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Swain v. McIntosh

United States District Court, S.D. Mississippi, Jackson Division

June 7, 2013


For David Miles Swain, Plaintiff: John Graham Holaday, LEAD ATTORNEY, HOLADAY LAW FIRM, PLLC, Flowood, MS.

For Amy Nicole McIntosh, Defendant: Michael M. Louvier, LOUVIER LAW FIRM, PLLC, Brandon, MS.


Page 800



This cause is before the court on the motion of defendant Amy Nicole McIntosh to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff David Miles Swain has responded to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion is not well taken and should be denied.

The parties to this case, formerly husband and wife, divorced in 2007. The original Child Support, Custody and Property Settlement Agreement entered by the Chancery Court of Madison County, Mississippi, provided that the parties would share joint legal and physical custody of their minor son (Gabriel Swain, born March 2003). In August 2011, after defendant had moved from Mississippi to North Carolina, and following extensive litigation between the parties, an Agreed Order was entered by the Chancery Court which provided for defendant to have primary custody of the child and for plaintiff to have visitation according to terms set forth in the Agreed Order. [1]

On September 26, 2012, McIntosh filed a Petition for Modification of Visitation Schedule, Petition for Contempt and Other Relief in the Madison County Chancery Court, in which she alluded to circumstances (including a " shocking [and] disturbing episode" at a North Carolina airport) which she alleged placed the child at risk of irreparable harm or damage and necessitated a change in the visitation schedule. She further complained that Swain had failed and refused to comply with the terms of the 2011 Agreed Order by such conduct as maliciously misleading her about vacation plans so as to thwart her travel plans, willfully and intentionally refusing to allow regular telephone visitation with the child, and allowing the child to engage in dangerous activities without proper supervision.

Thereafter, on December 28, 2012, Swain filed the present action in this court, invoking jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332,

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asserting a number of tort claims based on allegations that McIntosh has consistently and continuously engaged in conduct intended to obstruct and make difficult his visitation periods with the child, such as by refusing to agree on dates and times for visitation and for locations for exchange of the child; intentionally changing the details of scheduled visitation at the last minute; insisting on visitation terms which were burdensome for plaintiff for the sole purpose of harassing plaintiff; threatening plaintiff with legal action if he would not agree to the terms of visitation; misrepresenting facts relating to visitation periods and exchanges; following and harassing plaintiff during periods of visitation; being intentionally late to visitation exchanges and otherwise making visitation inconvenient for plaintiff; monitoring plaintiff's phone visits with the child and preventing the child from speaking freely with plaintiff; and speaking with the child in a manner intended to alienate the child from plaintiff.

Swain alleges additionally that McIntosh has made numerous unfounded complaints about him to law enforcement, as follows: during his 2012 Spring Break visitation with his son at his home in Madison, McIntosh made a complaint to the Madison Police Department relating to the minor child, which resulted in police officers being dispatched to Swain's home, only to find no evidence of wrongdoing; when picking up the child at the North Carolina airport for summer visitation in June 2012, Swain was subjected to a lengthy detention by airport security at McIntosh's instance but was ultimately allowed to leave with the child; during the 2012 Christmas visitation exchange in Madison, Georgia, McIntosh arrived with law enforcement officers, to whom she had falsely reported that Swain had sent her threatening text messages; and while following Swain after he left with the child on this last occasion, McIntosh called the highway patrol to report plaintiff for driving five miles per hour over the speed limit.

On the basis of these allegations, Swain asserts causes of action for negligent and/or intentional infliction of emotional distress, negligence and gross negligence, and malicious prosecution and abuse of process, for which he seeks compensatory damages of $250,000 and punitive damages of $500,000, along with an injunction barring plaintiff from " involving law enforcement officers in the parties' dealings when no legal right to involve them exists," and " from conducting herself ... in a manner designed to cause Plaintiff emotional distress and adversely affect his relationship with his minor son."

McIntosh has moved to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1). She does not contend that the requisites for diversity jurisdiction are lacking, and they are not. The parties are citizens of different states and the amount in controversy, as established by Swain's damages demand, exceeds $75,000, so that the court has diversity jurisdiction over the case. See 28 U.S.C. ยง 1332. Notwithstanding this, McIntonsh maintains that this court is barred from exercising jurisdiction in this cause since exclusive jurisdiction over all matters relating to the custody of the minor child is vested in the Madison County Chancery Court, which rendered the custody decree. McIntosh notes that under Mississippi law, " the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters," ...

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