UNITED STATES DISTRICT COURT FOR THE  EASTERN DISTRICT OF MASSACHUSETTS --------------------------------------------------------------- Theodore S. Brown  James Linnehan Jane & John Does                                                  Plaintiffs  v.                                                                         CIVIL ACTION: 00-CV-11048-REK Eli Newberger Children's Hospital Amy C. Tishelman Barbara Cohen Brockton Division of the      District Court Department      of the Trial Court of Massachusetts Mass. Dept. of Social Services Eileen Kern Sandra Fyfe Christopher Salt Jack McCarthy, Jr. John and Jane Smiths                                                Defendants ----------------------------------------------------------------  PLAINTIFFS' BRIEF ON        (1) COURT'S AUTHORITY TO RETAIN JURISDICTION         (2) DEFAULT JUDGMENT AGAINST ELI NEWBERGER  (3) LINNEHAN'S SURREPLY TO DEFENDANT McCARTHY'S REPLY                       TO LINNEHAN'S OPPOSITION TO HIS MOTION TO DISMISS   Now come Plaintiffs Theodore Brown, James Linnehan, and the as-yet unidentified Jane and John Does and submit this brief on the following issues: (1) the court has authority to retain jurisdiction of this action where the domestic relations exception is inapplicable to a sec. 1983 civil rights suit, (2) the default judgment against Eli Newberger ought not be vacated, and (3) Linnehan's Surreply to Defendant McCarthy's Reply to Linnehan's Opposition to McCarthy's Motion to Dismiss.   (1) The court has authority to retain jurisdiction of this action, where the domestic relations exception is not applicable to a sec. 1983 civil rights suit. The instant case poses federal questions as well as pending state civil rights and tort claims. Plaintiff Brown is a resident of Maine, Plaintiff Linnehan is a resident of Massachusetts, all the natural defendants reside in  Massachusetts, and the remaining defendants are Massachusetts entities.  Plaintiff Brown was divorced from his wife in Maine, and she is not a defendant in this case. Through this lawsuit, he seeks neither a divorce, custody, nor a change in child support. He seeks only remedies, including but not limited to money damages, for his claims sounding in civil rights and torts. Plaintiff Linnehan has never been married. but has one son born out of wedlock. The mother of his son is not a defendant in this case. Through this lawsuit, he seeks neither a divorce, custody, nor a change in child support. He, too, seeks only remedies, including but not limited to money damages, for his claims sounding in civil rights and torts. "The diversity statute is not ambiguous at all. It extends the jurisdiction of the district courts to "all civil actions" between diverse parties involving the requisite amount in controversy. 28 U.S.C. sec. 1332." Ankenbrandt v. Richards, 504 U.S. 689, 707 (U.S.La. 1992) (complaint sought monetary damages for alleged sexual and physical abuse of the children committed by the divorced father of the children and his female companion). Neither the Younger nor the Burford abstention from exercising diversity jurisdiction was appropriate in Ankenbrandt. Ankenbrandt, 504 U.S. at 705 and 706. Younger v. Harris, 401 U.S. 37 (1971). Burford v. Sun Oil Co., 319 U.S. 315 (1943). The Younger abstention was inappropriate on the facts before the court in Ankenbrandt because there was neither any pending state proceeding" [Ankenbrandt 504 U.S. at 716 n. 9] nor any assertion of important state interests. Id. at 705.  The Burford abstention was inappropriate where the status of the domestic relationship had been determined as a matter of state law, and the status of the relationship had no bearing on the underlying torts alleged. Ankenbrandt, at 706. "Because the allegations in Ankenbrandt [ ] do not request the District Court to issue a divorce, alimony, or child custody decree,1 [as in the case at bar,] the suit is appropriate for the exercise of sec. 1332 jurisdiction given the existence of diverse citizenship between petitioner and respondents and the pleading of the relevant amount in controversy." Id. at 707-708 (reversed and remanded for further proceedings). Id. at 706-707.  1 "The domestic relations exception [] divests the federal courts of power to issue divorce, alimony, or child custody decrees." Ankenbrandt, 504 U.S. at 703. Further, because defendants committed torts against the plaintiff's children, federal subject-matter jurisdiction pursuant to sec. 1332 is proper in this case. Id. at 704.  "[T]o the best of my knowledge, a court is not at liberty to craft exceptions to statutes that are not at issue in a case." Ankenbrandt, at 713 (Blackmun, J., concurring in the judgment). Whether or not the domestic relations "exception" is properly grounded in principles of abstention or principles of jurisdiction, I do not believe this case falls within the exception. This case only peripherally involves the subject of "domestic relations." "Domestic relations" actions are loosely classifiable into four categories. The first, or "core," category involves declarations of status, e.g., marriage, annulment, divorce, custody, and paternity. The second, or "semicore," category involves declarations of rights or obligations arising from status (or former status), e.g., alimony, child support, and division of property. The third category consists of secondary suits to enforce declarations of status, rights, or obligations. The final, catchall category covers the suits not directly involving status or obligations arising from status but that nonetheless generally relate to domestic relations matters, e.g., tort suits between family or former family members for sexual abuse, battering, or intentional infliction of emotional distress. None of this Court's prior cases that consider the domestic relations "exception" involves the type of periphery domestic relations claim at issue here. Ankenbrandt, at 713 (Blackmun, J., concurring in the judgment).  "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." Dunn v. Cometa, 238 F.3d 38, 41 (C.A.1 (Me.) 2001), where the counts for breach of fiduciary duty and for negligence and waste were not foreclosed by the domestic relations exception. Id. at 40-41. "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." Id., citing Ankenbrandt, 504 U.S. at 704. Both counts were central to the defendant's "alleged misfeasance or wrongful nonfeasance in allowing Dunn's private insurance policy to lapse." Id. at 42. (The disposition of the remaining counts is discussed in the margin.)2 2 In Dunn, supra, the remaining claims -- which were dismissed, and which dismissals were vacated by the appeals court -- asked "the court to decide [] a series of [] legal questions about the duties and privileges of parties to a then existing marriage." Id. at 42. "[T]he 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). If state law were clear, there would be no reason to abstainin this case." Id. at 43. (Brown and Linnehan do not, of course, ask this court to decide such questions.)    Where "petitioner's claims [ ] involve a federal question or statute -- the presence of which would strongly counsel against abstention -- petitioner's state-law tort claims for money damages are easily cognizable in a federal court. All these considerations favor the exercise of federal jurisdiction over petitioner's claims." Ankenbrandt. at 717. Justices Stevens and Thomas concurred in the judgment. Id.  Federal district court also has subject-matter jurisdiction over claims seeking relief from family-court orders which emanated under procedures that allegedly violated due process, equal protection, and other federal statutes such as the sec. 1983 civil rights statute. Agg v. Flanagan, 855 F.2d 336, 339 (C.A.6 (Ohio) 1988). Where Agg had been brought under sec. 1983 and alleged deprivation of federal constitutional rights and state procedures that were contrary to federal law and thus invalid under the supremacy clause, the domestic relations exception doctrine, which concerned federal jurisdiction based on diversity, did not apply. Id. at 339. "[J]urisdiction [ ] was therefore proper under 28 U.S.C. sec. 1331 or sec. 1343." Id. U.S. Const. Art. 6, cl. 2; Amends. 5, 14.  In Rubin v. Smith, 817 F.Supp. 987, 991 (D.N.H. 1993), too, the motion court held that the domestic relations exception did not apply to a sec. 1983 civil rights suit. There a mother and daughter had alleged that the police had violated their constitutional rights by seizing the daughter pursuant to a Connecticut child custody decree without notice and hearing. Even though the claims arose out of a custody dispute, the suit was not a diversity case: it had raised constitutional questions and sought damages for "deprivation of their constitutional interests without due process of law. Adjudication of the child's custody was not sought.  And again, in Thomas v. New York City, 814 F.Supp. 1139 (E.D.N.Y.), the lower court concluded that the issue of "whether the state's procedure used to separate parent from child complie[d] with constitutional due-process requirements [was] squarely within [the] court's federal question jurisdiction," and the determination of the issue did "not entail any investigation into the fitness of the parent to care for child, or into the decree." Id. at 1147.  A similar disposition was reached in Friedlander v. Friedlander, 149 F.3d 739 (C.A.7 (Ill.) 1998). Where a case merely arises out a domestic relations dispute and does not seek any of the distinctive forms of relief typically associated with domestic relations jurisdiction, the domestic relations exception does not bar diversity jurisdiction. Id., at 740, citing Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.1982), which involved a suit for interference with custody; McIntyre v. McIntyre, 771 F.2d 1316 (9th Cir. 1985) (similar to Lloyd); DiRuggiero v. Rodgers, 743 F.2d 1009, 1018-20 (3d Cir.1984) (similar to Lloyd); and Stone v. Wall, 135 F.3d 1438 (11th Cir. (Fla.) 1998)3 (similar to Lloyd); "and better yet" [Dunn at 740] Raftery v. Scott, 756 F.2d 335, 337-38 (4th Cir.1985),4 and Drewes v. Ilnicki, 863 F.2d 469 (6th Cir. (Ohio) 1988),5 both cases like Friedlander, one of intentional infliction of emotional distress.  3 In Stone, the court held that the domestic relations exception to exercising diversity jurisdiction is to be read narrowly and ordinarily does not include third parties in its scope. 4 In Raftery, the court held that the exercise of diversity jurisdiction over former husband's action against former wife for intentional infliction of mental distress, arising out of former wife's effort to destroy and prevent rehabilitation of  relationship between former husband and the parties' son, did not contravene domestic relations exception to federal diversity jurisdiction. 5 In Drewes, the court held that the domestic relations exception to diversity jurisdiction does not apply to suits that are actually tort or contract claims  having only domestic relations overtones. 28 U.S.C. sec. 1332(a)(1). Going one step further, the court in Catz v. Chalker, 142 F.3d 279 (C.A.6 (Ohio) 1998), held that former husband's action, seeking a declaration that the state divorce decree was void as a violation of due process, was not a core domestic relations case to which the domestic relations exception applied. The action did not seek declaration of marital or parental status, but instead presented a constitutional claim in which it was incidental that the underlying action involved a divorce. Id. Fourteenth Amendment. The domestic relations exception has no generally recognized application as a limitation on federal question jurisdiction; it applies only as a judicially implied limitation on diversity jurisdiction. U.S. v. Johnson, 114 F.3d 476 (C.A.4 (Va.) 1997). In Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1109 (C.A.10 (Utah) 2000), where the father was not a party to the adoption proceeding, the Rooker-Feldman doctrine did not apply. Neither did the domestic relations exception apply, because the plaintiff's underlying claims general challenged the constitu-tionality of the Utah adoption statutory scheme and alleged a due process violation. Such claims were asserted under federal question jurisdiction, and constitutional claims do not require a federal court to make a custody determination. Id. at 1111.  The Burford abstention did not apply in Johnson, where the alleged father's constitutional and tort claims did not depend on the status of the parties. Johnson, at 1112. Instead, Johnson's claim required a determination whether Defendants' conduct was tortious. See, e.g., Ankenbrandt, 504 U.S. at 706 ("Where, as here, the status of the domestic relationship has been determined as a matter of state law, and in any event has no bearing on the underlying tort alleged, we have no difficulty concluding that Burford abstention is inappropriate in this case."). Accordingly, abstention did not apply to Plaintiff Johnson's tort claim for intentional infliction of emotional distress. Johnson, at 1112.    (2) The default judgment against Eli Newberger is appropriate. Linnehan and Newberger have never been parties in the same case. Newberger was but a potential nonparty witness in Linnehan's Probate & Family Court action for a declaration of paternity and custody of his son, Brenden. "In determining whether to set aside a default decree, the district court should consider [1] whether the default was willful, [2] whether setting it aside would prejudice the adversary, and [3] whether a meritorious defense is presented." . . . That compendium is by no means exclusive; a court may also examine into such things as [4] the proffered explanation for the default, [5] the good faith of the parties, [6] the amount of money involved, and [7] the timing of the motion. Coon v. Grenier, 867 F.2d 73, 76 (C.A.1 (R.I.), 1989) (cites omitted) (numbering of elements added).  Where Newberger's default was willful, setting it aside would prejudice the plaintiffs, no meritorious defense was presented, his proffered explanation for the default was unreasonable and untrue, he lacked good faith, the amount of money involved is an unliquidated amount, i.e., it is incalculable at this moment, and the motion to vacate came months after the default entered. These elements are discussed fully in Brown and Linnehan's OPPOSITION TO ELI NEWBERGER'S MOTION TO REMOVE ENTRY OF DEFAULT and supporting affidavit papers #63 and 64, attached hereto this brief.    (3) Linnehan's Surreply to Defendant McCarthy's Reply to Linnehan's Opposition to McCarthy's Motion to Dismiss  As grounds for this Surreply to Defendant McCarthy's Reply, Plaintiff James Linnehan states that he seeks to correct a misrepresentations of material facts and law in McCarthy's Reply to Linnehan's Opposition to McCarthy's Motion to Dismiss.

Respectfully submitted,                                                         PLAINTIFFS,                                                         By their attorney, 16 May 2001                                     Barbara C. Johnson                                                         Barbara C. Johnson, Esq.                                                         6 Appletree Lane                                                         Andover, MA 01810-4102                                                         978-474-0833