Creekbaum v. Creekbaum
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 8/23/2018. (AFS)
FILED
2018 Aug-23 PM 01:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEIGH RUMBLEY CREEKBAUM,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
STEPHEN TRAVIS CREEKBAUM,
Defendant.
Case Number: 2:18-cv-00906-JHE
MEMORANDUM OPINION1
On June 12, 2018, Plaintiff Leigh Rumbley Creekbaum initiated this action against
Defendant Stephen Travis Creekbaum seeking an order permitting Plaintiff to obtain a passport
for their minor child, G.K. Creekbaum, on her own or, alternatively, an order directing Defendant
to execute any documents necessary for Plaintiff to obtain a passport for G.K. Creekbaum. (Doc.
1). Plaintiff also seeks monetary damages for her lost opportunities to travel internationally with
her child and parents. (Id.). Defendant moves to dismiss the action under the Colorado River
and/or Younger doctrines, contending that litigating this issue concerning child custody in federal
court would be an unnecessary and significant waste of the Court’s time and resources. (Doc. 9).
Plaintiff has filed a response in opposition to Defendant’s motion to dismiss and a motion to strike.
(Doc. 16). Defendant then filed a response to Plaintiff’s motion to strike and a reply brief
addressing Plaintiff’s response in opposition to the motion to dismiss. (Doc. 18). The motions are
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In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 13).
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ripe for review. For the reasons that follow, Plaintiff’s motion to strike (doc. 16) is DENIED, and
Defendant’s motion to dismiss (doc. 9) is GRANTED.
Plaintiff’s motion to strike (doc. 16) is DENIED because all of the subject documents are
state court records from the underlying litigation. Plaintiff contends that the exhibits attached to
the motion to dismiss are “extrinsic” and “not central to Plaintiff’s claim” thus inappropriate for a
motion to dismiss. (Doc. 16 at 3-4). In ruling on a motion to dismiss based on an abstention
doctrine, as here, the court “may consider the various filings in the underlying state court
litigation.” Belevich v. Thomas, No. 2:17-cv-01193-AKK, 2018 WL 1244493, at *1-2 n.1 (N.D.
Ala. Mar. 9, 2018). The documents attached to Defendant’s motion are court filings associated
with the pending state litigation (see doc. 9-1) and are therefore appropriate for consideration with
this motion.
I. Background
Plaintiff and Defendant were divorced on July 22, 2016, pursuant to a final judgment of
divorce. (Doc. 1 at ¶ 5; see www.alacourt.com; Case no. 58-DR-16-900314.00). As part of the
divorce decree, Plaintiff and Defendant were awarded joint legal and physical custody of their
minor child, G.K. Creekbaum. (Id.). Plaintiff wishes to travel with the child internationally (id.
at ¶ 5), but Defendant will not consent to the issuance of the minor child’s passport (id. at ¶ 8).
Plaintiff avers that due to Defendant’s refusal to consent to the issuance of a passport for the minor
child, Plaintiff and G.K. Creekbaum have lost the opportunity to travel internationally. (Id. at ¶
9).
Based on the state court documents attached to the motion to dismiss, Defendant contends
Plaintiff’s boyfriend, who is with the minor child during Plaintiff’s custodial periods, routinely
takes Plaintiff and the minor child on his private plane to one of his residences in other states (doc.
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9-1 at 7), and that he appears to be their sole source for potential international travel. Defendant
further alleges in state court documents that upon the return from a domestic trip in May 2017,
G.K. Creekbaum told Defendant that Plaintiff’s boyfriend had hit him and that the police had
visited in the middle of the night during his stay. (Id.). In the state court proceedings, Defendant
has moved for the minor child to have no contact with Plaintiff’s boyfriend. (Id.). Defendant also
submits state court documents alleging that Plaintiff permitted contact between her boyfriend and
the minor child that violated the court’s order. (Id. at 10-12). Finally, Defendant has also moved
in state court to modify the custody arrangement, requesting sole custody of the minor child. (Doc.
9-1 at 4). These matters have not been resolved. According to publicly available records, the state
court has set a final trial date for custody redetermination for December 29, 2018. (www.
alacourt.com, Case no. 58-DR-16-900314.01).
II. Analysis
The Code of Federal Regulations outlines the requirements and circumstances related to
obtaining a passport for a minor. See 22 C.F.R. § 51.28. Generally, both parents must provide
consent to the issuance of a passport to a minor if they share joint custody of the minor. See 22
C.F.R. §§ 51.28(a)(2) and 51.28(a)(3)(ii)(G). However, a single parent may apply for a minor’s
passport if “[a] notarized written statement or affidavit from the non-applying parent or legal
guardian” is provided. 22 C.F.R. § 51.28 (a)(3)(i). Additionally, a passport may be issued without
both parents’ consent when “[a]n order of a court of competent jurisdiction grant[s] sole legal
custody to the applying parent” or specifically authorizes the issuance of a passport “regardless of
custodial arrangements; or specifically authorizing the travel of the minor with the applying parent
or legal guardian.” 22 C.F.R § 51.28(a)(3)(ii)(E). Thus, under the current custody arrangement,
absent an order from a court of competent jurisdiction, both Plaintiff and Defendant must provide
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consent to obtain a passport for G.K. Creekbaum. Defendant asserts that, due to issues raised
during the ongoing domestic litigation in state court, he has refused to provide consent. Plaintiff
asks this Court to issue an order authorizing the issuance of a passport or directing Defendant to
sign the necessary paperwork. (Doc. 1 & 16).
A. Application of the Colorado River Doctrine
Defendant argues this Court should abstain from exercising its jurisdiction and dismiss this
action under the Colorado River doctrine.2 (Doc. 9 at 3-7). Generally, federal courts have a
“virtually unflagging obligation . . . to exercise the jurisdiction given to them.” Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). However, the Colorado
River doctrine creates an “extraordinary and narrow exception” where a district court may decline
to exercise or postpone the exercise of its jurisdiction. Id. at 813. Although “abstention from the
exercise of federal jurisdiction is the exception, not the rule[,] a federal court may appropriately
dismiss an action pending in state court in the interest of “wise judicial administration.” Colorado
River, 424 U.S. at 813, 817. For example, “federal courts generally dismiss cases involving . . .
child custody . . . child support, and enforcement of separation or divorce decrees still subject to
state court modification.” Ingram v. Hayes, 866 F.2d 368, 369 (11th Cir. 1998) (per curiam).
1. Parallel Lawsuits with Substantially Similar Parties and Issues
The application of the Colorado River doctrine is appropriate when “a parallel lawsuit is
proceeding in one or more state courts.” Ambrosia Coal & Const. Co. v. Pages Morales, 368 F.3d
1320, 1327 (11th Cir. 2004). To be considered “parallel” for this purpose, the state and federal
cases at issue should “contain substantially similar parties and issues.” Acosta v. James A. Gustino,
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Defendant also argues for abstention under the Younger doctrine. (Doc. 9 at 7-11).
However, because abstention is appropriate under the Colorado River doctrine, there is no need
to reach questions regarding the application Younger.
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P.A., 478 Fed. Appx. 620, 622 (11th Cir. 2012). There is no clear test for deciding whether the
cases contain “substantially similar parties and issues.” Id. As Defendant points out, “[t]he state
and federal cases need not share identical . . . issues to be considered parallel for purposes of
Colorado River abstention.” Sini v. CitiBank, N.A., 990 F. Supp. 2d 1370, 1376 (S.D. Fla. 2014).
The Eleventh Circuit has discussed this possibility of the state and federal cases being parallel even
if some claims made in one court are not made in the other. See Ambrosia Coal, 368 F.3d at 1331.
Plaintiff admits the parties in both the state court and this action are the same; however,
she spends much of her argument contending the passport claim is a completely separate issue
from the child custody issues being litigated in state court. (Doc. 16 at 6). Specifically, she
contends the state court action involves custody issues and a request for a restraining order, while
this action involves “a federal question regarding the issuance of a passport.” (Id.). Defendant
maintains (doc. 18 at 3, 6-7), and the court agrees, that child custody and related issues are at the
root of the passport issue and are not distinct in any meaningful way. As Defendant puts it, the
passport issue is one discrete issue under the umbrella of child custody. If this case were to proceed
to the merits in this Court, the court would be required to address all the reasons why Defendant
has not consented to the issuance of a passport. These are the same reasons that the child custody
issue has been reopened and is being litigated in state court. This Court attempting to determine
whether to issue a passport to the minor child against Defendant’s wishes is essentially a domestic
custody hearing or trial, which is already taking place in state court.
Furthermore, the parties are currently under a custody review wherein Defendant seeks
sole legal and physical custody, which would render this action moot. Thus, finding the parties
are identical in both actions and that the issue of child custody is central to both the state case and
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the federal claim, these two actions are parallel for purposes of Colorado River abstention.
2. The Contested Factors
Since finding the state and federal actions are parallel for purposes of Colorado River
abstention, the next step is to weigh the following factors to determine if the parallel federal claim
should be dismissed: (a) whether one of the courts has assumed jurisdiction over the subject
property, (b) the inconvenience of the federal forum, (c) the potential for piecemeal litigation, (d)
the order in which the courts obtained jurisdiction, (e) whether state or federal law will be applied,
and (f) the adequacy of the state court to protect the parties’ rights. Ambrosia Coal, 368 F.3d at
1331.
a) Assumption of Jurisdiction Over the Property and b) the Inconvenience of the
Federal Forum
The parties agree that the first factor, assumption of jurisdiction over the property, is not
applicable because this is not an in rem action. The parties further agree that the second factor,
the inconvenience of the federal forum, is neutral because both forums are equally convenient.
(Doc. 9 at 4-5; doc. 16 at 7).
c) The Desirability of Avoiding Piecemeal Litigation
The third factor regarding avoiding piecemeal litigation heavily favors abstention. This
factor will support abstention when federal adjudication would “require[e] duplication of resources
and potentially conflicting decisions based on the same evidence.” Sini, 990 F. Supp. 2d at 1378.
The domestic state court litigation remains ongoing, including Defendant’s request for sole
custody. If this court addresses a discrete custody issue, it is highly likely to result in wasted
duplication of resources and potentially result in inconsistent judgments (or even moot this action)
since the state court is revising the custody arrangements. Plaintiff’s assertions to the contrary
(doc. 16 at 7-8) are not supported. This Court cannot blindly grant her request for a passport for
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the minor child without fully exploring the reasons why Defendant has refused to consent to the
issuance of such a passport. The reasons Defendant is refusing to consent are the same reasons he
is petitioning the state court for sole custody and a restraining order. Because the same evidence
would be considered to determine the discrete child custody passport issue, this factor favors
abstention.
d) The Order in Which Jurisdiction Was Objected by the Concurrent Forums
The order in which the forums obtained jurisdiction also weighs in favor of abstention.
The court looks not only to which complaint was first filed, but also to the progress each case has
made. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 21-22 (1983). Here,
the state court domestic action was initiated first and has progressed further, to the point that there
is a trial date set for December this year. This is considerable, as this action is at its infancy –
addressing a motion to dismiss. Plaintiff’s continued argument that the issues are “so different”
(doc. 16 at 8) is not supported and fails to undermine this factor regarding progress.
e) Whether State or Federal Law Will Be Applied
This factor weighs slightly against abstention. Federal regulations provided the basis for
this case. However, it is worth noting that the Court in Colorado River created this doctrine when
ruling on an issue arising out of a federal statute.
Colorado River, 424 U.S. at 802-03.
Furthermore, state courts frequently hear arguments involving passport custody issues and are
much more accustomed to litigating domestic issues.
f) The Adequacy of the State Court to Protect the Parties’ Rights
Finally, this factor supports abstention. The issue in this case is whether this court should
grant a parent’s request for a passport for a minor child against the wishes of the other parent,
when they share joint custody. The underlying issues of the details of child custody is something
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that is routinely handled and is the province of the state court.
The state court is not only an
adequate forum for this, but the preferred forum absent some exceptional circumstances.
While Plaintiff was not incorrect when she filed this action here, this Court has the
discretion to abstain from exercising its jurisdiction. There are ongoing custody proceedings in
the state court, and the above factors weigh in favor of abstaining from making any determination
until after those proceedings, assuming they are not resolved during their pendency in state court.
III. Conclusion
Based on the foregoing, Defendant’s motion to dismiss (doc. 9) is GRANTED. This action
will be DISMISSED WITHOUT PREJUDICE pursuant to the doctrine of abstention as
recognized in Colorado River and its progeny.
DONE this 23rd day of August, 2018.
_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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