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
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,1 seeking to permanently
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
1
The original defendants were Foley Hoag LLP Retirement Plan, Foley
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."
-2-
thus subject to ERISA's2 anti-alienation provisions. 29 U.S.C. §
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' administrators3 worked to
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.
2
The Employee Retirement and Security Act of 1974, 29 U.S.C. § 1001
et seq.
3
During this time frame, a separate administrator had been
designated to manage two of the plans.
-3-
Proposed QDROs were presented to the divorce court4 in
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
4
The Norfolk County Probate and Family Court.
-4-
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.5 The district court granted the injunction
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.6 Moreover, Foley claimed that it did not even learn that
Geiger's request for preliminary injunction had been granted until
5
The original complaint came in response to the final determination
of one of the plans. The amended complaint was filed after the
other two plans made their final QDRO determinations.
6
Foley was made aware of the original complaint in September but
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.
-5-
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.7 Two weeks
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
7
We would ordinarily not recount the jousting over a proposed
order, but the lengthy course of events is relevant to our
discussion of Leeds's intervention.
8
At the same time Geiger was pursuing his federal case, he was also
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
-6-
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
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).
-7-
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
-8-
would aggressively defend the position it took in the divorce
proceeding – that the orders were QDROs.9 Next, we find the
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”
9
We are in no way suggesting that Foley's actions were
inappropriate.
-9-
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.
-10-
280, 291 (2005). Parallel litigation does not trigger Rooker-
Feldman. 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
-11-
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
-12-
. . . 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
-13-
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
-14-
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.10 San Remo Hotel,
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
10
This process is known as Pullman abstention. See Railroad
Commission of Tex. v. Pullman Co., 312 U.S. 496 (1941).
-15-
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.
-16-