United States Court of Appeals

For the First Circuit

No. 07-1208

DAVID R. GEIGER,

Plaintiff, Appellant,

v.

FOLEY HOAG LLP RETIREMENT PLAN, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

David R. Geiger, pro se.

Ann Wagner, with whom Frances M. Giordano and Rubin and

Rudman, LLP were on brief, for appellee.

March 27, 2008
The original defendants were Foley Hoag LLP Retirement Plan, Foley 1

Hoag LLP Savings and Retirement Plan, and Foley Hoag LLP Money

Purchase Pension Plan (collectively, "the plans"). Foley Hoag is

also named separately as the plans' administrator. They remained

as defendants after Leeds's intervention. Geiger, appearing pro se

in this action, is a litigation partner at the Foley Hoag law firm

in Boston. For ease of reference we will refer to the firm as

"Foley." 

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HOWARD, Circuit Judge. The genesis of this appeal is a

contentious Massachusetts divorce. As part of the distribution of

marital property, a state court judge assigned a portion of David

Geiger's interest in three retirement plans to his (now ex) wife,

Karen Leeds. In addition to exhausting his state court appeals of

the divorce order, Geiger filed suit in federal court against the

retirement plans and their administrator, seeking to permanently 1

enjoin the plans from transferring Geiger's interests to Leeds.

After Leeds successfully moved to intervene in the suit, she filed

a motion to dismiss, which the district court granted pursuant to

the Rooker-Feldman doctrine. On appeal, Geiger contends that the

district court first erroneously allowed Leeds's intervention, and

then incorrectly granted the motion to dismiss. We affirm, albeit

for reasons different than those cited by the district court.

I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

 At the heart of this legal battle are the orders

addressing Geiger's retirement accounts. Geiger claims that those

orders are not Qualified Domestic Relations Orders ("QDROs")and are
The Employee Retirement and Security Act of 1974, 29 U.S.C. § 1001 2

et seq.

During this time frame, a separate administrator had been 3

designated to manage two of the plans.

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thus subject to ERISA's anti-alienation provisions. 29 U.S.C. § 2

1056(d)(3). This claim is predicated on his assertion that the

federal courts have exclusive jurisdiction to determine whether the

orders at issue are QDROs. As our substantive analysis necessarily

involves the sequence of events leading up to the orders in

question, we first detail the largely undisputed trail of the case.

Geiger and Leeds were married in 1980. Following a

trial, a divorce judgment was entered in June 2004. In dividing

marital assets, the judge assigned Leeds benefits in three of

Geiger's retirement plans. After entry of the divorce judgment,

counsel for Leeds and the plans' administrators worked to 3

effectuate the transfer of the retirement plans' benefits by

drafting QDROs. This step is a crucial one, as benefits provided

under an ERISA plan "may not be assigned or alienated" by a

domestic relations order, unless the order "is determined to be a"

QDRO. 29 U.S.C. § 1056(d)(1) and (3)(A). See Barrs v. Lockheed

Martin Corp., 287 F.3d 202, 208-09 (1st Cir. 2002). In December

2004, Leeds obtained model QDROs and QDRO procedures from plan

administrators, and numerous rounds of back-and-forth

correspondence ensued. The record reflects that Geiger was copied

on all correspondence between Leeds and the plans.
The Norfolk County Probate and Family Court. 4

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Proposed QDROs were presented to the divorce court in 4

January 2005. In response to concerns raised by the judge,

additional revisions were made. Copies were provided to Geiger

approximately two weeks before the next scheduled hearing. Geiger

responded a few days later. He offered no substantive comment

about the draft QDROs, but did provide Leeds's counsel with certain

information she had requested about the plans. On the day of the

hearing, Geiger filed a motion objecting to the issuance of any

orders relating to his retirement plans. He alleged a host of

substantive and procedural infirmities related to the divorce

judgment as a whole. Most notably, Geiger included a footnote in

his motion stating that he "does not . . . address the issue of

whether any order that might be issued would constitute a [QDRO].

Under ERISA, that issue is exclusively a matter of federal law for

determination by the plan administrator and the federal courts."

After making several modifications to the proposed QDROs, the court

entered the orders, each of which is entitled "Qualified Domestic

Relations Order," and retained jurisdiction to further modify them

to "establish or maintain its qualification as a [QDRO]."

Approximately three months later, after receiving correspondence

from the plans' administrators that they considered the orders to

be QDROs, Geiger penned lengthy letters to the administrators

objecting to their conclusions. In September 2005, the plans
The original complaint came in response to the final determination 5

of one of the plans. The amended complaint was filed after the

other two plans made their final QDRO determinations.

Foley was made aware of the original complaint in September but 6

not the later request for preliminary relief. Upon learning of the

complaint, Foley felt bound by 29 U.S.C. § (d)(3)(H)(I) from

allowing Leeds to withdraw any funds allocated to her in the

divorce action. Foley, however, did set up separate accounts for

Leeds to comply with its obligation to account for funds that would

have gone to Leeds had the divorce orders been qualified.

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rejected Geiger's objections and issued their final determinations

that the court's orders were QDROs, and set out to effectuate the

orders by establishing accounts for Leeds. Days later, Geiger

commenced the instant action against one of the plans, essentially

claiming that any transfer of his interests would violate ERISA

because the orders were not QDROs. Soon after, he filed an Amended

Complaint and ex parte Request for Preliminary Injunction, along

with a proposed order. The district court granted the injunction 5

request in October, premising its decision, at least in part, on

Geiger's incorrect assertion that the defendant plans did not

object. The court did not adopt Geiger's proposed order, however.

Instead, it ordered Geiger to confer with Foley to create an

agreed-upon order. Such discussions never occurred. In fact, as

Foley later pointed out, the defendants had not been served with

the injunction request, and did not agree with Geiger's proposed

order. Moreover, Foley claimed that it did not even learn that 6

Geiger's request for preliminary injunction had been granted until
We would ordinarily not recount the jousting over a proposed 7

order, but the lengthy course of events is relevant to our

discussion of Leeds's intervention.

At the same time Geiger was pursuing his federal case, he was also 8

prosecuting his appeal of the divorce judgment in state court. His

appeal, which raised 17 issues ranging from disqualification of the

trial judge to the award of his retirement interests, was rejected

by the intermediate appellate court in October 2006 via a 32-page

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December, when they were informed by Leeds's counsel. In the end,

Geiger did not effect service upon Foley until January.

As these events were taking place in the federal court,

Foley was also defending itself against contempt charges in the

state court for not complying with the putative QDROs. Believing

itself to be "stuck in the middle," Foley responded to the January

service of process not by answering or seeking dismissal, but by

submitting a motion for entry of a proposed order in April 2006,

ostensibly seeking to have the court ratify the actions Foley took

the previous September, when it learned of the original complaint.

Geiger objected, due to differences between the two proposed

orders, and the court scheduled a hearing for June. Two weeks 7

prior to the scheduled hearing, Leeds filed a motion to intervene,

pursuant to Fed. R. Civ. P. 24(a). She simultaneously filed a

motion to dismiss, invoking Rules 12(b)(1) and 12(b)(6), the

Rooker-Feldman doctrine, abstention and claim preclusion. Over

Geiger's objection, the court granted, without a written order, the

motion to intervene. The court subsequently granted the motion to

dismiss, relying on Rooker-Feldman. This appeal followed.8
opinion. T.C. v. J.L, 2006 WL 3019223 (Mass. App. Ct. Oct. 24,

2006). Further review was denied by the Supreme Judicial Court,

T.C. v. J.L., 861 N.E.2d 29 (2007) (the court used fictitious

initials for the parties to preserve a previously issued

confidentiality order).

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II. LEGAL DISCUSSION

A. Motion to Intervene

Leeds sought intervention "as of right," pursuant to Fed.

R. Civ. P. 24(a), which provides that the court must permit

intervention where her motion satisfies the following criteria:

(1) the party must claim an interest in the property; (2)

disposition of the case without intervention, would, “as a

practical matter, impair or impede [the party's] ability to protect

that interest”; (3) the party's interest is inadequately

represented by the existing parties; and (4) the motion for

intervention is timely made. Travelers Indem. Co. v. Dingwell,

884 F.2d 629, 637 (1st Cir. 1989).

Our standard of review on appeal is for abuse of

discretion. Daggett v. Comm'n on Governmental Ethics and Election

Practices, 172 F.3d 104, 109 (1st Cir. 1999). Where, as here, the

district court made no specific findings, we can do so, relying on

the record. Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d

1227, 1230 (1st Cir. 1992).

Geiger first argues that Leeds’s motion was untimely. We

disagree. Initially, we note that the case had not progressed

beyond the initial stages when the motion was filed. See id. at
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1231 (“The more advanced the litigation, the more . . . scrutiny

the motion must withstand.”) Here, no action beyond the filing of

the Amended Complaint had occurred. Despite the fact the court

granted Geiger’s motion for preliminary injunction, he took no

action to effectuate it, not even serving Foley until January. Nor

did he press for an Answer after the expiration of 20 days from

service. See Fed. R. Civ. P. 12(a). Indeed, at the time of the

motion to intervene, the only pending item was a scheduled hearing

in which the court would consider the two competing injunction

proposals. In the absence of any discovery or substantive legal

progress, we cannot say the litigation was in any way at an

“advanced stage.” In addition to the progress of the case, a

timeliness determination turns on other factors: 1) the length of

time the intervenor knew her interest was imperiled; 2) the

foreseeable prejudice to the existing parties if intervention is

granted, or to the intervenor if it is denied; and 3) any

“idiosyncratic circumstances” which weigh for or against

intervention. Banco Popular, 964 F.2d at 1230. Here, although

Leeds was aware of the lawsuit for approximately nine months before

seeking intervention, we agree with Leeds that it was not until

Foley declined to answer the complaint but instead sought an order

that would effectively prevent its near-term compliance with the

divorce judgment that she became aware that her interests were

imperiled. Until that time, she had reasonably thought that Foley
We are in no way suggesting that Foley's actions were 9

inappropriate.

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would aggressively defend the position it took in the divorce

proceeding – that the orders were QDROs. Next, we find the 9

balance of prejudices to weigh heavily in favor of Leeds. Under

either Geiger’s or Foley’s proposed injunctions, transfer of the

plans’ interests to Leeds would be indefinitely delayed. Given

that the state appeals court affirmed the award of the interest in

the plans “to address the disparity in the amount of the equity in

the home awarded to each party and to . . . leave both parties with

relatively equivalent assets and resources,” T.C. v. J.L., 2006 WL

3019223 at *6, the prejudice to Leeds is readily apparent. On the

other hand, Geiger’s claim that he was prejudiced by further delay

that would deny him the injunctive relief he had already achieved

is belied by his own failure to serve any process upon Foley for

nearly four months or to confer with Foley regarding an agreed-upon

order.

We need not dwell long on Geiger’s remaining arguments against

intervention. First, he argues that an “idiosyncratic factor” in

his favor was that he was “an overburdened and insolvent single

parent pro se litigant with no ERISA expertise . . . .” Our review

of the record, including the divorce judgment, demonstrates

anything but insolvency. In addition, we note that both the state

trial and appeals courts made note of Geiger’s “scorched earth”
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approach to litigation. Thus, we decline to find that this factor

weighs in Geiger’s favor. Finally, Geiger argues that Foley was

adequately protecting Leeds’s interest. This argument is devoid of

merit. At the time intervention was sought, Foley had done nothing

to defend its QDRO determination, and, at the same time, was

essentially agreeing to an injunction, although in a different form

than one proposed by Geiger. Given Foley’s admission that it felt

“caught in the middle” of the state court contempt action and the

federal court action, it seems beyond cavil that Foley was

attempting to “avoid taking sides," and was not protecting Leeds’s

interests.

As the record amply demonstrates that Leeds satisfied the

requirements of Rule 24(a), we find that the district court did not

abuse its discretion when it allowed her to intervene.

B. Motion to Dismiss

As previously noted, the district court based its

dismissal on the Rooker-Feldman doctrine, which, in broad terms,

deprives the district court of subject matter jurisdiction over a

final judgment of a state court. See D.C. Court of Appeals v.

Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Trust Co., 263 U.S.

413 (1923). Importantly, however, the Supreme Court has held that

the doctrine only applies to cases where the "losing party in state

court filed suit in federal court after the state proceedings

ended." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
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280, 291 (2005). Parallel litigation does not trigger RookerFeldman. Id. at 292. The district court treated the state court

litigation as concluded with respect to the QDRO issue, because

Geiger did not explicitly appeal that question. However, had

Geiger's appeal of the divorce judgment been successful, the orders

assigning the plan benefits –- whether qualified or not –- could

have been overturned. Thus, it is not at all clear to us that the

state court proceedings with respect to the QDROs had ended prior

to Geiger's commencement of the federal suit. Accordingly, we do

not rely on the district court’s Rooker-Feldman rationale.

Our inquiry does not end there, however, as we can affirm

the district court's order on "any independent ground made manifest

by the record." InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st

Cir. 2003). We choose that path here. Both before the district

court and again on appeal, Leeds posited an alternative argument

that res judicata and adherence to the full faith and credit

doctrine require dismissal. We agree.

A federal court must give a state court judgment "'the

same preclusive effect as would be given that judgment under the

law of the state in which the judgment was entered.'" Torromeo v.

Town of Fremont, 438 F.3d 113, 115-116 (1st Cir. 2006) (quoting

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81

(1984)). That a suit raises a federal question does not alter this
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calculus. Cruz v. Melecio, 204 F.3d 14, 18 (1st Cir. 2000)(citing

Migra, 465 U.S. at 80-85).

Under Massachusetts law, a party will be precluded from

litigating a matter that was, or could have been, adjudicated in

the previous matter. Blanchette v. Sch. Comm. of Westwood, 692

N.E.2d 21, 25 (Mass. 1998); Heacock v. Heacock, 520 N.E.2d 151,

152-53 (Mass. 1988). This rule applies even if the litigant is

prepared to present different evidence or legal theories in the

second action, or seeks different remedies. Heacock, 520 N.E.2d at

153. The rule is “based on the idea that the party to be precluded

has had the incentive and opportunity to litigate the matter fully

in the first lawsuit.” Id. (internal quotes and citation omitted).

Here, Leeds argues that Geiger could have argued to the

state trial or appellate courts that the orders at issue are not

QDROs, and that his failure to do so, combined with the finality of

the divorce judgment, is fatal to his federal suit. Geiger

responds in two ways. First, he argues that state courts do not

have jurisdiction to determine whether domestic relations orders

are QDROs, and therefore he did not have an "opportunity to

litigate the matter fully in the first lawsuit.” Geiger cites no

cases in support of his position. Instead he relies on what he

calls the "unambiguous language" of ERISA, specifically, 29 U.S.C.

§ 1132(e)(1), which provides that federal courts "have exclusive

jurisdiction over civil actions under this subchapter brought by a
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. . . participant," with the exception that state courts have

concurrent jurisdiction over actions brought to recover benefits or

enforce or clarify rights under a plan. 29 U.S.C. § 1132(a)(1)(B).

In Geiger's view, this is the beginning and the end of the inquiry.

His view, however, has been rejected by several courts. See e.g.,

Scales v. Gen. Motors Corp., 275 F. Supp.2d 871, 876-77 (E.D. Mich.

2003) ("[S]tate courts have concurrent jurisdiction regarding the

interpretation of QDROs . . . and are fully competent to adjudicate

whether their own orders are QDROs."); In re Marriage of Oddino,

939 P.2d 1266, 1272 (Cal. 1997)(action to qualify domestic

relations order is an action to "obtain or clarify benefits claimed

under the terms of a plan," and thus within state courts'

jurisdiction); Robson v. Elec. Contractors Ass'n Local 134, 727

N.E.2d 692, 697 (Ill. App. Ct. 1999) ("[S]tate and federal courts

have concurrent subject matter jurisdiction to construe the ERISA

provisions relating to a QDRO . . . ."); Eller v. Bolton, 895 A.2d

382, 393 n.6 (Md. App. 2006) ("State and federal courts have

concurrent jurisdiction to review a plan's qualification of a state

domestic relations order . . . .").

Geiger acknowledges the one-sidedness of the caselaw, but

argues that the rationale set forth by those decisions both

violates ERISA's plain language and is "logically senseless." We

do not agree. In our view, it is significant that Congress has

expressly exempted QDROs from ERISA's general preemption of state
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law. 29 U.S.C. 1144(b)(7). We are further persuaded that,

"separate litigation of the QDRO issue in federal court presents

the potential for an expensive and time-consuming course of

parallel litigation . . . in the two court systems." Oddino, 929

P.2d at 1274-75. And finally, we share the view of the Oddino

court that:

Congress, having given state courts the power

to issue orders determining and dividing

marital rights in retirement plans, would

require a separate federal court proceeding to

decide whether the order is a QDRO. This

would cause undue hardship, expense and delay

to the affected party, and impose an

unnecessary workload on already overburdened

federal courts.

Id. at 1272 (quoting In re Marriage of Levingston, 16 Cal.Rptr.2d

100, 102 (App. Ct. 1993)

Geiger's last attempt to avoid the finality of the

Massachusetts judgment is to argue that he made a so-called

"England reservation" in the state court, and thus preserved his

federal claim. Pursuant to England v. La. State Bd. of Med.

Exam'rs, 375 U.S. 411, 428 (1964) a plaintiff can, in some

circumstances, protect a right to litigate a federal claim in

federal court by "reserving the right" in the state court. As we

previously noted, Geiger included a footnote in various state court

filings that he was reserving what he believed to be exclusively

federal claims for federal court adjudication. In the district

court, however, he made no more than a passing reference to his
This process is known as Pullman abstention. See Railroad 10

Commission of Tex. v. Pullman Co., 312 U.S. 496 (1941).

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reservation. Under these circumstances, we believe that Geiger has

waived the England argument. Even if preserved, however, the claim

lacks merit.

In England, the Court held that a litigant sent to state

court after a federal court abstention can "reserve" its right to

return to federal court at the conclusion of the state court

proceedings. England, 375 U.S. at 415; see also, Fuller Co., v.

Ramon I. Gil, Inc., 782 F.2d 306, 312 (1st Cir. 1996) (emphasis

added). The right to reserve claims only arises where a federal

court abstains from deciding a federal issue to enable the state

court to address an antecedent state law issue. San Remo Hotel, 10

L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 339

(2005); see also, Duty Free Shop, Inc., v. Administracion De

Terrenos, 889 F.2d 1181, 1183 (1st Cir. 1989). As this case did

not involve federal court abstention, we find England inapplicable.

See Griffin v. State of Rhode Island, 760 F.2d 359, 360 n.1 (noting

that England does not supplant state preclusion law where state

action proceeded to judgment before litigant sought adjudication of

federal claim in federal court).

In the final analysis, Geiger rejected the opportunity to

challenge the QDROs at both the state trial and appellate levels.

That he did so on the mistaken belief that the federal courts had
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exclusive jurisdiction over those challenges does not alter the

finality of those judgments, nor their preclusive effect.

The judgment of the district court is Affirmed.