     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




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