Disanto et al v. Thomas

Filing 32

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Lawson's and Cartwright's 12 MOTION to Remand to State Court, DENY Thomas' Motion for Notice of Removal (doc. 1), REMAND this case to the Court of Common Pleas i n Lake County, Ohio, and CLOSE this case in this Court. I also RECOMMEND the Court DISMISS Thomas' Motions for Default Judgment, Motions to Amend/Correct, Motions to Strike, and Motion for Immediate Consideration, (docs. 13, 17, 20, 22, 24, 26, 27, 30), as moot. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 2/16/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/2/2016. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

DORENE DISANTO; KAREN LAWSON;
MARGARET CARTWRIGHT; STATE OF
OHIO; and MIKE DEWINE,
Plaintiffs,

CIVIL ACTION NO.: 5:15-cv-36

v.
THOMAS L. THOMAS,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Defendant Thomas L. Thomas (“Thomas”), a resident of Brantley County, Georgia, filed
a Notice of Removal in this Court pursuant to 28 U.S.C. § 1441, et seq., 28 U.S.C. §§ 1331 and
1332, and 25 U.S.C. § 1901, et seq., on May 26, 2015. (Doc. 1.) Karen Lawson, a judge with
the Lake County, Ohio, Juvenile Court, and Margaret Cartwright, a support officer with the Lake
County, Ohio, Department of Job and Family Services, Child Support Enforcement Division,
filed a Motion for Remand on June 23, 2015. (Doc. 12.) Thomas filed a Response, and Lawson
and Cartwright filed a Reply. (Docs. 21, 23.) For the reasons which follow, I RECOMMEND
that the Court GRANT Lawson and Cartwright’s Motion, REMAND this case to the Lake
County, Ohio, Court of Common Pleas, and CLOSE this case. For these same reasons, I
RECOMMEND the Court DISMISS Thomas’ Motions for Default Judgment, Motions to
Amend/Correct, Motions to Strike, and Motion for Immediate Consideration, (docs. 13, 17, 20,
22, 24, 26, 27, 30), as moot. 1
1

Documents Numbered 24 and 26 are the same pleadings. However, since the Clerk of Court has
docketed these pleadings separately, the Court will consider these pleadings to be separate documents. In

BACKGROUND
In December 2014, Dorene DiSanto (“DiSanto”) requested the assistance of the Lake
Court, Ohio Department of Job and Family Services, Child Support Division (“Lake County
DJFS”) to establish paternity for her minor child, who was born in 2003. The Lake County
DJFS notified Thomas, the minor child’s alleged father, of DiSanto’s request to establish
paternity on February 12, 2015. (Doc. 12-2, p. 1.) By this same document, Thomas was ordered
to appear for genetic testing at LabCorp in Brunswick, Georgia, on March 17, 2015. (Id. at p. 2.)
Thomas failed to submit to genetic testing, and the Lake County DJFS determined paternity was
inconclusive as a result of Thomas’ failure to submit to genetic testing. (Id. at pp. 5–6.)
Thomas then initiated suit against DiSanto in the Brantley County, Georgia, Superior
Court on March 18, 2015, for child custody, child support, and show cause. According to
Thomas, DiSanto’s request to establish paternity of her minor child with the Lake County DJFS
was “fraudulently/falsely filed[.]” (Doc. 12-3, p. 2.) Thomas asserted the Brantley County
Superior Court had “absolute/exclusive Subject Matter Jurisdiction” over his case. (Id.) DiSanto
filed an answer to Thomas’ complaint, as well as a motion to dismiss, on April 27, 2015. In her
motion to dismiss, DiSanto alleged she and the minor child reside in Ohio, Thomas has not been
determined to be the minor child’s father, and she and Thomas were never married. (Id. at
p. 11.)

The Brantley County Superior Court determined Thomas and DiSanto were never

married and that Ohio is the home state for purposes of a custody determination and dismissed
Thomas’ complaint on June 4, 2015. (Doc. 31-2.)
On April 23, 2015, DiSanto filed a custody/emergency ex parte complaint in the Court of
Common Pleas in Lake County, Ohio, against Thomas, Case Number 2015CV00603. DiSanto

addition, Documents Numbered 19 and 20 are the same pleadings, yet only Document Number 20 is
docketed as a pending Motion.

2

stated she and the minor child had been living in Ohio since April 2013, and she feared Thomas
would attempt to take the minor child to Georgia without her knowledge or permission.
DiSanto’s request for ex parte relief was granted by Karen Lawson, a Lake County Juvenile
Court Magistrate Judge and a named “Plaintiff” in this cause of action. (Doc. 12-4, p. 9.)
Thomas, in turn, filed a complaint/counter-complaint for custody, visitation, child
support, objection to DNA testing, and habeas corpus of child in the Court of Common Pleas in
Lake County, Ohio, Juvenile Division on May 18, 2015, Case Number 2015-P-0028. In that
complaint, Thomas stated that he is not the minor child’s biological father, but he raised the
minor child as a father would. Thomas also stated the Lake County court lacked jurisdiction
over him and the minor child because they are both registered members of the Penbina Nation
Little Shell of North America, and exclusive subject matter jurisdiction rests with the “Tribal
Court, Federal Courts, and/or will be Transferred to the US District Court over Federal Questions
of Law[.]” (Doc. 12-4, p. 17.)
Thomas filed the Notice of Removal of the pending Lake County, Ohio, case (Number
2015-CV-00603), in this Court on May 26, 2015. (Doc. 1.) In addition to DiSanto, Lawson, and
Cartwright, Thomas names the State of Ohio and Mike DeWine, the Ohio Attorney General, as
Plaintiffs-Respondents in his Notice. As stated above, Thomas bases his Notice on 28 U.S.C. §
1441, et seq., 28 U.S.C. §§ 1331 and 1332, and 25 U.S.C. § 1901, et seq., and claims this Court
has jurisdiction over this matter based on these statutes. (Id. at p. 2.) Specifically, Thomas avers
this Court “retains exclusive Subject Matter Jurisdiction over Native-American Child and over
State Courts currently acting without Subject Matter Jurisdiction to enforce Tribal law[.]” (Id.)
Thomas maintains he “possesses the Right to file a Federal Notice of Removal against Plaintiff-

3

Respondent(s) et at [sic] for blatantly violating [his] clearly established Federal Civil Rights,
Federal Statutes/Laws[.]” (Id. at p. 3.)
DISCUSSION
Lawson and Cartwright move for the remand of this matter to the Court of Common
Pleas in Lake County, Ohio, contending this cause of action was improperly removed to this
Court. (Doc. 12-1, p. 3.) First, Lawson and Cartwright state that many of the removal statutes,
Section 1441, et seq., do not apply and do not provide a basis for removal. (Id. at pp. 4–7.)
Lawson and Cartwright also assert that Thomas does not present a federal question under Section
1331, and he does not satisfy the amount in controversy requirement under Section 1332. (Id. at
pp. 8–9.) In addition, Lawson and Cartwright allege the Indian Child Welfare Act, 25 U.S.C. §
1901, et seq., does not apply to confer jurisdiction upon this Court. (Id. at pp. 9–13.) Thomas
responds that Lawson and Cartwright have “intentionally and in bad faith” filed their Motion for
Remand and cited to inapplicable, unpublished case law and misstatement of facts in an effort to
“mislead” this Court. (Doc. 21, p. 1.)
The Court agrees this cause of action was removed from the Lake County, Ohio Court of
Common Pleas’ jurisdiction improperly. Lawson’s and Cartwright’s Motion requires analysis
under many statutes and applicable case law, which the Court addresses in turn.
I.

Legal Standard for Removal
A defendant may remove a case from state court to federal court if the federal court had

jurisdiction to hear the case originally. 28 U.S.C. § 1331 (“[A] district court has subject matter
jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United
States.”); see also 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a state court of which the
district courts of the United States have original jurisdiction, may be removed by the defendant

4

or the defendants, to the district court of the United States for the district and division embracing
the place where such action is pending.”). “Given that removal jurisdiction raises significant
federalism concerns, ‘federal courts are directed to construe removal statutes strictly. Indeed, all
doubts about jurisdiction should be resolved in favor of remand to state court.’” Miller v.
Holmes, No. CV 215-46, 2015 WL 6408119, at *2 (S.D. Ga. Oct. 23, 2015) (quoting City of
Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (quoting Univ. of
S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)). “The removing party ‘bear[s]
the burden of demonstrating federal jurisdiction.’” Id. (quoting Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998)).
II.

Whether Thomas has Asserted a Proper Basis for Removal Pursuant to 28 U.S.C. §
1441, et seq.
Lawson and Cartwright assert Sections 1441 through 1452 of Title 28 of the United

States Code do not provide any basis for removal of the Lake County, Ohio, child custody case.
Lawson and Cartwright contend Sections 1442, 1442a, 1444, and 1452 do not apply, as these
Sections concern removal: when federal officers or agencies are sued or prosecuted; when
members of the armed forces are sued or prosecuted; of foreclosure actions against the United
States; and of bankruptcy cases, respectively. Because Thomas’ Notice of Removal concerns a
cause of action involving the custody of a minor child, Lawson and Cartwright posit these
statutes do not provide bases for removal to this Court. Likewise, Lawson and Cartwright aver
Sections 1443 and 1441 do not authorize removal.
A.

Sections 1442, 1442a, 1444, and 1452

Sections 1442, 1442a, 1444, and 1452 of Title 28 of the United States Code authorize the
removal of actions commenced in state courts concerning: civil and criminal suits against federal
officers or agencies and members of the armed services, (Sections 1442 and 1442a); foreclosure

5

or other real property actions involving the United States, (Section 1444); and bankruptcy
proceedings, (Section 1452). Lawson and Cartwright are correct that these four Code Sections of
Title 28 do not authorize the removal to this Court of a child custody case arising in Lake
County, Ohio. 2 Thus, these statutes do not provide a basis for removal of a state court action to
this Court.
B.

Section 1443

Lawson and Cartwright contend a two-pronged test must be satisfied for removal under
Section 1443. First, a petitioner must show the deprivation of a right that arises under federal
law providing for specific civil rights stated in terms of racial equality.

In addition, the

deprivation must be manifest in a formal expression of state law. (Doc. 12-1, pp. 4–5.) Lawson
and Cartwright aver persuasive authority holds removal under the Indian Child Welfare Act
(“ICWA”) is improper. Additionally, Lawson and Cartwright state the ICWA is not a federal
law providing for specific civil rights stated in terms of racial inequality, as the purpose of the
ICWA is “‘to promote stability and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their families.’” (Id. at p. 5)
(quoting Miller v. Bunn-Miller, No. SACV 11-1465-JST (ANx), 2011 WL 4529996 (C.D. Cal.
Sept. 27, 2011).). Lawson and Cartwright contend that Thomas’ assertion of rights under the
ICWA, even if applicable, is insufficient to justify removal of this Lake County, Ohio, cause of
action to this Court.
The defendant in any civil or criminal action commenced in a State court against “any
person who is denied or cannot enforce in the court of such State a right under any law providing

2

Though not specifically enumerated by Lawson and Cartwright as failing to form a basis for removal,
28 U.S.C. §§ 1445 through 1451 are not applicable and provide no basis for removal. These particular
Sections pertain to actions which are nonremovable, the procedures to employ for removal, and
definitions used in the removal statutes.

6

for the equal civil rights of citizens of the United States,” or for “any act under color of authority
derived from any law providing for equal rights, or for refusing to do any act on the ground that
it would be inconsistent with such law[,]” may remove such a case “to the district court of the
United States for the district and division embracing the place wherein [such an action] is
pending[.]” 28 U.S.C. § 1443. Even assuming the ICWA provides a jurisdictional basis for
removal to a federal district court 3, Section 1443 contains a geographical component which
requires that Thomas move for removal of the pending child custody proceedings in the United
States District Court for the Northern District of Ohio, Eastern Division, and not in this Court’s
Waycross Division. Thus, Section 1443 does not allow for removal of the Lake County, Ohio,
child custody proceedings to this Court.
C.

Section 1441

Lawson and Cartwright state Section 1441 authorizes removal of actions over which
district courts have original jurisdiction, those based on diversity of citizenship under 28 U.S.C.
§ 1332, and those involving a federal question under 28 U.S.C. §1331. According to Lawson
and Cartwright, neither of these provisions authorizes removal in this case, and, even if these
provisions did, Thomas’ efforts at removal would fail. Importantly, Lawson and Cartwright
explain that removal is authorized only to the district court of the United States for the district
and division embracing the place where such action is pending. Thus, even if removal were
proper, it would have to be to the United States District Court for the Northern District of Ohio,
in which Lake County, Ohio, is located, not in the Waycross Division of this Court.
The federal statute governing the removal of cases from state court provides in relevant
part:
3

The applicability of the ICWA to the child custody case presently before the Court will be addressed in
Section V of this Report, infra.

7

Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place
where such action is pending.
28 U.S.C. § 1441(a) (emphases added). The State child custody proceeding Thomas seeks to
remove is currently pending in Lake County, Ohio. (Doc. 1.) Accordingly, if Thomas wishes to
remove that action to federal court, the geographical component of Section 1441(a) requires that
he do so in the United States District Court for the Northern District of Ohio, Eastern Division,
just as Section 1443 does. See Peterson v. BMI Refractories, 124 F.3d 1386 (11th Cir. 1997).4
As a result, Section 1441 does not allow for removal of the Ohio child custody proceedings to
this Court.
III.

Whether Section 1331 Provides a Basis for Removal
Lawson and Cartwright contend DiSanto seeks relief in the Lake County, Ohio, cause of

action which does not depend on resolution of a question arising under the United States
Constitution, treaties, or federal law, and thus, Section 1331 does not authorize removal.
District courts “have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “To determine whether a
claim arises under federal law, courts apply the well-pleaded complaint rule, ‘which provides
that federal jurisdiction exists only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.’” Miller, No. CV 215-46, 2015 WL 6408119, at *2
(quoting Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (quoting Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)). “Federal question jurisdiction will be found where a ‘well4

Peterson held that a “failure to comply with the geographical requirements of § 1441(a) is a procedural
defect that does not deprive a district court of subject matter jurisdiction in a removed case.” 124 F.3d at
1394 (emphasis added). This is not a “removed case” (where a defendant has taken the proper steps to
secure removal) but rather involves a petition requesting leave of this Court to allow removal of the Ohio
case. (Doc. 1.)

8

pleaded complaint standing alone establishes either that federal law creates the cause of action or
that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of
federal law.’” Id. (quoting Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1472 (11th Cir.
1997)).
Thomas seeks to establish a question of federal law for purposes of Section 1331 by
citing 42 U.S.C. §§ 1983 and 1985 in support of his contention that DiSanto, Lawson,
Cartwright, the State of Ohio, and DeWine conspired to violate the minor child’s rights to
“Liberty and Equal Protection Due Process of Law [sic] [.]” 5 (Doc. 1, p. 9.) However, Thomas
fails to present any evidence or factual allegations in support of such specious contentions.
A conspiracy to violate another person’s constitutional rights violates Section 1983. In
order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must satisfy two elements.
First, a plaintiff must allege that an act or omission deprived him “of some right, privilege, or
immunity secured by the Constitution or laws of the United States.” Hale v. Tallapoosa Cty., 50
F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act or omission was
committed by “a person acting under color of state law.” Id.
“To establish a prima facie case of [a S]ection 1983 conspiracy, a plaintiff must show,
among other things, that defendants “‘reached an understanding to violate [his] rights.’” Rowe
v. City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2007) (quoting Strength v. Hubert,
854 F.2d 421, 425 (11th Cir. 1988)). A “plaintiff does not have to produce a ‘smoking gun’ to
establish the ‘understanding’ or ‘willful participation’ required to show a conspiracy, but must
show some evidence of agreement between the defendants. Id. at 1283–84 (quoting Bendiburg
v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990)). “[T]he linchpin for conspiracy is agreement.”
5

The ICWA can establish a federal question for Section 1331 purposes. See Doe v. Mann, 415 F.3d
1038 (9th Cir. 2005). However, as discussed infra., the ICWA is inapplicable here, and thus, does not
provide a basis for removal under Section 1331.

9

Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., 956 F.2d 1112, 1122 (11th Cir. 1992).
“[M]erely string[ing] together” alleged acts of individuals is not sufficient to establish the
existence of a conspiracy. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992).
Likewise, “[t]o state a claim under [42 U.S.C.] § 1985(3), a plaintiff must allege: (1) a
conspiracy; (2) for the purpose of depriving a person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of
the conspiracy; (4) resulting in an injury to person or property, or a deprivation of any right or
privilege of a citizen of the United States.” Gibbs v. United States, 517 F. App’x 664, 669 (11th
Cir. 2013) (citing Childree v. UAP/GA AG Chem., Inc., 92 F.3d 1140, 1146–47 (11th Cir.
1996)).

“The language of Section 1985 which requires an intent to deprive one of equal

protection or equal privileges and immunities means that there must be some racial or otherwise
class-based invidiously discriminatory animus behind the conspirators’ action.” Byrd v. Clark,
783 F.2d 1002, 1007–08 (11th Cir. 1986), abrogated on other grounds by Nolin v. Isbell, 207
F.3d 1253, 1256 (11th Cir. 2000).
Here, Thomas’ Notice of Removal is completely lacking in any factual allegations that
DiSanto, Lawson, Cartwright, the State of Ohio, and DeWine reached an agreement to or
intended to conspire against Thomas or the minor child.

Instead, he merely states these

individuals should be held liable for “conspiring” to violate the minor child’s rights. (See, e.g.,
Doc. 1, p. 9.) In addition, there is nothing before the Court indicating that these individuals acted
with a discriminatory animus. There is a lack of indicia for liability under Sections 1983 and
1985 as a jurisdictional basis for removal in this case within the meaning of Section 1331.

10

Accordingly, Thomas fails to present a “federal question” pursuant to Section 1331 to authorize
removal of the Ohio child custody proceedings to this Court. 6
IV.

Whether Section 1332 Provides a Basis for Removal
Lawson and Cartwright maintain Section 1332 does not justify the exercise of removal

jurisdiction, as there is no evidence of an amount in controversy. Thomas responds he is seeking
$100,000 in recovery, so he meets the threshold amount under Section 1332. Lawson and
Cartwright assert Ohio is the minor child’s “home state”, which allows Ohio to exercise
jurisdiction over questions pertaining to his custody.
“The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between”
“citizens of different States.” 28 U.S.C. § 1332(a)(1). “However, federal courts are courts of
limited jurisdiction. They possess only that power authorized by Constitution and statute, which
is not to be expanded by judicial decree[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994) (internal citations omitted). “It is to be presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Id.
At first blush, it appears that Thomas’ desire to recover $100,000 satisfies the amount in
controversy requirement of Section 1332 and that the parties have diversity of citizenship.
However, even if this Court had jurisdiction to address the merits of this case, it should abstain
from doing so under the Younger abstention rule. Younger v. Harris, 401 U.S. 37 (1971); 31
Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003) (“Although Younger concerned
state criminal proceedings, its principles are ‘fully applicable to noncriminal judicial proceedings
6

Moreover, as described below, this Court must abstain from intervening in a pending state court
custody proceeding under the Younger abstention doctrine and lacks jurisdiction to review a state court
child custody judgment under the Rooker-Feldman doctrine.

11

when important state interests are involved.’”). The Younger abstention doctrine reflects “a
strong federal policy against federal[ ] court interference with pending state judicial proceedings
absent extraordinary circumstances.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 431 (1982). “This ‘settled law,’ intended to preserve the independence of our
concurrent judicial systems, requires ‘sensitive consideration of ongoing proceedings in state
courts’ and ‘that a federal court “tread lightly” when a state proceeding is already underway.’”
Stephens v. Sluss, No. CV407-089, 2007 WL 2106225, at *2–3 (S.D. Ga. Aug. 15, 2007)
(quoting The News-Journal Corp. v. Foxman, 939 F.2d 1499, 1508 (11th Cir. 1991) (quoting
Blalock v. United States, 844 F.2d 1546, 1549 (11th Cir. 1988)); see Adams v. Fla., 185 F.
App’x 816, 817 (11th Cir. 2006) (affirming the dismissal of a 42 U.S.C. § 1983 complaint
seeking to enjoin a civil contempt finding in child support enforcement case under the Younger
doctrine).
Where “vital state interests” are involved, a federal court should abstain from hearing a
case “unless state law clearly bars the interposition of the constitutional claim.” Middlesex Cty.
Ethics Comm., 457 U.S. at 432 (quoting Moore v. Sims, 442 U.S. 415, 426 (1979)). To
determine whether Younger requires abstention in a given case, a federal court must ask three
questions: “first, do the proceedings constitute an ongoing state judicial proceeding; second, do
the proceedings implicate important state interests; and third, is there an adequate opportunity in
the state proceedings to raise constitutional challenges.” 31 Foster Children, 329 F.3d at 1274
(quoting Middlesex Cty., 457 U.S. at 432). If the answer to all three questions is “yes,” then a
federal court must abstain from hearing a case in order to avoid interfering with the ongoing
state-court proceedings.

12

“The federal judiciary has traditionally abstained from deciding cases concerning
domestic relations. As a result, federal courts generally dismiss cases involving divorce and
alimony, child custody, visitation rights, establishment of paternity, 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. 1988) (citations omitted) (holding that, although diversity of
citizenship existed, the district court properly abstained from exercising jurisdiction in domestic
relations case). “However, the domestic relations exception does not justify abstention in all
diversity cases involving intra-family disputes.” Moussignac v. Ga. Dep’t of Human Res., 139
F. App’x 161, 162 (11th Cir. 2005). Federal courts should not abstain when the following
policies favoring federal abstention are absent: “the strong state interest in domestic relations
matters, the competency of state courts in settling family disputes, the possibility of incompatible
federal and state decrees in cases of continuing judicial supervision by the state, and the problem
of congested dockets in federal courts.” Id. (citing Kirby v Mellenger, 830 F.2d 176, 178 (11th
Cir. 1987), and Crouch v. Crouch, 566 F.2d 486, 487 (5th Cir. 1978)). “Consequently, federal
courts should dismiss the action only if hearing the claim would mandate inquiry into the marital
or parent-child relationship.” Ingram, 866 F.2d at 370 (citing Jagiella v. Jagiella, 647 F.2d 561,
565 (5th Cir. 1981)).
Removal of this case would undoubtedly require this Court to inquire into a parent-child
relationship.

DiSanto sought the assistance of the Lake County DJFS in determining the

paternity of her minor child. Thomas, the putative father of this minor child, refused to comply
with the directive to submit to genetic testing. DiSanto then filed a complaint in the Lake
County Court of Common Pleas, seeking emergency, ex parte custody of the minor child.
(Doc. 1-1, pp. 9–10.) According to the pleadings before the Court, DiSanto and the minor child

13

have lived in Ohio for nearly three years’ time, and the State of Ohio has a strong interest in
resolving this dispute involving two of its residents. Further, there is nothing before the Court
suggesting the State of Ohio is incapable of determining the merits of this case. As the facts
before the Court indicate abstention is appropriate, removal would be improper under Section
1332. 7

7

Even if the Ohio court had entered a judgment and the state action were not still pending, the Court
would lack jurisdiction to hear this case. Pursuant to the Rooker-Feldman doctrine, the Court is without
jurisdiction over claims which essentially seek review of a state-court judgment. “The Rooker-Feldman
doctrine derives from Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923), and District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983), and provides that, as a general matter, federal district
courts lack jurisdiction to review a final state court decision.” McCorvey v. Weaver, 620 F. App’x 881,
882 (11th Cir. 2015). Nor under the Rooker-Feldman doctrine may a federal court “decide federal issues
that are raised in state proceedings and ‘inextricably intertwined’ with the state court’s judgment.” Datz
v. Kilgore, 51 F.3d 252, 253 (11th Cir. 1995) (quoting Staley v. Ledbetter, 837 F.2d 1016, 1018 (11th Cir.
1988)). “Rooker-Feldman applies because, among the federal courts, Congress authorized only the
Supreme Court to reverse or modify a state court decision.” Helton v. Ramsay, 566 F. App’x 876, 877
(11th Cir. 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). Put
succinctly, this Court is not an appeals court to which a losing or disgruntled state court party can appeal
an unfavorable decision. This Court and other federal courts frequently find that the Rooker-Feldman
doctrine prevents federal courts from hearing claims based on a state court’s custody determination or
parental rights termination. See, e.g., Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1334 (11th
Cir. 2001) (finding that the Rooker-Feldman doctrine barred jurisdiction over the plaintiffs’ due process
claims against state officials because the success of those claims would require finding that the state court
wrongly decided to terminate the plaintiffs’ parental rights and wrongly denied their petition for return of
custody); Taylor v. Randolph, 594 F. App’x 578 (11th Cir. 2014) (Rooker-Feldman doctrine barred
mother’s claims against state court judges and employees of sheriff’s office and child protection agency,
alleging that defendants’ decisions in child-custody proceedings and child well-being matters violated her
and her child’s fundamental rights); Plunkett v. Rountree, No. CV214-015, 2015 WL 1505970, at *12
(S.D. Ga. Mar. 31, 2015) (dismissing claims based on juvenile court’s removal of plaintiff’s children, the
litigation in juvenile court, or the treatment of her children in foster care); Daw v. Cowan, No.
3:11CV96/RV/EMT, 2013 WL 5838683, at *5 (N.D. Fla. Oct. 30, 2013) (“[T]o the extent Plaintiff seeks
review of any final judgments issued by the state court, including those that terminated her parental rights,
this court lacks jurisdiction over the matter.”). Further, the Eleventh Circuit has “also determined those
officers and other government personnel acting pursuant to, or in concert with, child-custody or child
well-being proceedings fall within the Rooker-Feldman doctrine because their acts are inextricably
intertwined with state court judgments.” Taylor, 594 F. App’x at 580 (citing Goodman, 259 F.3d at
1334.)

14

V.

Whether the ICWA, 25 U.S.C. § 1901, et seq., Applies and Provides a Basis for
Removal
Lawson and Cartwright contend the ICWA is not applicable in this case. 8 First, Lawson

and Cartwright state Thomas does not allege the minor child is of Native American descent on
his mother’s side, and Thomas denies paternity of the minor child. They assert the ICWA
defines “parent” as having a biological connection to the Indian child and expressly excludes the
unwed father where paternity has not been acknowledged or established. Lawson and Cartwright
also assert that, even if Thomas established paternity, the ICWA is inapplicable because the tribe
which Thomas claims to be a member of is not a federally recognized Native American tribe.
Further, Lawson and Cartwright allege the ICWA does not apply to cases involving custody
disputes between parents. Finally, Lawson and Cartwright assert the ICWA does not confer
jurisdiction on federal courts. 9
A.

Paternity

Under the ICWA, a “parent” is defined as “any biological parent or parents of an Indian
child or any Indian person who has lawfully adopted an Indian child, including adoptions under
tribal law or custom.

It does not include the unwed father where paternity has not been

acknowledged or established[.]” 28 U.S.C. § 1903(9). An “Indian child” is defined under this
Act as any unmarried person who is under age eighteen and is either (a) a member of an Indian

8

The policy behind the passage of the ICWA is “to protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families by the establishment of minimum Federal
standards for the removal of Indian children from their families and the placement of such children in
foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for
assistance to Indian tribes in the operation of child and family service programs.” 25 U.S.C. § 1902.

9

Although Thomas responded to Lawson’s and Cartwright’s Motion for Remand, he did not do so in a
meaningful way. Specifically, in “response” to the assertion that the ICWA is not applicable, Thomas
does nothing more than recite provisions of the ICWA. He does not allege how these provisions apply to
the case sub judice or how Lawson’s and Cartwright’s assertions are erroneous.

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tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member
of an Indian tribe[.]” 25 U.S.C. § 1903(4) (emphasis supplied).
Here, Thomas has failed to establish his paternity of the minor child, and he cannot claim
to be the minor child’s parent, as defined in the ICWA, as he and DiSanto never married. The
Court notes Thomas’ submission of an Identification Certificate purporting to indicate that the
minor child is a registered member of the Pembina Nation Little Shell Band of North America.
(Doc. 21-1, pp. 8–10.) Nevertheless, there is nothing before the Court indicating that, even if the
minor child is a member of the “Pembina Nation” 10, that his membership is based on his
mother—his one confirmed parent—as being a member of the “Pembina Nation.” In addition,
even if the minor child is a member of the Pembina Nation, as noted in the following subsection
of this Report, it does not appear that the Pembina Nation is a federally-recognized Indian tribe.
B.

Federally Recognized Tribes

“‘Indian tribe’ means any Indian tribe, band, nation, or other organized group or
community of Indians recognized as eligible for the services provided to Indians by the Secretary
[of the Interior] because of their status as Indians[.]” 25 U.S.C. § 1903(8). “The term ‘Indian’. .
. shall include all persons of Indian descent who are members of any recognized Indian tribe now
under Federal jurisdiction, and all persons who are descendants of such members who were, on
June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further
include all other persons of one-half or more Indian blood.” 25 U.S.C. § 479. The Secretary of
the Interior “shall publish in the Federal Register a list of all Indian tribes which the Secretary
recognizes to be eligible for the special programs and services provided by the United States to
Indians because of their status as Indians.” 25 U.S.C. § 479a-1(a). This list is to be published
10

Thomas consistently refers to the “Penbina Nation” as the Indian tribe of which he is a member. The
submitted paperwork lists the “Pembina Nation”, and that is the nomenclature the Court uses in its
discussion.

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every year on or before January 30. 25 U.S.C. § 479a-1(b). Neither the Pembina (nor the
Penbina) Nation Little Shell Band of North America is listed among the “566 tribal entities
recognized and eligible for funding and services from the Bureau of Indian Affairs” (an agency
within the Department of the Interior) “by virtue of their status as Indian tribes[.]” Indian
Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian
Affairs, 80 Fed. Reg. 1942-02 (Jan. 14, 2015).
“[T]he unanimous authority of the federal courts appears to affirm that the Pembina
Nation Little Shell Band of North America is not federally recognized[ ]” as an “Indian tribe
under the ICWA.” Neal v. Ariz., No. CV-09-8203-PCT-JAT, 2010 WL 231552, at *2 (D. Ariz.
Jan. 14, 2010), aff’d, 436 F. App’x 811 (9th Cir. 2011) (citing Reed v. U.S. Bank Nat. Assoc.,
212 F. App’x 707, 708 (9th Cir. 2006) (“The district court did not abuse its discretion in
declining to recognize the Pembina court judgment because the Pembina Nation Little Shell
Band is not a federally recognized tribe[.]”); Mulder v. Lundberg, 154 F. App’x 52, 55 (10th Cir.
2005) (noting that “the Bureau of Indian Affairs does not recognize [Pembina Nation Little Shell
Band of North America] or its courts.”); Delorme v. United States, 354 F.3d 810, 814 n.6 (8th
Cir. 2004) (“The Little Shell Band of Chippewa Indians of North Dakota (also known as the
Little Shell Pembina Band of North America) is a federally unrecognized band[.]”); United
States v. White, No. 07-00395-01-CR-W-HFS, 2008 WL 4816987, at *3 (W.D. Mo. Oct. 31,
2008) (“The unanimous authority of the federal court has found that the Pembina Nation is not a
federally recognized tribe. As such, the Pembina Nation has no recognized authority to issue
license plates for motor vehicles traveling in the state of Missouri.”) (citations omitted); United
States v. Stowbunenko–Saitschenko, No. CR 06-0869-PHX-DGC, 2007 WL 865392, at *1 (D.
Ariz. Mar. 20, 2007) (“The [Pembina Nation Little Shell Band of North America] has not been

17

formally recognized by the United States.”); Richmond v. Wampanoag Tribal Court Cases, 431
F. Supp. 2d 1159, 1167–69 (D. Utah 2006) (stating that Pembina Nation Little Shell Band is not
a federally recognized Indian tribe)); see also 74 Fed. Reg. 40218–02 (Aug. 11, 2009) (the
Bureau of Indian Affairs’ publication listing “Indian Entities Recognized and Eligible To
Receive Services From the United States Bureau of Indian Affairs,” which lists over 560 such
tribes, none of which are the Little Shell Band).
As the Pembina Nation Little Shell Band of North America is not recognized as eligible
for services by the Department of Interior’s Bureau of Indian Affairs, any member of this group
of people is not entitled to use of the ICWA. Thus, to the extent Thomas claims membership to
this group of people, he cannot invoke the ICWA as a basis for removal to this Court.
C.

Custody Dispute Between Parents

Under the ICWA, a “child custody proceeding shall mean and include” foster care
placement, termination of parental rights, preadoptive placement, and adoptive placement. 25
U.S.C. § 1903(1). This definition does not include paternity or custody issues, as at issue in this
case. Thus, even if Thomas were eligible to use the ICWA as a member of a recognized tribe
under this Act, he could not invoke the ICWA as a jurisdictional basis in this case to justify
removal to this Court. See Comanche Indian Tribe of Okla. v. Hovis, 53 F.3d 298, 302 (10th
Cir. 1995) (recognizing the definition of “child custody proceedings” under the ICWA and
noting that this term does not include “placement based upon . . . an award, in a divorce
proceeding, of custody of one of the parents.”); Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp.
3d 749, 755 (D.S.D. 2015) (“The Indian Child Welfare Act . . . was the product of rising concern
in the mid–1970’s over the consequences to Indian children, Indian families, and Indian tribes of
abusive child welfare practices that resulted in the separation of large numbers of Indian children

18

from their families and tribes through adoption or foster care placement, usually in non-Indian
homes.”) (quoting Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)).
The issues of the minor child’s paternity and resulting custody concerns are at stake in
this cause of action. By definition, such matters are excluded from the definition of child
custody proceedings under the ICWA. Accordingly, Thomas cannot remove the proceedings to
this Court pursuant to the ICWA, even if he were eligible to proceed under this Act.
D.

Whether the ICWA Confers Jurisdiction on this Court

“An Indian tribe shall have jurisdiction exclusive as to any State over any child custody
proceeding involving an Indian child who resides or is domiciled within the reservation of such
tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.” 25
U.S.C. § 1911(a). “The United States, every State, every territory or possession of the United
States, and every Indian tribe shall give full faith and credit to the public acts, records, and
judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the
same extent that such entities give full faith and credit to the public acts, records, and judicial
proceedings of any other entity.” 25 U.S.C. § 1911(d).
As noted above, the Pembina Nation is not a recognized Indian tribe under the ICWA. In
addition, there is no evidence before the Court that the minor child, who may not be of Indian
descent, resides in or is domiciled within the reservation of the Pembina Nation (if such were
recognized as an Indian tribe under the ICWA). There is no basis of removal under the ICWA,
and this Court is without jurisdiction to entertain the relative merits of the allegations in this
case.

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CONCLUSION
Based on the numerous foregoing reasons, I RECOMMEND the Court GRANT
Lawson’s and Cartwright’s Motion for Remand, (doc. 12), DENY Thomas’ Motion for Notice of
Removal, (doc. 1), REMAND this case to the Court of Common Pleas in Lake County, Ohio,
and CLOSE this case in this Court. 11 I also RECOMMEND the Court DISMISS Thomas’
Motions for Default Judgment, Motions to Amend/Correct, Motions to Strike, and Motion for
Immediate Consideration, (docs. 13, 17, 20, 22, 24, 26, 27, 30), as moot.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
11

Although Lawson and Cartwright are the only Plaintiff-Respondents who moved for remand, the
entirety of this case should be remanded to avoid piecemeal litigation and the unnecessary use of further
judicial resources.

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judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 2nd day of February,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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