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Lomnicki v. Cardinal McCloskey Services


July 20, 2007


The opinion of the court was delivered by: Kenneth M. Karas, District Judge


Plaintiff Virginia Lomnicki ("Plaintiff") brings this action on behalf of herself and her minor children, Eugene, Robert, and Joseph Lomnicki ("Plaintiff's children"). After New York State Family Court, New York County, determined that Plaintiff had neglected her children, and terminated Plaintiff's custodial rights,*fn1 Plaintiff's children were taken from her and placed in the custody of Defendants Cardinal McCloskey Services ("CMS") and the City of New York (collectively, "Defendants"). Plaintiff sues pursuant to 42 U.S.C. § 1983 for alleged violations of constitutional rights, including due process violations and race discrimination, in connection with the removal of her children from her custody.

Defendants move to dismiss the Second Amended Complaint pursuant to Rules 12(b)(1), 12(b)(6), 12(h)(3), and 9 of the Federal Rules of Civil Procedure. For the following reasons, Defendants' motion to dismiss is GRANTED.

I. Background

A. Facts

The following facts are alleged in the Second Amended Complaint or taken from public records. Facts alleged in the Second Amended Complaint (economical though they may be) are presumed true for the purposes of the instant motions.*fn2

Plaintiff is the mother of three children: Eugene Lomnicki, age 14; Robert Lomnicki, age 11; and Joseph Lomnicki, age 10. (Notice of Mot. of Def. Cardinal McCloskey Servs. ("CMS Mot.") Exs. K-M (Family Court orders).) Plaintiff also has a daughter, Kimberly, who is not a subject of this case. (Id. Ex. E.) On July 31, 1998, after a caseworker filed a petition requesting a state court order determining Eugene, Robert, and Joseph to be neglected children, the Family Court issued an Order Directing Temporary Removal for each child, noting that "respondent mother [Plaintiff] uses excessive corporal punishment." (Notice of Mot. of Def. New York City ("NYC Mot.") Exs. C-E ("the July 1998 Family Court Order").) As a result of this order, the children were placed in the custody of the New York City Administration for Children's Services ("ACS"). In August 1999, following a hearing and an examination of the facts and circumstances of Plaintiff's family, Judge Susan Larabee of the New York State Family Court determined "that continuation in the children's home would be contrary to the best interests of the children," and accordingly Judge Larabee issued an Order of Disposition Neglect removing the children from Plaintiff's custody and placing the children in the custody of Defendants for a one-year period. (CMS Mot. Ex. E ("the August 1999 Family Court Order").) Defendants carried out the removal of Eugene, Robert, and Joseph from the custody of their mother, Plaintiff, and CMS took custody. (Second Am. Compl. ¶¶ 2-3, 13.) For each of the next three years, the Family Court issued Orders for Extension of Placement, extending the temporary placement of Plaintiff's Children with CMS. (CMS Mot. Exs. F-H.) Finally, on April 13, 2004, the Family Court ordered that "all [of Plaintiff's] parental rights be terminated and that all custody and guardianship be transferred to [the Department of Social Services] and Agency [CMS for] immediate adoption by current Foster Parents." (Id. Ex. I.)

Plaintiff alleges that the removal of the children from her custody was "based on unproven allegations of abuse and/or neglect," (Second Am. Compl. ¶ 35) and that Defendants removed her children from her because she is white, placing the children with non-white foster parents (Second Am. Compl. ¶ 13).

According to the Second Amended Complaint, Plaintiff has complied with all of Defendants' requests, including that she obtain counseling and attend parenting courses. (Second Am. Compl. ¶ 6.) Plaintiff asserts that she has no history of drug or alcohol abuse or a criminal record. (Id. ¶¶ 7, 9.) She is gainfully employed and has created a plan to provide for her children. (Id. ¶¶ 8, 10.)

B. Procedural History

Plaintiff filed suit against Defendants on June 14, 2004. Plaintiff amended her complaint twice, filing the Second Amended Complaint on January 13, 2005. The Second Amended Complaint asserts four causes of action. First, Plaintiff alleges that Defendants improperly removed Plaintiff's children from her because she is white and placed them with non-white foster parents.*fn3 (Id. ¶ 13.) Second, Plaintiff asserts a violation of her due process right to care for her own children. (Id. ¶ 21.) Third, Plaintiff, on behalf of her children, alleges that Defendants have not provided proper foster care to the children. (Id. ¶ 26.) Fourth, Plaintiff charges that the children "were seized based upon unproven allegations of abuse and/or neglect." (Id. ¶ 35.)

At a conference on January 21, 2005, the Court raised concerns about a possible conflict of interest faced by Plaintiff's attorney who was at that time representing both Plaintiff and her children in connection with this litigation. Following the conference, Plaintiff's counsel wrote to the Court and advised that he would withdraw from representing Eugene, Robert, and Joseph Lomnicki. Thereafter, the Court appointed the firm of Paul, Hastings, Janofsy & Walker, LLP as guardian ad litem for the Lomnicki children.*fn4 Lomnicki v. Cardinal McCloskey Servs., No. 04-CV-4548 (S.D.N.Y. Dec. 13, 2005) (order appointing guardian).

On April 27, 2006, CMS filed its motion to dismiss pursuant to Rules 12(b)(1), 12(b)(6) and 9 of the Federal Rules of Civil Procedure, and on May 1, 2006, the City of New York filed its motion to dismiss pursuant to Rules 12(b)(1), 12(b)(6) and 12(h)(3).*fn5

At oral argument, the Court was advised, for the first time, that Robert and Joseph have been adopted, thus divesting Plaintiff of any standing to pursue this case on their behalf. However, Ms. Lomnicki is in the process of being reunified with Eugene.

II. Discussion

The instant motions seek dismissal for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and the Rooker-Feldman doctrine. Additionally, Defendants argue that dismissal is proper pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiff's allegations are conclusory and do not state a claim upon which relief can be granted.

A. Standard of Review

When a defendant moves to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and also moves to dismiss on other grounds such as Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, the Court must consider the Rule 12(b)(1) motion first. See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990); Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 500 (S.D.N.Y. 2005).

That said, under both 12(b)(1) and 12(b)(6), "the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). When considering a motion to dismiss, courts are generally limited to examining the sufficiency of the pleadings, but where a party challenges the court's subject matter jurisdiction, "the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings." Flores v. S. Peru Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003) (quotations omitted). The party asserting jurisdiction, in this case Plaintiff, has the burden of showing by a preponderance of the evidence that the Court has jurisdiction. See APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003).

If jurisdiction is established, the Court will then consider Defendant's Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim. In order to survive such a motion, Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. at 1965. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 1969. A complaint will be dismissed where "it fail[s] in toto to render plaintiffs' entitlement to relief plausible." Id. at 1973 n.14.

B. The Rooker-Feldman Doctrine and the Court's Subject Matter Jurisdiction Under the Rooker-Feldman doctrine, a Federal District Court May Not Review The Judicial Decisions Of State Courts

The Supreme Court is the only federal court with appellate jurisdiction over state-court judgments, whereas the district court's jurisdiction is "strictly original."*fn6 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (quoting Rooker v. Fid. Trust Co., 263 U.S. 413 (1923)). The doctrine is named after two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. at 413, and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

The Supreme Court recently discussed the doctrine in Exxon Mobil, 544 U.S. at 280. Justice Ginsburg, writing for a unanimous court, observed that lower courts had sometimes construed the Rooker-Feldman doctrine "to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress' conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U.S.C. § 1738." Id. at 283. Accordingly, the Exxon Mobile Court held that the Rooker-Feldman doctrine "is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Id. at 284.

Thereafter, in Hoblock v. Albany Co. Board of Elections, 422 F.3d 77 (2d Cir. 2005), the Second Circuit applied Exxon Mobile and reexamined the Circuit's approach to Rooker-Feldman. The Court of Appeals observed that, in the wake of Exxon Mobile, it was clear that Rooker-Feldman consisted of four requirements: (1) "the federal-court plaintiff must have lost in state court"; (2) "the plaintiff must complain of injuries caused by a state-court judgment"; (3) "the plaintiff must invite district court review and rejection of that judgment"; and 4) "the state-court judgment must have been rendered before the district court proceedings commenced." Hoblock, 422 F.3d at 85 (quotations omitted). The first and fourth requirements are "procedural" and the second and third requirements are "substantive." Id. If a case meets all four requirements, the Court will dismiss it pursuant to Rooker-Feldman.

The first requirement-that the federal plaintiff lost in state court-is plainly met under the facts of Plaintiff's case. Plaintiff was a respondent in three separate actions in Family Court regarding her children Eugene, Robert, and Joseph: docket numbers B-1455/03, B-1456/03, and B-1457/03 of the Family Court of the State of New York, New York County. (CMS Mot. Exs. K-M.) Defendants CMS and the City of New York, by the Commissioner of Social Services, were petitioners in those cases. (Id.) The Family Court concluded "that respondent mother [Plaintiff] has permanently neglected the subject child[ren] within the meaning of Section 384-b of the Social Services Law [and] that said respondent's rights to the subject child[ren]'s custody and guardianship be terminated and transferred and committed to the Commissioner of Social Services and the petitioning agency for purposes of adoption." (Id.) Clearly, then, Plaintiff is "a state-court loser" under the Rooker-Feldman doctrine. See Exxon Mobile, 544 U.S. at 283-84.

The Second Circuit suggested in Hoblock not onlythat the federal plaintiff must have been a party in the state-court action, but also that each of "the parties in the state and federal action must be the same." Hoblock, 422 F.3d at 89. This prerequisite that both the federal plaintiff and the federal defendant were parties in the state-court action is also met here.*fn7 As mentioned above, Defendants were petitioners in the state-court proceeding, while Plaintiff was a respondent.*fn8

The second requirement of Rooker-Feldman is that the plaintiff complains of injuries caused by a state-court judgment. This is "the core requirement" of Rooker-Feldman. Id. at 87. A plaintiff "complains of injury from a state-court judgment, even if it appears to complain only of a third party's actions, when the third party's actions are produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it." Id. at 88. In this case, the First, Second, and Fourth causes of action asserted by Plaintiff are claims of injuries caused by the Family Court judgment. Each of these causes of action complain of the removal of Plaintiff's children from Plaintiff's custody. As noted above, it was the Family Court that ordered Plaintiff's children to be removed from her custody and placed in the custody of Defendants. Under Hoblock, this is not changed simply because it was Defendants, not the Family Court, who actually carried out the removal. Id. ("In the child-custody example . . . if the state has taken custody of a child pursuant to a state judgment, the parent cannot escape Rooker-Feldman simply by alleging in federal court that he was injured by the state employees who took his child rather than by the judgment authorizing them to take the child."). The removal of Plaintiff's children from her custody was an action "produced by a state-court judgment." See id.

Plaintiff attempts to contravene the Rooker-Feldman doctrine by not mentioning the Family Court anywhere in her Second Amended Complaint and by alleging in a conclusory fashion that race discrimination formed the basis for the Defendants' actions. (Second Am. Compl. ¶ 13.) She argues that she "is not requesting the Federal Court herein to review the Family Court's determinations regarding custody, neglect and visitation of the children, but is seeking damages for a Civil Rights violation." (Pl.'s Mem. in Opp'n to Defs.' Mot. To Dismiss ("Pl.'s Mem.") 1.) Her argument cannot succeed. The fact that Plaintiff is alleging a new claim-discrimination-does not change the injury about which she complains. That injury-the removal of the children from her custody-was caused by the Family Court judgment.*fn9 "[A] federal plaintiff cannot escape the Rooker-Feldman bar simply by relying on a legal theory not raised in state court." Hoblock, 422 F.3d at 86.

Similarly, Plaintiff does not avoid Rooker-Feldman by seeking damages instead of injunctive relief. In order to award damages to Plaintiff, the Court would have to review the decision of the Family Court. See McLean v. City of New York, No. 04 Civ. 8353, 2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007) ("[B]y seeking damages for violations of their parental rights, plaintiffs are in effect asking this Court to reject the Family Court's findings and reverse its judgment ordering the children's removal from plaintiffs' custody."); Phillips v. City of New York, 453 F. Supp. 2d 690, 718 (S.D.N.Y. 2006) (explaining that Rooker-Feldman bars a federal suit seeking damages, "if the federal suit nonetheless complains of injury produced by a state-court judgment"). This case is precisely the type of "federal suit[] that purport[s] to complain of injury by individuals [but] in reality complain[s] of injury by state-court judgment[]." Hoblock, 422 F.3d at 88.

The second requirement of Rooker-Feldman, however, does not pertain to Plaintiff's Third Cause of Action, which complains of the treatment that Plaintiff's children received once they were in Defendants' care, treatment that was not directed by the Family Court's orders. (Second Am. Compl. ¶¶ 25-32.) Plaintiff alleges that the children were abused by their step-families and otherwise did not receive proper foster care. (Id.) The complained-of injury here allegedly occurred after the Family Court judgment, but it was not "caused by" that state-court judgment. See McKithen v. Brown, 481 F.3d 89, 98 n.9 (2d Cir. 2007) (discussing the concept of causation in the Rooker-Feldman context). Accordingly, the Third Cause of Action survives dismissal on Rooker-Feldman grounds. See McLean, 2007 WL 415138, at *3 ("If all four [Rooker-Feldman] conditions apply, the federal court lacks subject matter jurisdiction to adjudicate the case.") (emphasis added).*fn10

The Court turns now to the third requirement of the Rooker-Feldman doctrine to assess whether Plaintiff invites district court review and rejection of a state-court judgment. With regard to Plaintiff's First, Second, and Fourth Causes of Action, this requirement is plainly met. The Second Amended Complaint alleges that the determination to remove Plaintiff's children from Plaintiff's custody "was made despite the fact that plaintiff . . . had evidence and proof of her innocence to allegations of abuse and neglect" (Second Am. Compl. ¶ 5), that the "original [removal/custody] determination was made upon erroneous grounds" (id. ¶ 12), that the standards applied to plaintiff were "unfair, unjust, and illegal" (id. ¶ 20), and that the allegations that Plaintiff neglected her children were "unproven" (id. ¶ 35). Essentially, Plaintiff is asking the Court to review the Family Court's decisions to remove Plaintiff's children from her home, place them in the temporary custody of Defendants, and ultimately revoke Plaintiff's parental rights and give custody to Defendants. This the Court cannot do. See Hoblock, 422 F.3d at 86 ("[A] federal suit is . . . barred by Rooker-Feldman . . . if it . . . seeks review and rejection of [a state-court] judgment."). Thus, the third requirement of the doctrine is met.

Finally, the Court must consider whether the instant federal suit followed the state court judgment or was initiated prior to final judgment. The Family Court order terminating Plaintiff's parental rights and committing custody to Defendants was issued and signed by Judge Larabee on April 13, 2004, but it was not entered by the Clerk of the Family Court until August 26, 2004.*fn11

Plaintiff filed the instant suit on June 14, 2004, but she filed the Second Amended Complaint on January 13, 2005, well after the judgment terminating Plaintiff's parental rights. Because the filing of the Second Amended Complaint makes the initial complaint a nullity, see Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) ("[A]n amended complaint ordinarily supersedes the original and renders it of no legal effect."), the operative complaint, Plaintiff's Second Amended Complaint, followed the state court judgment. Moreover, there is no question that even Plaintiff's initial complaint was filed well after the August 1999 Family Court Order. That order-an "Order of Disposition Neglect"-removed Plaintiff's children from her custody and placed them in the custody of Defendants. It is the source of Plaintiff's alleged injuries, and is therefore the operative order for the purposes of Rooker-Feldman. Because New York state courts have adopted the position that "an order of disposition is synonymous with a final order or judgment," see Douglas J. Besharov, Practice Commentaries, McKinney's Consol. Laws of N.Y., N.Y. Jud. Ct. § 1112 (1999), the Court considers the August 1999 Family Court Order a final judgment subject to Rooker-Feldman dismissal.

In sum, with regard to the First, Second, and Fourth Causes of Action, each of the requirements of the Rooker-Feldman doctrine is met, and therefore the Court lacks jurisdiction over those claims.

C. Jurisdiction Over Plaintiff's Third Cause of Action Plaintiff's

Third Cause of Action alleges that Plaintiff's children received improper foster care and suffered abuse by their step-families. These claims are brought on behalf of Eugene, Robert, and Joseph Lomnicki. As Plaintiff's attorney admitted at oral argument on the instant motions, Plaintiff lacks standing to bring claims on behalf of the children, since her parental rights were terminated by the Family Court. The Court notes that it previously appointed a guardian ad litem for the children, Lomnicki, No. 04-CV-4548 (S.D.N.Y. Dec. 13, 2005), and the guardian, who is representing the children as counsel, has not opposed Defendants' motions.

In any case, Plaintiff appears to be claiming negligence and battery-common law torts. Because the Third Cause of Action concerns state torts, not federal law, and because the Plainitff has not asserted diversity jurisdiction, the Court lacks an independent basis for federal jurisdiction over these remaining claims. 28 U.S.C. §§ 1331, 1332. Having dismissed Plaintiff's First, Second, and Fourth Causes of Action for lack of subject matter jurisdiction (and the First Cause of Action for failure to state a claim, as discussed below), the Court also does not have a basis to exercise, and even if it had a basis it would not exercise, supplemental jurisdiction over the remaining claims. 28 U.S.C. § 1367 ("[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction."). Therefore, the Third Cause of Action is dismissed for lack of subject matter jurisdiction.

D. Plaintiff's First Cause of Action Fails to State a Claim Even were the Court to construe Plaintiff's Affidavit in Opposition to Defendants'

Motion as an attempt at a Third Amended Complaint, and deem it to allege discriminatory conduct by ACS and CMS independent of carrying out the Family Court order-i.e., conduct relating to the initiation of court proceedings and the placement of the children-those claims would be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Despite the dubious nature of these claims-not ever made in state court or in the first two complaints in this action but only added after the Court mentioned Phifer, 289 F.3d at 49-the allegations would be assumed to be true. But the allegations fail to state a claim. First, they are conclusory and therefore insufficient. See E & L Consulting, Ltd. v. Doman Indus., 472 F.3d 23, 28 (2d Cir. 2006) ("[C]onclusory statements are not a substitute for minimally sufficient factual allegations."). Second, they fail as to New York City because Plaintiff does not allege the elements necessary to hold a municipality liable under Monell v. Department of Social Services, 436 U.S. 658 (1978). According to Monell, municipalities "may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Id. at 694. Rather, a city may only be held liable if its "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . ." Id. Yet, nothing in the Second Amended Complaint or Plaintiff's Affidavit remotely alleges the existence of an unconstitutional city policy or custom regarding foster children, and counsel conceded at oral argument that he has no basis to make such an allegation. Third, Plaintiff's claims fail as to CMS because they only allege racist comments by employees, not that Plaintiff or her children were ever discriminated against because of their race. There are no facts alleged that are "claimed to constitute intentional discrimination [or that give] rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994). Fourth, as noted above, and as conceded by counsel at oral argument, Plaintiff has no standing to allege claims on behalf of the children. Therefore, even if Plaintiff's discrimination claims were to survive Fed. R. Civ. P. 12(b)(1) dismissal, they would be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).*fn12

III. Conclusion

Defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is GRANTED. Defendants' remaining motions to dismiss pursuant to Rules 12(b)(6), 12(h), and 9 of the Federal Rules of Civil Procedure are moot. The Clerk of the Court is directed to close this case.


Kenneth M. Karas, United States District Judge

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