                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 13-4573
                                    _____________

                              IBRAHIM ELDAKROURY,
                                             Appellant
                                        v.

                      ATTORNEY GENERAL OF NEW JERSEY;
                          THE STATE OF NEW JERSEY
                                _____________

                   On Appeal from the United States District Court
                              for the District of New Jersey
                            District Court No. 2-13-cv-00321
                   District Judge: The Honorable Stanley R. Chesler

                              Argued November 18, 2014

              Before: SMITH, HARDIMAN, and BARRY, Circuit Judges

                               (Filed: February 19, 2015)
                               _____________________

                                      OPINION
                               _____________________

Frank P. Cozzarelli
Marlo J. Hittman           [ARGUED]
Cozzarelli Law Firm
727 Joralemon Street
Belleville, NJ 07109
       Counsel for Appellant



 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Amy Chung                  [ARGUED]
Office of Attorney General of New Jersey
Division of Construction,
Transportation & Condemnation
25 Market Street
P.O. Box 114
Trenton, NJ 08625

Philip J. Espinosa
Office of Attorney General of New Jersey
Department of Law & Public Safety
P.O. Box 114
25 Market Street
Richard J. Hughes Complex
Trenton, NJ 08625

       Counsel for Appellees

SMITH, Circuit Judge.

       Ibrahim Eldakroury appeals the dismissal of his complaint with prejudice on the

basis of abstention pursuant to Younger v. Harris, 401 U.S. 37 (1971). At oral argument,

Eldakroury focused on whether the District Court’s dismissal with prejudice had claim-

preclusive effect. In doing so, Eldakroury conceded that the arguments made in his

opening and reply briefs were immaterial if res judicata did not apply. We invited the

parties to submit supplemental briefing as to the consequences of the with-prejudice

dismissal in this case, including whether that outcome would have any claim-preclusive

effect as to a later-filed suit in federal court raising the same federal claims. That briefing

was submitted on December 1, 2014. For the reasons that follow, we will vacate the

District Court’s dismissal of the case with prejudice and direct that the dismissal be

entered without prejudice.

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                                             I.

       Eldakroury is a door manager at Hott 22, a strip club. In September 2012,

Eldakroury was indicted for violating N.J. Stat. Ann. § 2C:34-7. Section 2C:34-7(a)

criminalizes the operation of a

       sexually oriented business within 1,000 feet of any existing sexually
       oriented business, or any church, synagogue, temple or other place of
       public worship, or any elementary or secondary school or any school bus
       stop, or any municipal or county playground or place of public resort and
       recreation, or any hospital or any child care center, or within 1,000 feet of
       any area zoned for residential use.

After his indictment, Eldakroury commenced the instant case in federal court under 42

U.S.C. § 1983. Seeking damages, an injunction barring his state prosecution, and

declaratory relief, Eldakroury’s federal complaint urges that his prosecution violates

several federal constitutional provisions, including the First and Fourteenth Amendments.

Just over one month later, Eldakroury also moved to dismiss the indictment in state court

on constitutional grounds as well as on grounds that the instructions to the grand jury as

to § 2C:34-7 were defective. The State then moved to dismiss Eldakroury’s federal

complaint on the basis of Younger abstention and for failure to state a claim.

       While the State’s motion to dismiss the federal complaint was pending, the

Superior Court of New Jersey dismissed Eldakroury’s state indictment without prejudice

on the ground that the grand jury’s instructions were defective. But that court declined to

reach Eldakroury’s constitutional arguments, declaring them “moot at this time.” The

State appealed that dismissal. After the dismissal of Eldakroury’s state indictment, the

District Court dismissed his federal complaint with prejudice on the basis of Younger
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abstention and because sovereign immunity barred Eldakroury’s damages claims.

Eldakroury appeals only the dismissal with prejudice of his claims for equitable relief,

and not the dismissal of his damages claims. While this appeal was pending, the New

Jersey Appellate Division affirmed the dismissal without prejudice of the state indictment

without reaching Eldakroury’s constitutional claims.

                                             II.

       The District Court had federal question jurisdiction under 28 U.S.C. § 1331. We

have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Given Eldakroury’s

concession at oral argument that a decision in his favor as to the claim-preclusive effect

of the District Court’s dismissal would dispose of this appeal, we focus on that issue

alone. We previously considered whether a dismissal with prejudice was the appropriate

consequence of Younger abstention in Lui v. Commission on Adult Entertainment

Establishments, 369 F.3d 319, 327 (3d Cir. 2004). We explained that “the effect of [a

Younger abstention] order is to surrender jurisdiction of the federal action to a state

court” and that “[b]y doing so, the Younger abstention order becomes immediately

appealable.” Id. at 325. We then stated that Younger abstention “requires a dismissal

with prejudice of the federal suit.” Id. at 327 (emphasis added).

       But Lui is distinguishable. In that case, state courts had already considered “the

exact same constitutional claims” made by the plaintiff in federal court. Id. at 328.

Accordingly, “the doctrines of res judicata on the one hand, or [the Rooker-Feldman

doctrine] on the other, would militate against our deciding the merits of the federal claim

                                              4
in any event.” Id. (footnotes omitted). Because the plaintiff had already received a

merits-based judgment on his federal claims, there was no possibility that he would need

to return to federal court to ensure that his federal claims were addressed in the event that

the state courts did not reach those claims. Accordingly, a with-prejudice dismissal was

proper.

       By contrast, no resolution of Eldakroury’s federal claims has been reached in any

court. Nor can dismissal of Eldakroury’s federal complaint on the basis of Younger

abstention be construed as a resolution on the merits of those claims. Indeed, where

Younger abstention is appropriate, federal courts “have no occasion to address the merits”

of the plaintiff’s federal claims. Id. And without a merits-based decision, the dismissal

of his federal case does not implicate claim preclusion or otherwise prevent Eldakroury

from returning to federal court if his ongoing state prosecution concludes without a

resolution of his federal claims. See United States v. 5 Unlabeled Boxes, 572 F.3d 169,

173 (3d Cir. 2009) (res judicata requires, inter alia, “a final judgment on the merits in a

prior suit” (citation omitted)). Such a non-merits dismissal is by definition without

prejudice. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001)

(“The primary meaning of ‘dismissal without prejudice’ . . . is dismissal without barring

the plaintiff from returning later, to the same court, with the same underlying claim.”); cf.

N.J. Physicians, Inc. v. President of U.S., 653 F.3d 234, 241 n.8 (3d Cir. 2011)

(dismissals for lack of jurisdiction are “by definition without prejudice”).



                                              5
       For these reasons, we will vacate the District Court’s dismissal of this case with

prejudice and direct that dismissal be entered without prejudice. If Eldakroury’s state

prosecution, including any direct appeals, is resolved without reaching his federal claims

and a justiciable controversy remains, he may commence a second lawsuit in federal

court raising the same federal claims.




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