23-201-cv Max v. Kaplan

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of January, two thousand twenty-four. Present: AMALYA L. KEARSE, GERARD E. LYNCH, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ LIBRA MAX, Plaintiff-Appellant, v. 23-201-cv DEBORAH KAPLAN, Deputy Chief Administrative Judge of the New York City Courts, in her official and personal capacity, Defendant-Appellee. _____________________________________

For Plaintiff-Appellant: ANDREW G. CELLI, JR. (Debra L. Greenberger, Sana Mayat, on the brief), Emery Celli Brinckerhoff Abady Ward & Maazel, LLP, New York, NY

For Defendant-Appellee: ANAGHA SUNDARARAJAN, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Ester Murdukhayeva, Deputy Solicitor General, Daniel S. Magy, Assistant Solicitor General, on the brief), for Letitia James, Attorney General of the

1 State of New York, New York, NY

Appeal from a judgment of the United States District Court for the Southern District of

New York (Denise L. Cote, District Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Libra Max appeals from a judgment of the United States District Court

for the Southern District of New York (Denise L. Cote, District Judge), entered on February 14,

2023, granting Defendant-Appellee Deputy Chief Administrative Judge of the New York City

Courts Deborah Kaplan’s motion to dismiss Max’s complaint. Max sued Kaplan pursuant to

, alleging that Kaplan violated Max’s due process rights under the Fourteenth

Amendment by actively permitting or otherwise failing to prevent an allegedly common practice

among New York state guardianship judges of engaging in ex parte communications with court-

appointed guardians during contested proceedings. Max sought declaratory, injunctive, and

monetary relief, including a federal injunction requiring Kaplan “to promulgate administrative

policy prohibiting litigants and judges from engaging in ex parte communications in contested

matters.” J. App’x at 55. The district court dismissed Max’s complaint on both standing and

abstention grounds, and Max appealed. We assume the parties’ familiarity with the case.

“A motion to dismiss for lack of Article III standing challenges the subject-matter

jurisdiction of a federal court and, accordingly, is properly brought under [Federal Rule of Civil

Procedure] 12(b)(1),” as Kaplan did here. SM Kids, LLC v. Google LLC,

(2d

Cir. 2020). 1 Kaplan “brought a facial—as opposed to a fact-based—standing challenge under Rule

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations.

2 12(b)(1) because [her] motion was based solely on the allegations of the complaint.” Lacewell v.

Off. of Comptroller of Currency,

(2d Cir. 2021). “We review the district court’s

decision on such a facial challenge de novo,” accepting as true all material factual allegations in

the complaint and drawing all reasonable inferences in Max’s favor.

Max “has no evidentiary

burden when confronted with a facial standing challenge.”

We agree with the district court that Max lacks standing to bring suit against Kaplan. To

satisfy the requirements of Article III standing, “the plaintiff must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to

be redressed by a favorable judicial decision.” SM Kids,

. And to establish

traceability, “there must be a causal connection between the injury and the conduct complained

of.” Lujan v. Defenders of Wildlife,

(1992). In other words, the injury cannot

be “the result of the independent action of some third party not before the court.”

Max argues

that she suffered an injury in fact, namely that judges in her father’s guardianship proceedings

have engaged in ex parte communications with his guardian. Assuming (without deciding) that

such communications constitute an injury in fact, we conclude that any such injury is not fairly

traceable to any act or omission by Kaplan.

Max argues that her injury is traceable to Kaplan because four New York guardianship

judges before whom Max had a dispute with her father’s guardian “engaged in ex parte

communications pursuant to established court practice or custom and consistent with guidance and

instructions,” and Kaplan has authority over such court practices. Appellant’s Br. at 28. But

Max’s allegations with respect to Kaplan’s alleged actions are vague and conclusory. The

complaint pleads no facts demonstrating that Kaplan has affirmatively established a court practice,

policy, or custom, or promulgated any guidance, instruction, or advice, permitting guardianship

3 judges to engage in ex parte communications in adversarial proceedings—in other words, the

complaint utterly fails to provide any basis for concluding that the state guardianship judges’

alleged practices are fairly traceable to anything Kaplan has actually done. As for Kaplan’s alleged

inaction—in failing to promulgate any state-court policy to bar the challenged practice—the

complaint similarly fails. That is because Max argues that ex parte communications are already

prohibited by New York law. See J. App’x at 41–42, ¶ 33 & n.8 (citing and quoting

(B)(6)); see also

, ¶ 36 & n.9. Indeed, the crux of Max’s

claim is that such communications also violate the Fourteenth Amendment. In light of Max’s

claim that state guardianship judges are allegedly disobeying (or misconstruing) constitutional and

judicial rules that bar ex parte communications, there is no basis for concluding that the judges’

actions are fairly traceable to the absence of a state trial-court policy that re-states those

constitutional and judicial rules. To the contrary, based on these allegations, we can only conclude

that Max’s alleged injury is the result of each guardianship judge’s “independent action.” Lujan,

.

In sum, Max’s alleged injury cannot be said to be fairly traceable to Kaplan’s alleged acts

or omissions, and she therefore lacks Article III standing to bring this suit against Kaplan. Because

Max lacks standing, we need not address Max’s other claims of error in the district court’s decision.

* * *

4 For the reasons stated above, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

5