Hirsch v. Kairey

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ELLIOT M. HIRSCH,

Plaintiff, MEMORANDUM & ORDER

22-CV-6716(EK)(VMS)

-against-

ELIZABETH M. KAIREY,

Defendant.

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ERIC KOMITEE, United States District Judge:

Elliot Hirsch, proceeding pro se and in forma

pauperis, brings this action against his estranged wife. As

with numerous federal actions Hirsch has filed, his claims

relate to his and Elizabeth Kairey’s divorce proceeding and

other actions in New York State Supreme Court, Kings County.

Hirsch has asserted only one cause of action here: a claim under

the Federal Arbitration Act. He seeks a number of remedies,

however: first and foremost, an order compelling Kairey to

arbitrate all matters relating to their divorce before a Jewish

rabbinical court. Alternatively, he requests that this Court

adjudicate custody, alimony, and child support issues ancillary

to the divorce. He also asks that this Court compel his wife to

dismiss the Kings County action and to enjoin her from

commencing any further proceedings in any court outside of the

state of New Jersey.1

Because this Court has no jurisdiction to compel

arbitration, to adjudicate the underlying issues itself, or to

issue the requested injunction, I dismiss the complaint with

prejudice pursuant to 28 U.S.C. § 1915.

Background

The following allegations are drawn from Plaintiff’s

complaint, unless otherwise noted, and are presumed to be true

for purposes of this order.2

Hirsch alleges that Ms. Kairey “fled” to Brooklyn with

their minor child in May 2017. Compl. ¶ 1, ECF No. 1. She

filed for divorce in Kings County Supreme Court on September 1,

2017. Id. ¶ 6. Hirsch then instituted divorce proceedings in a

Jewish rabbinical court, or Beth Din. Id. ¶¶ 7–8. Eventually,

Kairey agreed to meet with the Beth Din, and the parties signed

what Hirsch contends is a “binding arbitration” agreement. Id.

¶ 9. Hirsch attaches to the complaint an executed copy of this

“Agreement to submit to Arbitration,” dated November 30, 2017,

which provides for arbitration of “all the controversies”

1 After Hirsch filed this action in the U.S. District Court for the

District of New Jersey, it was transferred to this Court. See ECF No. 11.

2 Page numbers in citations to record documents refer to either ECF

pagination or, where cited, paragraph number.

between him and Kairey, including “all matters of divorce.” ECF

No. 1-1 at 20. The Beth Din, Hirsch alleges, entertained

several proceedings and “issued numerous interim awards” between

December 2018 and October 2022,” although it never issued a

“final award” or “judgement.” Id. ¶¶ 11–13, 22. Hirsch says

nothing about what these interim awards provided for.

At some time, however, Kairey “refused to attend any

further Beth Din proceedings” and refiled her Kings County

divorce action in June 2018. Id. ¶¶ 14–15. In the four years

since Kairey commenced the divorce proceedings in state court,

Hirsch has been unable to obtain enforcement of any of the Beth

Din’s arbitration awards. Id. ¶ 24. Hirsch alleges that at

least one state court judge, Justice Joanne Quinones, has

considered “the arbitration award” and decided that “it was

unenforceable.” Id.

Plaintiff requests that this Court enforce the interim

awards and compel the parties, pursuant to the Federal

Arbitration Act, to arbitrate any further issues — including

issues relating to custody, alimony, and child support — before

the Beth Din. Id. at 15. Alternatively, he asks that the Court

compel the parties to adjudicate those issues here in federal

district court. See id. In support, Plaintiff contends that he

has not received a fair hearing in state court. He alleges,

among other things, that he was “not able to properly prepare

[his] attorney for the custody trial,” id. ¶ 61; that Justice

Quinones issued various orders that violated his constitutional

rights, id. ¶ 30; that the Appellate Division has denied him the

ability to appeal rulings, id. ¶¶ 35–38; and that an (unnamed)

administrative judge refused his efforts to apply for an

appellate fee waiver at some point. Id. ¶¶ 42, 62.

In an April 1, 2023 letter filed in a separate action

before this Court, Hirsch indicated that Justice Quinones had

issued a final judgment in this divorce proceeding. See Hirsch

v. Butterman, No. 22-CV-5815 (E.D.N.Y), ECF No. 12 at 1. He has

not indicated whether he seeks to appeal that judgment or

whether any appellate proceedings are ongoing.

Legal Standard for Pro Se Plaintiffs

Under 28 U.S.C. § 1915(e)(2)(B), a district court

must dismiss an in forma pauperis action that “(i) is frivolous

or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” At the pleading stage, “all well-

pleaded, nonconclusory factual allegations” in the complaint are

assumed to be true. Kiobel v. Royal Dutch Petroleum Co., 621

F.3d 111, 124 (2d Cir. 2010).3 Pro se complaints are held to

3 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

less stringent standards than pleadings drafted by attorneys,

and the Court will read a pro se complaint liberally and

interpret it as raising the strongest arguments it suggests.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v.

Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008).

Still, a pro se plaintiff must “comply with the

relevant rules of procedural and substantive law, including

establishing that the court has subject matter jurisdiction over

the action.” Ally v. Sukkar, 128 F. App’x 194, 195 (2d Cir.

2005). Subject matter jurisdiction cannot be waived and may be

raised at any time by a party or by the court. See Henderson ex

rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). If

subject matter jurisdiction is absent, the district court must

dismiss the action. See Arbaugh v. Y & H Corp., 546 U.S. 500,

514 (2006).

Discussion

A. This Court Lacks Jurisdiction Over Hirsch’s Claim

In his single cause of action, Hirsch seeks to compel

the enforcement of an arbitration agreement which, he alleges,

he and Kairey executed prior to the pending state court divorce

proceedings. Compl. ¶¶ 49–52. Hirsch asserts that the

arbitration agreement covers “all matters relating to the

divorce” between him and Kairey. Id. ¶ 51. Because this Court

lacks jurisdiction over that claim, this case must be dismissed.

The Federal Arbitration Act does not provide an

independent basis for federal jurisdiction over arbitration

agreements. See Hall Street Assocs., L.L.C. v. Mattel, Inc.,

552 U.S. 576, 581–82 (2008). Instead, in order to entertain an

action seeking enforcement of an arbitration agreement, a

federal court must find that, in the absence of such agreement,

it would have jurisdiction over the subject matter of a “suit

arising out of the controversy between the parties.” 9 U.S.C. §

4; see Vaden v. Discover Bank, 556 U.S. 49, 52 (2009). Hirsch

therefore cannot invoke the FAA as a standalone basis for

subject-matter jurisdiction; the Court must instead have

jurisdiction over the underlying controversy that he seeks to

arbitrate.

Federal question jurisdiction exists under Section

1331 where a plaintiff’s cause of action is based on a violation

of federal law, or where “the well-pleaded complaint necessarily

depends on resolution of a substantial question of federal

law.” Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d

108, 113 (2d Cir. 2004); 28 U.S.C. § 1331. Courts have

diversity jurisdiction under Section 1332, in turn, where the

amount in controversy exceeds $75,000 and there is complete

diversity of citizenship among the parties. 28 U.S.C.

§ 1332(a); Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743,

1746 (2019). “The party invoking federal jurisdiction bears the

burden of establishing that jurisdiction exists.” Conyers v.

Rossides, 558 F.3d 137, 143 (2d Cir. 2009).

Plaintiff fails to allege jurisdiction under Section

1331. Here, the underlying controversy — relating to the

parties’ divorce, including alimony, child custody, and child

support — is not a type of subject matter over which this Court

would have federal-question jurisdiction. See, e.g., In re

Burrus, 136 U.S. 586, 593–94 (1890) (“[T]he whole subject of the

domestic relations of husband and wife, parent and child,

belongs to the laws of the states, and not to the laws of the

United States.”); Deem v. DiMella-Deem, 941 F.3d 618, 621, 624

(2d Cir. 2019).

Hirsch also fails to sufficiently allege diversity

jurisdiction under Section 1332. Although there appears to be

complete diversity of citizenship — Hirsch is a citizen of New

Jersey, and Kairey is identified as a citizen of New York — he

has not adequately alleged that Section 1332’s damages threshold

is satisfied. “[A] party invoking the jurisdiction of the

federal court has the burden of proving that it appears to a

‘reasonable probability’ that the claim is in excess of the

statutory jurisdictional amount.” Chase Manhattan Bank, N.A. v.

Am. Nat’l Bank & Tr. Co. of Chicago, 93 F.3d 1064, 1070 (2d Cir.

1996). Here, Hirsch fails to plead any plausible facts, or even

include a cause of action, that would suggest a reasonable

probability that his damages exceed $75,000. The most he offers

in this regard is that, before either party initiated any

divorce or rabbinical court proceedings, he paid $200 each week

for six weeks to see his daughter, see Compl. ¶¶ 3–5 — a total

that falls well short of the amount-in-controversy requirement.

Because the Court lacks subject-matter jurisdiction

over the matter for which Hirsch seeks to compel arbitration,

Plaintiff’s Federal Arbitration Act claim is dismissed.

B. Applicable Abstention Doctrines Further Bar the Court from

Exercising Jurisdiction

Even if the lack of subject-matter jurisdiction were

not an absolute bar, abstention would be warranted here. In

addition to his arbitration claim, Hirsch asks the Court for

further equitable remedies, including an order: (1) enjoining

Kairey to dismiss the ongoing New York state court divorce

action and to not commence further proceedings outside of New

Jersey state, and/or (2) compelling the parties to adjudicate

their custody and visitation proceedings in this Court. Compl.

15. In support of this requested relief, Plaintiff alleges

various violations of his “constitutional rights in the divorce

action.” See, e.g., id. ¶ 30.4 As explained above, the Court

lacks subject-matter jurisdiction to adjudicate issues relating

to the parties’ divorce. And to the extent that Hirsch alleges

these constitutional violations in an attempt to invoke federal-

question jurisdiction, such an effort would run headlong into at

least two jurisdictional bars — the abstention requirement set

out in Younger v. Harris, 401 U.S. 37 (1971), and the domestic

relations abstention doctrine.

1. Younger Abstention

Younger dictates that “federal courts should generally

refrain from enjoining or otherwise interfering in ongoing state

proceedings.” Spargo v. N.Y. State Comm’n on Jud. Conduct, 351

F.3d 65, 74 (2d Cir. 2003). This obligation extends to “civil

proceedings involving certain orders uniquely in furtherance of

the state courts’ ability to perform their judicial

functions.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 78

(2013). Younger abstention is required where: “(1) there is an

ongoing state proceeding; (2) an important state interest is

implicated in that proceeding; and (3) the state proceeding

affords the federal plaintiff an adequate opportunity for

4 This Court previously held, in a separate case brought by Hirsch, that

his constitutional challenges to New York’s filing fee provisions — including

the fee for civil appeals — were barred by Younger and also the doctrines of

judicial and sovereign immunity. Hirsch v. Wade, No. 21-CV-4147, 2023 WL

112801, at *2–3 (E.D.N.Y. Jan. 5, 2023).

judicial review of the federal constitutional claims.” Diamond

“D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002).

Courts within the Second Circuit have regularly

abstained based on Younger where plaintiffs seek — as Hirsch

does here — to enjoin ongoing divorce or child custody

proceedings. See, e.g., McKnight v. Middleton, 699 F. Supp. 2d

507, 520 (E.D.N.Y. 2010), aff’d, 434 F. App’x 32 (2d Cir. 2011);

Deem v. DiMella-Deem, No. 18-CV-11889, 2019 WL 1958107, at *11

(S.D.N.Y. May 2, 2019), aff’d, 800 F. App’x 62 (2d Cir. 2020);

Martinez v. Queens Cnty. Dist. Atty., No. 12-CV-6262, 2014 WL

1011054, at *8 n.8 (E.D.N.Y. Mar. 17, 2014), aff’d, 596 F. App’x

10 (2d Cir. 2015). The reasoning of these cases is squarely

applicable here.

First, Hirsch’s state divorce and custody proceedings

are, for purposes of Younger, still ongoing. See People United

for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 290

n.6 (S.D.N.Y. 2000) (“State proceedings are pending for Younger

purposes until all appellate court remedies have been

exhausted.”).5 Second, family law matters, including issues

5 As noted above, Hirsch has indicated that, since the filing of this

complaint, Justice Quinones entered a final judgment in his divorce

proceeding. He has not, however, stated whether any appellate proceedings

are pending. As a result, even if the Court were to consider this new

information, absent the exhaustion of state appellate remedies, the divorce

proceeding remains ongoing for purposes of Younger abstention. See Kirschner

v. Klemons, 225 F.3d 227, 234 (2d Cir. 2000) (“The Supreme Court has clearly

held that a would-be plaintiff who has been subjected to a state proceeding

regarding child custody, child support, and alimony, implicate

“an area of law that federal courts and Congress leave almost

exclusively to state law and state courts.” Khalid v. Sessions,

904 F.3d 129, 133 (2d Cir. 2018); see United States v. Windsor,

570 U.S. 744, 766 (2013) (“[S]ubject to [constitutional]

guarantees, regulation of domestic relations is an area that has

long been regarded as a virtually exclusive province of the

States.”). Finally, none of Hirsch’s allegations suggest that

he lacks an adequate opportunity for state judicial review of

his federal constitutional claims at the appropriate time. See

Deem, 2019 WL 1958107, at *11 (noting plaintiff’s ability to

appeal “final order” of a family court within the state court

system). Indeed, after the state court “makes its final

disposition on custody and visitation, Plaintiff may appeal that

decision to the Appellate Division and raise the

unconstitutionality” of the trial court’s orders. McKnight, 699

F. Supp. 2d at 521.

Because the requested relief would plainly require

this federal court to interfere with the state court divorce

proceeding, Younger militates against the exercise of

jurisdiction over Plaintiff’s claims.

which he seeks to challenge in federal court must first exhaust all available

state appellate remedies — unless, of course, an exception to Younger applies

or other Younger prerequisites are not met.”).

2. Domestic Relations Abstention

Hirsch’s request for relief is also barred under the

domestic relations abstention doctrine.6 That doctrine precludes

federal district courts from considering claims that are

matrimonial or “on the verge of being matrimonial in nature” and

in which “there is no obstacle to their full and fair

determination in state courts.” Deem, 941 F.3d at 621–22; see

also Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990)

(federal courts “generally decline jurisdiction pursuant to the

matrimonial exception” when “asked to grant a divorce or

annulment, determine support payments, or award custody of a

child”).

Here, Hirsch’s claim clearly implicates “matrimonial”

and ancillary domestic-relations issues: he asks the court to

enjoin his state divorce proceeding and adjudicate issues

relating to child custody, support, and alimony. And as

discussed above, Hirsch does not plausibly allege that he will

be unable to vindicate his rights (constitutional and otherwise)

6 In Deem, the Second Circuit observed that “abstention based on

domestic relations concerns” might be regarded as “merely a variant” of

Younger abstention, but ultimately recognized a “distinct domestic relations

abstention doctrine.” 941 F.3d at 624.

in his divorce proceeding, up to and including an appeal of the

final judgment in that case. See Deem, 2019 WL 1958107, at *12.

C. Leave to Amend Would be Futile

Leave to amend a complaint may be denied as futile

where there is a “substantive” problem with a suit such that

“better pleading will not cure it.” Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000); see O’Hara v. Weeks Marine, Inc.,

294 F.3d 55, 69 (2d Cir. 2002) (“[A] district court may deny

leave to amend the complaint if the amendment would be

futile.”). Because Younger and the domestic relations

abstention doctrine preclude this Court’s exercise of

jurisdiction, any attempt to amend the complaint would be

futile. See Deem v. DiMella-Deem, 800 F. App’x 62, 63 (2d Cir.

2020) (affirming, on domestic relations abstention grounds,

district court’s dismissal of pro se plaintiff’s complaint

without leave to amend).

Conclusion

For the reasons stated above, Hirsch’s suit is

dismissed. All pending motions are disposed of via this order.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any

in forma pauperis appeal from this order would not be taken in

good faith. Coppedge v. United States, 369 U.S. 438, 444–45

(1962). The Clerk of Court is respectfully directed to enter

judgment and close this case.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: August 1, 2023

Brooklyn, New York