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Fischer v. Clark

September 24, 2009


The opinion of the court was delivered by: Seybert, District Judge


Gregory John Fischer ("Plaintiff"), proceeding pro se, commenced this action against Ashley Ann Clark ("Defendant" or "Clark") on September 16, 2008. Pending before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiff's motion to disqualify Defendant's counsel. For the reasons stated below, Defendant's motion to dismiss is GRANTED and Plaintiff's motion to disqualify is DENIED.


Clark Allen Fischer and Anna Lee Fischer are two minor children born to Plaintiff and Defendant. Plaintiff maintains that Clark unilaterally removed the children from New York and transported them to Wyoming. According to Plaintiff, Clark has since harbored the children in Wyoming and has prevented Plaintiff from having contact with them.

The Complaint alleges that Clark is an unfit mother who has assaulted Plaintiff and the children in the past. Clark has also allegedly embezzled money from businesses partially owned by Plaintiff. According to Plaintiff, there is at least one action pending in a state court in Wyoming pertaining to custody of the children. Additionally, Plaintiff filed a petition in the Family Court for the State of New York, Suffolk County, seeking custody of the children.

Plaintiff's lengthy and rather unclear Complaint alleges that this Court has diversity jurisdiction as well as jurisdiction pursuant to a variety of federal statutes, including several federal criminal statutes. Plaintiff alleges causes of action for "parental kidnaping, custodial interference, and parental abduction," "wreckless [sic] endangerment of the children," misappropriation and embezzlement, "malicious prosecution and frivolous action," intentional infliction of emotional harm, and torture. In addition to money damages, Plaintiff seeks several other forms of relief, including a declaratory judgment from this Court declaring that the process which permitted Defendant to file an action in the state courts in Wyoming has encouraged forum shopping by Defendant and has encouraged Defendant's flight, and a declaratory judgment stating that the Wyoming courts lack jurisdiction and that any order filed in the Wyoming action is unenforceable.

Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In addition to considering Defendant's arguments in favor of dismissal, the Court will sua sponte consider whether it has jurisdiction in this matter.


I. Standard of Review

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must put forth enough factual allegations to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, __ L.Ed. 2d. __ (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citations and quotations omitted). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a complaint fails to state a claim. Id. The plaintiff's factual allegations, in short, must show that the plaintiff's claim is "plausible," not merely "conceivable." Id. at 1951.

When considering a motion to dismiss, a court can first identify pleadings that are not entitled to the assumption of truth because they are mere conclusions unsupported by factual allegations. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed. 2d 868 (2009). After locating the well-pleaded factual allegations, the court should assume their truthfulness and "then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.

The Court recognizes that pro se plaintiffs are entitled to a more liberal pleading standard. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197; 167 L.Ed. 2d 1081 (2007) ("a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers") (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed. 2d 25 (1976)) (internal quotation marks omitted); Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008). Nonetheless, pro se plaintiffs must still comport with the procedural and substantive rules of law. See Javino v. Town of Brookhaven, No. 06-CV-1245, 2008 WL 656672, at *3 (E.D.N.Y. Mar. 4, 2008).

II. Plaintiff's Claims

A. Domestic Relations Exception

At the outset, to the extent that Plaintiff seeks to bring a cause of action under the Parental Kidnaping Prevention Act ("PKPA"), the Court advises Plaintiff that there is no private right of action under this statute. See Thompson v. Thompson, 484 U.S. 174, 187, 108 S.Ct. 513, 98 L.Ed. 2d 512 (1988) (finding no private right of action under the PKPA); Vartabedian v. Dounias, No. 06-CV-2029, 2006 U.S. Dist. LEXIS 94160, at *16 (E.D.N.Y. May 11, 2006) ("The PKPA simply requires states to enforce custody determinations of other states and does not create a private right of action.").

The Court lacks jurisdiction to hear Plaintiff's first and second causes of action for "parental kidnaping, custodial interference, and parental abduction" and reckless endangerment of the children. It is well settled that federal courts generally do not have jurisdiction over such matters based upon a "policy consideration that the states have traditionally adjudicated marital and child custody disputes and therefore have developed competence and expertise in adjudicating such matters, which federal courts lack." Thomas v. New York City, 814 F. Supp. 1139, 1146 (E.D.N.Y. 1993). For more than one hundred years, federal courts have consistently refused to resolve domestic relations disputes. See In Re Burrus, 136 U.S. 586, 594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (holding that domestic relations law belongs to the individual States). The Second Circuit has held that this exception "includes civil rights actions directed at challenging the results of domestic relations proceedings." Mitchell-Angel v. Cronin, No. 95-CV-7937, 1996 U.S. pp. LEXIS 4416, at *5 (2d Cir. March 8, 1996) (internal citation omitted). "[F]ederal courts have discretion to abstain from exercising jurisdiction over issues on the verge of being matrimonial in nature as long as full and fair adjudication is available in state courts." Id. (Internal quotations omitted).

Plaintiff submits court documents filed in Wyoming state courts as exhibits to his Complaint. Exhibit 2 is a "Petition to establish paternity, custody, and support" filed by Clark in a state court located in Sweetwater, Wyoming. This document clearly indicates that there is an action currently proceeding in a Wyoming state court to establish custody of the minor children. There are other documents attached to the Complaint filed by Plaintiff in the Family Court of the State of New York, County of Suffolk, which also establish that there is at least one ongoing action in the New York State courts related to custody matters. These documents strengthen the Court's finding that this case belongs in Family Court. Thus, the Court finds that the domestic relations exception applies to Plaintiff's case.

While the Court is sympathetic to Plaintiff's desire to see his children, this Court lacks jurisdiction to hear child custody matters. If Plaintiff believes that Defendant is unfit to have custody of the children, Plaintiff may raise such arguments before the various state courts currently hearing the parties' custody dispute. A full and fair adjudication of Plaintiff's claims regarding Defendant's fitness as a parent and whether the children belong in New York or Wyoming is available to Plaintiff in state court. There is no basis for this ...

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