United States District Court, D. North Dakota, Northeastern Division.
      Tyrell DeCOTEAU, Petitioner,
      v.
      DISTRICT COURT, 85TH JUDICIAL DISTRICT, BRAZOS COUNTY, State of TEXAS; Francyne DeCoteau, Respondents.
No. 4:12–cv–030.
  June 22, 2012.
Scot M. Graydon, Office of the Attorney General of Texas, Austin, TX, Donald G. Bruce, Bruce Law Office, Belcourt, ND, for Respondents.
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
DANIEL L. HOVLAND, District Judge.
    
    *1 Before the Court is the respondent, District Court, 85th Judicial District, Brazos County, State of Texas's motion to dismiss. See Docket No. 7. The petitioner, Tyrell Decoteau, failed to respond. For the reasons explained below, the motion is granted.
    I. BACKGROUND
  Tyrell   DeCoteau asserts that he and respondent Francyne DeCoteau were married   in Bottineau, North Dakota. They have two minor children. They are   members of the Turtle Mountain Band of Chippewa Indians. Tyrell DeCoteau   is a member of the United States Army and is currently stationed in El   Paso, Texas. Francyne DeCoteau resides with the children in College   Station, Texas.
  On   an unknown date, Tyrell DeCoteau filed for divorce in Turtle Mountain   Tribal Court. On October 5, 2005, Francyne DeCoteau filed for divorce in   the Texas State District Court in Bell County, Texas. The Texas State   District Court issued a temporary restraining order on October 5, 2005.   On March 6, 2006, the Texas State District Court issued an employer's   order to withhold income. On March 22, 2006, the Texas State District   Court issued a supplemental temporary order.
  On   May 1, 2006, the Turtle Mountain Tribal Court (“Tribal Court”) issued   an order finding that it had exclusive jurisdiction over the divorce and   child custody matter between Tyrell DeCoteau and Francyne DeCoteau, and   further found that the Texas orders were null and void. See Docket No. 1–4. The Tribal Court ordered that the parties   share joint custody of the children. Thereafter, on October 18, 2006,   the Tribal Court issued an order granting a dissolution of the   DeCoteaus' marriage. See Docket No. 1–3. On June 1, 2011, the Tribal Court issued an   order granting Tyrell DeCoteau custody of the children for one year   effective June 15, 2011. See Docket No. 1–2. On January 6, 2012, the Tribal Court issued   an arrest warrant for Francyne DeCoteau for noncompliance with the   court's orders. See Docket No. 1–1.
  On March 19, 2012, Tyrell DeCoteau filed a motion in federal district court seeking the following relief:
  (1)   That Petitioner have judgment against Respondents whereby this Court   issue a Temporary Restraining Order preventing Respondent District   Court, 85th Judicial District, Brazos County, State of Texas from taking   jurisdiction of the custody action in Texas until the parties have   exhausted Tribal Court remedies;
  
  (2)   That the Court issue a declaratory judgment declaring the Tribal Court   has exclusive jurisdiction under Texas laws and Tribal laws, and the   Tribal Court Orders are enforceable under the rule of comity and that   the warrant for Respondent Francyne DeCoteau's arrest is valid and   enforceable and that the Bureau of Indian Affairs must make arrangements   to extradite Respondent Francyne DeCoteau back to the Turtle Mountain   Tribal jurisdiction; and
  
  (3)   That the Court issue a permanent injunction against Respondent Francyne   DeCoteau ordering her to cease and desist in pursuing this matter in   the Texas courts and ordering Respondent District Corut, 85th Judicial   District, Brazos County, State of Texas from taking jurisdiction of the   custody action in Texas.
  
  *2  See Docket No. 1.
  
  On   March 23, 2012, the Court issued an order denying DeCoteau's motion for   a temporary restraining order and deferring ruling on the motions for   declaratory judgment and a permanent injunction. See Docket No. 4. On April 30, 2012, the District Court, 85th   Judicial District, Brazos County, State of Texas (“Texas State District   Court”) filed a motion to dismiss under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. See Docket No. 7. The Texas State District Court argues the Court   does not have jurisdiction and DeCoteau's claim is barred. DeCoteau has   not filed a response to the motion.
  II. LEGAL DISCUSSION
  A. FAILURE TO RESPOND  
Civil Rule 7.1(F) of the Local Rules for the District of North Dakota provides:
  A party's failure to serve and file a memorandum or a response within   the prescribed time may subject a motion to summary ruling. A   moving party's failure to serve and file a memorandum in support may be   deemed an admission that the motion is without merit. An adverse party's failure to serve and file a response to a motion may be deemed an admission that the motion is well taken.
     
  D.N.D. Civ. L.R.   7.1(F) (emphasis added). The Texas State District Court's motion was   filed on April 30, 2012. DeCoteau's response was due on or before May   21, 2011. See D.N.D. Civ. L.R. 7.1(A)(1) (requiring a response to a   dispositive motion within twenty-one (21) days). DeCoteau has not yet   filed a response. The Court, in its discretion, takes DeCoteau's failure   to respond as an admission that the Texas State District Court's motion   is well-taken. D.N.D. Civ. L.R. 7.1(F). The Texas State District   Court's motion to dismiss is granted.
  
  A. ROOKER–FELDMAN DOCTRINE  
The Court will also consider some of the Texas State District Court's substantive grounds for dismissal of DeCoteau's claim. Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a claim can be dismissed for lack of subject-matter   jurisdiction. The Texas State District Court argues the Court does not   have subject-matter jurisdiction under the Rooker–Feldman doctrine. In Ballinger v. Culotta, 233 F.3d 546 (8th Cir.2003), the Eighth Circuit Court of Appeals explained:
  The Rooker–Feldman doctrine provides that, “with the exception of   habeas corpus petitions, lower federal courts lack subject matter   jurisdiction over challenges to state court judgments .”  Lemonds v. St. Louis County, 222 F.3d 488, 492 (8th Cir.2000) (citing [ Dist. Of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 476 (1983) ]; [ Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923) ] ).   District courts may not review state court decisions, “even if those   challenges allege that the state court's action was unconstitutional,”  Feldman, 460 U.S. at 486, because “federal jurisdiction to review most state court judgments is vested exclusively in the United States Supreme Court,” [ Lemonds v. St. Louis Cnty., 222 F.3d 488, 492 (8th Cir.2000) ] (citing 28 U .S.C. § 1257; Feldman, 460 U.S. at 486). A party who was unsuccessful in   state court thus “is barred from seeking what in substance would be   appellate review of the state judgment in a United States district court   based on the losing party's claim that the state judgment itself   violates the loser's federal rights.”  Johnson v. De Grandy, 512 U.S. 997, 1005–1006 (1994) (citing Feldman, 460 U.S. at 482;  Rooker, 263 U.S. at 416). This jurisdictional bar extends not   only to “straightforward appeals but also [to] more indirect attempts   by federal plaintiffs to undermine state court decisions.”  Lemonds, 222 F.3d at 492. Federal district courts thus may   not “exercise jurisdiction over general constitutional claims that are   ‘inextricably intertwined’ with specific claims already adjudicated in   state court.”  Id. at 492–93 (citations omitted).
  
  *3 A claim   brought in federal court is inextricably intertwined with a state court   judgment “if the federal claim succeeds only to the extent that the   state court wrongly decided the issue before it.” Id. at 493 (citing  Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring)).
  
  Ballinger, 322 F.3d at 548–49.
       
  DeCoteau   is essentially asking the federal court to review the custody orders   from the Texas State District Court, under the guise of a claim under 42 U.S.C. § 1983 that his constitutional rights to due process and equal protection have   been violated. It is clear from the scant record that this Court does   not have jurisdiction to enjoin the Texas State District Court from   acting. The proper venue for challenging the actions of the Texas State   District Court is the Texas appellate court system. The Court finds that   it does not have subject matter jurisdiction. Therefore, the Texas   District Court's motion to dismiss is granted.
       C. PERSONAL JURISDICTION 
Rule 12(b)(2) provides that a claim can be dismissed for lack of personal   jurisdiction. “To defeat a motion to dismiss for lack of personal   jurisdiction, the nonmoving party need only make a prima facie showing   of jurisdiction.”  Epps v. Stewart Info. Servs Corp ., 327 F.3d 642, 647 (8th Cir.2003) (citing Falkirk Min. Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 373 (8th Cir.1990); Watlow Elec. Mfg. v. Patch Rubber Co., 838 F.2d 999, 1000 (8th Cir.1988)).   “The plaintiff's prima facie showing must be tested, not by the   pleadings alone, but by the affidavits and exhibits presented with the   motions and in opposition thereto.”  Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir.2004).   The party seeking to establish the court's in personam jurisdiction   carries the burden of proof, and the burden does not shift to the party   challenging jurisdiction. Epps, 327 F.3d at 647 (citations omitted).
  The jurisdiction of North Dakota courts is governed by the North Dakota long-arm statute set forth in Rule 4(b)(2) of the North Dakota Rules of Civil Procedure,   which “authorizes North Dakota courts to exercise jurisdiction over   nonresident defendants to the fullest extent permitted by due   process....”  Hansen v. Scott, 2002 ND 101, ¶ 16, 645 N.W.2d 223 (citing Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶ 6, 611 N.W.2d 173; Hust v. Northern Log, Inc., 297 N.W.2d 429, 431 (N.D.1980)).   When a state construes its long-arm statute to grant jurisdiction to the   fullest extent permitted by the Constitution, the Court must determine   whether the exercise of personal jurisdiction comports with due process. Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir.2006); Oriental Trading Co, Inc. v. Firetti, 236 F.3d 938, 943 (8th Cir.2001); Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.1994); see  Hansen, 2002 ND 101, ¶ 23 (recognizing that a federal court sitting in diversity may collapse the two-step framework under North Dakota law).
         *4 “Due   process requires minimum contacts between [a] non-resident defendant and   the forum state such that maintenance of the suit does not offend   traditional notions of fair play and substantial justice.”  Dever, 380 F.3d at 1073 (citing Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir.1996); World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291–92 (1980)).   There are two categories of minimum contacts with a state that may   subject a defendant to jurisdiction in that forum, general and specific.   With respect to general jurisdiction over a defendant, “a court may   hear a lawsuit against a defendant who has ‘continuous and systematic’   contacts with the forum state, even if the injuries at issue in the   lawsuit did not arise out of the defendant's activities directed at the   forum.” Id. (quoting  Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415–16 (1984)).   A state has specific jurisdiction over a defendant when the suit arises   out of, or is related to, the defendant's contacts with the forum   state. Johnson, 444 F.3d at 956 (citing Helicopteros, 466 U.S. at 414).
  Both   categories of minimum contacts require some act by which the defendant   purposely avails himself or herself of the privilege of conducting   activities within the forum state, and thus invokes the benefits and   protections of its laws. If a court determines that a defendant has   minimum contacts with the forum state, the court must then consider “   ‘whether the assertion of personal jurisdiction would comport with fair   play and substantial justice.’ “ Id. (quoting  Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)).
  The   Eighth Circuit has established a five-part test for measuring minimum   contacts for purposes of asserting personal jurisdiction over a   defendant: (1) the nature and quality of a defendants' contacts with a   forum state; (2) the quantity of such contacts; (3) the relation of the   cause of action to the contacts; (4) the interest of the forum state in   providing a forum for its residents; and (5) the convenience of the   parties.  Dever, 380 F.3d at 1073–74 (citing Burlington Indus., Inc., 97 F.3d 1100 at 1102). In   determining whether a defendant has sufficient contacts with the forum   state to exercise personal jurisdiction, the court must consider all of   the contacts in the aggregate and examine the totality of the   circumstances. Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1388 (8th Cir.1995). The Eighth Circuit affords “significant weight” to the first three factors. Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th Cir.2004) (citing Dever, 380 F.3d at 1073–74).
  DeCoteau   has failed to establish that the Court has personal jurisdiction over   the Texas District Court. The record before the Court does not reveal   any contacts the Texas District Court has had with the State of North   Dakota. DeCoteau, his ex-wife, and their children all reside in the   State of Texas. The Texas District Court has not issued any orders   regarding the Turtle Mountain Tribal Court orders. The only contacts the   Texas State District Court has had with North Dakota are the pleadings   it has filed in this case. Because of the complete lack of contacts   between the defendant and the forum state, the Court finds it does not   have personal jurisdiction over the Texas State District Court.
  III. CONCLUSION
  *5 
The Court   has carefully reviewed the entire record and relevant case law. DeCoteau   has failed to respond to the Texas State District Court's motion, and   the Court takes that failure as an admission that the motion is well   taken. In addition, the Court also finds as a matter of law that it does   not have subject-matter or personal jurisdiction. The Texas District   Court's motion to dismiss (Docket No. 7) is GRANTED.
  
D.N.D.,2012.
DeCoteau v. District Court, 85th Judicial Dist., Brazos County, Tex.
Slip Copy, 2012 WL 2370113 (D.N.D.)