United States Court of Appeals

For the First Circuit

No. 00-1053

GERARD P. DUNN, INDIVIDUALLY

AND ON BEHALF OF THOMAS M. DUNN,

Plaintiff, Appellant,

v.

ARIANE K. COMETA, M.D.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

 Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Boudin, Circuit Judge.

David J. Van Dyke with whom Berman & Simmons, P.A. was on

brief for appellant.

Anne M. Carney with whom Norman, Hanson & DeTroy, LLC was

on brief for appellee.
January 26, 2001
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BOUDIN, Circuit Judge. This case involves claims

brought by Thomas Dunn's father, on behalf of himself and Thomas

Dunn, and against Thomas Dunn's former wife, Ariane Cometa. The

claims were dismissed: some under the domestic relations

exception to federal court jurisdiction, Ankenbrandt v.

Richards, 504 U.S. 689, 703 (1992); others based on Burford

abstention, Burford v. Sun Oil Co., 319 U.S. 315, 334 (1943);

and the remainder because they failed to meet the amount-incontroversy requirement for diversity jurisdiction, 28 U.S.C. §

1332(a) (Supp. II 1996). The facts that bear on the dismissal

(by contrast to the merits) are undisputed and can be briefly

summarized.

Cometa and Dunn married in June 1989, Cometa then being

enrolled in medical school. In September 1994, while Cometa was

doing her residency at a hospital in Maine, Dunn suffered a

catastrophic brain injury. Semi-comatose for the first six

months after the injury, he could not speak for 18 months and

continues to be severely disabled. From September 1994 to June

1997, he lived in various medical or extended care facilities in

Maine. In June 1997, Dunn’s father took him to Georgia to live

and in August 1997, his father was named Dunn’s conservator by

a court in Maine.
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After the accident and until mid-1997, Cometa managed

the family’s affairs and Dunn’s care and location. In January

1995, she began a liaison with another man, and in April 1997,

she petitioned a Maine district court for a divorce from Dunn

which was granted in December 1998. This proceeding ended with

a property division and an order that Cometa pay alimony to Dunn

for five years based on ability to pay, employment potential,

and Dunn's disability. In the course of the proceeding, Dunn’s

counsel conducted limited discovery to support charges that

Cometa had wrongly allowed Dunn’s private health insurance to

lapse and had wrongly transferred marital and non-marital assets

to herself, but the claims were not pressed in the case and did

not affect the division of property or alimony.

However, in the course of awarding attorney’s fees, the

judge in the divorce case declined to award Dunn all the fees

that he requested, partly because the judge viewed as "totally

unnecessary" the discovery directed to exploring claims against

Cometa for "economic wrongdoing and fraud." Although under

Maine law proof of such wrongdoing could have affected alimony,

19-A Me. Rev. Stat. Ann. § 951(1)(M) (1998) (repealed 2000, with

equivalent provision codified at 19-A Me. Rev. Stat. Ann. § 951-

A(5)(M) (Supp. 2000)), the judge’s disallowance reflected Dunn’s
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own concession after discovery that the misconduct issue would

not be pursued at trial. The judge added:

Judging from the evidence I heard at trial,

Mr. Dunn decided not to pursue economic

misconduct because there was not a shred of

evidence to support a finding of economic

misconduct or fraud.

Shortly after the divorce judgment, in April 1999,

Dunn’s father, acting on behalf of himself and Dunn, brought the

present action against Cometa in the federal district court in

Maine. The complaint, based on diversity, set forth seven

counts:

•Counts I and II related to Cometa’s

management of Dunn's care, insurance and

property during his incapacity; the first

count, charging breach of fiduciary duty,

and the second, charging negligence and

waste, concerned Dunn’s lodging in a

rehabilitation facility for a year, the

lapse of his private health insurance, and

the substitution of Medicaid or Supplemental

Security Income (SSI) as the basis for his

support and medical care.

•Counts III-V charged intentional infliction

of emotional distress, negligent infliction

of the same, and "malice"; these counts were

grounded in charges that Cometa had

inflicted distress on Dunn (1) by her

mismanagement of his care, insurance and

property (in particular, by her keeping him

in care facilities rather than their or his

father's home so that she could conduct an

affair); (2) by her alleged verbal abuse of

Dunn (she said in order to motivate him);

and (3) by conduct related to her romantic

association with a third party during Dunn’s

incapacitation.
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•Count VI charged Cometa with breaching a

contract with Dunn’s father as to payment

for construction work on a Georgia house for

Dunn; and count VII called for recovery on

an unjust enrichment theory for the care

provided to Dunn by his father between

Dunn’s move to Georgia in June 1997 and the

divorce decree in December 1998.

After interrogatory answers clarified certain of the

counts, Cometa moved to dismiss the case on the ground that

counts I-V were within the domestic relations exception to

federal court jurisdiction or so closely associated with it as

to warrant dismissal, and that the remaining counts, in and of

themselves, would not support federal jurisdiction. Thereafter,

the magistrate judge wrote a detailed memorandum recommending a

grant of the motion as follows: that counts I-II be dismissed as

within the domestic relations exception, that counts III-V be

dismissed on abstention grounds because they "implicate murky,

cutting-edge areas of Maine public policy," and that counts VIVII be dismissed because--after the other claims were dismissed-

-they failed to satisfy the jurisdictional amount requirement.

The district court adopted the recommendation, and this appeal

on Dunn's behalf followed.

The district court, to whom we attribute the reasoning

of the magistrate judge, dismissed the first two counts of the

complaint as encompassed by the domestic relations exception to

federal jurisdiction. This exception, delineated by Ankenbrandt
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in 1992, "divests the federal courts of power to issue divorce,

alimony, and child custody decrees." Ankenbrandt, 504 U.S. at

703. The limitation is one on subject matter jurisdiction, and

is therefore not waivable by the parties. The aim of the

exception is to keep federal courts from meddling in a realm

that is peculiarly delicate, that is governed by state law and

institutions (e.g., family courts), and in which inter-court

conflicts in policy or decrees should be kept to an absolute

minimum.

Despite the breadth of the phrase "domestic relations

exception" and the potential reach of the exception's aim,

Ankenbrandt made clear that the exception is narrowly limited.

In general, lawsuits affecting domestic relations, however

substantially, are not within the exception unless the claim at

issue is one to obtain, alter or end a divorce, alimony or child

custody decree. This narrow construction led the Court in

Ankenbrandt to hold that the exception did not apply to tort

claims there at issue despite their intimate connection to

family affairs, 504 U.S. at 704; the claims there were by a

mother, on behalf of her daughters, charging their father, now
1Needless to say, even this narrow construction of the

exception leaves open difficult cases at the margin. See, e.g.,

Friedlander v. Friedlander, 149 F.3d 739, 740 (7th Cir. 1998)

(suit to collect unpaid alimony).

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divorced, and his companion with sexual and physical abuse of

the children, id. at 691.1

In our own case, the district court deemed the

exception to apply to counts I and II of the complaint because

under state law the economic misconduct charged in those counts

could have affected the level of alimony. Indeed, as we have

seen, Dunn initially conducted discovery in the divorce case

into such matters as Cometa's actions in allowing Dunn's private

health insurance to lapse and in allegedly transferring property

interests originally held by him. The question now posed is

whether tort claims based on these same events, later asserted

in a separate lawsuit, are within the domestic relations

exception. We think they are not.

The underlying events--like many in the domain of the

law--can affect more than one set of legal relationships.

Fraud, for example, may give rise to a civil tort suit, to a

criminal prosecution, possibly to divorce and surely to the

allocation of property incident to a divorce. But this does not

make a civil tort suit for fraud, even between those presently

or formerly married, a suit for divorce or alimony; and the same
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is true where (as here) the wrongs charged are not fraud but

breach of fiduciary duty or negligence and waste. Since

Ankenbrandt limits the domestic relations exception to claims

for divorce, alimony and child custody decrees, it follows that

counts I and II are not foreclosed by the exception. See

Johnson v. Rodrigues, 226 F.3d 1103, 1111-12 (10th Cir. 2000);

Catz v. Chalker, 142 F.3d 279, 292 (6th Cir. 1998). But cf.

Kahn v. Kahn, 21 F.3d 859, 860 (8th Cir. 1994). 

This does not mean that Dunn’s tort suit is necessarily

unaffected by the divorce case. All kinds of connections can be

imagined in the abstract: the one here that could be troubling

for Dunn is that Cometa might assert res judicata--claim

preclusion rather than issue preclusion--based on the fact that

Dunn could have asserted the conduct charged in counts I and II

to enlarge his alimony claim. In fact, Cometa’s answer to the

complaint in this case does assert res judicata as a defense,

although without explanation. Just what the res judicata effect

of the divorce case might be, if any, is a matter of Maine law

on which we need not speculate for it does not affect the

district court’s subject matter jurisdiction.

However, in narrowly construing the domestic relations

exception, the Supreme Court in Ankenbrandt opened the way to a

different limitation: 
2 Cf. Minot v. Eckardt-Minot, 13 F.3d 590, 593-94 (2d Cir.

1994) ("A state court should lead the way in developing the law

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[I]n certain circumstances, the abstention

principles developed in Burford . . . might

be relevant in a case involving elements of

the domestic relationship even when the

parties do not seek divorce, alimony, or

child custody. This would be so when a case

presents "difficult questions of state law

bearing on policy problems of substantial

public import whose importance transcends

the result in the case then at bar."

Colorado River Water Conservation Dist. [v.

United States, 424 U.S. 800, 814 (1976)].

504 U.S. at 705-06. The district court thought that this

version of Burford applied to, and justified dismissal of,

counts III-V of the complaint.

Counts I-V all present "difficult questions of state

law bearing on policy problems of substantial public import

whose importance transcends the result in the case . . . at

bar." Counts I and II both respond centrally to Cometa’s

alleged misfeasance or wrongful nonfeasance in allowing Dunn’s

private insurance policy to lapse. Cometa says, it appears,

that this policy did not cover the custodial care Dunn needed;

Dunn appears to say that he should have been brought home and

that Cometa’s loyalty as a wife was compromised by her own

entanglement with a third party. Constructing a proper legal

framework for resolving such charges amounts to regulating the

marriage itself, a traditional state enterprise.2
[for something amounting to a 'tort of custodial interference'],

balancing the delicate issues involved here."); Henriksen v.

Cameron, 622 A.2d 1135, 1139 (Me. 1993) (discussing the

"special" policy concerns involved in "[d]eciding actions for

intentional emotional distress arising from conduct occurring

within the marital setting").

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Similarly, counts III-V focus upon the claim that

Cometa caused emotional harm to Dunn by leaving him in custodial

care, by harsh words (which she says were to goad him toward

recovery), and by her signs of affection for the third party.

Again, such claims implicate Maine’s policies regulating conduct

within marriages, and, in this case, uncertainties in Maine law

regarding the legal significance of the charged conduct are not

resolved merely by saying, as Dunn's father does, that Maine has

eliminated interspousal immunity for "the intentional infliction

of emotional distress through physical violence and accompanying

verbal abuse," Henriksen, 622 A.2d at 1140.

Admittedly, the case for abstention would be even

stronger if the claims here could not be resolved without

deciding a dispute as to family status under state law, see

Ankenbrandt, 504 U.S. at 706, or if the relief sought would

interfere with the state courts' machinery for divorce, alimony

or child custody, e.g., DeMauro v. DeMauro, 115 F.3d 94, 98-100

(1st Cir. 1997). Neither situation is present here: this case

simply asks a federal court to decide in the first instance a
3Nor is this a case where the uncertainties can be reduced

to a few, simply formulated abstract legal questions, which

would make certification an alternative approach. Compare Stone

v. Wall, 135 F.3d 1438, 1441-43 (11th Cir. 1998) (finding

abstention inappropriate for what was "just a tort suit for

money damages," but certifying to the Florida Supreme Court the

question whether there was a cause of action for interference

with the parent-child relationship).

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series of sensitive legal questions about the duties and

privileges of parties to a then existing marriage.

Still, it is enough that abstention in this case fits

squarely within the above quoted language from Ankenbrandt

concerning Burford abstention and, in addition, makes good sense

as a means to "soften the tensions" of the dual federal-state

court system, Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 11 n.9

(1987). This case presents purely state law claims. The claims

are based upon conduct in a family context, and whatever the

parallels to non-family litigation, that context must affect the

legal framework to be applied. Finally, the legal framework for

those claims is not fully developed under state law (or at least

we have found no like cases and Dunn has pointed us to none).3

If state law were clear, there would be no reason to abstain in

this case. 

Of course, abstention, where it is permissible at all,

is often a matter within the district court's discretion, at

least where (as here) the judgment whether to abstain depends on
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an interplay of factors. DeMauro, 115 F.3d at 99-100

(contrasting the more "automatic" abstention categories derived

from Younger v. Harris, 401 U.S. 37, 45, 54 (1971)). But there

is no point here in remanding to the district court for an

exercise of that discretion as to counts I and II; the court’s

stated reasons for dismissing them virtually assure that a

remand would simply result in substituting abstention as the

proper label for deferring to state courts. As for counts IIIV, abstention has already been approved by the district court.

This brings us to remedy. In Quackenbush v. Allstate

Ins. Co., 517 U.S. 706 (1996), the Supreme Court held that

dismissal of a common law damage action is not allowed under

Burford abstention; where the relief sought is money damages

(rather than injunctive or other discretionary relief),

Quackenbush permits the district court only to stay the federal

action pending state proceedings. 517 U.S. at 730-31. This

mandate may seem a surprising result--sometimes the state action

would predictably afford full relief or, alternatively, negate

the basis for relief in any court--but Quackenbush's directive

is unqualified.

Presumably the district court ordered dismissal as to

counts III-V because neither side called its attention to

Quackenbush. In this court Dunn's opening brief ignores
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Quackenbush, and it is Cometa who cites the case and suggests a

remand to be followed by a stay. Conceivably, Dunn has no

interest in such limited relief on appeal; a protective state

court action was filed by Dunn’s father for both him and his son

after the district court dismissal, and it may be that there is

no statute of limitations problem and that they foresee no

further role for the federal action if they are forced to

litigate first in the state court.

In all events, we think that the soundest course in

this case is to vacate the dismissal of all counts and remand

for a stay in accordance with Quackenbush pending resolution of

the filed state court action, unless both sides agree to

dismissal without prejudice or some other course acceptable to

the district court. Neither side has addressed the implications

of such a stay for counts VI and VII, and we leave that issue

for the parties to address in the district court.

The judgment of the district court is vacated and the

matter remanded for the entry of a new judgment and stay

consistent with this opinion. Each side shall bear its own

costs on this appeal.

It is so ordered.