Farkash v. Five Star Travel Inc. ( 2021 )

19-3572-cv
Farkash v. Five Star Travel Inc., et al
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 11th day of January, two thousand twenty-one.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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ISRAEL FARKASH,
Plaintiff-Appellant,
-v- 19-3572-cv
FIVE STAR TRAVEL INC., KALMAN EISDORFER,
RACHEL EISDORFER, AHRON MORDECHI
GLAUBER, AKA AHRON MORDECHI
FRIEDMAN, MIRIAM GLAUBER, YONAH
GLAUBER, G&G QUALITY CLOTHING INC.,
FILLMORE CT INC., J.T. RUHAIPARI
VAMSZABADTERIILETI KORLATOLT
FELELOSSEGU TARSASAG, ELUZER HORVITZ,
SHULEM HOROWITZ, SHIMON DAVID
DAVIDOVIZ, FRIDA DAVIDOVIZ, NUCHEM
WELTZ, EIZIK BRAUN, DOV PINCHAS SEGAL,
JOHN DOE, 1-60, JANE DOE, 1-60,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: Israel Farkash, pro se, Brooklyn, New York.
FOR DEFENDANTS-APPELLEES: Aaron Twersky, Twersky PLLC, New York,
New York, for Five Star Travel Inc., Kalman
Eisdorfer, Rachel Eisdorfer, Eizik Braun, and
Dov Pinchas Segal.
Avrom R. Vann, Avrom R. Vann, P.C., New
York, New York, for Ahron Mordechi Glauber,
Yonah Glauber, G&G Quality Clothing Inc.,
Fillmore CT Inc., J.T. Ruhaipari
Vamszabadteriileti Korlatolt Felelossegu
Tarsasag, Shimon David Davidoviz, and Frida
Davidoviz.
Miriam Glauber, pro se, Brooklyn, New York.
Eluzer Horvitz, pro se, Brooklyn, New York.
Shulem Horowitz, pro se, Brooklyn, New York.
Nuchem Weltz, pro se, Brooklyn, New York.
Appeal from the United States District Court for the Southern District of
New York (Carter, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
2
Plaintiff-appellant Israel Farkash, pro se, brought an action against
defendants-appellees ("defendants") in April 2018 alleging that they had committed
various federal crimes, including extortion, bribery, theft, fraud, and money laundering,
that affected his property and business interests. On October 15, 2018, Farkash filed a
notice of voluntary dismissal, but he asserted in the notice that the defendants had
extorted him into dismissing his claims. Defendants disputed this assertion and moved
to permanently enjoin Farkash from filing any further actions against them without
court approval. In an opinion and order entered September 23, 2019, the district court
denied defendants' motion for an injunction and dismissed the case after determining
that, despite his assertions of coercion in his notice, Farkash's request for dismissal was
voluntary. Farkash now appeals the district court's September 2019 order, arguing that
once he filed his notice of voluntary dismissal in October 2018, the district court was
divested of jurisdiction, and therefore any opinion or order subsequently entered is
invalid. 1 We assume the parties' familiarity with the underlying facts, procedural
history of the case, and issues on appeal.
1 This Court has jurisdiction notwithstanding the district court's failure to enter a separate
judgment following its order dismissing the case. A judgment is deemed to have been entered
150 days after the order closing the case (here, 150 days after September 23, 2019 was February
20, 2020). Fed. R. Civ. P. 58; Fed. R. App. P. 4(a)(7). The parties may consent to appeal from a
final order prior to entry of judgment, and parties are found to consent where, as here, one
party appeals from a final order and the opposing party does not contest the appeal on the basis
of the absence of a judgment. See Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384-88 (1978) (per
curiam) ("The need for certainty as to the timeliness of an appeal, however, should not prevent
3
As an initial matter, Farkash has standing to appeal because he presents a
colorable claim that, under Federal Rule of Civil Procedure 41(a)(1)(A)(i), the district
court lacked jurisdiction over his claims once he filed a notice of voluntary dismissal,
and therefore any subsequent order, even one resulting in a favorable judgment, is
appealable. See U.S. D.I.D. Corp. v. Windstream Commc'ns, Inc., 775 F.3d 128, 134 (2d Cir.
2014) ("A voluntary dismissal [under Rule 41] . . . vitiate[s] and annul[s] all prior
proceedings and orders in the case, and terminat[es] jurisdiction over it for the reason
that the case has become moot." (internal quotation marks omitted)); Envtl. Prot. Info.
Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1077 (9th Cir. 2001) ("[A] party who had
received a favorable judgment had standing to request vacatur of an opinion entered
after the lower court had lost jurisdiction."). Although his jurisdictional arguments fail
as discussed below, Farkash is correct that we have jurisdiction to review whether a
district court erroneously entertained a suit it lacked jurisdiction over, even if we lack
jurisdiction to review the merits. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,
541 (1986) ("When the lower federal court lacks jurisdiction, we have jurisdiction on
appeal, not of the merits but merely for the purpose of correcting the error of the lower
court in entertaining the suit." (internal quotation marks and alterations omitted)).
the parties from waiving the separate-judgment requirement where one has accidentally not
been entered.").
4
We review de novo the district court's interpretation of Rule 41(a)(1)(A)(i)
and its application in an individual case. Youssef v. Tishman Const. Corp., 744 F.3d 821,
824 (2d Cir. 2014). A plaintiff may dismiss an action he filed in federal court, without a
court order, by filing "a notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A)(i) (under the
heading "Voluntary Dismissal"). We have stated that "[a]s long as the plaintiff has
brought himself within the requirements of Rule 41, his reasons for wanting to do so are
not for us to judge." Thorp v. Scarne, 599 F.2d 1169, 1177 n.10 (2d Cir. 1979). The notice
of dismissal itself "closes the file." Id. at 1176 (internal quotation marks omitted).
Neither Thorp nor any other case in this Court, however, has addressed whether a
plaintiff's notice of voluntary dismissal must be taken at face value even where the
notice itself states that it was involuntarily filed.
The district court here correctly determined that Farkash's dismissal notice
was not clearly a "voluntary" notice on its face. Rule 41(a)(1)(A)(i) allows for
"voluntary" dismissal by a plaintiff, Fed. R. Civ. P. 41(a), but while Farkash's notice was
labeled "Notice of Voluntary Dismissal," it contained assertions that he "had no choice
but to enter an agreement" to dismiss the case because of "Defendants['] extortion
and . . . malicious witch hunt to death." App'x at 20. Because these assertions conflicted
with his "voluntary" label, the district court reasonably determined that further review
was necessary because he had not clearly "brought himself within the requirements of
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Rule 41." Thorp, 599 F.2d at 1177 n.10. Accordingly, we find no error in the district
court's decision to take a closer look at Farkash's filing. 2
Farkash next argues that he has suffered prejudice, collateral estoppel,
and, in effect, a sanction as a result of the district court's findings that this action did not
appear to have been filed in good faith and "border[ed] on vexatious and harassing."
App'x at 65 (internal quotation marks omitted). We reject these arguments. Farkash
does not provide factual support for his collateral estoppel claim, and his other claims
of prejudice do not present any grounds for relief from this Court. We "review
judgments, not statements in opinions," and "a party may not appeal from a judgment
or decree in his favor, for the purpose of obtaining a review of findings he deems
erroneous which are not necessary to support the decree," even if such findings may
"come back to haunt him in a future case." O'Brien v. Vt. Agency of Nat. Res. (In re
O'Brien), 184 F.3d 140, 141-42 (2d Cir. 1999) (internal quotation marks and alterations
omitted). The district court ruled in Farkash's favor on the issue of sanctions and
defendants' proposed injunction, and thus we will not review the statements within that
opinion with which Farkash takes issue. 3
2 Farkash does not challenge the district court's ultimate determination that his dismissal
was voluntary, and so we need not address the district court's findings on that issue.
3 Farkash also moved this Court to take judicial notice of court documents from an Israeli
bankruptcy proceeding he references in his briefs. These documents may be judicially noticed
for the fact of their existence, and not for the truth of their contents. We need not take judicial
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* * *
We have considered Farkash's remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
Farkash's motion for the Court to take judicial notice of certain court documents filed in
an Israeli bankruptcy proceeding is DENIED as moot.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
notice here, however, because the documents have no bearing on the instant appeal, and the
case is now dismissed and closed. The motion is moot.
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