             Case: 12-15222      Date Filed: 11/12/2013   Page: 1 of 11


                                                               [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                   No. 12-15222
                               Non-Argument Calendar
                             ________________________

                      D.C. Docket No. 1:12-cv-22505-FAM

JUAN VELAZQUEZ,

                                 Plaintiff-Counter Claimant-Appellant,

CARIDAD MARQUEZ,

                                 Plaintiff-Counter Claimant,

versus

SOUTH FLORIDA FEDERAL CREDIT UNION,

                                 Defendant-Counter Defendant-Appellee,

JASON NOEL,
Purchaser of the Property,

                                 Defendant.

                             ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (November 12, 2013)
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Before WILSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

       Juan Velazquez, proceeding pro se, appeals the district court’s dismissal of

his civil case. This case began when South Florida Federal Credit Union (SFFCU)

sued Velazquez in the Eleventh Judicial Circuit of Miami-Dade, Florida. The state

trial court granted SFFCU’s motion for summary judgment, and Florida’s Third

District Court of Appeal affirmed. Velazquez then filed a notice of removal to

federal court. The federal district court dismissed the case for failure to comply

with Southern District of Florida Local Rule 7.1(c) and for lack of subject-matter

jurisdiction under the Rooker-Feldman doctrine.1 Velazquez now appeals, arguing

that we should reverse the federal district court’s dismissal and vacate the state

court’s grant of summary judgment. We affirm the district court and deny

SFFCU’s requests to sanction Velazquez and order him to pay costs.2

       A court must dismiss an action if it “determines at any time that it lacks

subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3). When it applies, the

Rooker-Feldman doctrine deprives federal courts of subject-matter jurisdiction


       1
         The Rooker-Feldman doctrine derives from Rooker v. Fid. Trust Co., 263 U.S. 413,
415–16, 44 S. Ct. 149, 150 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476–
82, 103 S. Ct. 1303, 1311–15 (1983).
       2
         SFFCU argues, inter alia, that we should order Velazquez to pay its costs and expenses
associated with the removal, pursuant to 28 U.S.C. § 1447(c), and that we should determine that
the appeal is frivolous so that SFFCU may pursue damages and costs under Federal Rule of
Appellate Procedure 38. Because Velazquez is proceeding pro se, and because an award of costs
and expenses is otherwise inappropriate in this case, we deny SFFCU’s requests.
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over cases the courts would usually have the power to adjudicate. Vasquez v. YII

Shipping Co., 692 F.3d 1192, 1195 (11th Cir. 2012).

      The district court’s dismissal for failure to comply with Local Rule 7.1(c) is

a dismissal on the merits. See Fed. R. Civ. P. 41(b) (“Unless the dismissal order

states otherwise, a dismissal under this subdivision . . . operates as an adjudication

on the merits.”). Because “[j]urisdiction is a prerequisite to the legitimate exercise

of judicial power,” we determine whether the district court had jurisdiction over a

case following removal “as a threshold matter.” Castleberry v. Goldome Credit

Corp., 408 F.3d 773, 779 (11th Cir. 2005). Accordingly, we must first address

whether the district court properly dismissed this case for lack of subject-matter

jurisdiction under the Rooker-Feldman doctrine, proceeding to analyze the district

court’s dismissal for failure to comply with Local Rule 7.1(c) only if Rooker-

Feldman does not apply.

      We review de novo a district court’s conclusion that it lacks subject matter

jurisdiction based on the Rooker-Feldman doctrine. Casale v. Tillman, 558 F.3d

1258, 1260 (11th Cir. 2009) (per curiam). The Rooker-Feldman doctrine “bars

federal district courts from reviewing state court decisions” in certain, limited

circumstances. Nicholson v. Shafe, 558 F.3d 1266, 1270 (11th Cir. 2009); see also

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291, 125 S. Ct.

1517, 1526 (2005).


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       Prior to the Supreme Court’s decision in Exxon Mobil, this circuit had

traditionally applied a four-factor test to guide application of the Rooker-Feldman

doctrine. See Amos v. Glynn Cnty. Bd. of Tax Assessors, 347 F.3d 1249, 1265 n.11

(11th Cir. 2003). 3 However, due to the Supreme Court’s cautionary statement in

Exxon Mobil that the Rooker-Feldman doctrine “has sometimes been construed to

extend far beyond the contours of the Rooker and Feldman cases,” 544 U.S. at 283,

125 S. Ct. at 1521, we have since declined to adhere to the Amos test. See

Nicholson, 558 F.3d at 1274 (electing to apply Exxon Mobil’s strict language

confining the doctrine to “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” as opposed to the Amos test (internal quotation marks omitted)).

       Instead, we determine whether Rooker-Feldman applies in two stages. First,

we must determine whether state court proceedings have ended, which we do by

applying the three tests articulated by the First Circuit and adopted by this court in

Nicholson. See id. at 1275 (citing Federación de Maestros de P.R. v. Junta de

       3
           Amos applied the following four-factor test to determine whether the district court
lacked subject-matter jurisdiction under the Rooker-Feldman doctrine:
                 (1) the party in federal court is the same as the party in state court; (2) the
         prior state court ruling was a final or conclusive judgment on the merits; (3) the
         party seeking relief in federal court had a reasonable opportunity to raise its
         federal claims in the state court proceeding; and (4) the issue before the federal
         court was either adjudicated by the state court or was inextricably intertwined
         with the state court’s judgment.
Id. (citations omitted).
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Relaciones del Trabajo de P.R., 410 F.3d 17, 24–27 (1st Cir. 2005)). Second, we

consider whether the Appellant is a “state-court loser[] complaining of injuries

caused by state-court judgments . . . and inviting district court review and rejection

of those judgments.” Exxon Mobil, 544 U.S. at 284, 125 S. Ct. at 1521–22. In

making this determination, this court has continued to apply the fourth factor of the

Amos test, evaluating whether the plaintiff’s claims are “inextricably intertwined”

with the state court judgment. See Casale, 558 F.3d at 1260.

      We begin by addressing whether Velazquez’s state court proceedings had

ended for Rooker-Feldman purposes under any of the three tests articulated in

Nicholson. Cases in state court have ended:

      (1) when the highest state court in which review is available has affirmed the
      judgment below and nothing is left to be resolved, (2) if the state action has
      reached a point where neither party seeks further action, and (3) if the state court
      proceedings have finally resolved all the federal questions in the litigation, but
      state law or purely factual questions (whether great or small) remain to be
      litigated.

Nicholson, 558 F.3d at 1275 (internal quotation marks omitted).

      In this case, the first test has not been satisfied. Under Florida Rule of

Appellate Procedure 9.030(a)(2)(A), the Florida Supreme Court has discretionary

jurisdiction over the case. The highest state court to affirm the trial court in this

case was the Third District Court of Appeal, meaning that the highest state court

available did not affirm the judgment below. Likewise, the third test has not been

satisfied here because Velazquez continues to litigate both federal and state issues.


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       The state court proceedings have nevertheless ended for Rooker-Feldman

purposes because the second test under Nicholson has been satisfied. In

Federación, the First Circuit provided an example to illustrate when the second test

would be satisfied: “For example, if a lower state court issues a judgment and the

losing party allows the time for appeal to expire, then the state proceedings have

ended.” 410 F.3d at 24. In Nicholson, we held: “Conversely, logic dictates that if

a state court issues a judgment and the losing party (here, the Appellants) does not

allow the time for appeal to expire (but instead, files an appeal), then the state

proceedings have not ended.” Nicholson, 558 F.3d at 1275 (emphasis added).

       Neither example is directly applicable to this case. Though Velazquez did

not allow the time for appeal to expire, he also did not actually file an appeal in

state court.4 Thus, there was potential for an appeal to be filed in state court while

the case was pending in the district court, though that potential vanished without

materializing into actual parallel state-federal litigation by the time the district

court dismissed the case.5 Despite this potential, Exxon Mobil and the wording of



       4
           Under Florida Rule of Appellate Procedure 9.120(b), the time limit to file for
discretionary review by the Florida Supreme Court is 30 days. That time began running on June
8, 2012 when Velazquez’s motion for rehearing in state court was denied. This was the final
action taken in state court. On July 6, 2012, Velazquez filed a notice of removal to the federal
district court for the Southern District of Florida, before the 30-day limit to continue his state
court litigation had run.
         5
           The district court dismissed the claim on September 26, 2012, well after the 30-day
deadline to appeal to the Florida Supreme Court from the Third District Court of Appeal’s order
on June 8, 2012.
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the second test suggest that state court proceedings had ended for Rooker-Feldman

purposes in this case.

      In Exxon Mobil, the Court reminded lower courts that Rooker-Feldman only

applies to cases brought by those “complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced . . . .” 544

U.S. at 284, 125 S. Ct. at 1521–22. In this case, all state court judgments were

rendered before the district court proceedings commenced. The Supreme Court

cautioned that Rooker-Feldman does not apply when “there is parallel state and

federal litigation,” and that “the pendency of an action in state court” precludes

application of Rooker-Feldman. See Exxon Mobil, 544 U.S. at 292, 125 S. Ct. at

1526–27 (internal quotation marks omitted). Because there was nothing pending

in state court at the time district court proceedings began, nor was anything filed in

state court after that time, there was never parallel litigation in this case.

      Moreover, Federación’s second test requires that litigation “reach[] a point

where neither party seeks further action” before declaring state litigation ended for

Rooker-Feldman purposes. 410 F.3d at 24. The court noted, however, that

litigation is not ended “even if the federal plaintiff expects to lose in state court and

hopes to win in federal court . . . .” 410 F.3d at 24. Here, we are not dealing with a

federal plaintiff who expected to lose in state court; instead, we are dealing with a

federal plaintiff who had lost and given up in state court, albeit before he was time-


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barred from changing his mind. See Ware v. Polk Cnty. Bd. of Cnty. Comm’rs, 394

F. App’x 606, 609 (11th Cir. 2010) (per curiam) (“Ware had no intention of

appealing the judgment to a state appellate court, preferring instead ‘to go straight

to federal’ court. Because no appeal remained pending at the time Ware

commenced this federal action, the state proceedings were ended for purposes of

the Rooker-Feldman doctrine.”). Concluding that state court proceedings ended

despite the potential for parallel litigation does not run afoul of the Supreme

Court’s guidance in Exxon Mobil, and therefore, we proceed to the second stage in

our Rooker-Feldman analysis.

      We next consider whether Appellant is a “state-court loser[] complaining of

injuries caused by state-court judgments . . . and inviting district court review and

rejection of those judgments.” Exxon Mobil, 544 U.S. at 284, 125 S. Ct. at 1521–

22. Rooker-Feldman may bar federal jurisdiction even where federal claims were

not fully addressed by the state court so long as “those [federal claims were]

inextricably intertwined with the state court’s judgment. [Rooker-Feldman] does

not apply, however, where a party did not have a reasonable opportunity to raise

his federal claim in state proceedings.” Casale, 558 F.3d at 1260 (citations and

internal quotation marks omitted). “A claim is inextricably intertwined if it would

effectively nullify the state court judgment, or [if] it [would] succeed[] only to the




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extent that the state court wrongly decided the issues.” Id. (citations and internal

quotation marks omitted).

      Velazquez had an opportunity to raise his federal claims below, and the

federal claims he asserts are inextricably intertwined with state court judgments.

Velazquez alleges that he was denied the opportunity for a fair trial in violation of

the Seventh Amendment and other federal civil rights; in reality, he objects to the

trial court’s order granting summary judgment for SFFCU. He alleges that he was

denied Fifth Amendment rights arising from seizure of certain property; in reality,

he objects to the trial court’s rejection of various statutory claims for unfair debt

collection practices. He alleges fraud upon the court; in reality, he objects because

the state appellate court was not persuaded by his evidence of fraud and because it

did not sanction opposing counsel. In short, Velazquez is seeking reversal of the

state courts’ decisions. Velazquez makes this perfectly clear in his brief: “This is

an action to vacate Summary Judgment Procured by fraud, fabricated evidence,

and illegal debt collection without assignment, unlawful noncommercial

repossession and sale. Appellant request [sic] dismiss the case.” The district court

did not have jurisdiction to grant this request because the state court addressed

these concerns.

      Next, Appellant argues for an exception to the Rooker-Feldman doctrine

because he is “not really complaining of an injury caused by a state-court


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judgment, but of an injury caused by winner’s chicanery.” In essence, Velazquez

asks this court to recognize a fraud-on-the-court exception to Rooker-Feldman.

See In re Sun Valley Foods Co., 801 F.2d 186, 189 (6th Cir. 1986) (“There is,

however, an exception to the general rule that precludes a lower federal court from

reviewing a state’s judicial proceedings. A federal court may entertain a collateral

attack on a state court judgment which is alleged to have been procured through

fraud, deception, accident, or mistake . . . .” (internal quotation marks omitted)).

As a preliminary note, this case comes from the Sixth Circuit, and “[u]nder the

established federal legal system the decisions of one circuit are not binding on

other circuits.” Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)

(en banc). More importantly, even if we were to adopt the exception Velazquez

seeks, it would not apply here. Velazquez presented evidence of fraud to Florida’s

Third District Court of Appeal, and that court was unconvinced by the evidence.

Fraud on the court does not occur simply because a court is unpersuaded by a

party’s allegation of fraud, and that is all Velazquez suggests happened here.

      Because state court proceedings ended prior to Velazquez’s appeal to the

district court and because the claims raised were inextricably intertwined with

claims raised in state court, the district court properly concluded that Rooker-

Feldman deprived it of jurisdiction. The exception to Rooker-Feldman that

Velazquez seeks has not been recognized by this circuit and would be inapplicable


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to this situation even if it were recognized. Therefore, the district court correctly

dismissed the case for lack of subject-matter jurisdiction under the Rooker-

Feldman doctrine. Consequently, we need not address the district court’s dismissal

on the merits for failure to comply with local court rules.

      AFFIRMED.




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