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In Rigby v Damant, 486 F.Supp.2d 222 (D. Mass.
2009) Petitioner Robert Rigby and Respondent Lorraine Damant were the
parents of Robert Damant ("the Child"), born August 11, 2000. The Child
was born in Canada and had resided with the couple until October 23,
2004. Petitioner alleged that he possessed joint custodial rights over
the Child by operation of Canadian law. Petitioner alleged that
Respondent abducted the Child without notice to or authorization from
the Petitioner. Petitioner asked the court to order the Child returned
to Canada. Respondent argues in reply that Petitioner abandoned
Respondent and the Child, and that her departure from Canada with the
Child was, therefore, not an abduction in violation of any custody
rights exercised by Petitioner. Respondent also argued that returning
the Child would expose him to a grave risk of physical or psychological
harm. Following the removal, Petitioner applied to the Family Court of
the Superior Court of Justice in Hamilton, Ontario, which ruled on May
11, 2005, that Petitioner would have sole custody of the Child. This
document authorizes Canadian law enforcement to "locate, apprehend, and
deliver the child to Robert Rigby." Petitioner has filed a Request for
Return with the U.S. State Department and the National Center for
Missing and Exploited Children. Petitioner filed his petition on January
31, 2007. The court issued an order to maintain the status quo. That
order prevented either party from removing the Child from this
jurisdiction and required Respondent to receive court approval before
leaving Massachusetts or changing her residence. Petitioner filed a
Motion for Summary Judgment, arguing that discovery was unnecessary and
that the Child should be immediately returned.
This court denied that motion. On April 24,
2007, Respondent initiated an action in the Barnstable Division of the
Probate and Family Court Department of the Commonwealth of Massachusetts
seeking a ruling that she was entitled to custody of the Child under
Massachusetts law. On May 1, 2007, Petitioner filed an Emergency Motion
for Preliminary Injunction, requesting that this court enjoin a custody
hearing scheduled in the Barnstable court set for May 14, 2007. On the
same day, Petitioner appealed the denial of his Motion for Summary
Judgment to the First Circuit Court of Appeals. That appeal was pending.
The court ordered the Parties to appear on May 14, 2007, to
address the pending motion for an injunction and the question of this
court's jurisdiction in light of the pending appeal. On May 11, 2007,
Respondent filed a Motion to Clarify Scheduling Order arguing that
discovery should be ongoing during the appeal and that the fact
discovery deadline should be extended until May 31, 2007, without
changing the trial date. The court now addressed these issues. With some
exceptions, the filing of a Notice of Appeal "confers jurisdiction on
the court of appeals and divests the district court of control over
those aspects of the case involved in the appeal. Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225
(1982) (per curiam). Appeal from an interlocutory order does not divest
the court of jurisdiction to proceed with matters unrelated to the
appeal. Sycuan Band of Mission Indians v. Roache, 788 F.Supp. 1498, 151
(S.D.Cal.1992)). The court and the parties agreed at oral argument that
there was jurisdiction to address the question of whether an injunction
should issue to block the Barnstable court proceeding. Such a question
is not related to the pending appeal which deals with the issue of
whether or not this court erred in determining that discovery and an
evidentiary hearing were warranted in this Hague Convention case.
Petitioner argued that the court no longer had jurisdiction to oversee
discovery. This argument was not persuasive. Having found jurisdiction
to proceed, the court noted that this course is also an efficient use of
judicial resources. . Weighing the risk of the unnecessary cost of a few
depositions against the risk of further delay in trial, it was clear
that judicial efficiency is best served by continuing to exercise
jurisdiction and maintaining the July 18, 2007, trial date. Respondent
initiated proceedings in the Barnstable court. Respondent asked that
court to "exercise its jurisdiction over the minor child to award
custody to his mother, Lorraine Damant, adopting and modifying the
Canadian order if necessary." Article 16 of the Hague Convention
explicitly provides that "the judicial or administrative authorities of
the Contracting State to which the child has been removed or in which it
has been retained shall not decide on the merits of rights of custody
until it has been determined that the child is not to be returned under
this Convention." Respondent contended that any determination from the
Barnstable court would only address temporary custody and, therefore,
would not be a decision on the merits of the rights of custody. The
court held that argument is one that the Barnstable court will have to
consider when assessing its own jurisdiction in determining whether it
should issue any rulings. The Anti-Injunction Act made it clear that it
would be improper for the court to decide this question for the state
court and enjoin state proceedings. Specifically, the Anti-Injunction
Act states that a "court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. s
2283 (2007). The Supreme Court has made clear that these exceptions
should be narrowly construed. The court was unable to find any opinions
applying the Anti-Injunction Act in a Hague Convention case.
As to the first exception, no Act of Congress
expressly authorizes this court to enjoin the Barnstable court's
proceedings. Article 16 of the Hague Convention does forbid judicial
authorities from adjudicating a custody dispute on the merits. The
federal legislation that implements the Hague Convention, the
International Child Abduction Remedies Act ("ICARA") also declares that
"The Convention and this Act empower courts in the United States to
determine only rights under the Convention and not the merits of any
underlying child custody claims." These provisions, however, do not
specifically authorize an injunction ordering the state court not to
proceed. The Barnstable court was just as capable of reading and
interpreting these general prohibitions as is this court, and it would
be inconsistent with the Anti-Injunction Act for this court to usurp the
Barnstable court's role in deciding what matters that court is permitted
to adjudicate. Furthermore, the Barnstable court litigation will not
frustrate this proceeding. Even if the state court made a custody
determination before this court issued a judgment, that ruling would not
bind this court. While the Rooker-Feldman doctrine, as well as the
principles of claim and issue preclusion, typically preclude inferior
federal courts from reviewing state court final judgments, the Eighth
and Ninth Circuit Courts of Appeals have held that a federal district
court considering a Hague Convention claim may set aside a state court
custody ruling. See Silverman v. Silverman, 338 F.3d 886, 894 (8th
Cir.2003); Holder v. Holder, 305 F.3d 854, 865 (9th Cir.2002) ( "
'Congress has expressly granted the federal courts jurisdiction to
vindicate rights arising under the Convention. Thus, federal courts must
have the power to vacate state custody determinations and other state
court orders that contravene the treaty.' " (quoting Mozes v. Mozes, 239
F.3d 1067, 1085 n. 55 (9th Cir.2001))). This conclusion was supported by
the text of the treaty and also made intuitive sense. Hague Convention,
art. 17 ("The sole fact that a decision relating to custody has been
given in or is entitled to recognition in the requested State shall not
be a ground for refusing to return a child under this Convention, but
the judicial or administrative authorities of the requested State may
take account of the reasons for that decision in applying this
Convention.").
The second exception to the Anti-Injunction Act
applies where "necessary to prevent a state court from so interfering
with a federal court's consideration or disposition of a case as to
seriously impair the federal court's flexibility and authority to decide
that case." As the Barnstable court proceeding will not interfere with
this court's rulings tsecond exception did not apply. The third
exception did not apply as, at this point, there was no determination of
the merits or judgment to protect. Accordingly, the court held that it
may not enjoin the Barnstable court from adjudicating this issue.
Petitioner points to a recent Third Circuit case, arguing it holds to
the contrary:Yang v. Tsui, 416 F.3d 199, 203 (3d Cir.2005). In that case
the Third Circuit reversed a district court for abstaining in a Hague
Convention case, in favor of a state proceeding. The Third Circuit's
opinion did not address the Anti-Injunction Act. Thus, while this
language suggests that federal courts should not stay their own Hague
cases, and that state courts should stay custody proceedings while Hague
Convention cases are ongoing, it does not imply that federal courts have
the power to order state courts to halt their proceedings. It is the
Barnstable court that must evaluate the relevant language for itself to
determine the extent of its power. The Emergency Motion for Preliminary
Injunction was denied. In the absence of a contravening order from the
Court of Appeals, both sides were to submit to discovery during the
pending appeal.
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