# Hirsch v. Kairey

> District Court, E.D. New York · August 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10310070

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

ELLIOT M. HIRSCH,

Plaintiff, MEMORANDUM & ORDER
22-CV-6716(EK)(VMS)

-against-

ELIZABETH M. KAIREY,

Defendant.

------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310070. Public record. Not legal advice.