The opinion of the court was delivered by: William M. Skretny United States District Judge
On September 13, 2006, Plaintiff William Parry, a member of the Seneca Nation of Indians, commenced this action pursuant to 42 U.S.C. § 1983. Parry seeks to enjoin Defendant Deborah A. Haendiges, a New York State Supreme Court Justice, from exercising jurisdiction over a divorce action brought in the state court by his wife, Sally Snow, on the ground that the Seneca Nation of Indians Peacemakers Court has exclusive jurisdiction over the dispute.
On September 14, 2006, Parry filed an ex parte motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure and Rule 65(b) of the Local Rules of Civil Procedure for the Western District of New York. That motion was denied without prejudice due to procedural defects.
On September 21, 2006, Parry renewed his preliminary injunction motion and also moved, pursuant to Local Rule 7.1(d), to shorten the notice requirements in connection therewith. The motion to shorten time was granted on September 25, 2006, Parry was directed to serve Haendiges with the preliminary injunction motion no later than 5:00 p.m. on September 26, 2006, Haendiges was given until noon on September 28, 2006 to submit a response, and oral argument on the preliminary injunction motion was heard at 3:00 p.m. on that same date. A few hours prior to oral argument, Sally Snow moved to intervene in this action and her attorney appeared at oral argument.
On October 2, 2006, this Court issued a Text Order (Docket No. 20) denying the motion for preliminary injunction and advising that a written decision would follow setting forth factual findings and legal conclusions in accordance with Rules 52(a) and 65(d) of the Federal Rules of Civil Procedure. Thereafter, on October 4, 2006, Parry's counsel filed a Notice of Voluntary Dismissal without prejudice. Irrespective of that Notice, this Court is obligated to set forth the grounds for its refusal to grant injunctive relief. Having considered the positions of the parties and proposed intervenor Snow,*fn1 this Court finds as follows.
William Parry and Sally Snow were married in 1994. Both are members of the Seneca Nation of Indians.
In or about March 2004, Parry commenced an action for divorce in New York State Supreme Court, County of Erie. William F. Parry v. Sally J. Snow, Index No. SF 2004-900977. Parry stipulated to the appointment of a referee and the assigned justice in that case, Hon. John F. O'Donnell, issued a temporary order relative to personal and business properties, a supplemental order relative to same, and an order for an accounting. Parry's divorce action continued for approximately one year, but was discontinued sometime after February 15, 2005.*fn2
Shortly after Parry discontinued his action, on or about April 28, 2005, Snow commenced an action for divorce against Parry in New York State Supreme Court, Erie County, Sally Snow v. William Parry, Index No. 2005-901066. Parry filed and served a Notice of Appearance and Demand for Complaint on May 26, 2005. On June 24, 2005, Justice O'Donnell, to whom the case was assigned, issued a temporary order awarding to Snow spousal maintenance and the exclusive use of a residence.
On July 5, 2005, Parry and other petitioners sought from the Peacemakers Court an order enjoining and restraining Snow and her children from access to certain residential and business property in which they claimed Snow has no interest. The Peacemakers Court issued a temporary restraining order ("TRO") on July 12, 2005. Snow moved to dismiss the TRO on July 19, 2005 on the ground that the parties had established the New York State Supreme Court as the forum for resolving their marital dispute and orders previously issued by the state court remained in effect; specifically an order of protection and a temporary maintenance order. The Peacemakers Court dismissed the TRO on July 22, 2005 "for lack of jurisdiction as there is an Order of Protection filed with the State Court." (Docket No. 14 at 41 (emphasis supplied).)
On August 5, 2005, after dismissal of his Peacemakers Court action, Parry moved to dismiss the state court divorce action on the ground that the Peacemakers Court has exclusive jurisdiction over divorce actions between two members of the Seneca Nation. Justice O'Donnell denied the motion, finding that the state courts and the Peacemakers Court have concurrent jurisdiction, noting that the Peacemakers Court had dismissed Parry's petition, and concluding that because the state court was the first to obtain jurisdiction, the action should remain there.
Parry filed a notice of appeal of the Peacemakers Court's order of dismissal on August 22, 2005, but there is no indication that he ever pursued his appeal. Likewise, Parry filed a notice of appeal of Justice O'Donnell's October 31, 2005 decision and order, but there is no record of that appeal having been perfected.*fn3
Snow's action for divorce subsequently was transferred to Justice Haendiges.
On July 10, 2006, Justice Haendiges ordered Parry to show cause, on August 22, 2006, why he should not be held in contempt for failure to pay spousal maintenance as ordered.*fn4 Prior to the scheduled contempt proceeding, on July 26, 2006, Parry sought from the Peacemakers Court a "Permanent Injunction with Temporary Restraining Order" enjoining New York State from exercising jurisdiction over Snow's divorce action. The Peacemakers Court granted an ex parte restraining order on August 2, 2006.
On August 29, 2006, Parry commenced an action for divorce in the Peacemakers Court and a Summons and Notice directing Snow to appear on October 4, 2006 at 6:30 p.m. was issued.
On September 21, 2006, Justice Haendiges issued an order to show cause relating to Parry's purported failure to comply with an Asset Purchase Agreement between Parry and Snow. A return date of October 2, 2006 at 2:00 p.m. was set for that hearing.
III. THE FEDERAL COURT ACTION
Parry commenced this federal court action shortly after filing his action for divorce in the Peacemakers Court. He alleges that jurisdiction exists pursuant to 28 U.S.C. §§ 1331 and 1343 and seeks redress under 42 U.S.C. § 1983 for the deprivation, under color of state law, of the rights and privileges secured to him by the Constitution, laws and treaties of the United States. Parry seeks declaratory and injunctive relief only.
A. The Parties' Positions Regarding Preliminary Injunctive Relief
In his preliminary injunction motion, Parry seeks to enjoin Haendiges from continuing to assert or exercise jurisdiction over him in Snow's state court divorce action. Parry first contends that the Peacemakers Court has exclusive subject matter jurisdiction over the dissolution of a marriage between two duly enrolled members of the Seneca Nation. Alternatively, he argues that even if the New York State Supreme Court has concurrent jurisdiction with the Peacemakers Court, the principles of comity require that this Court enjoin Haendiges from exercising jurisdiction. Parry claims that he will suffer irreparable harm should he be required to submit to a court ...