         13-1637
         White v. White




                               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 for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       20th day of February, two thousand fourteen.
 4
 5       PRESENT:
 6                   DENNIS JACOBS,
 7                   GUIDO CALABRESI,
 8                   ROSEMARY S. POOLER,
 9                         Circuit Judges.
10       _____________________________________
11
12       Keith White,
13
14                              Plaintiff-Appellant,
15
16
17                        v.                                                13-1637
18
19
20       Gabriela White,
21
22                              Defendant-Appellee.
23
24       _____________________________________
25
26       FOR PLAINTIFF-APPELLANT:                      Keith White, pro se, New York, NY
27
28       FOR DEFENDANT-APPELLEE:                       Nancy B. Ludmerer, Attorney,
29                                                     Davis Polk & Wardwell, LLP
30                                                     New York, NY.
 1          Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Daniels, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Keith White, pro se, appeals from the district court’s judgment dismissing his complaint

 6   as barred by the Rooker-Feldman doctrine and the doctrines of collateral estoppel and res

 7   judicata, and for failure to state a claim. We assume the parties’ familiarity with the underlying

 8   facts, the procedural history of the case, and the issues on appeal.

 9          We review: (1) the factual findings underlying a Fed. R. Civ. P. 12(b)(1) dismissal for

10   lack of jurisdiction for clear error, and legal conclusions de novo, Maloney v. Soc. Sec. Admin.,

11   517 F.3d 70, 74 (2d Cir. 2008) (per curiam); and (2) a Fed. R. Civ. P. 12(b)(6) dismissal de novo,

12   “accepting all factual allegations as true and drawing all reasonable inferences in favor of the

13   plaintiff,” Litwin v. Blackstone Group, L.P., 634 F.3d 706, 715 (2d Cir. 2011) (internal quotation

14   marks omitted). Dismissal of a complaint is proper “when the district court lacks the statutory or

15   constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

16   2000). Although dismissal without affording a pro se litigant opportunity to amend is

17   disfavored, leave to amend is not necessary if amendment would be futile. See Cuoco v.

18   Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

19          The judgment is affirmed for substantially the same reasons stated by the district court

20   and by the magistrate judge, whose report and recommendation was adopted by the district court.

21   This action is in essence a protracted custody dispute on appeal from a state court judgment

22   granting custody of Appellant’s son to his ex-wife in New Jersey. Appellant argues that the


                                                       2
 1   Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S.

 2   No. 11,670, 1343 U.N.T.S. 89 (the “Hague Convention”) and its implementing statute, the

 3   International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq. (“ICARA”), which he

 4   thinks requires the return of his son to his custody in New York and repayment of monies that

 5   Appellant has paid to Appellee since 2005.

 6          Appellant’s statutory interpretation is incorrect. The Hague Convention “does not

 7   establish substantive standards for resolving the merits of any underlying custody dispute.”

 8   Mota v. Castillo, 692 F.3d 108, 112 (2d Cir. 2012) (citing Hague Convention, art. 19). “Rather,

 9   the Convention’s focus is simply upon whether a child should be returned to her country of

10   habitual residence for custody proceedings.” Id. (citation omitted); see also 42 U.S.C. §

11   11601(b)(4) (“The Convention and this chapter empower courts in the United States to

12   determine only rights under the Convention and not the merits of any underlying child custody

13   claims.”). The German Court’s determination of “habitual residence,” therefore, does not bear

14   upon the New York state court custody proceedings. The conduct of such proceedings in New

15   York is entirely consistent with the German Court’s order. Thus, procedural bars aside (all of

16   which the district court correctly found applicable), Appellant’s complaint failed to state a claim,

17   and amendment would have been futile.

18          We have considered Appellant’s remaining arguments and find them to be without merit.

19   Accordingly, we AFFIRM the judgment of the district court.

20                                                 FOR THE COURT:
21                                                 Catherine O’Hagan Wolfe, Clerk of Court
22




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