Filed: Mar. 27, 2012
Latest Update: Feb. 22, 2020
Summary: 11-1512-cv Zahl v. Kosovsky UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
Summary: 11-1512-cv Zahl v. Kosovsky UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A..
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11-1512-cv
Zahl v. Kosovsky
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 27th day of March, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
REENA RAGGI,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
________________________________________________
KENNETH ZAHL, individually and on behalf of
his child A.Z.,
Plaintiff-Appellant,
v. 11-1512-cv
KAREN KOSOVSKY, HARRY KOSOVSKY, GERTRUDE KOSOVSKY, KEVIN
MCKEOWN, AKA Kevin McNamara, AKA John Sweeny, ROBERT DOBRISH, ESQ.,
DOBRISH, ZEIR, GROSS, WRUBEL, LLP, JOANN DOUGLAS, ESQ., SOFT SPLIT KIDS
LLC, SOFTSPLIT LLC, MARILYN G. DIAMOND, ESQ., individually, JOAN B. LOBIS, in
her individual and official capacity, LAURA VISITACION LEWIS, in her official capacity,
JONATHAN LIPPMAN, in his individual and official capacity, JACQUELINE SILBERMANN,
in her individual and official capacity, NEW YORK STATE UNIFIED COURT SYSTEM and
*
Judge Jed S. Rakoff, of the United States District Court for the Southern District of New
York, sitting by designation.
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its OFFICE OF COURT ADMINISTRATION in its official capacity, JOHN DOES 1-100,
JANE DOES 1-100,
Defendants-Appellees.
________________________________________________
FOR PLAINTIFF-APPELLANT: Kenneth Zahl, pro se, Morristown, N.J.
FOR DEFENDANTS-APPELLEES
ROBERT DOBRISH, ESQ. AND
DOBRISH, ZEIF, GROSS, WRUBEL, LLP: A. Michael Furman & Andrew R. Jones,
Furman, Kornfeld & Brennan LLP, New
York, N.Y.
FOR DEFENDANT-APPELLEE
JOANN DOUGLAS, ESQ.: Jonathan B. Bruno, Kaufman, Borgeest &
Ryan, LLP, New York, N.Y.
FOR DEFENDANTS-APPELLEES
KAREN KOSOVSKY, HARRY KOSOVSKY
AND GERTRUDE KOSOVSKY: Emily A. Stubbs & Jeffrey R. Wang,
Friedman, Kaplan, Seiler & Adelman, LLP,
New York, N.Y.
FOR DEFENDANTS-APPELLEES
MARILYN DIAMOND, JOAN LOBIS,
JONATHAN LIPPMAN, JACQUELINE
SILBERMANN, NEW YORK STATE UNIFIED
COURT SYSTEM & ITS OFFICE OF COURT
ADMINISTRATION, JOHN DOES 1-100
AND JANE DOES 1-100: Sudarsana Srinivasan, Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General, Michael S. Belohlavek, Senior
Counsel, on the brief), for Eric T.
Schneiderman, Attorney General of the
State of New York, New York, N.Y.
FOR DEFENDANT-APPELLEE KEVIN
MCKEOWN: Kevin McKeown, pro se, New York, N.Y.
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Appeal from the judgment of the United States District Court for the Southern District of
New York (Swain, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Kenneth Zahl, proceeding pro se, appeals from the district court’s
March 3, 2011 Memorandum Opinion and Order dismissing his complaint, which was brought
on behalf of himself and his child. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.
“We review dismissal of a cause of action under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) de
novo.” Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a
case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district court
lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States,
201 F.3d
110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, ___,
129 S. Ct. 1937, 1949
(2009).
We have conducted a de novo review of the record in light of these standards and now
affirm for substantially the same reasons set forth in the district court’s thorough and well-
reasoned Memorandum Opinion and Order. The district court correctly applied the Rooker-
Feldman doctrine in holding that it lacked subject matter jurisdiction over the claims in the
complaint that effectively sought redress of Zahl’s alleged injuries caused by state court
decisions issued in connection with his completed matrimonial proceedings. See Hoblock v.
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Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005); see also D.C. Court of Appeals v.
Feldman,
460 U.S. 462, 482-84 & n.16 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413,
415-16 (1923). The district court also properly abstained from deciding those issues relating to
Zahl’s post-judgment matrimonial action that remained pending when Zahl filed his federal
complaint. See Younger v. Harris,
401 U.S. 37 (1971). On appeal, Zahl sets forth no facts or
legal authority as to why he was prevented from litigating his constitutional claims in state court.
See Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 435 (1982) (“So
long as the constitutional claims . . . can be determined in the state proceedings . . . the federal
courts should abstain.”) (emphasis added)).
Finally, Zahl’s argument that the district court improperly dismissed his claims against
defendants Soft Split Kids, LLC and SoftSplit, LLC without first requiring these defendants to
file responsive pleadings or holding a hearing on whether they had properly been served is
without merit. A district court has inherent authority to dismiss meritless claims sua sponte,
even where a plaintiff has paid the filing fee. See Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam). Thus, because the district court
properly concluded that all of Zahl’s claims were meritless, there was no error in its dismissal of
the complaint prior to receiving responsive pleadings from all defendants.
We have considered all of Zahl’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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