                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 09-14782                  MARCH 25, 2010
                          Non-Argument Calendar               JOHN LEY
                        ________________________               CLERK

                D. C. Docket No. 09-01769-CV-T-26-AEP

DAVID ERIC HAMMER,

                                                          Plaintiff-Appellant,

                                  versus

ERNEST B. HAIRE, III,

                                                         Defendant-Appellee.

                        ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (March 25, 2010)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       David Eric Hammer, an attorney proceeding pro se, appeals the district court’s

sua sponte dismissal of his § 1983 complaint against Ernest B. Haire, III, alleging due

process violations. The federal district court sua sponte dismissed Hammer’s

complaint under Fed.R.Civ.P. 12(h)(3) for lack of subject matter jurisdiction under

the Rooker-Feldman1 doctrine. The court further found that Hammer “was afforded

ample opportunity to be heard,” which was all that due process required. Hammer

filed a motion for reconsideration, which the district court denied. On appeal,

Hammer argues that: (1) the four prongs of the Rooker-Feldman doctrine were not

met; (2) the district court abdicated the adversary process by sua sponte dismissing

his complaint without holding a hearing; and (3) Haire has not yet been made a party

to the case because he has not been served with initial process. After careful review,

we affirm.

       A district court’s determination that it lacks subject matter jurisdiction over a

plaintiff’s claims is reviewed de novo. Green v. Jefferson County Comm’n, 563 F.3d

1243, 1248 (11th Cir. 2009), cert. denied, 130 S.Ct. 199 (2009). Under Fed.R.Civ.P.

12(h)(3), 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). “We may affirm the district



       1
         See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983).

                                              2
court’s judgment on any ground that appears in the record, whether or not that ground

was relied upon or even considered by the court below.” Green, 563 F.3d at 1245 n.3

(quotation omitted). “[T]he law is by now well settled in this Circuit that a legal

claim or argument that has not been briefed before the court is deemed abandoned

and its merits will not be addressed.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1330 (11th Cir. 2004).

       “Generally speaking, the Rooker-Feldman doctrine recognizes that federal

district courts do not have jurisdiction to act as appellate courts and precludes them

from reviewing final state court decisions.” Green, 563 F.3d at 1249. We have set

forth four criteria that must be met in order for the Rooker-Feldman doctrine to bar

federal court jurisdiction: (1) the party in federal court is the same as the party in state

court; (2) the prior state court ruling was a final judgment on the merits; (3) the party

seeking relief in federal court had a reasonable opportunity to raise his 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. Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th Cir. 2003).

The Supreme Court has confined the Rooker-Feldman doctrine to cases that are

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

judgments rendered before the district court proceedings commenced and inviting

                                             3
district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. 280, 284 (2005). Thus, “Rooker-Feldman is not simply

preclusion by another name[, and it] does not bar actions by nonparties to the earlier

state-court judgment simply because, for purposes of preclusion law, they could be

considered in privity with a party to the judgment.” Lance v. Dennis, 546 U.S. 459,

466 (2006).

      A claim of violation of one’s federal due process rights is actionable under 42

U.S.C. § 1983. See Burch v. Apalachee Community Mental Health Servs., Inc., 840

F.2d 797, 800 (11th Cir. 1988). “A successful section 1983 action requires that the

plaintiff show [that he] was deprived of a federal right by a person acting under color

of state law.” Almand v. DeKalb County, Georgia, 103 F.3d 1510, 1513 (11th Cir.

1997). “[T]he under-color-of-state-law element of § 1983 excludes from its reach

‘merely private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotation omitted).

      As an initial matter, we recognize that because the parties in the state court suit

were not the same as the parties in the federal suit, the district court erred in

concluding that the Rooker-Feldman doctrine applied to divest it of jurisdiction. See

Storck, 354 F.3d at 1310 n1. Nevertheless, the district court did not err in dismissing

Hammer’s complaint and denying his request for reconsideration.

                                           4
       As the record shows, Hammer was afforded ample opportunity to be heard in

the state proceeding. The state court considered and denied numerous motions filed

by Hammer in relation to his conduct of the case. The record, including the facts set

forth in Hammer’s complaint, also shows that he was afforded the opportunity to be

heard in the contempt proceeding before the District of Columbia court and therefore,

he was not denied due process in that proceeding. Thus, based on Hammer’s own

pleadings and attached exhibits, the record supports the district court’s conclusion

that Hammer’s due process claims failed on the merits.2

       In addition, the district court could have dismissed Hammer’s complaint solely

on the ground that he improperly alleged due process violations by Haire, who was

a private individual and not alleged to be acting under color of state law. See

Sullivan, 526 U.S. at 50; Almand, 103 F.3d at 1513. Therefore, we also affirm on the

basis that Hammer improperly alleged due process violations against a private party,

even though the district court did not rely on this ground. See Green, 563 F.3d at

1245 n.3.


       2
           Moreover, despite noting in the fact section of his brief that he was not given an
opportunity to be heard by the state court, Hammer failed to challenge in his argument section of
the brief the district court’s conclusion that his due process claims failed on the merits. Hammer
has thus abandoned any argument that the district court erred in concluding that his due process
claims lacked merit. See Access Now, Inc., 385 F.3d at 1330. Further, Hammer does not
challenge the district court’s conclusion that it lacked jurisdiction to review the contempt order
issued by the District of Columbia court and therefore, that issue is abandoned as well. See id.

                                                5
      Finally, because the district court was required to dismiss the action if it

determined “at any time” that it lacked subject-matter jurisdiction, the court did not

abdicate the adversary process by dismissing Hammer’s complaint without a hearing

and before Haire was served with initial process. See Fed.R.Civ.P. 12(h)(3).

Accordingly, Hammer’s corollary argument that dismissal was inappropriate because

Haire had not yet been made a party to the case also lacks merit because the district

court’s determination that it lacked jurisdiction over the action could be made prior

to the service of process on all parties. See id.

      AFFIRMED.




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