Pavlenco v. Pearsall, No. 2:2013cv01953 - Document 14 (E.D.N.Y. 2013)
Court Description: MEMORANDUM AND ORDER denying 7 Motion to Dismiss. For the foregoing reasons, this action is sua sponte STAYED for six months. Plaintiff may apply to lift the stay upon resolution of the underlying state court proceedings. Moreover, Defendant's motion to dismiss the Complaint is DENIED WITH LEAVE TO RENEW once the stay is lifted. So Ordered by Judge Joanna Seybert on 11/27/2013. C/M (Valle, Christine)
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Pavlenco v. Pearsall Doc. 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------X NATALIA NICOLAE PAVLENCO, Plaintiff, MEMORANDUM & ORDER 13-CV-1953(JS)(AKT) -againstDOUGLAS ALAN PEARSALL, Defendant. ----------------------------------------X APPEARANCES For Plaintiff: Natalia Nicolae Pavlenco, pro se 32 Grove Street Riverhead, NY 11901 For Defendant: Douglas Alan Pearsall, pro se P.O. Box 341 Mattituck, NY 11952 SEYBERT, District Judge: Currently pending before the Court is pro se defendant Douglas Alan Pearsall’s (“Defendant”) motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the following reasons, Defendant’s motion is DENIED, but the Court sua sponte ORDERS a stay. BACKGROUND Pro se plaintiff Natalia Nicolae Pavlenco (“Plaintiff”) commenced this action on April 4, 2013 against Defendant, her estranged husband. came to December the 13, United 2004 States and from that thereafter on December 29, 2004. Plaintiff alleges that she Russia she with married a “K1 Defendant visa” on shortly (Compl. at 3.) Dockets.Justia.com Apparently some time around Plaintiff’s entry into the United States and her marriage to Defendant, Defendant signed what is known as an I-864 support affidavit. An I-864 support Nationality Act affidavit which comes provides, in from (Compl. at 2, 4.) the relevant Immigration and part, one that applying for a visa who is likely to become a public charge at the time of application is inadmissible unless “the person petitioning for the alien’s admission . . . has executed an affidavit of support . . . .” 8 U.S.C. § 1182(a)(4)(C)(ii). Such an affiant must agree to “provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.” 8 U.S.C. § 1183a(a)(1)(A). Plaintiff alleges that Defendant now refuses to comply with his obligations under the I-864 affidavit. 1 two are involved in divorce proceedings in Currently, the which Plaintiff maintains that she has been unable to present any evidence in this regard. (Compl. at 3.) DISCUSSION Defendant now moves to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The Court will Plaintiff has also asserted that she has suffered stress related injuries due to her divorce proceedings and seeks the Court’s assistance in finding a lawyer to help litigate her divorce and obtaining an Order of Protection against Defendant. Such claims, however, are not properly before this Court. 1 2 first address the applicable standard of review before turning to Defendant’s motion more specifically. I. Legal Standard “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) 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). resolving a motion jurisdiction, materials to the Court beyond questions. the dismiss may for lack consider pleadings to of subject affidavits resolve In matter and other jurisdictional See Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008). The Court must accept as true the factual allegations contained in the complaint, but it will not draw argumentative inferences in favor of plaintiffs because subject matter jurisdiction must be shown affirmatively. See id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113. II. Subject Matter Jurisdiction Plaintiff alleges that there is subject matter jurisdiction over this case because her claim for enforcement of 3 the I-864 affidavit presents a federal question. (Compl. at 2.) The Court agrees with this general premise. Although support there affidavits, is those little courts case to law address regarding the issue I-864 have determined that federal courts do indeed have subject matter jurisdiction over an action to enforce an I-864 support affidavit as it is a suit that “arises under the laws of the United States . . . .” Tornheim v. Kohn, No. 00-CV-5084, 2002 WL 482534, at *3 (E.D.N.Y. Mar. 26, 2002); see also Cheshire v. Cheshire, No. 05-CV-0453, 2006 WL 617956, at *2 (M.D. Fla. Mar. 10, 2006) (collecting cases). Also applicable relevant abstention Plaintiff’s claims. sponte. A. to this doctrines inquiry, bar this though, Court’s is whether review of The Court will consider these issues sua See Catlin v. Ambach, 820 F.2d 588, 591 (2d Cir. 1987). Younger Abstention Plaintiff seeks enforcement of the I-864 support affidavit despite ongoing divorce proceedings in state court. “As the Supreme Court emphasized in Younger v. Harris, federal courts should generally refrain from enjoining interfering in ongoing state proceedings.” Comm’n on Judicial Conduct, 351 F.3d 65, or otherwise Spargo v. N.Y. State 74 (2d Cir. 2003) (citations omitted). Younger abstention is mandatory when three conditions are met: “(1) there is an ongoing state proceeding; 4 (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002). Under the facts as presented here, Younger abstention appears applicable at first blush, and indeed various courts have noted the potential viability of this doctrine in similar cases. See, e.g., Cobb v. Cobb, No. 12-CV-0875, 2012 WL 2620524, at *3 (E.D. Cal. July 5, 2012) (“To the extent the affidavit has been brought to the attention of the state court, the Court notes that abstention may be appropriate under one of the applicable abstention doctrines.”). However, whether Younger abstention is indeed applicable in this instance turns on whether the divorce proceeding affords Plaintiff an opportunity for review of her federal claim and whether the federal action will interfere with the state court proceedings. “A federal proceeding court-proceeding for Younger ‘interferes’ purposes when it with a ‘either state-court enjoins the state proceeding or has the practical effect of doing so.’” Montgomery v. Montgomery, 764 F. Supp. 2d 328, 333 (D.N.H. 2011) (quoting Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 70 (1st Cir. 2005)). Here, Plaintiff alleges that Defendant’s divorce lawyer did not allow her to present certain 5 evidence during a preliminary conference. (Compl. at 3.) She further affirms that she has not--as of yet--sought enforcement of the I-864 affidavit as part of the (Pl.’s Aff., Docket Entry 9, ¶ 3(4).) that the Court enforce the divorce proceedings. Thus, Plaintiff’s request support affidavit does not necessarily equate to a request to enjoin anything in the state court divorce proceedings. See Montgomery, 764 F. Supp. 2d at 334 (finding that the plaintiffs’ action to enforce an I-864 support affidavit was not barred by Younger abstention despite ongoing divorce proceeding because “plaintiffs do not ask this court to ‘overturn’ the Family Court’s temporary order, or to enjoin [the defendant] from taking any actions which it scenario of authorized”). Moreover, although this may present a parallel actions, “the simple existence of ‘parallel federal and state litigation’ does not justify Younger abstention.” Id.; see also Kanciper v. Suffolk Cnty. Soc. for the Prevention of Cruelty to Animals, Inc., 722 F.3d 88, 92 (2d Cir. 2013) (“[A]s between state and federal courts, the rule is that the pendency of an action concerning the in the same state matter court is in the no bar Federal to proceedings court having jurisdiction.” (internal quotation marks and citation omitted) (emphasis omitted)). B. Colorado River Abstention 6 Concurrent jurisdiction, Colorado River abstention. however, does implicate Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), governing and abstention its when progeny, “state set and federal concurrent jurisdiction simultaneously.” F.3d 687, citation 702 (2d Cir. omitted). To 2001) forth standards courts exercise Gregory v. Daly, 243 (internal justify the quotation abstention, marks there must and be “‘exceptional circumstances,’” such as when “the resolution of existing concurrent state-court litigation ‘comprehensive disposition of litigation.’” could result in Woodford v. Cmty. Action Agency of Greene Cnty., Inc., 239 F.3d 517, 522 (2d Cir. 2001) (quoting Colorado River, 424 U.S. at 813, 817, 96 S. Ct. at 1244, 1246). In determining whether Colorado River abstention applies, the court should consider: (1) whether the controversy involves a res over which one of the courts has assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for the parties; (3) whether staying or dismissing the federal action will avoid piecemeal litigation; (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other; (5) whether federal law provides the rule of decision; and (6) whether the state procedures are adequate to protect the plaintiff’s federal rights. 7 Id. (internal citations omitted). determinative.” omitted). Id. (internal “No one factor is necessarily quotation marks and citation Instead, a “carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination required.” of factors counseling against that exercise is Id. (internal quotation marks and citation omitted). Furthermore, “[w]here a Colorado River factor is facially neutral, that is a basis for retaining jurisdiction, not for yielding it.” River Niagara Mohawk Power Corp. v. Hudson River-Black Regulating Dist., 673 F.3d 84, 101 (2d Cir. 2012) (internal quotation marks and citation omitted). Preliminarily, there is no res involved, nor does it appear that either forum would be any less inconvenient for either party. However, the Court finds that factors weigh in favor of staying the action. the remaining First, staying the action very likely will avoid piecemeal litigation. Contra Montogmery, 764 F. Supp. 2d at 336-37 (noting that the District Court highly doubted that the state court would address the I864 support affidavit given the prior events in the state court proceedings). necessarily Although Plaintiff indicates that she has not raised the issue of enforcement of the I-864 affidavit, Defendant has repeatedly stated to this Court such issue should be litigated in the divorce proceedings, implying that if Plaintiff does not raise the affidavit that Defendant 8 will. (See Docket Entries 7, 11.) Second, although neither party makes clear the exact stage of the divorce proceedings, the New York State e-courts system indicates that the divorce proceedings are at an advantaged stage of litigation, with a trial date set for December 3, 2013. 2 Third, although an I-864 support affidavit involves federal law, it is an issue that the state court is well-equipped to address. In fact, courts have found that the Rooker-Feldman doctrine bars a subsequent federal proceeding to enforce an I-864 support affidavit where the state court has already determined the obligations during divorce proceedings. proper scope of such See, e.g., Mathieson v. Mathieson, No. 10-CV-1158, 2011 WL 1565529, at *4 (W.D. Pa. Apr. 25, 2011); Nguyen v. Dean, No. 10-CV-6138, 2011 WL 130241, at *3-4 (D. Or. Jan. 14, 2011). at this juncture. Accordingly, a stay is appropriate See Cobb, 2012 WL 2620524, at *3 (“Before the Court can determine whether abstention is appropriate in this case, Plaintiff must clearly set forth whether the affidavit of support has been raised as an issue before the state court, and what, if any, determination has been made by the state court.”) [BOTTOM OF PAGE INTENTIONALLY LEFT BLANK] See Pearsall v. Pavlenco, No. 031962/2012 (N.Y. Sup., Suffolk Cnty.), docket sheet available at https://iapps.courts.state. ny.us/webcivil/FCASCaseInfo?parm=CaseInfo&index=hmKXky0nrr4thzSP UmK7jg%3D%3D&county=hGQrPNJ1T9IcJwe0grm9YA%3D%3D&motion=&docs=&a date=11/26/2013. 2 9 CONCLUSION For the foregoing reasons, this action is sua sponte STAYED for six months. upon resolution of the Plaintiff may apply to lift the stay underlying state court proceedings. Moreover, Defendant’s motion to dismiss the Complaint is DENIED WITH LEAVE TO RENEW once the stay is lifted. SO ORDERED. Dated: /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. November 27 , 2013 Central Islip, NY 10
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