Filed: Apr. 30, 2015
Latest Update: Mar. 02, 2020
Summary: 14-3864 Whelan v. Pascale 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
Summary: 14-3864 Whelan v. Pascale 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 P..
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14-3864
Whelan v. Pascale
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of April, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROSEMARY S. POOLER,
8 PETER W. HALL,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 David J. Whelan, Mary M. Whelan,
13 Plaintiffs-Appellants,
14
15 -v.- 14-3864
16
17 Judith A. Pascale, individually and in
18 her official capacity as Clerk of the
19 County of Suffolk, New York; County of
20 Suffolk; David Jannetti; Does, 1-5,
21 Defendants-Appellees.
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLANTS: PATRICIA WEISS, Sag Harbor, New
25 York.
26
27 FOR APPELLEES: RUDOLPH M. BAPTISTE, Assistant
28 County Attorney (for Dennis M.
1
1 Brown, Suffolk County Attorney),
2 Hauppauge, New York, for
3 defendants-appellees Judith
4 Pascale and the County of
5 Suffolk.
6
7 THOMAS J. McGOWAN, Meltzer,
8 Lippe, Goldstein & Breitstone
9 LLP, Mineola, New York, for
10 defendant-appellee David
11 Jannetti.
12
13 Appeal from a judgment of the United States District
14 Court for the Eastern District of New York (Bianco, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court be
18 AFFIRMED.
19
20 Plaintiffs David and Mary Whelan (“the Whelans” or
21 “plaintiffs”) appeal from the judgment of the United States
22 District Court for the Eastern District of New York (Bianco,
23 J.), granting defendants’ motions to dismiss for failure to
24 state a claim under Federal Rule of Civil Procedure
25 12(b)(6). We assume the parties’ familiarity with the
26 underlying facts, the procedural history, and the issues
27 presented for review.
28
29 We review de novo a district court’s grant of a motion
30 to dismiss for failure to state a claim, accepting all
31 factual allegations as true and drawing all reasonable
32 inferences in favor of the plaintiff. Lotes Co., Ltd. v.
33 Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir.
34 2014). “To survive a motion to dismiss, a complaint must
35 contain sufficient factual matter, accepted as true, to
36 ‘state a claim for relief that is plausible on its face.’”
37 Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell
38 Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
39
40 1. Defendants contend that, under the Rooker-Feldman
41 doctrine, the federal courts lack subject-matter
42 jurisdiction over the Whelans’ claims. Defendants are
43 incorrect. The Whelans do not “complain[] of injuries
44 caused by state-court judgments,” nor do they “invit[e]
45 district court review and rejection of those judgments.”
46 Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280,
47 284 (2005). The Whelans bring independent constitutional
2
1 claims, arguing that New York’s notice-of-pendency
2 procedures (codified at N.Y. Civil Practice Law & Rules
3 6501-6516 (“Article 65”)) are unconstitutional. So the
4 Rooker-Feldman doctrine does not apply. See Diaz v.
5 Paterson, 547 F.3d 88, 94 (2d Cir. 2006) (explaining that
6 Exxon Mobil “rendered the Rooker-Feldman doctrine plainly
7 inapplicable” to a similar constitutional challenge to
8 Article 65).1
9
10 2. The Whelans argue that the Article 65 process
11 violates the Due Process Clause of the United States
12 Constitution. Our Court has already rejected virtually
13 indistinguishable claims, holding that Article 65 “provides
14 all the process that is due in respect of the claimed
15 property interests at stake.”
Diaz, 547 F.3d at 96. A
16 panel of this Court is “bound by the decisions of prior
17 panels until such time as they are overruled either by an en
18 banc panel of our Court or by the Supreme Court.” United
19 States v. Wilkerson,
361 F.3d 717, 732 (2d Cir. 2004).
20
21 3. The remaining federal claims--brought under the
22 Equal Protection Clause and the Free Speech Clause--were
23 appropriately dismissed for the reasons stated in the
24 district court’s Memorandum and Order.
25
26 4. Having dismissed all federal claims, the district
27 court did not err in declining to exercise supplemental
28 jurisdiction over any remaining state-law claims; in denying
29 as futile plaintiffs’ request to file an amended complaint;
30 or in denying as moot plaintiffs’ motion to disqualify each
31 of defendants’ counsel.
32
33 * * *
34
35 For the foregoing reasons, and finding no merit in
36 plaintiffs’ other arguments, we hereby AFFIRM the judgment
1
Because there is no defect in subject-matter
jurisdiction, we need not consider whether (as the district
ruled) a federal court “may bypass Rooker-Feldman to reach
the merits of a dispute,” Whelan v. Pascale, No. 13-cv-6998,
2014 WL 4638851, at *4 n.3 (E.D.N.Y. Sept. 16, 2014),
notwithstanding that the doctrine eliminates federal
subject-matter jurisdiction when applicable, see Exxon
Mobil, 544 U.S. at 292.
3
1 of the district court. Plaintiffs’ motion for an injunction
2 is DENIED. Plaintiffs’ motion for sanctions is DENIED.
3
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, CLERK
6
4
