18‐3833 (L)
Pelczar v. Kelly


                        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 ASUMMARY ORDER@).
A PARTY CITING TO 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 11th day of February, two thousand twenty.

         PRESENT: DENNIS JACOBS,
                    RICHARD J. SULLIVAN,
                          Circuit Judges,
                    JESSE M. FURMAN,
                          District Judge.*
         _____________________________________

         James F. Pelczar,

                             Plaintiff‐Appellant,

                   v.                                             18‐3833 (L),
                                                                  19‐1691 (Con)


* Judge Jesse M. Furman, of the United States District Court for the Southern District of New
York, sitting by designation.
      Judge Peter J. Kelly, in his official
      capacity as Surrogate of the Queens
      County Surrogate’s Court,

                         Defendant‐Appellee.

      _____________________________________



      FOR APPELLANT:                           James F. Pelczar, pro se, New Port
                                               Richey, FL.

      FOR APPELLEE:                            Letitia James, Attorney General of the
                                               State of New York, Barbara D.
                                               Underwood,       Solicitor  General,
                                               Anisha S. Dasgupta, Deputy Solicitor
                                               General,    David     Lawrence     III,
                                               Assistant Solicitor General, of
                                               counsel, New York, NY.

      Appeals from a judgment of dismissal and post‐judgment order of the

United States District Court for the Eastern District of New York (Donnelly, J.).

      UPON      DUE     CONSIDERATION,            IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment is VACATED and

REMANDED with instructions, and the order is AFFIRMED.

      James F. Pelczar, proceeding pro se, appeals the district court’s judgment

sua sponte dismissing his complaint against Queens County Surrogate’s Court

Judge Peter J. Kelly primarily under the Rooker‐Feldman doctrine, see Rooker v.

                                         2
Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462

(1983), and an order denying Pelczar’s motion for relief from the judgment under

Federal Rule of Civil Procedure 60(b). We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

                            I. Dismissal of the Complaint

      We review a sua sponte dismissal, including a dismissal under the Rooker‐

Feldman doctrine, de novo. Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009)

(Rooker‐Feldman); J.S. v. T’Kach, 714 F.3d 99, 103 (2d Cir. 2013) (sua sponte

dismissal).    As we have recently explained, the Rooker‐Feldman doctrine

establishes “the clear principle that federal district courts lack jurisdiction over

suits that are, in substance, appeals from state‐court judgments.” Sung Cho v. City

of New York, 910 F.3d 639, 644 (2d Cir. 2018) (quoting Hoblock v. Albany Cty. Bd. of

Elections, 422 F.3d 77, 84 (2d Cir. 2005)). Rooker‐Feldman thus applies where the

federal‐court plaintiff: (1) lost in state court, (2) alleges, in district court, injuries

caused by the state‐court judgment, (3) invites the district court to review and

reject the state‐court judgment, and (4) commenced the district court proceedings

after the state‐court judgment was rendered.            Vossbrinck v. Accredited Home

Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014) (citing Hoblock, 422 F.3d at 85).

                                            3
      Pelczar challenges the district court’s conclusion that the third requirement

was satisfied, arguing that his complaint did not invite the district court to review

and reject the Surrogate Court’s ruling.        We disagree.     Pelczar sought an

injunction directing the defendant, a Queens County Surrogate’s Court Judge, to

undo a ruling admitting a will to probate and finding that certain property was

part of his father’s estate. He thus asked the district court “to determine whether

the state judgment was wrongfully issued.” Id. at 427.

      Nevertheless, because the Rooker‐Feldman doctrine is a matter of subject‐

matter jurisdiction, Sung Cho, 910 F.3d at 644, the district court “lack[ed] the power

to dismiss [the complaint] with prejudice,” Hernandez v. Conriv Realty Assocs., 182

F.3d 121, 123 (2d Cir. 1999). Accordingly, we vacate the judgment and remand to

the district court with instructions to dismiss the complaint without prejudice.

                          II. Denial of Rule 60(b) Motion

      We review the denial of a Rule 60(b) motion for abuse of discretion. Gomez

v. City of New York, 805 F.3d 419, 423 (2d Cir. 2015). We find no abuse of discretion

here. In support of his motion, Pelczar argued that a statement by a lawyer who

was connected to the probate proceeding (and who was a defendant in a separate

action brought by Pelczar) was evidence that the property in question was not part

                                          4
of his father’s estate. The attorney in the other action stated in a letter to the court

that “the specific issue of whether [the property was] an asset of the probate estate

was never before the Surrogate’s Court of Queens County[, but] the Surrogate’s

Court did indirectly decide that it was.” Dist. Ct. Doc. No. 7 at 7. However, that

statement has no bearing on whether Pelczar invited the district court in this case

to review the Surrogate’s Court’s judgment, thereby implicating Rooker‐Feldman.†

                         *                      *                      *

       We have considered all of Pelczar’s arguments and find them to be without

merit. Accordingly, we VACATE the judgment and REMAND with instructions

to dismiss the complaint without prejudice, and AFFIRM the order.



                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




† We similarly conclude that the probate documents attached to Pelczar’s pending motion for
judicial notice have no bearing on whether the district court correctly applied the Rooker‐Feldman
doctrine. Accordingly, we deny that motion as moot. See, e.g., United States v. Bleznak, 153 F.3d
16, 21 n.2 (2d Cir. 1998); United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994).
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