                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit

                                                        January 27, 2010
                 UNITED STATES COURT OF APPEALS
                                              Elisabeth A. Shumaker
                                                          Clerk of Court
                       FOR THE TENTH CIRCUIT


DANNY LAMBETH, d/b/a
Truck Wholesale,

           Plaintiff-Counterclaim-
           Defendant-Appellant,

v.                                                 No. 09-3027
                                       (D.C. No. 2:08-CV-02069-CM-JPO)
DEBRA L. MILLER, Secretary of the                   (D. Kan.)
Kansas Department of Transportation;
ALTER TRADING CORPORATION;
SALLY HOWARD; JOSEPH J.
ERSKINE; CARMEN BAKARICH;
RICHARD M. SMITH; AMY
HARTH; TERRY BULLOCK;
MARVIN NEUKIRCH; BRIAN J.
MOLINE; ROBERT E. KREHBIEL;
MICHAEL C. MOFFET; DAVID R
HEGER; LISA L. JOHNSON;
LARRY WALDROD; ROY DUNN;
SUE FARRELL; DON HAY; DON
STOTTEMIRE; JOHN E. TAYLOR,
Commissioner; JIM WISE; ART
GODFREY; GORGE PRETZ;
RON STILES; LYLE WOBKER;
KATHLEEN SEBELIUS,

           Defendants-Appellees,

     and

GIBSON’S RECYCLING II,

           Counterclaim-
           Defendant-Appellee.
                          ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.



      Plaintiff Danny Lambeth alleges a broad conspiracy by various Kansas

officials and two companies employed by the Kansas Department of

Transportation (KDOT), Gibson’s Recycling and Alter Trade Corporation, to

violate his constitutional rights through the improper enforcement of the laws and

regulations governing his truck salvage yard business. The district court

dismissed Mr. Lambeth’s complaint with prejudice primarily on the basis of the

Rooker-Feldman doctrine. See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923);

D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). We review the district

court’s order of dismissal de novo. Guttman v. Khalsa, 446 F.3d 1027, 1031

(10th Cir. 2006). In doing so, we conclude that dismissal was proper, though on

somewhat different grounds than the district court offered, and we conclude that

the court’s dismissal should have been without prejudice. Consequently, we



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
affirm and remand for the limited purpose of dismissing without prejudice.

      The procedural history surrounding each of Mr. Lambeth’s claims is well

known to the parties and amply set forth in the district court’s Memorandum and

Order, and so we will not repeat it here. For our purposes, it suffices to note that,

since 2001, Mr. Lambeth has pursued multiple state lawsuits challenging

administrative actions taken against his business by KDOT and Kansas officials. 1

So far, all of Mr. Lambeth’s lawsuits have failed, though at the time he filed his

current complaint in federal district court in 2008, state court litigation was

ongoing in one Franklin County, Kansas abatement proceeding involving Mr.

Lambeth and certain of the defendants before us.

      In his current federal lawsuit, Mr. Lambeth seeks to challenge and undo the

outcome of his earlier state court proceedings. With respect to the governmental

defendants named in his federal suit, for example, he expressly asks the federal

courts to “issue orders to reverse, dismiss, quash, or otherwise dispose of the

defendants[’] improper prosecution . . . and order that all the [state] court rulings

be stricken from the record of this case.” R. Vol. I, Doc. 46 at 42.




1
       The Kansas Corporation Commission charged Mr. Lambeth with violating
certain motor carrier laws and regulations. The Commission entered various
orders against Mr. Lambeth that he does not properly raise or challenge on
appeal. Accordingly, we do not need to consider the district court’s dismissal of
those claims.

                                          -3-
      As the district court properly noted, however, this we cannot do. The

Rooker-Feldman doctrine prevents federal courts from assuming jurisdiction over

“cases brought by state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments.” Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). In other words, “[t]he

Rooker-Feldman doctrine prohibits federal suits that amount to appeals of

state-court judgments,” Bolden v. City of Topeka, 441 F.3d 1129, 1139 (10th Cir.

2006), and it thus bars claims, like Mr. Lambeth’s, that seek to upset or undo

prior state-court judgments, see Erlandson v. Northglenn Mun. Court, 528 F.3d

785, 789 (10th Cir. 2008), cert. denied, 129 S. Ct. 928 (2009).

      There is one wrinkle to this analysis — the Franklin County abatement

proceeding which was still pending at the time Mr. Lambeth filed his federal

action. The district court applied Rooker-Feldman to bar Mr. Lambeth’s

complaints against the Franklin County defendants. While we agree that the

district court was without jurisdiction to entertain the Franklin County claims, we

believe, as the defendants argue before us, that dismissal should be affirmed

under the Younger abstention doctrine instead. Younger v. Harris, 401 U.S. 37

(1971); Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006) (noting that

this court may consider “Younger abstention for the first time on appeal”). That




                                         -4-
is, because we believe Younger applies, we need not decide whether the

application of Rooker-Feldman was proper. 2

      Abstention is required under Younger where

      (1) there is an ongoing state criminal, civil, or administrative proceeding,
      (2) the state court provides an adequate forum to hear the claims raised in
      the federal complaint, and (3) the state proceedings involve important state
      interests, matters which traditionally look to state law for their resolution
      or implicate separately articulated state policies.

Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)

(internal quotation marks omitted). “Once these three conditions are met,

Younger abstention is non-discretionary and, absent extraordinary circumstances,

a district court is required to abstain.” Crown Point I, LLC v. Intermountain

Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003).

      The Franklin County abatement proceeding was ongoing at the time

plaintiff filed this action, satisfying the first Younger condition. As for the

second condition, it is plaintiff’s burden to establish that state procedural law



2
       The district court applied Rooker-Feldman despite the fact that the state
court proceeding involving the Franklin County defendants was not final at the
time the federal action was filed. This court held in Guttman, 446 F.3d at 1031,
that Rooker-Feldman only applies where there is a final judgment. But see Tal v.
Hogan, 453 F.3d 1244 (10th Cir. 2006) (decided after Guttman and holding that
the state court judgment need not be final for Rooker-Feldman to apply — “The
state condemnation proceeding need not be final in order to serve as ground for
Rooker-Feldman preclusion”). Defendants argue that we should reject Guttman
as contrary to prior Tenth Circuit precedent and not required by Supreme Court
precedent. Because we affirm on the basis of Younger abstention, we need not
decide this issue.

                                         -5-
prevents him from presenting his claims in the state proceeding. See J.B. ex rel.

Hart v. Valdez, 186 F.3d 1280, 1292 (10th Cir. 1999). Plaintiff has not shown

that he was prevented from presenting his claims in state court. Finally, we

conclude that the zoning and nuisance abatement issues are traditional state law

matters that implicate important state interests, satisfying the third condition. See

Harper v. Pub. Serv. Comm’n of W. Va., 396 F.3d 348, 352 (4th Cir. 2005)

(“[P]roperty law concerns, such as land use and zoning questions, are frequently

‘important’ state interests justifying Younger abstention.”). We thus conclude

that all three Younger conditions are present in this case. Moreover, our review

of the parties’ briefs and the record on appeal persuades us that there are no

extraordinary circumstances that would render Younger abstention inappropriate.

We therefore affirm the dismissal of the claims against the government

defendants.

      With respect to the remaining private company defendants named in Mr.

Lambeth’s federal lawsuit, Mr. Lambeth alleges that they “contracted and

conspired” with KDOT to aid it in carrying out its putatively unlawful actions

against his business. Citing Lance v. Dennis, 546 U.S. 459, 464 (2006), the

district court held that Rooker-Feldman could not bar suit against these particular

defendants because they were not parties to the completed state court cases. Even

so, the district court held preclusion principles “demand the same result” because

they “would require the same impermissible consideration of the merits of the

                                         -6-
state court cases, and seek ultimately to upset the final state court judgment.” D.

Ct. Mem. & Order at 8 n.5.

      While we do not question the district court’s preclusion analysis, Rooker-

Feldman operates as an antecedent jurisdictional bar to Mr. Lambeth’s claims

against the private companies. Lance held that Rooker-Feldman cannot be

invoked against a plaintiff who was not a party to the underlying state-court

action, but it did not purport to limit the invocation of Rooker-Feldman by a

defendant in a federal proceeding who was not a party in the prior state-court

litigation against a plaintiff who was — provided, of course, that the claims raised

in federal court are inextricably intertwined with the prior state court proceeding.

See Tal, 453 F.3d at 1257 (noting a state court loser’s “addition of new

defendants in federal court . . . does not change the nature of the underlying state

court ruling”); 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice And Procedure § 4469.1, at 137 & n.59 (2d ed. 2002) (“It has

been found that even if nonmutual preclusion were not available, a nonparty [to

the prior state court proceedings] can invoke the rule that a party to the state

action cannot invoke federal jurisdiction to seek indirect review of a state

judgment.”).

      Neither is there any colorable question that Mr. Lambeth’s current

complaints against the two private companies are “inextricably intertwined” with

those raised in his prior state court proceedings. Construing Mr. Lambeth’s pro

                                         -7-
se complaint with the liberality it is due, the district court interpreted it as

alleging that the two private companies’ actions were part of a conspiracy with

KDOT to carry out that agency’s administrative decisions, decisions he

previously challenged in his various completed state court suits. In the district

court’s view, relief could not be granted for Mr. Lambeth on his federal complaint

against the private companies without upsetting final state court judgments for

KDOT. Before us, Mr. Lambeth doesn’t challenge this understanding of his

allegations.

      Even if the district court properly dismissed his claims, Mr. Lambeth

argues that the district court erred in doing so with, rather than without, prejudice.

We are constrained by our precedent to agree. Our precedent indicates that the

dismissal of the defendants should have been without prejudice because it was

based on a lack of subject matter jurisdiction and an assessment by the district

court about the futility of a potential amendment intrudes into the case’s merits.

See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“A

longstanding line of cases from this circuit holds that where the district court

dismisses an action for lack of jurisdiction, as it did here, the dismissal must be

without prejudice.”). To the extent we have modified the dismissal of the

Franklin County defendants to be based on Younger abstention, in this particular

case we believe dismissal should likewise be without prejudice. See Morrow v.




                                           -8-
Winslow, 94 F.3d 1386, 1398 (10th Cir. 1996) (remanding to district court for

dismissal without prejudice under Younger). 3

      The district court’s dismissal of this action is affirmed, and this matter is

remanded with instructions to modify the dismissal to be without prejudice.


                                                    Entered for the Court



                                                    Neil M. Gorsuch
                                                    Circuit Judge




3
       Lastly Mr. Lambeth argues that the district court erred in staying discovery
on the unopposed motion of the Franklin County defendants. The district court
did not abuse its discretion by so ruling because Mr. Lambeth failed to argue how
additional information would have aided his claims. See Diaz v. Paul J. Kennedy
Law Firm, 289 F.3d 671, 674 (10th Cir. 2002).

                                         -9-
