
whether
cause
appealable
an interstate
order
judg-
appealable
nile
are
final
court orders
judgment
“the final
to be
because it was
employed under
standard
ments is
same
by any
Georgia.”
court in
entered
5—6—34(a)(1),
§ 15-
O.C.G.A.
O.C.G.A.
T.L.C.,
Ga. at
Fulton
longer
"no
state transfer order renders a case
Perkins,
244 Ga.
259 S.E.2d
pending
under O.C.G.A. 5-
court below”
J.T.M.,
(1978). Distinguishing
the Per-
428-29
6—34(a)(1).
held that
intrastate transfer of a
kins court
*30
view,
my
applying such
applies
judg-
to
In
a “narrow” and
estoppel
consent
collateral
exception to the facts of this case
ments).
“obscure”
grave
ap-
would be
mistake. Rather than
a
Lops, by
assuming that Mrs.
Finally, even
peal
Georgia
and jurisdic-
the
court’s venue
transfer,
right
lost
to
stipulating to
the
the
rulings,
Lops
stipulated
tional
Mrs.
herself
person-
Georgia court’s venue and
appeal the
that, the
be transferred to the
are
jurisdiction rulings,
rulings
those
none-
al
Subsequently,
Carolina court.
dissatisfied
subsequent courts. As
binding
theless
on
by the
oral
South Carolina court’s
statement
Kent,
Georgia Supreme
stated
the
place
on
it would
chil-
December
that
the
Lops’s
during
pen-
dren with Mr.
mother
the con-
need not determine whether
We
dency
proceedings,
Lops brought
Mrs.
face,
was,
ap-
tempt court’s order
its
Georgia.
suit in
district court in
Mrs.
duty to
pealable.
It was the husband’s
flagrant attempt
Lops’s actions constitute
issue,
appealable
an
order on that
obtain
system
to use the federal court
to circumvent
not,
did
he cannot
to the extent he
juris-
personal
court’s venue and
argue
estoppel
that collateral
should
now
rulings. Accordingly, applying
diction
apply.
not
injustice exception
Lops’s
manifest
Mrs.
766 n. 3
at 212 n.
ton, 563, (interpreting 822 134 6 227 Ga. 181 S.E.2d L.Ed.2d (1971) Act, prior (giving preclusive to a Full Faith effect and Credit 28 U.S.C. erroneous”); 1738, judgment irregular mandatory). “however Duncan, Johnston v. 227 Ga. 180 348, judi- (holding that res S.E.2d 349 III. applies “[r]egardless cata of correctness preclud- if Even the district court was decision”); of v. Hol- former] [the Lankford case, jurisdiction assuming from over this ed 631, 310, ton, 633-34, 312 196 Ga. 27 S.E.2d the question district court was faced with (1943) (stating importance finality that the of stay to in to of whether the case deference requires giving preclusive effect even to erro- pursuant to the the South Carolina decisions). view, In my majority neous doctrine enunciated Colo. River Water misrepresented Georgia holding law has States, 424 Conservation Dist. v. United U.S. contrary. 800, (1976), 1236,47 96 S.Ct. L.Ed.2d 483 legal authority All relevant thus confirms Lops’s related cases. Because Mrs. federal have that the district court should not as- court proceed- suit was reactive to the state jurisdiction this case. The sumed over III.C, contrary ings, Part to see infra explicitly Georgia court held that venue was III.D, I policy, federal removal see Part infra juris- improper personal that that its conclude the district abused Georgia. lie in Even assum- diction did not stay failing the instant action discretion ing authority had the that court. deference the South Carolina Carolina, the ease to South Furthermore, given the South that Carolina transferred, case, longer pend- once was “no already hearings on has held the merits below,” § 5-6- ing in the court O.C.G.A. petition, of Mrs. see infra 34(a)(1), Georgia appellate courts no because III.E, we vacate the Part should district jurisdiction longer it. Geor- over Under judgment stay it to and direct Mrs. law, therefore, gia court’s order action, Lops’s federal Part III.F.24 see infra a final that barred Mrs. relitigating from the issues of venue and A.
personal
state
judicial
Accordingly,
was barred
Considerations of “wise
adminis-
suing again in
court in
that a federal
federal district
tration”
warrant
district
Co.,
proceedings.
Georgia.
parallel
Indus.
court defer25
state
See Matsushita Elec.
Constr.,
Co., Inc.,
Although
Supreme
expressly
men
Inc. v. Brant Constr.
780
has
691,
(7th
1985).
stay
question
698
of whether a
or dis
F.2d
Cir.
reserved
appropriate
missal
is
when the Colorado River
Accordingly, I
the district court
believe
invoked,
v. San
doctrine is
see
Carlos
Arizona
dismissed,
stayed,
should have
the instant
Ariz.,
545,
21,
Apache
n.
Tribe
463 U.S.
570
of
See
v.
action.
Attwood Mendocino Coast Dist.
21,
3215
to 28
28 U.S.C.
U.S.C.
plaintiffs
intended to eliminate the
removal
D.
right.
Corp.
See Shamrock Oil & Gas
Sheets,
100, 104-09,
313 U.S.
61 S.Ct.
view,
by
court also erred
my
the district
870-72,
(1941); H.Rep.
all have counseled plaintiff pendency whose of the court action. in cases where a state pending files the same ease is still state court extenuating No such circumstances existed court.50 suit in federal here, Lops filed suit in however. Mrs. dis- reasoning compelling. Accord- I find this moving to court without first dismiss trict plaintiffs I hold that where a ingly, would Despite court the fact that her state case. plaintiff pending, is still court case state on court the district reached the identical suit may not presumptively file petition on Lops’s the merits of Mrs. ICARA identical against federal defendant the mid- until December it was majority’s I therefore believe that January dle 1998 that Mrs. moved federal ruling purpose undermines the re- action, her and even to dismiss state policy.51 moval timing comply did then she requirements of the South Carolina court. circumstances, a dis- Under certain limited January See Carolina court’s Order jur- justified exercising be trict court 2 (stating that Mrs. mo- though plaintiff the federal isdiction even 48 hours” of tion to dismiss was filed “within in state court originally filed same suit the South Carolina court’s substantive pending. For the state action is still hearing January plain plaintiff files suit in example, consider who then, “requisite day by notice upon being advised violation state court view, my hearing requirement”). on the case district no state year, not have allowed Mrs. to contin- occur for a moves state court should would litigate action in both fora. If the court refuses ue to the same to dismiss. case). Votkas, Soya v. then file the same state Co., Inc., But see Inc. Cent. file a lawsuit state court and court”); (7th Cir.1982) Deposit Fed. Ins. suit in federal accord 689 F.2d 107-08 Nichols, Corp. 637-38 (affirming stay F.2d court’s decision not to district Cir.1989)(stating policy was not rel plaintiff removal diversity pre- where the action longer pending was no evant where the suit viously had filed suit in state court in an identical action). plaintiff filed the federal sits). when the state the district Cruz, (1st 926 F.2d Cir. 47. See Gonzalez Corp., 50. See also v. Levolor Lorentzen 1991) (stating filing that the of a second lawsuit (S.D.N.Y.1990) F.Supp. (staying the fed against plaintiff may weigh the same exer alia, of, proceeding light plain inter eral jurisdiction, especially where the of federal cise attempt change original "to his choice tiff’s forum in violation of the federal plaintiff attempting removal to circumvent policy against Sales, policy); Inc. v. Villa Marina Yacht Batier plaintiff forum-shopping”); Ryder removal and Cir.1990) ("Other Yachts, (1st F.2d Corp., Rental v. Foodservices Truck Acton brought by faced with lawsuits courts second (C.D.Cal.1983) F.Supp. ("Having elect plaintiff have that factor rele same considered court, plaintiff ed state should bound its upholding district court decisions dis vant case.”), remand, compelling choice absent reasons seek relief in appeal miss the federal after Parris, forum.”); (1st Cir.1991) F.Supp. (stating another Ystueta v. that removal F.2d (N.D.Ga.1980) (stating plaintiff policy 128-29 this cir was not relevant where the first precedents permit stay a defendant the state suit and cuit's a district court to dismissed *37 court). duplicated substantially by then sued that defendant in federal federal suit that is pending parties); the same state action between v. Telesco Fuel & Masons’ Materi- 48. See Telesco Note, Stays "Federal Court and Dismissals (affirm- Inc., 356, (2d Cir.1985) als, 765 F.2d Proceedings: Deference to State Court Parallel filed ing of the federal suit the dismissal River," Impact of 44 U. Chi. L.Rev. The Colorado stating plaintiff; deference to the state court (1977) (stating that the federal re 666-67 party appropriate same where the state court expresses policy arguably deter moval statute plaintiff in both and sues in federal courts forum, limiting plaintiff to initial mination suffering cause action after court on the same obligation ”counterbalanc[ing] to exercise action). failures in earlier state some subsequent repetitive jurisdiction in law suit”). Co., Burlington 49. 879 F.2d See LaDuke N.R.R. (7th Cir.1989) (affirming the district authority suggesting majority points to no court where decision to defer the state court's plaintiff propriety of a state court brought removal plaintiff the same suit the federal to a federal court. initially in state court and had not dismissed Likewise, if require pro to move to the state court action has By failing to Mrs. action, significantly by state court the district dismiss her ceeded the time the federal Lops’s Mrs. abuse appeal, court condoned reaches us then we must take systems.52 Villa state and federal account, change of circumstances into this Cf. Sales, Yachts, Yacht Inc. v. Hatteras Marina well. Ill. Bell Tel. v. Ill. Co. Commerce (1st Cir.1991) (stating that 947 F.2d (7th Comm’n, Cir.1984) 740 F.2d 569-71 policy was not relevant federal removal (“The purpose of the Colorado River doc plaintiff dismissed a defen where the first trine, however, is the conservation of state suit and then sued that dant from the state judicial and federal resources. Where court); Deposit in federal Fed. defendant progress changed signifi of the state suit has Nichols, Corp. v. 885 F.2d 637-38 Ins. cantly stay since the motion to the federal (9th Cir.1989)(stating that federal removal filed, purpose suit was it would defeat that policy was not relevant where the state suit events.”). ignore subsequent The South plaintiff longer pending when the was no already jurisdic Carolina court has assumed action).53 the federal filed and, Lops’s tion over Mrs. important, more has held its substantive E. hearings regarding petition. the merits of her inquiry, governed by River Colorado Because the South Carolina court is thus judicial considerations of “wise administra matter, poised ruling to issue a in this tion,” give “regard must to conservation of progress factor of “how much has been made River, judicial at resources.” Colo. U.S. actions,” Cone, in the two Moses H. 460 U.S. omitted). (quotation at 1246 96 S.Ct. weigh at at 103 S.Ct. does not Accordingly, reviewing district against deferring to the South Carolina River, pursuant to refusal to defer Colorado totality we must take into consideration decision, of circumstances at the time of our the time simply the situation at the dis F. stay the state court trict court refused Although Lops’s the fact that Mrs. Carriers, Nat’l Inc. v. action. See Schneider * pose questions federal cases federal (7th Cir.1990); Carr, 1154, 1156n. 903 F.2d ordinarily weigh against deferring law would Constr., Co., Brant Lumen Inc. v. Constr. to the South Carolina see Moses H. (7th Inc., Cir.1985); 780 F.2d 697 n. Cone, 23-26, 941-42, at U.S. S.Ct. Valley Community
Bd.
Educ.
View
I
nature of
believe that
the reactive
Mrs.
Bosworth,
No.
Unit School Dist.
365U
Lops’s
Lops’s circum-
federal suit and Mrs.
Cir.1983).
ex
F.2d
1321-22
For
compel
policy
vention of federal removal
this
ample, if
in its
the state court action remains
court to vacate the district court’s
preliminary stages by the time this court is
stay
it to
and direct
appeal,
ready to resolve the federal case on
action. To hold otherwise would be to con-
weigh
the fourth
River factor would
Colorado
litigation practices completely
done
at odds
affirming
in favor of
the district court’s deci
judicial
with “wise
administration.” Colo.
sion not to defer to the state court. See
River,
Adair,
appropriate where same and sues in the federal court both courts suffering cause of action after the same ac state court
some failures earlier
tion), regardless of the fact that federal law proceedings, in both see LaDuke v. at issue Co., 1556, 1561 Burlington N. R.R. 879 F.2d America, Plaintiff- UNITED STATES (7th Cir.1989) (affirming the district court’s Appellant, Cross-Appellee, defer to the court where the decision to state plaintiff brought the same suit federal Martinez, initially HIALEAH, had not dis the state court and Raul L. CITY OF (in case; Mayor capacity), noting the state his missed official Hialeah Board, al., Defendants-Ap FELA and federal actions were both suits Personnel et pellees, over courts exercise which state federal jurisdiction). Mrs. concurrent Because Defendant-Appellee, Suau, Rafael sufficiently Lops’s fla actions constituted a Cross-Appellant. jur grant system of of the concurrent abuse accorded to state and federal courts isdiction 94-5083. No. 11603(a), ICARA, I under U.S.C. Appeals, United States Court court abused its conclude that district Eleventh Circuit. by failing to to the South discretion defer Only by vacating the district Carolina 7,May stay directing judgment and can this court federal action litigation practices in this circuit ensure that judicial admin with “wise
remain consistent River,
istration.” Colo. 424 U.S. omitted). (quotation
S.Ct. at
IV. view, Act, Full my Faith and Credit 1738, required the district court
28 U.S.C. accept court’s determinations personal
that venue Georgia. if district court
lacking in Even case, hearing precluded brought plaintiffs in state court violation of 54. Because some reactive federal suits are defendants, brought by policy dissatisfied removal are reactive adverse federal federal the circum not all reactive suits involve rulings; such federal lawsuits state court some See, e.g., policy. Na of federal removal vention simply attempts two at the are to achieve bites Marciano, Cir. 882 F.2d kash apple. judicial 1989). Similarly, lawsuits all