F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 8 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
IRENE M. DEASY,
Plaintiff-Appellant,
v. No. 98-1129
(D.C. No. 97-D-941)
NATIONS BANK; MERRILL (D. Colo.)
LYNCH; NEPTUNE SOCIETY,
Defendants-Appellees,
and
DAVID DIXON,
Defendant.
STANFORD E. ANDRESS,
Applicant in
Intervention-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , BALDOCK , and EBEL , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Appellants appeal from the district court’s order 1) granting defendant
Neptune Society summary judgment on plaintiff’s breach of contract claim; and 2)
dismissing her claims against defendants Nations Bank and Merrill Lynch for lack
of subject matter jurisdiction. 1
Reviewing the district court’s decision de novo,
see Vice v. Conoco, Inc. , 150 F.3d 1286, 1288 (10th Cir. 1998) (summary
judgment); State Farm Mut. Auto. Ins. Co. v. Narvaez , 149 F.3d 1269, 1271 (10th
Cir. 1998) (subject matter jurisdiction), we affirm.
Appellants allege that the Neptune Society breached its contract with
plaintiff by distributing her former husband’s ashes to his personal representative
instead of her. Plaintiff and her former husband entered into a “preneed burial
contract” with the Neptune Society in 1993. The couple divorced later that year.
Although the contract does indicate that the decedent wished his remains
returned to his next of kin, and identified plaintiff as that next of kin, the contract
1
On appeal, appellants do not challenge the district court’s decision
declining to enter a default judgment against defendant David Dixon.
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also reserved to the Society “the right to consult with individuals having a legal
right to control the final disposition of the [decedent]. The [Society] shall not be
liable to anyone for its decisions taken in good faith pursuant to consultation with
any person.” R. attachment to doc. 19. In addition, Florida law, which governs
this contract, provides that “[t]he fact that cremation occurred pursuant to a
provision of . . . any written contract signed by the decedent in which he or she
expressed the intent that his . . . body be cremated is a complete defense to a
cause of action against the personal representative or person providing the
services.” Fla. Stat. Ann. § 732.804. Summary judgment for the Neptune
Society, therefore, was proper.
Appellants’ claims against defendants Merrill Lynch and Nations Bank
essentially seek review of Florida state court decisions. Federal courts, however,
other than the United States Supreme Court, do not have jurisdiction to review
state court decisions, see, e.g. , District of Columbia Ct. of Appeals v. Feldman ,
460 U.S. 462, 486 (1983); Facio v. Jones , 929 F.2d 541, 543 (10th Cir. 1991), or
matters cognizable only in state probate proceedings, see, e.g. , Beren v. Ropfogel ,
24 F.3d 1226, 1228 (10th Cir. 1994). “[A] party losing in state court is barred
from seeking what in substance would be appellate review of the state court
judgment in a United States district court, based on the losing party’s claim that
the state court judgment itself violates the loser’s federal rights.” See Johnson v.
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De Grandy , 512 U.S. 997, 1005-06 (1994). This includes, not only the issues
actually litigated in state court, but also any constitutional claims which are
inextricably intertwined with the issues actually litigated. See Facio , 929 F.2d at
543. The district court, therefore, properly dismissed appellants’ claims against
these defendants for lack of subject matter jurisdiction.
Appellants’ remaining arguments lack merit. Appellants’ requests to
submit evidence are granted only to the extent that these materials were
previously submitted to the district court. See John Hancock Mut. Life Ins. Co. v.
Weisman , 27 F.3d 500, 506 (10th Cir. 1994).
The judgment of the United States District Court for the District of
Colorado is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
David M. Ebel
Circuit Judge
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Deasy v. Nations Bank
Combined Opinion