Remy v. New York State Department of Taxation & Finance , 507 F. App'x 16 ( 2013 )

11-1921
Remy v. N.Y.S. Dep’t of Taxation
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
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 3rd day of January, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RALPH K. WINTER,
10 GUIDO CALABRESI,
11 Circuit Judges.
12 _____________________________________
13
14 Lesly Remy,
15
16 Plaintiff-Appellant,
17
18 v. 11-1921
19
20 New York State Department of
21 Taxation and Finance, New York
22 State Office of Temporary and
23 Disability Assistance, New York
24 State Office Children and Family
25 Services, New York City Office of
26 Child Support Enforcement, AKA SCU
27 a subdivision of NYC Human
28 Resources Administration, New York
29 City Employee Retirement Services,
30 Support Magistrates, New York State
31 Clerk of Court, New York City Fire
32 Dept EMS Paramedic John Doe number
1 1, a sub division, S. Michael
2 Fondocaro, Joette Blaustein, George
3 Cafasso, Ira Steinberg, Robert L.
4 Megna, David Hansell, Gladys
5 Carrion, Francis Pardu Abbadessa,
6 Diane D'Alessandro, Peter
7 Passidomo, Esq., John Aman, C.
8 Duncan Kerr, Jaynee Wall, L.
9 Bishop, Robert Doar, Sawatar Singh,
10 Phil Ramos, New York State Assembly
11 Member, Michele Titus, New York
12 State Assembly Member, Vivian Cook,
13 New York State Assembly Member,
14 Gloria D'Amico, David Patterson,
15 Governor, Michael Bloomberg, Mayor,
16 City of New York, State of New
17 York, Debra Barticheck, New York
18 State Court Officer, Maria Cooper,
19 Miles Mckenna, James Drakos, Joseph
20 Guzzardo, et al., Fred Beneri,
21
22 Defendants-Appellees
23
24 Commissioners, Directors, Chiefs,
25 Captain John Doe number 1,
26 New York State Court Officer, New
27 York State Court Officers John/Jane
28 Doe 1, 2, 3, 4,
29
30 Defendants.
31 _____________________________________
32
33 FOR PLAINTIFF-APPELLANT: Lesly Remy, pro se, Brentwood, NY.
34
35 FOR DEFENDANTS-APPELLEES: Michael A. Cardozo, Corporation
36 Counsel for the City of New York,
37 Paul Rephen, Inga Van Eysden, of
38 Counsel, New York, NY, for the New
39 York City Defendants-Appellees.
40
41 Eric T. Schneiderman, Attorney
42 General of the State of New York;
43 Barbara D. Underwood, Solicitor
44 General; Michael S. Belohlavek,
45 Senior Counsel; Patrick J. Walsh,
46 Assistant Solicitor General of
47 Counsel, New York, NY, for the New
48 York State Defendants-Appellees.
2
1
2 Appeal from the September 29, 2010, and April 26, 2011,
3 orders of the United States District Court for the Eastern
4 District of New York (Feuerstein, J.).
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
6 DECREED that the judgment of the district court is AFFIRMED.
7 Plaintiff-Appellant Lesly Remy, proceeding pro se, appeals
8 from the district court’s judgment partially granting the
9 defendants’s motions to dismiss various claims for lack of
10 jurisdiction and for failure to state a claim. We assume the
11 parties’s familiarity with the underlying facts, the procedural
12 history of the case, and the issues on appeal.
13 As a preliminary matter, although Remy raises challenges to
14 the district court’s November 2011 order granting summary
15 judgment, we lack jurisdiction to consider them because he did
16 not file a separate notice of appeal following entry of that
17 order. See Shrader v. CSX Transp. Inc., 70 F.3d 255, 256 (2d
18 Cir. 1995) (where a notice of appeal “fail[s] to mention” a
19 specific order, we are “bar[red] from considering” an appellate
20 challenge to it). We limit our review to Remy’s appeal from the
21 district court’s September 2010 order dismissing the complaint
22 against all parties except the court officers, and April 2011
23 order denying his motion for reconsideration.
24
3
1 “A challenge under the Rooker–Feldman doctrine is for lack
2 of subject matter jurisdiction.” Moccio v. N.Y. State Office of
3 Court Admin., 95 F.3d 195, 198 (2d Cir. 2002). In evaluating the
4 dismissal of a complaint for lack of subject matter jurisdiction
5 under Federal Rule of Civil Procedure 12(b)(1) and for failure to
6 state a claim under Rule 12(b)(6), we review a district court’s
7 factual findings for clear error and its legal conclusions de
8 novo, construing the complaint liberally, accepting all factual
9 allegations therein as true, and drawing all reasonable
10 inferences in plaintiff’s favor. See Morrison v. Nat’l Austl.
11 Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (Rule 12(b)(1));
12 Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)
13 (Rule 12(b)(6)). In adjudicating a motion to dismiss for lack of
14 subject matter jurisdiction under Rule 12(b)(1), courts may
15 consider “evidence outside the pleadings.” Makarova v. United
16 States, 201 F.3d 110, 113 (2d Cir. 2000).
17 Remy’s protestations about the district court’s application
18 of the Rooker-Feldman doctrine are not persuasive.
19 “Rooker–Feldman directs federal courts to abstain from
20 considering claims when four requirements are met: (1) the
21 plaintiff lost in state court, (2) the plaintiff complains of
22 injuries caused by the state court judgment, (3) the plaintiff
23 invites district court review of that judgment, and (4) the state
24 court judgment was entered before the plaintiff's federal suit
4
1 commenced.” McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010).
2 Here, contrary to Remy’s assertions, the record shows that he
3 lost repeatedly in state court. See, e.g., Matter of Remy v.
4 Mitchell, 60 A.D.3d 860, rearg. denied and lv. denied, 2009 N.Y.
5 Slip Op. 73279 (2d Dep’t 2009) (dismissing Remy’s appeal from an
6 order of the Family Court, Queens County, which fixed his child
7 support arrears in the amount of $5,691.13). Remy is incorrect
8 that his losses were merely administrative or ministerial and
9 therefore outside the ambit of Rooker-Feldman. The Family
10 Court’s arrears order was an entirely sufficient judicial loss
11 because Remy had a full and fair opportunity to litigate that
12 issue. See Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir.
13 1996) (“This court may not review the family court's
14 determinations regarding custody, neglect and visitation, as
15 those issues were decided by the family court after providing
16 [the plaintiff] a full and fair opportunity to litigate those
17 issues.”).
18 Remy’s federal complaint seeks direct review of prior state
19 court judgments.1 Thus, under Rooker-Feldman, this court does
20 not have subject matter jurisdiction to disturb his state court
21 judgments. The district court’s partial dismissal of his
22 complaint was therefore appropriate.
1
For example, Remy argues that a state memorandum decision
“denied [him] the equity of NYS Family Law [and] Domestic
Relations Law in the area of [p]arental visitation.”
5
1 We have considered Remy’s remaining arguments on appeal and
2 have found them to be without merit. Accordingly, the judgment
3 of the district court is hereby AFFIRMED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
6