         11-4437
         Kozaczek v. N.Y. Higher Educ. Servs. Corp.




                           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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of November, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       LESLIE KEVIN KOZACZEK,
14
15
16                           Plaintiff-Appellant,
17
18                    v.                                        11-4437
19
20       NEW YORK HIGHER EDUCATION SERVICES
21       CORPORATION,
22
23                           Defendant-Appellee,
24
25       GC SERVICES LIMITED PARTNERSHIP,
26
27                           Defendant.
28
29       _____________________________________
30
 1   FOR PLAINTIFF-APPELLANT:   Leslie Kevin Kozaczek, pro se,
 2                              Brattleboro, VT.
 3
 4   FOR DEFENDANT-APPELLEE:    Owen Demuth, Assistant Solicitor
 5                              General, for Eric T.
 6                              Schneiderman, Attorney General
 7                              of the State of New York,
 8                              Albany, NY.
 9

10        Appeal from a judgment of the United States District
11   Court for the District of Vermont (Murtha, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

14   AND DECREED that the judgment is AFFIRMED.

15       Appellant Leslie Kevin Kozaczek, proceeding pro se,

16   appeals from the district court’s dismissal pursuant to Fed.

17   R. Civ. P. 12(b)(1) of his complaint, which raised claims of

18   a violation of the Fair Debt Collection Practices Act

19   (“FDCPA”), 15 U.S.C. § 1692-1692p, and state law.   The panel

20   has reviewed the briefs and the record in this appeal and

21   agrees unanimously that oral argument is unnecessary because

22   “the facts and legal arguments [have been] adequately

23   presented in the briefs and record, and the decisional

24   process would not be significantly aided by oral argument.”

25   Fed. R. App. P. 34(a)(2)(C).   We assume the parties’

26   familiarity with the underlying facts, the procedural

27   history of the case, and the issues on appeal.

28

                                    2
 1       The Eleventh Amendment provides:    “The Judicial power

 2   of the United States shall not be construed to extend to any

 3   suit in law or equity, commenced or prosecuted against one

 4   of the United States by Citizens of another State, or by

 5   Citizens or Subjects of any Foreign State.”    U.S. CONST.

 6   amend. XI.   This immunity also protects a state and state

 7   agencies, which are, effectively, arms of the state, from

 8   suits brought by the state’s own citizens.    See Regents of

 9   Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997).    Congress

10   can abrogate a state’s immunity by:    (1) unequivocally

11   expressing its intent to do so, and (2) acting pursuant to a

12   valid exercise of power.    Seminole Tribe of Fla. v. Florida,

13   517 U.S. 44, 55 (1996).    Additionally, a state may waive its

14   sovereign immunity and agree to be sued in federal court if

15   the waiver is “an unequivocal indication that the State

16   intends to consent to federal jurisdiction that otherwise

17   would be barred by the Eleventh Amendment.”    Atascadero

18   State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985),

19   superseded by statute, Rehabilitation Act Amendments of

20   1986, 1003 Pub.L. No. 99-506, as recognized in Lane v. Pena,

21   518 U.S. 187, 197-98 (1996).

22



                                    3
 1       We conclude that Kozaczek’s appeal is without merit

 2   substantially on the basis articulated by the district court

 3   in its well-reasoned order.

 4       Insofar as Kozaczek argues that Appellee New York

 5   Higher Education Services Corporation (“HESC”) is not a

 6   state agency or that the Eleventh Amendment does not apply

 7   to it, his argument is without merit; this Court has held

 8   that the Eleventh Amendment can bar a suit against HESC.

 9   See Oliver Sch., Inc. v. Foley, 930 F.2d 248, 252 (2d Cir.

10   1991).     Kozaczek’s arguments that HESC waived Eleventh

11   Amendment immunity are equally ineffectual.     Although a

12   state or state agency waives immunity from suit by removing

13   to federal court, see Lapides v. Bd. of Regents of Univ.

14   Sys. of Ga., 535 U.S. 613, 619-20 (2002), HESC had not been

15   properly served at the time Defendant GC Services removed

16   this case and therefore did not consent to removal.

17   Likewise, HESC did not waive immunity by filing motions to

18   dismiss.     See Atascadero, 473 U.S. at 238 n.1.   We decline

19   to consider arguments that Kozaczek raised for the first

20   time on appeal.     See Virgilio v. City of N.Y., 407 F.3d 105,

21   116 (2d Cir. 2005).

22



                                     4
 1       We have considered all of Kozaczek’s remaining

 2   arguments and find them to be without merit. Kozaczek’s

 3   motion to deny HESC oral argument is now moot and the motion

 4   to reverse and remand is DENIED.

 5       For the foregoing reasons, the judgment of the district

 6   court is hereby AFFIRMED.

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10




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