14-1960-cv
Siegel v. Apergis
                          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 22nd day of April, two thousand fifteen.

PRESENT:
                 JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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JEFFREY SIEGEL, RICHARD SIEGEL,
                                 Plaintiffs-Appellants,

                    v.                                                   No. 14-1960-cv

ANNETTE APERGIS, UNITED STATES OF AMERICA,
FLORENCE CORP., d/b/a FLORENCE BUILDING
MATERIALS, DLJ MORTGAGE CAPITAL, INC.,
SAMUEL FELDMAN LUMBER CO., INC., d/b/a
FELDMAN LUMBER, INTERAMERICAN MORTGAGE
CORP., COASTAL CAPITAL CORP., JUNE SIEGEL,
Individually and as Representative of the Estate of
SEYMOUR SIEGEL,
                      Defendants-Appellees,

FEDERAL DEPOSIT INSURANCE CORPORATION, as
Receiver for Washington Mutual Bank,
                                 Defendant.*
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*
    The Clerk of Court is directed to amend the official caption as shown above.

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FOR APPELLANTS:                 Ahmed A. Massoud, Massoud & Pashkoff, LLP, New
                                York, New York.

FOR APPELLEES:                  Mary Margaret Dickman, Assistant United States
                                Attorney, for Loretta E. Lynch, United States Attorney for
                                the Eastern District of New York, Brooklyn, New York,
                                for United States of America.

                                John P. Amato, Robert J. Malatak, Annie P. Kubic, Hahn
                                & Hessen LLP, New York, New York, for DLJ Mortgage
                                Capital, Inc.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (William F. Kuntz, II, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on May 7, 2014, is VACATED and

REMANDED with instructions to the district court to enter a judgment of dismissal

without prejudice.

       Plaintiffs Jeffrey Siegel and Richard Siegel appeal the dismissal of their amended

complaint with prejudice. Plaintiffs do not here challenge the district court’s decision to

dismiss based on lack of subject-matter jurisdiction, nor do they argue that dismissal was

otherwise improper.     They contend only that dismissal should have been without

prejudice. On de novo review, see Sokolowski v. MTA, 723 F.3d 187, 190 (2d Cir. 2013),

we assume the parties’ familiarity with the facts and the record of prior proceedings, which

we reference only as necessary to explain our decision to vacate and remand.

       Our precedent instructs that when a court dismisses for lack of subject-matter

jurisdiction, that dismissal must be without prejudice. See Hernandez v. Conriv Realty


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Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a court lacks subject matter

jurisdiction, it also lacks the power to dismiss with prejudice.”); accord Vandor, Inc. v.

Militello, 301 F.3d 37, 38–39 (2d Cir. 2002); see also Diaz v. Judge Advocate Gen. of the

Navy, 413 F. App’x 342, 343–44 (2d Cir. 2011) (summary order).                 Nevertheless,

Defendant DLJ Mortgage Capital, Inc., (“DLJ”) argues that dismissal with prejudice was

appropriate because all of the relevant issues and claims were previously decided in state

court proceedings, and there is nothing left to adjudicate in any forum. In effect, DLJ asks

us to hold that dismissal with prejudice is warranted by issue or claim preclusion. See

Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (describing issue and claim preclusion).

       DLJ’s argument fails. Issue and claim preclusion go to the merits of a claim, which

a court cannot adjudicate in the absence of jurisdiction. See Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot proceed at all

in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only

function remaining to the court is that of announcing the fact and dismissing the cause.”

(internal quotation marks omitted)); see also Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 293 (2005) (“Preclusion, of course, is not a jurisdictional matter.”);

Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000) (“Dismissal under Fed. R. Civ.

P. 12(b)(6) is appropriate when a defendant raises claim preclusion . . . as an affirmative

defense and it is clear from the face of the complaint, and matters of which the court may

take judicial notice, that the plaintiff’s claims are barred as a matter of law.”). Thus, even

if DLJ is correct that plaintiffs’ claims are precluded, the district court was powerless to


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decide that issue in this case. This is not to suggest that plaintiffs can or should pursue the

dismissed claims in state court. Nor do we express any view as to whether plaintiffs’ or

their counsel’s conduct in pursuing this litigation has been appropriate. We conclude only

that, once the district court determined that it lacked jurisdiction, dismissal should have

been without prejudice.

       We therefore VACATE the challenged judgment and REMAND with instructions

to the district court to enter a judgment of dismissal without prejudice.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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