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State Court Has Jurisdiction to Determine What Constitutes a QDRO

Mack v. Kuckenmeister, Case No. 09-15290, 09-15291(C.A. 9, Jul. 22, 2010)

Darren Mack murdered his wife, Charla Mack, and shot the state court judge overseeing their divorce proceedings before a final written divorce decree could be filed. Believing Darren Mack and Charla Mack had agreed to the terms of their divorce before Charla Mack’s murder, the Estate of Charla Mack filed a motion in state court for the divorce decree to be memorialized in an order dated nunc pro tunc to a time before her death. The Nevada district court entered a domestic relations order (“order” or “DRO”) over Darren Mack’s objection. Among other things, the DRO decreed that a Qualified Domestic Relations Order (“QDRO”) should issue. Darren Mack appealed to the Nevada Supreme Court, which affirmed the judgment.

These appeals require us to determine whether state courts have subject matter jurisdiction to decide that a state court issued domestic relations order is a QDRO as defined by the Employee Retirement Income Security Act of 1974 (“ERISA”), 88 Stat. 832, as amended, 29 U.S.C. § 1001 et seq. We conclude that they do and thus that the Nevada Supreme Court’s QDRO determination in Mack v. Estate of Mack, 206 P.3d 98 (Nev. 2009), is entitled to full faith and credit. We reverse and remand with instructions for the district court to direct Joan Mack to deposit the contested funds with the court, if she has not already done so, and to award the funds to Randal Kuckenmeister, administrator of Charla Mack’s Estate.


Darren Mack and Charla Mack were engaged in divorce proceedings throughout 2005 and into the early part of 2006. As part of the divorce, Darren Mack agreed that the court would execute an order that would name Charla as the alternate payee of a 401(k) plan. The state court tasked Charla Mack’s attorney with writing an order to that effect for the court’s signature. Prior to the signing of the order, however, Darren Mack murdered Charla and shot the state court judge who was presiding over the divorce. No written order was entered by the state court before Charla’s death.

After Charla’s death, her estate was granted permission to substitute for Charla in the remainder of the divorce proceedings. The estate moved for entry of an order nunc pro tunc that would memorialize what the estate saw as oral orders entered by the original divorce judge before Charla was killed. The motion was granted, and on June 20, 2007, the state court entered an order, nunc pro tunc as of January 9, 2006—a date when Charla was still alive—stating that “a QDRO will be executed which will transfer to Mrs. Mack the sum of five hundred thousand dollars with any appreciation that is distributed to that five hundred thousand dollars.” Darren Mack appealed the order to the Nevada Supreme Court, where he argued, inter alia, that the order contravened federal law relating to retirement accounts.


Judge(s): Tashima, Thomas, Stafford
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Civil Procedure , Wills / Trusts / Estates
Circuit Court Judge(s)
Wallace Tashima
Sidney Thomas

Trial Court Judge(s)
William Stafford, Jr.

Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Todd Bader Bader & Ryan Ltd

Defendant Lawyer(s) Defendant Law Firm(s)
Ryan W. Herrick, Esquire, Attorney Jones Vargas
Ann Morgan, Attorney Jones Vargas
Mark Wray, Attorney Law Offices of Mark Wray



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error for the district court to dismiss the interpleader com- 3 as she had. the administrator objected, arguing that the state court did not 29 u.s.c. 1056(d)(3)(b)(i)(ii), the type and amount of ben- oskar, 247 f.3d 986, 993 (9th cir. 2001) (citing 28 u.s.c. over cases brought "to recover benefits" or "to enforce . . . or in federal court. see carmona, 544 f.3d at 997. but she did tractors ass'n local 134 ibew joint pension trust of chi., pension plan the district court have treated this as an interpleader case throughout the tion by their language. to the contrary, they merely require prior case, and (4) the issue was actually and neces- joinder of the plan administrator in the state court proceeding, citing fed. r. civ. p. 22(a)(1), also asks that "the defendants be required defendant. ii qdro will be executed which will transfer to mrs. mack the having decided that a state court has jurisdiction to deter- liability upon deposit of the interpleaded funds with the court. federal court because erisa was being invoked only "as a requirements of a qdro"; and that the state court had juris- published its opinion. darren mack and joan mack maintain no. 98-397, 98 stat. 1426, which amended erisa to permit before: a. wallace tashima and sidney r. thomas, qdro, and therefore that its determination cannot be binding conflict over the pension funds. a stakeholder may file an the pension plan administrator, and, if necessary, by a court law reviewed de novo. see far out, 247 f.3d at 993. "the course of proceedings to enforce, clarify, or collect, a court claimants. id. forms to these requirements, it has issued a qdro that removable complete preemption cases from non-removable [2] as amended, erisa now explicitly exempts from its submitted april 16, 2010* state law order. requirement is jurisdictional where the others are prudential, tion to hear mary's motion, which "is properly considered an action by a not somehow acquired his interest in his benefits, and thus she in the negative. mona, 603 f.3d 1041, 1051-52 (9th cir. 2010) ("although the claim against the administrator of charla mack's estate, sion requires no more interpretation of erisa than determin- preemption provision, something that state courts are called sion. some courts held that the orders were unenforceable, cal. v. levingston, 816 f. supp. 1496, 1501 (n.d. cal. 1993); in re mar- whether or not a dro is a qdro. see tise, 234 f.3d at 421 deceased; darren roy mack, an clearly intended that actions to enforce rights created by administrator of the pension plan should not be held in con- darren roy mack, an individual, 2009) ("[a] defense of conflict preemption under [erisa] been properly brought the district court will then consistent treatment of claims for benefits; to provide a non- menhorn v. firestone tire & rubber co., 738 f.2d 1496, f.3d 977, 980 (9th cir. 1999). because darren mack has not mst, as administrator of the no. 09-15290 erisa's title i would be limited to federal courts, rights to bring suit to recover plan benefits, they must exhaust a plan's mack filed a motion in state court for the divorce decree to john does, 1 through 50, have subject matter jurisdiction to decide that a state court while the federal appeals were pending, the nevada plan administrator's determination of whether a state court order is a qual- matters at issue"). law and, therefore, can have no preclusive effect under 28 eral motors corp. pension adm'r, 275 f. supp. 2d 871 (e.d. from litigating an issue decided in a suit to which he was not raised erisa's preemption provisions as a defense on the todd a. bader, bader & ryan ltd., reno, nevada, for mack's filing in the district court is clearly labeled as both an answer and riage of oddino, 939 p.2d 1266, 1275 (cal. 1997); robson v. elec. con- spouses and dependents. see s. rep. no. 98-575, at 19, 401 (k) profit sharing plan and with the court, if she has not already done so, and to award 2006--a date when charla was still alive--stating that "a and is guilty of an abuse of discretion if it does not, the most familiar tled to full faith and credit in federal courts. see kremer v. the order was in fact a qdro under federal law. see mack, 473 (nev. 1998). that is to say, the court must have personal asserted was a party or in privity with a party in the plaint, and a second motion to dismiss darren mack's cross- fied domestic relations order ("qdro") should issue. dar- in a subsequent case, such as this one, where the federal courts have exclu- 10580 mack v. kuckenmeister f.3d at 426 ("interpleader is a valuable procedural device for therefore, is whether or not the plan administrator needed to 1132(a)(1)(b), 1132(a)(3), 1132(e)(1). because a dro that he has raised any issue in federal court that was not for the district of nevada we are not pre- defendant-appellant, on joan mack, and if not, what the proper course of action is ryan w. herrick and ann morgan, jones vargas, reno, no written order was answer to joan mack's complaint and is not subject to dismissal. darren before her death. the nevada district court entered a domestic ("whether a state court's order meets the statutory require- ified domestic relations order."). a final written divorce decree could be filed. believing darren in the affirmative.5 administrative exhaustion is a prudential rather than jurisdic- 109-10. it rejected his second erisa argument as well, quot- affirmed the judgment. corp., 776 n.w.2d 684, 693 (minn. 2009); see also hawkins v. cir, 86 the qualified status of domestic relations orders and to admin- objection. among other things, the dro decreed that a quali- court could have decided whether an agreement satisfied the statutory def- the plan administrator to take certain steps so that he will be though the case was not a "civil action" as described in jurisdiction in this context. do not have concurrent jurisdiction over suits brought by fiduciaries). ments to be a qdro, and therefore is enforceable against the [5] based on this language, we have assumed that a plan benefits. 29 u.s.c. 1056(d)(1). the statute also preempts as they . . . relate to any employee benefit plan." 29 u.s.c. am.-producer pension benefits plans v. tise, 234 f.3d 415, action filed pursuant to 29 u.s.c. 1132(a)(1)(b), and that . . . , or . . . clarify" benefit rights, we must now decide omitted)); id. at 109 (reviewing the applicable statute). at 8-44 n.236 (comparing state and federal court holdings divorce before charla mack's murder, the estate of charla exhaustion was not required in this case. see vaught, 546 f.3d at 626-27 2:23 (2d ed. 2003), at 2-157-2-158 ("in seeking enforcement of these already been resolved by the state court and that relitigation mack and charla mack had agreed to the terms of their and darren mack argued that joan mack's complaint was not plan." 29 u.s.c. 1056(d)(3)(a), 1056(d)(3)(b). the rea 10576 mack v. kuckenmeister opinionindividual, erisa is a question of law," which a state court can deter- beneficiary. iii privity with any party that participated in the state court pro- first erisa argument after determining that the initial oral participant's ex-spouse or children violated erisa's spend- and enter judgment in favor of kuckenmeister. the stake asserted a counterclaim against her. she, the other litigants, and [4] having decided that a state court has jurisdiction to (1996) (noting that state court judgments are binding only if reprinted in 1984 u.s.c.c.a.n. 2547, 2565. 10579mack v. kuckenmeister joan mack also argues that any lawsuit that incidentally the statute. of importance to our analysis here are conflict make a determination of the respective rights of the nevada family courts generally would not have the authority reversed and remanded with instruc- trs. of laborers pension trust fund for n. cal. v. levings- chapters of erisa "supersede any and all state laws insofar it is not persuasive regarding the amended statute. see bd. of mack, 206 p.3d 98 (nev. 2009), is entitled to full faith and order for the execution of a qdro "created a recognized as the fifth circuit explained succinctly in rhoades v. entered by the state court before charla's death. qdro. they continue to argue that joan mack was not in where he argued, inter alia, that the order contravened federal at 110 (quoting aetna life ins. co. v. borges, 869 f.2d 142, judgment. the purpose of interpleader is for the stakeholder one who argued that the order was not a qdro, inviting the invalid because it was not a qdro, and could never be per- [9] therefore, we hold that the nevada courts had jurisdic- darren mack murdered his wife, charla mack, and shot the palace jewelry & loan co., inc. defendants-appellees, enact the rea. see h.r. rep. 93-1280, at 68, reprinted in ened suit against the trustee of the 401(k) plan--his mother, darren mack murdered charla and shot the state court judge defense on the grounds that the [dros] do not meet the 1 401 (k) profit sharing plan and an alternate payee the right to, receive all or part of the bene- that a court will determine is not precluded by a prior court that does not otherwise arise under erisa, state courts retain interpleader action to protect itself against "potential, as well required for a variety of reasons, including "to help reduce the diction and removal counsel us to take this extra step to distinguish qdro should.7 ings," reasoning that she, "as trustee, has no independent the california supreme court determined that the state court had jurisdic- existence in charla, the right to receive a portion of darren's determinations made in the course of family law proceedings from those u.s.c. 1738. landreth v. malik, 221 p.3d 1265, 1267 (nev. an order to show cause why her former husband and the modesto & empire traction co., 581 f.3d 941, 945 (9th cir. the funds to randal kuckenmeister, administrator of charla [11] even though joan mack will be unable to challenge ren mack appealed to the nevada supreme court, which enjoin a violation of erisa or otherwise enforce the statute. joan r. mack, as trustee of the the posture of this case is quite similar. darren mack ted) (omission in original). joan mack is darren mack's to clarify" rights under the terms of the plan itself. 29 u.s.c. a qdro under federal law. provision of erisa, which only a federal court may do. 929 p.3d at 1269. mack. we must also decide, however, whether it is binding 4 generally, before erisa participants or beneficiaries can mine the issue preclusive effect of a state decision." bower v. tion was made by a state appellate court during the direct erisa plans is incidental' " are not preempted by erisa. id. granted the federal courts jurisdiction, in part exclusive, in also lists the few parties to whom a dro may assign benefits, inclusive, conducted this analysis explicitly. named in the dro filed a motion in her divorce case seeking requests that she "be discharged from any . . . further liability." at no istrative exhaustion of the qdro question. it requires pen- ram payee's right to plan benefits. as we have explained in prior and subject matter jurisdiction. infirm judgments are not enti- it makes sense that joan mack would be permitted to liti- the question of state court jurisdiction in a case that does not erisa plans who are confronted with conflicting multiple for determining the qualified status of the plan. 29 u.s.c. removable under an exception to the well-pleaded complaint domestic relations order (dro) and the plan administrator in a federal case. even if a state court can have jurisdiction, [1] erisa states that "a court of competent jurisdiction" ceeding, and thus that the state court decisions are not binding joan mack also makes an argument based on erisa's leg- and petent jurisdiction" for these purposes. like every court mean that a state court could not have concurrent jurisdiction also metro. life ins. co. v. marsh, 119 f.3d 415, 417 (6th circuit judges, and william stafford, estoppel. a dro must be litigated during the course of proceedings to claims upon the proceeds of an individual's benefit plan . . . ren mack appealed the order to the nevada supreme court, 10585mack v. kuckenmeister the opinion not only decided the validity of a nunc pro tunc [12] nor could the district court have dismissed her com- supreme court's qdro determination in mack v. estate of pared to say that the court exceeded the scope of its appellate of competent jurisdiction."); see also eller v. bolton, 895 to execute the qdro in favor of charla." it therefore dis- for interpleader to be held improper based on the merits of doing so in the course of proceedings to "recover . . . , enforce kuckenmeister filed a motion to dismiss joan mack's com- ing whether a state law cause of action falls to erisa's and is not written into the statute, it is a prudential rather than anti-alienation and preemption provisions a subset of dros. for the northern district of florida, sitting by designation. creates or describes a beneficiary's right to benefits under an f.3d 982, 987 (10th cir. 1996) (assuming without deciding that a state in a case where the state court had jurisdiction is anything but preclusive to enforce, clarify, or collect on those rights first requires a is a qdro. w. freedman, erisa: a comprehensive guide 8.03[f] (3d bower, 215 p.3d at 718. "to be in privity, the person must defendant. receives the retirement fund." as the nevada supreme court tial claimants to the fund, her complaint in interpleader should however, the complaint, which she labels "complaint for interpleader," would execute an order that would name charla as the alter- joan r. mack, as trustee of the the federal courts' exclusive jurisdiction. she fails to cite a mine whether a dro is a qdro during the course of a civil 2009). we must determine this issue independently. see shaw in oddino, a case similar to scales, mary, the alternate payee, first the existence of an alternate payee's right to, or assign[ ] to tion to determine that the dro was a qdro. whether any other jurisdictional hurdles stand in the way of report relates jurisdiction to the structure of the original stat- see geiger v. foley hoag llp ret. plan, 521 f.3d 60, 67 (1st cir. 876 (e.d. mich. 2003); jones v. am. airlines, inc., 57 f. supp. 2d 1224, plaintiff-appellant, 146 (2d cir. 1989)). the nevada supreme court might have without oral argument. see fed. r. app. p. 34(a)(2). litigation, erisa merely describes which state law created and obligations of the parties with respect to the retirement benefits." fected to become one, because erisa does not permit pen- joan mack from the case, dismiss darren mack's cross-claim, opinion by judge thomas mack's estate.1 10577mack v. kuckenmeister plan . . . has no independent interest as to which party . . . employee retirement income security act of 1974 while others read an exception into the two provisions of the u.s.c. 1144(a). in the early days of erisa litigation, courts within the qdro exception to erisa's anti-alienation provi- was barred by the doctrine of collateral estoppel. joan mack liability to a second claimant where the stakeholder has to interplead the $500,000 in retirement money.3 nonetheless, it would have been preferable for the nevada courts to have enforcement of statutory rights described in 29 u.s.c. mack owes a fiduciary duty not only to darren mack, but to sion plans to "establish reasonable procedures to determine 10578 mack v. kuckenmeister qdro, and whether there are any other jurisdictional require- plaint, and certainly error for it to do so because of collateral federal district court."). who was presiding over the divorce.2 proceedings and was not in privity with darren mack. they regarding the same facts and issues that she wished to raise subject to dismissal no matter what it is called. 10586 mack v. kuckenmeister filed july 22, 2010 is actually "received." this is not to say that a state court 1272-73 (cal. 1997) (same, and because, "[w]hile congress clarified in bower, while this case was on appeal, this is an not have been dismissed. rather, she should have been per- opinion trict court to direct joan mack to deposit the contested funds tion generally. courts would be required to address the merits of the claims erisa's explicit provisions or this supplementary federal ally relates more closely to the actions for equitable relief and relitigate here. that ruling is clearly binding against darren because the nevada supreme court opinion does not pre- prior decision if the adjudicator lacked jurisdiction). orders must be judgments, decrees, or orders "made pursuant appealed the dismissal of the complaint and the dismissal of b beneficiary to recover, enforce rights to, or clarify future benefits under law, a court judgment must be "valid" to have preclusive erisa in certain cases other than "civil action[s]" filed under ing those where the plaintiff requests equitable relief to before propriety of the interpleader. this is backwards of the have been given the opportunity to determine if the dro was domestic relations order under state law, but determined that for determination by a court of law than an administrator of pension bene- rhoades, 196 f.3d at 600. to hold at this stage that there is islative history, citing a conference report that predates the entered by the original divorce judge before charla was appeal of a family court order, wherein the plan participant v. nevada, for defendant-appellee/cross-appellee randal s. permit estoppel by representation, but actually requires a type randal kuckenmeister, claiming the right to the $500,000.4 merits, (3) the party against whom the judgment is claimants is entitled to the fund." tise, 234 f.3d at 426; see as our holdings with regard to erisa administrative exhaus- dismissal of her complaint. pro tunc domestic relations orders and erisa are arguably more suitable to the pension funds mentioned in the state court order had 1132(a)(3), over which federal courts have exclusive juris- darren mack answered the complaint and filed a cross- missed from the case, no longer having a legal interest in who chem. constr. corp., 456 u.s. 461, 482-83(1982); see also jurisdictional requirement. vaught v. scottsdale healthcare therefore, we reverse the judgment of the district court and trary, asserted a right in both federal and state court--joan while his state appeal was pending, darren mack threat- nevada supreme court to decide otherwise.8 that would memorialize what the estate saw as oral orders each party is to bear its own costs on appeal and cross- 10566 mack v. kuckenmeister of privity that goes far beyond the relationship of a trustee and pension plan, is a matter determined in the first instance by ("[t]here are occasions when a court is obliged to exercise its jurisdiction (nev. 2008). the requirement of privity is meant "to restrict information that it must contain, 29 u.s.c. 1056(d)(3)(c). nate payee of a 401(k) plan. the state court tasked charla issue preclusion "applies to prevent relitigation of only a **the honorable william stafford, senior united states district judge divorced) spouse. he also took issue with the use of nevada's "effectively disclaim[ed] any position as to which of the sion benefits to be awarded to a deceased (as opposed to erisa, has created, recognized, or assigned the alternate the remedy inadequate."). the interwoven legal questions relating to nunc and 1974 u.s.c.c.a.n. 5038, 5107. because the conference effect. exec. mgmt., ltd. v. ticor title ins. co., 963 p.2d 465, remand with instructions that joan mack be directed to efits it may assign, 29 u.s.c. 1056(d)(3)(d), and specific arguing that the order to show cause was really a the requirements for rule or statutory interpleader therefore, we are called upon to decide whether or not a present suit, as pleaded, arises under the exclusive jurisdiction relations order ("order" or "dro") over darren mack's "may take notice of proceedings in other courts, both within and without law relating to retirement accounts. issued domestic relations order is a qdro as defined by the the other plan participants. and she has a duty under erisa jurisdiction over the case and over the preemption question. kuckenmeister. joan mack's pleadings request declaratory judgment as to "the rights casey, 196 f.3d 592 (5th cir. 1999): parties with respect to th[e] retirement funds," which "is the must then determine if it is qualified."); id. at 109-10 (holding receives the retirement funds," her "interests were represented tion requirement is a creation of the federal courts, however, ests were sufficiently represented in the state court proceed- [6] we have no reason to believe that this exhaustion already done so. thereupon, the district court will dismiss that "[w]hether a dro constitutes a valid qdro under interests are enforceable in court. see tise, 234 f.3d at 421 limiting litigation expenses, which is not dependent on the poses of interpleader. see john hancock mut. life ins. co. v. the claims being asserted against the fund or stakeholder, clude joan mack from arguing that there are multiple poten- iv sarily litigated. who would be entitled to the retirement fund under state law, ute and tells us nothing of the substantive intent of congress, be memorialized in an order dated nunc pro tunc to a time issue to be decided in this case" was "the rights of the various the issue before the federal court was whether that order was ing argument because of the date of the legislative history and it found that because joan mack "as trustee of the retirement to "protect itself against the problems posed by multiple state courts can ever have jurisdiction to determine that a basis for his legal claim to the interpleaded funds. if his claim of entitle- 10565 d.c. no. the preclusive effect of a prior judgment is a question of deposit the contested funds with the court, if she has not this assumption is supported by the text of the statute, as well erisa pension plan," during her lifetime. mack, 206 p.3d at court here had jurisdiction. in this case, the qdro determina- interest in pension benefits is critical to determining whether preempted by erisa. 10573mack v. kuckenmeister the application of issue preclusion to parties whose due pro- ments and underlying order (internal quotation marks argue that the state court determination was dicta and not enti- 10570 mack v. kuckenmeister estopped because she had not participated in the nevada court nate payee that it has received the order and of its procedure in which the judgment was rendered." far out prods., inc. v. presented the dro to the plan administrator, who determined that the need to understand "potential . . . claim[ ]" to mean a claim ment is precluded by the nevada court ruling, and we hold that it is, it is 1132(a)(3) action--possible complications regarding federal court juris- ton, 816 f. supp. 1496, 1499-1500 (n.d. cal. 1993) (reject- edward c. reed, district judge, presiding creates enforceable interests in the proceeds of an erisa 1132(a)(1)(b)"); in re marriage of oddino, 939 p.2d 1266, have been granted, leaving kuckenmeister the sole claimant already litigated in state court. the question of whether the trust, regarding erisa preemption); cf. marin gen'l hosp. v. interest . . . ."). erisa's qdro provision does not somehow jurisdiction when it reached this issue. as actual, claims." minn. mut. life ins. co. v. ensley, 174 ing a second circuit opinion that " `laws of general rule. see marin gen'l hosp., 581 f.3d at 944 (distinguishing part concurrent with state courts, over matters falling within man, erisa: a comprehensive guide 8.07 (2d ed. 2003), as part of the divorce, darren mack agreed that the court inition of a qdro); ronald j. cooke, 2 erisa practice and procedure his cross-claim. joan mack filed a cross-appeal regarding the tempt for failing to comply with the dro. id. at 873. the merits to entry of the order. we hold that the state court had these appeals require us to determine whether state courts mining that the dro was a qdro. darren mack does not statute and enforced the orders. see trs. of the dirs. guild of application' "--such as the slayer statute--" `whose effect on dro was a qdro, but that it awarded a smaller portion of the benefits counsel tled to full faith and credit, however, and darren mack is the 10581mack v. kuckenmeister diction to determine whether a dro was a qdro even a.2d 382, 393 n. 6 (md. ct. spec. app. 2006); langston v. for publication no. 5, 727 n.e.2d 692, 697 (ill. app. ct. 1999); eller v. bolton, 895 a.2d ings. the estate moved for entry of an order nunc pro tunc benefits awarded in a qdro are not derived from erisa, but mine in the first instance by looking to the statutory require- motion to dismiss darren mack's cross-claim could properly 1056(d)(3)(g)(i)(i). "[w]ithin a reasonable period" thereaf- been able to address these arguments without actually deter- courts must give state court judgments the preclusive effect i 10572 mack v. kuckenmeister on her. ("[a] qdro only renders enforceable an already-existing brought by the adverse claimants."). court's signature. prior to the signing of the order, however, den of proving the preclusive effect of the judgment." bower, state court ordered assignments of plan benefits to former it is clear from this description that state family law, not a claim of issue preclusion in subsequent litigation. 10589mack v. kuckenmeister joan mack--should she pay the benefit to charla mack's to state domestic relations law" that "create[ ] or recognize[ ] that a state court lacks subject matter jurisdiction to determine mother and the trustee of his erisa pension plan, but she has 1144(a). where 1144(a) is raised as a defense in a case 1056(d)(3)(h)(i). the first question we must answer in this as soon as it deposited the contested funds with the court). because erisa's administrative exhaustion requirement is defendant-appellant/cross-appellee darren roy mack. thrift clause or fell victim to the statute's preemption provi- examples perhaps being when resort to the administrative route is futile or 1132(a)(1)(b) "claim." id. at 874. the federal district court 10567mack v. kuckenmeister an interpleader action typically involves two stages. enforce provisions of erisa or enjoin violations of the stat- plan," the plan must promptly notify the participant and alter- point does she assert that the plan is not liable to pay the benefits to any- plaintiff-appellee, cheria citizens council v. borneo, 971 f.2d 244, 248 (9th cir.1992) (court palace jewelry & loan co., inc. before the nevada supreme court, as was the state court's ciary from assigning or alienating his rights to pension plan to resolve joan mack's cross-appeal. ily court and sought an order requiring the plan to calculate the benefits mark wray, law offices of mark wray, reno, nevada, for matsushita elec. indus. co. v. epstein, 516 u.s. 367, 386 10571mack v. kuckenmeister 7 have acquired an interest in the subject matter affected by the to qualify domestic relations orders. if joan mack were to defendant-appellee, ram actually disclaimed his right to the funds--and, to the con- courts exclusive jurisdiction over most erisa cases, includ- from state law and plan terms"). a qdro. because a state court has concurrent jurisdiction interest as to which party -- charla mack or darren mack -- 215 p.3d at 718. we take judicial notice of mack and related filings. see robinson ran- erisa has a spendthrift provision that forbids a benefi- specific issue that was decided in a previous suit between the this is not the first time a court has been asked to address nard, 618 f.2d 559, 567 (9th cir. 1980). because the exhaus- same issue that was decided in the prior state court action." seq. we conclude that they do and thus that the nevada mack's attorney with writing an order to that effect for the 1132(a)(1)(b). id. at 876-77. just because the question could arise in a case where the fed- proceedings. therefore, we consider her to be a disinterested stakeholder incorrect understanding of nevada law. nevada law does not dro is a qdro. this is so because erisa grants federal rea and the federal court decisions that led congress to killed. the motion was granted, and on june 20, 2007, the that in order for there to be a qdro, the court must issue a mitted to deposit the $500,000 with the court and then dis- for the ninth circuit administrator should have the first opportunity to determine inclusive, erisa plan, a party named alternate payee in a dro wishing after charla's death, her estate was granted permission to exact issue that darren mack litigated there and wishes to the district court finds that the interpleader action has proceedings throughout 2005 and into the early part of 2006. united states court of appeals assuming a state court issues a dro that substantially con- already voluntarily paid a first claimant. but it also includes ments (such as exhaustion before the plan administrator or purported to transfer rights to erisa pension funds to a plan kraft, 200 f.2d 952, 954 (2d cir.1953) (interpleader is not of federal courts, when the parties proceeded initially, the may be called upon to determine whether or not the dro is raised the preemption provisions of erisa as an affirmative mack's interpleader action is proper. eral courts have exclusive jurisdiction, however, does not action have been met by determining if there is a sin- to the funds. c credit. we reverse and remand with instructions for the dis- 3:08-cv-00370-ecr-estate of charla marie mack, state laws that "relate to any employee benefit plan." 29 also argued that while the state court did purport to determine claimants to a single fund." ensley, 174 f.3d at 980. this randal s. kuckenmeister, cpa, sum of five hundred thousand dollars with any appreciation in a ruling that was final and on the merits, the nevada 1500 & n.2 (9th cir. 1984), it follows that it has jurisdiction claimants to that fund. wright, miller & kane, fed- either. see menhorn, 738 f.2d at 1500 & n.2 ("congress whether an order issued in a domestic relations case is a internal claims procedure. see paul j. schneider & barbara estate of charla marie mack, d.c. no.deceased, 3:08-cv-00370-ecr- cess rights have been met." bower, 215 p.3d at 717. the mere and construe her request for a declaration as to "the rights and obligations usual order, and would defeat the resource-conservation pur- 1232 (d. wyo. 1999); bd. of trs. of laborers pension trust fund for n. senior district judge.** made in separate civil actions. number of frivolous lawsuits under erisa; to promote the parties." five star capital corp. v. ruby, 194 p.3d 709, 714 gle fund at issue and whether there are adverse the state court's qdro determination in any way, it was still 10583mack v. kuckenmeister appeals from the united states district court fits plan. moreover, it could well have been futile for the estate to go first adversarial method of claims settlement; and to minimize the includes protecting against the possibility of court-imposed party seeking to assert a judgment against another has the bur- as an initial matter, we reject darren mack's contention we hold only that its failure to do so will not defeat prepared to evaluate dros, and certain other steps if a dro 10575mack v. kuckenmeister *the panel unanimously concludes this case is suitable for decision claim under 29 u.s.c. 1132(a)(1)(b).").6 order was a qdro was actually and necessarily litigated 10582 mack v. kuckenmeister [7] state courts have jurisdiction to interpret and apply the district court agreed with kuckenmeister that "the 29 u.s.c. 1056(d)(3)(a), 1144(b)(7). to be exempt, such on to do regularly. see paul j. schneider & barbara w. freed- when it arises in a different context. cf. carmona v. car- enacted the retirement equity act of 1984 ("rea"), pub. l. to . . . settle between themselves their right to the retirement benefits" and 10588 mack v. kuckenmeister substitute for charla in the remainder of the divorce proceed- the rea explicitly contemplated the possibility of admin- determine whether or not a dro is a qdro, at least if it is estate. joan mack filed a complaint in federal court seeking they argue that the plan administrator must be given the first 607 (9th cir. 1986) (a court must deny preclusive effect to a 481 u.s. 58 (1987), that certain cases implicating erisa are [and who thus] risk[ ] defending against multiple lawsuits can determine whether a dro is a qdro. 29 u.s.c. 2 determination that the rights are enforceable. therefore, in the 419 (9th cir. 2000). responding to this confusion, congress subject matter jurisdiction to answer that question in the first state court had concurrent jurisdiction to hear the erisa profit sharing plan, 207 f.3d 1143, 1153 (9th cir. 2000). [8] the nevada supreme court rejected darren mack's tions. the federal judicial system, if those proceedings have a direct relation to john does, 1 through 50, judgment through . . . one of the parties, as by inheritance, however. nowhere do the rea amendments require exhaus- plaintiff-appellee/cross-appellant joan r. mack. in nevada, issue preclusion requires that (1) an issue to murder the state district court judge. see mack, 206 p.3d at 104. 6 randal s. kuckenmeister, cpa, may do so. not. she filed an action in interpleader, meaning that she has harrah's laughlin, inc., 215 p.3d 709, 718-19 (nev. 2009). 382, 393 n.6 (md. ct. spec. app. 2006); langston v. wilson mcshane orders, . . . a state court has concurrent jurisdiction to review a pension 10584 mack v. kuckenmeister a in the state court proceeding when the state court determined that those judgments would enjoy under the law of the state 1056(d)(3)(g)(ii). any time that a dro is "received by a gate these issues anew. as trustee of the 401(k) plan, joan a qdro before the issue was decided by the state court. trust, have jurisdiction since mary was, in effect, asking the court to enforce a we recognize that the nevada supreme court may have decided that [10] under nevada state law, a party can only be barred it where the party has not yet been afforded the process due 2008); scales v. gen. motors corp. pension adm'r, 275 f. supp. 2d 871, held that the state court proceedings were not removable to 10574 mack v. kuckenmeister defense against the estate's claim for a written, nunc pro tunc joan mack argues that the question of enforceability actu- issued without authority are void as a matter of nevada state succession, or purchase." id. (internal quotation marks omit- mined that a dro was not a qdro, the alternate payee single case so holding, however, and we have not found one 5 be identical, (2) the initial ruling was final and on the present a dro to the plan administrator before filing suit. it one, or seek adjudication of any dispute other than the dispute over the affirming the district court judgment. the next question, the terms of a plan, within the meaning of section 1132(a)(1)(b)." id. at is not in privity with him under nevada law. the state court had power to enter the judgment). judgments v. that is distributed to that five hundred thousand dollars." dar- nor does it mean that a state court determination of the qdro issue corp. health plan, 546 f.3d 620, 626 (9th cir. 2008). opportunity to evaluate an order and determine if it is a because it "does not mesh with the plain language of wilson mcshane corp., 776 n.w.2d 684, 693 (minn. 2009). no. 09-15291 8 merits of adverse claims, only their existence. see tise, 234 been permitted to proceed notwithstanding a state court order in the first stage, the district court decides whether state court judge overseeing their divorce proceedings before 514(a) does not confer federal question jurisdiction on a requires a court to interpret a provision of erisa falls within 206 p.3d at 109-10. appeal. party if he is "in privity with a party in the prior litigation." should not consider whether and why a litigant has failed to conflict preemption cases). ute, while providing state courts with concurrent jurisdiction create a right to plan benefits or create a right to enforce a to do, arguing that such a construction of the slayer statute is dependent on the merit of the defendants' claims). costs of claims settlement of all concerned." amato v. ber- only one potential claim for the fund, this court first would had a right to the funds. at that point, kuckenmeister's supreme court issued an opinion in the state court appeal. and that the case was more like a 1132(a)(1)(b) action than a eral practice & procedure: civil 2d 1714 (1986). if preemption cases. section 1144(a) explains that certain sub- instance. see mack, 206 p.3d at 109 ("darren [mack] argues supreme court determined that the dro was a qdro, the 10587mack v. kuckenmeister fact that a party's substantive rights are not implicated by claim as precluded by collateral estoppel. darren mack has to the plan administrator, who happens to be the participant's mother. 29 u.s.c. 1056(g)(i)(ii). san francisco, california diction. we can imagine the case where the qualified status of cir. 1997) (erisa fiduciary dismissed from interpleader suit v. cal. dep't of alcoholic beverage control, 788 f.2d 600, mich. 2003), for example, after a plan administrator deter- slayer statute to justify issuing a nunc pro tunc order, which ed. 2008), at 8-11 & n.52 (listing cases). exhaustion is ister distributions under such qualified orders." 29 u.s.c. common law."). determining whether or not a dro falls darren mack has been convicted of charla's murder and of attempting before us to consider this question, we answer this question v plaint in interpleader on the grounds that there was no true 1738). nevada applies "nevada issue preclusion" to "deter- than mary believed she was entitled to receive. mary then returned to fam- mst, as administrator of the applying the doctrine does not mean it is appropriate to apply appeal, therefore, is whether a state court is "a court of com- the district court erred when it held that "plaintiff's inter- over these proceedings under 29 u.s.c. 1132(a)(1)(b), see to decide the intermediate question of whether or not the dro sive jurisdiction. see 29 u.s.c. 1132(a)(1)(b), 1132(e)(1) (state courts 1271. while we agree with the court's sentiment--that it had jurisdiction, dro. darren mack argued that the nunc pro tunc order was neither of which occurred in this case) before a state court prudential rather than jurisdictional, we answer that question claim. in both, he argued that the issue of who has the right "under the federal full faith and credit statute, federal funds that she has sought to deposit with the court. nor has a claimant to a cross-claim, clearly structured as such, and clearly includes the factual moreover, the cases are not removable to federal court, even tional requirement, we must now decide whether the state administrator attempted to remove the case to federal court, darren mack and charla mack were engaged in divorce under the rule announced in metro. life ins. co. v. taylor, ("erisa"), 88 stat. 832, as amended, 29 u.s.c. 1001 et missed joan mack's complaint and darren mack's cross- [3] the source and form of an alternate payee's state law this appeal was briefed after the nevada supreme court this is not the end of our inquiry, however. under nevada darren mack argues that what he labeled as a cross-claim was only an thomas, circuit judge: were faced with the question of whether state court dros that it by the courts. state court has jurisdiction to determine that a dro is a plan. tise, 234 f.3d at 420; stewart v. thorpe holding co. state court entered an order, nunc pro tunc as of january 9, fits payable with respect to a participant under a[n erisa] have filed an action for declaratory judgment, she would have id. at 718 (internal quotation marks omitted). ter, it must actually determine whether the order is a qdro. fit comfortably in the 1132(a)(1)(b) mold. in scales v. gen- of the parties" as a request that she be declared discharged from further

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