Michael M. WALLACE, Plaintiff-Appellant
Claire Hayden WALLACE, Defendant-Appellee.
Submitted: Sept. 26, 2013.
Rehearing and Rehearing En Banc Denied Jan. 13, 2014.
Jim R. Bruce, II, argued, Kennett, MO, for Plaintiff-Appellant.
William Edward Reeves, argued, Carutherville, MO, for Defendant-Appellee.
Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
RILEY, Chief Judge.
Collateral to an ongoing divorce proceeding in Missouri state court, Michael Wallace filed an identity theft tort claim in federal court under Mo. Rev. Stat. § 570.223 against his wife, Claire Wallace, and alleged diversity jurisdiction, see 28 U.S.C. § 1332(a)(1). Michael asserted that during their marriage Claire stole his identity and " surreptitiously open[ed] multiple credit cards in [his] name." Noting the Wallaces' pending state divorce proceeding, the district court  dismissed the case for lack of subject matter jurisdiction under the domestic relations exception to federal jurisdiction. Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.
The Wallaces married in late 2006. They separated on May 10, 2010, and in February 2011, Claire filed for divorce in the Circuit Court of Pemiscot County, Missouri. Michael alleges that shortly after the divorce filing he discovered Claire had used his social security number and other personal information, without his knowledge, to obtain several credit cards in his name. Michael also claims Claire charged approximately $40,000 on these cards, and since his discovery of Claire's conduct, at least one credit card company has filed suit against him for failing to pay such charges. According to Michael, Claire had herself listed as an " authorized signer," enabling her to use the card without retaining any liability for the charges. All of this alleged conduct occurred during the Wallaces' marriage.
On December 14, 2011, Michael filed a diversity action in federal district court against Claire claiming identity theft, under Mo.Rev.Stat. § 570.223. Michael requested $100,000 in actual damages, statutory treble damages, and injunctive and
declaratory relief requiring Claire to satisfy the debts and prohibiting her fro using his identifying information. Claire failed to respond, whereupon the clerk entered a default against her. Michael moved for a default judgment, and Claire moved to set aside the entry of default.
On November 8, 2012, the district court, without deciding the parties' motions, vacated the clerk's entry of default and sua sponte dismissed this suit for lack of subject matter jurisdiction. The district court held the domestic relations exception precluded its jurisdiction over Michael's claims because the claims were " tied so closely to matters appurtenant to the ongoing divorce litigation." Relying on Kahn v. Kahn,21 F.3d 859 (8th Cir.1994), the district court found two facts decisive: (1) Claire's alleged credit card charges were made during the marriage, and (2) the discovery requests involved in the state court ...