United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE
12, 2018, Plaintiff Leigh Rumbley Creekbaum initiated this
action against Defendant Stephen Travis Creekbaum seeking an
order permitting Plaintiff to obtain a passport for their
minor child, G.K. Creekbaum, on her own or, alternatively, an
order directing Defendant to execute any documents necessary
for Plaintiff to obtain a passport for G.K. Creekbaum. (Doc.
1). Plaintiff also seeks monetary damages for her lost
opportunities to travel internationally with her child and
parents. (Id.). Defendant moves to dismiss the
action under the Colorado River and/or
Younger doctrines, contending that litigating this
issue concerning child custody in federal court would be an
unnecessary and significant waste of the Court's time and
resources. (Doc. 9). Plaintiff has filed a response in
opposition to Defendant's motion to dismiss and a motion
to strike. (Doc. 16). Defendant then filed a response to
Plaintiff's motion to strike and a reply brief addressing
Plaintiff's response in opposition to the motion to
dismiss. (Doc. 18). The motions are ripe for review. For the
reasons that follow, Plaintiff's motion to strike (doc.
16) is DENIED, and Defendant's motion to
dismiss (doc. 9) is GRANTED.
motion to strike (doc. 16) is DENIED because
all of the subject documents are state court records from the
underlying litigation. Plaintiff contends that the exhibits
attached to the motion to dismiss are “extrinsic”
and “not central to Plaintiff's claim” thus
inappropriate for a motion to dismiss. (Doc. 16 at 3-4). In
ruling on a motion to dismiss based on an abstention
doctrine, as here, the court “may consider the various
filings in the underlying state court litigation.”
Belevich v. Thomas, No. 2:17-cv-01193-AKK, 2018 WL
1244493, at *1-2 n.1 (N.D. Ala. Mar. 9, 2018). The documents
attached to Defendant's motion are court filings
associated with the pending state litigation (see
doc. 9-1) and are therefore appropriate for consideration
with this motion.
and Defendant were divorced on July 22, 2016, pursuant to a
final judgment of divorce. (Doc. 1 at ¶ 5; see
www.alacourt.com; No. 58-DR-16-900314.00). As part
of the divorce decree, Plaintiff and Defendant were awarded
joint legal and physical custody of their minor child, G.K.
Creekbaum. (Id.). Plaintiff wishes to travel with
the child internationally (id. at ¶ 5), but
Defendant will not consent to the issuance of the minor
child's passport (id. at ¶ 8). Plaintiff
avers that due to Defendant's refusal to consent to the
issuance of a passport for the minor child, Plaintiff and
G.K. Creekbaum have lost the opportunity to travel
internationally. (Id. at ¶ 9).
on the state court documents attached to the motion to
dismiss, Defendant contends Plaintiff's boyfriend, who is
with the minor child during Plaintiff's custodial
periods, routinely takes Plaintiff and the minor child on his
private plane to one of his residences in other states (doc.
9-1 at 7), and that he appears to be their sole source for
potential international travel. Defendant further alleges in
state court documents that upon the return from a domestic
trip in May 2017, G.K. Creekbaum told Defendant that
Plaintiff's boyfriend had hit him and that the police had
visited in the middle of the night during his stay.
(Id.). In the state court proceedings, Defendant has
moved for the minor child to have no contact with
Plaintiff's boyfriend. (Id.). Defendant also
submits state court documents alleging that Plaintiff
permitted contact between her boyfriend and the minor child
that violated the court's order. (Id. at 10-12).
Finally, Defendant has also moved in state court to modify
the custody arrangement, requesting sole custody of the minor
child. (Doc. 9-1 at 4). These matters have not been resolved.
According to publicly available records, the state court has
set a final trial date for custody redetermination for
December 29, 2018. (www. alacourt.com, No.
Code of Federal Regulations outlines the requirements and
circumstances related to obtaining a passport for a minor.
See 22 C.F.R. § 51.28. Generally, both parents
must provide consent to the issuance of a passport to a minor
if they share joint custody of the minor. See 22
C.F.R. §§ 51.28(a)(2) and 51.28(a)(3)(ii)(G).
However, a single parent may apply for a minor's passport
if “[a] notarized written statement or affidavit from
the non-applying parent or legal guardian” is provided.
22 C.F.R. § 51.28 (a)(3)(i). Additionally, a passport
may be issued without both parents' consent when
“[a]n order of a court of competent jurisdiction
grant[s] sole legal custody to the applying parent” or
specifically authorizes the issuance of a passport
“regardless of custodial arrangements; or specifically
authorizing the travel of the minor with the applying parent
or legal guardian.” 22 C.F.R § 51.28(a)(3)(ii)(E).
Thus, under the current custody arrangement, absent an order
from a court of competent jurisdiction, both Plaintiff and
Defendant must provide consent to obtain a passport for G.K.
Creekbaum. Defendant asserts that, due to issues raised
during the ongoing domestic litigation in state court, he has
refused to provide consent. Plaintiff asks this Court to
issue an order authorizing the issuance of a passport or
directing Defendant to sign the necessary paperwork. (Doc. 1
Application of the Colorado River Doctrine
argues this Court should abstain from exercising its
jurisdiction and dismiss this action under the Colorado
River doctrine. (Doc. 9 at 3-7). Generally, federal courts
have a “virtually unflagging obligation . . . to
exercise the jurisdiction given to them.” Colorado
River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976). However, the Colorado River
doctrine creates an “extraordinary and narrow
exception” where a district court may decline to
exercise or postpone the exercise of its jurisdiction.
Id. at 813. Although “abstention from the
exercise of federal jurisdiction is the exception, not the
rule[, ] a federal court may appropriately dismiss an action
pending in state court in the interest of “wise
judicial administration.” Colorado River, 424
U.S. at 813, 817. For example, “federal courts
generally dismiss cases involving . . . child custody . . .
child support, and enforcement of separation or divorce
decrees still subject to state court modification.”
Ingram v. Hayes, 866 F.2d 368, 369 (11th Cir. 1998)
Parallel Lawsuits with Substantially Similar Parties and
application of the Colorado River doctrine is
appropriate when “a parallel lawsuit is proceeding in
one or more state courts.” Ambrosia Coal &
Const. Co. v. Pages Morales, 368 F.3d 1320, 1327 (11th
Cir. 2004). To be considered “parallel” for this
purpose, the state and federal cases at issue should
“contain substantially similar parties and
issues.” Acosta v. James A. Gustino,
P.A., 478 Fed.Appx. 620, 622 (11th Cir. 2012). There
is no clear test for deciding whether the cases contain
“substantially similar parties and issues.”
Id. As Defendant points out, “[t]he state and
federal cases need not share identical . . . issues to be
considered parallel for purposes of Colorado River
abstention.” Sini v. CitiBank, N.A., 990
F.Supp.2d 1370, 1376 (S.D. Fla. 2014). The Eleventh Circuit
has discussed this possibility of the state and federal cases
being parallel even if some claims made in one court are not
made in the other. See Ambrosia Coal, 368 F.3d at
admits the parties in both the state court and this action
are the same; however, she spends much of her argument
contending the passport claim is a completely separate issue
from the child custody issues being litigated in state court.
(Doc. 16 at 6). Specifically, she contends the state court
action involves custody issues and a request for a
restraining order, while this action involves “a
federal question regarding the issuance of a passport.”
(Id.). Defendant maintains (doc. 18 at 3, 6-7), and
the court agrees, that child custody and related issues are
at the root of the passport issue and are not distinct in any
meaningful way. As Defendant puts it, the passport issue is
one discrete issue under the umbrella of child custody. If
this case were to proceed to the merits in this Court, the
court would be required to address all the reasons why
Defendant has not consented to the issuance of a passport.
These are the same reasons that the child custody issue has
been reopened and is being litigated in state court. This
Court attempting to determine whether to issue a passport to
the minor child against Defendant's wishes is essentially
a domestic custody hearing or trial, which is already taking
place in state court.
the parties are currently under a custody review wherein
Defendant seeks sole legal and physical custody, which would
render this action moot. Thus, finding the parties are
identical in both actions and that the issue of child custody
is central to both the state case and the federal ...