different schools reasonably may be viewed as unique. In consequence, the loss of an opportunity to attend a particular school is irreparable injury in the sense that monetary damages cannot readily be fixed or, for that matter, compensate for the lost opportunity. But this is the only aspect of the Jackson Dairy test that plaintiff even arguably has met.
The thrust of plaintiff's application is that Justice Ingrassia erred in deciding plaintiff's motion without holding an evidentiary hearing. By asking this Court to permit Kirsten to enroll at Rye Country Day "until such time as the New York State Supreme Court completes an evidentiary hearing in [the divorce] action and determines final custody of the plaintiff," the relief sought in the order to show cause, he is asking that this Court review the correctness of the State court order. This we may not do.
"The jurisdiction possessed by the District Courts is strictly original." Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 68 L. Ed. 362, 44 S. Ct. 149 (1923). They have no power to review State court proceedings or to set aside State court orders. Mr. Foulke's only remedy with respect to Justice Ingrassia's order lies in review within the New York State court system and ultimately by the United States Supreme Court. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-84 & n. 16, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983); Gentner v. Shulman, 55 F.3d 87, 88-89 (2d Cir. 1995). In view of this principle, there is virtually no prospect that plaintiff will prevail in this action.
Plaintiff's position would be flawed even if the Rooker-Feldman doctrine were not an obstacle. Under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and its progeny, a federal district court should abstain from interfering with pending State litigation if (1) there is a pending State proceeding, (2) an important State interest is implicated, and (3) the plaintiff has an open avenue for review in the State courts of his constitutional claims. Gentner, 55 F.3d at 89-90. Here the existence of a pending State proceeding and of plaintiff's ability to raise his constitutional claims in State court are undisputed. The only possibly debatable question is whether there is a State interest sufficient to warrant abstention. And while the law in this area is not conclusively settled, it appears that the State's interest in adjudicating disputes relating to the family unit and in determining the nature of the procedures by which the State discharges that function are likely to be held sufficient to trigger Younger. See New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 365-66, 105 L. Ed. 2d 298, 109 S. Ct. 2506 (1989) (State interest in regulating intrastate utility rates); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12-14, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (1987) (State interest in regulating judicial procedures); Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982) (State interest in functioning of judicial system); Moore v. Sims, 442 U.S. 415, 434-35, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979) (State interest in child welfare matter); Juidice v. Vail, 430 U.S. 327, 335, 51 L. Ed. 2d 376, 97 S. Ct. 1211 (1977) (State interest in regulating contempt procedure). In consequence, even if this Court were to conclude that it had subject matter jurisdiction, notwithstanding Rooker-Feldman it probably would abstain under Younger.3
Finally, it appears that there is little merit to plaintiff's due process claim. Plaintiff's constitutional grievance is the failure of the State court to hold an evidentiary hearing on plaintiff's State court motion. Yet it is undisputed that plaintiff never requested one. Hence, even if plaintiff was entitled to a hearing as a matter of federal constitutional law, he quite likely waived that right in the State court. See District of Columbia Court of Appeal, 460 U.S. at 482 n. 16.
The Attorney General's office, which appears for Justice Ingrassia, argues also that the Court lacks subject matter jurisdiction under the domestic relations exception. There is no need to address that point in order to conclude that plaintiff has little prospect of success on the merits. Moreover, even if plaintiff had raised serious questions going to the merits, the Court nevertheless would deny the injunction.
In balancing the equities, the issue is whether plaintiff would suffer decidedly greater harm from an erroneous denial of an injunction than the defendants would suffer from an erroneous grant. Holford USA Ltd. v. Cherokee, Inc., 864 F. Supp. 364, 374 (S.D.N.Y. 1994). In this case, that requires primarily consideration of the interests of Kirsten Foulke, who is the human subject of this drama, as well as those of the protagonists. As earnestly as Mr. Foulke asserts that Kirsten will be harmed irreparably by the loss of the opportunity to attend Rye Country Day, Mrs. Foulke's contention -- accepted by the State court -- that Kirsten would be harmed irreparably by a likely forced withdrawal cannot be dismissed out of hand. Moreover, plaintiff has come to federal court, without first seeking a stay from Justice Ingrassia or the Second Department, in a last minute effort to make an end run around the State court system. In all the circumstances, the equities do not militate in plaintiff's favor, much less decidedly so.
For the foregoing reasons, plaintiff's motion for a preliminary injunction is denied. The cross-motion to dismiss on behalf of Justice Ingrassia -- which doubtless soon will be joined by a motion to dismiss on behalf of the other defendants -- will be referred to Judge Parker, to whom this case is assigned for all purposes, as there is no need for a decision on that application before Judge Parker again is available.
Dated: August 29, 1995
Lewis A. Kaplan
United States District Judge