18-2196-cv
Fiorilla v. Citigroup

                                    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 1st day of July, two thousand nineteen.

PRESENT:                JOSÉ A. CABRANES,
                        REENA RAGGI,
                        CHRISTOPHER F. DRONEY,
                                     Circuit Judges.


JOHN LEOPOLDO FIORILLA, INDIVIDUALLY AND AS
TRUSTEE TO FBO JOHN LEOPOLDO FIORILLA TRUST U/A/D/
6-25-2003,

                               Plaintiff-Appellant,                  18-2196-cv

                               v.

CITIGROUP GLOBAL MARKETS, INC., EDWARD JAMES
MULCAHU, JR.,

                               Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                                   BERNARD V. KLEINMAN, Law Office of
                                                           Bernard V. Kleinman PLLC, Somers, NY.

FOR DEFENDANTS-APPELLEES:                                  AUDRA J. SOLOWAY, Paul, Weiss, Rifkind,
                                                           Wharton & Garrison LLP, New York,
                                                           NY.




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       Appeal from the June 27, 2018 judgment of the United States District Court for the
Southern District of New York (P. Kevin Castel, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiff-Appellant John Leopoldo Fiorilla, individually and as trustee to FBO John
Leopoldo Fiorilla Trust U/A/D/ 6-25-2003 (“Fiorilla”), appeals the dismissal of his second
amended complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). Fiorilla contends that the District Court erred in concluding that the entirety of
his second amended complaint was barred by the so-called “Rooker-Feldman” doctrine. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.

         We review de novo a district court’s dismissal of a complaint for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir.
2016). “In so doing, we accept the complaint’s material allegations as true, and we draw all
reasonable inferences in the plaintiffs’ favor.” Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719,
725 (2d Cir. 2017).

        Fiorilla does not dispute that he sues to set aside a state court judgment, which is generally
barred by the Rooker-Feldman doctrine. But he contends that the District Court erred in dismissing
his complaint because there is a “fraud-on the-court” exception to the doctrine. He is wrong. We
have clearly held that a plaintiff cannot rely on allegations that the state court judgment at issue “was
obtained fraudulently” to avoid application of the Rooker-Feldman doctrine. Vossbrinck v. Accredited
Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014). As we have explained, “[t]his would require the
federal court to review the state proceedings and determine that the . . . judgment was issued in
error,” which Rooker-Feldman instructs we cannot do. Id. Accordingly, the District Court correctly
determined that Fiorilla could not circumvent the Rooker-Feldman bar by alleging that the state court
judgment was fraudulently obtained.

         Fiorella next contends that the District Court erred in finding that his damages claim against
defendants for their alleged fraud on the courts is barred by Rooker-Feldman. Fiorella argues that this
claim is independent of any state court judgment because it is a suit against the defendants for their
conduct before the court (not a request to set aside a state judgment) and, therefore, does not
involve the type of “review and rejection” of state court judgments that Rooker-Feldman precludes.
Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94 (2d Cir. 2015) (quoting Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). This argument is unavailing. Fiorella’s fraud claim
is “based upon the fraud perpetrated upon the state court,” Appellant Br. 37, and the only “damage”
Fiorella identifies from defendants’ alleged fraud comes from the unfavorable state court judgment.

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Accordingly, his fraud claim “invite[s] ... review and rejection of that judgment,” which is precisely
what Rooker-Feldman bars. Vossbrinck, 773 F.3d at 426 (quoting Hoblock v. Albany Cnty. Bd. of
Elecs., 422 F.3d 77, 85 (2d Cir. 2005)). The District Court did not err in concluding that this claim is
barred by Rooker-Feldman.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Fiorilla on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the June 27, 2018 judgment of the District
Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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