Kozaczek v. New York Higher Education Services Corp. , 503 F. App'x 60 ( 2012 )

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
5