16‐483

Fraccola v. Grow

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.   

1 At a stated term of the United States Court of Appeals for the Second Circuit, held

2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New

York, on the 18 3 th day of November, two thousand sixteen.

4 

5 PRESENT: AMALYA L. KEARSE,

6 RAYMOND J. LOHIER, JR.,

7 CHRISTOPHER F. DRONEY,

8 Circuit Judges.   

9 _____________________________________

10 

11 Albert G. Fraccola, Jr., Individually and as

12 50% Shareholder, Officer and Director of

13 1st Choice Realty, Inc.,

14 

15              Plaintiff‐Appellant,

16 

17 v. No. 16‐483

18 

19 John W. Grow, in his Individual and

20 Official Capacity, as then New York State

21 Supreme Court Justice,

22 

23            Defendant‐Appellee.*

24 _____________________________________

25 

 

* The Clerk of Court is directed to amend the case caption as set forth above.
2 

1 FOR APPELLANT:    ALBERT G. FRACCOLA, JR., pro se, New Hartford, NY.   

2 

3 FOR APPELLEE: JONATHAN D. HITSOUS, Assistant Solicitor General   

4 (Barbara D. Underwood, Solicitor General, on the brief),

5 for Eric T. Schneiderman, Attorney General of the State

6 of New York, Albany, NY.   

7 

8 Appeal from a judgment of the United States District Court for the Northern

9 District of New York (Mae A. D’Agostino, Judge).

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

11 AND DECREED that the judgment is VACATED and the case REMANDED with

12 instructions to enter an order of dismissal without prejudice.   

13 Albert G. Fraccola, Jr., pro se, appeals from the District Court’s dismissal with

14 prejudice of his federal and state law claims against former New York Supreme Court

15 Justice John W. Grow.    Fraccola alleged that Justice Grow violated his rights by

16 so‐ordering a stipulated settlement that resolved a business dispute between Fraccola

17 and Fraccola’s ex‐wife.    Fraccola sought damages, injunctive relief, and declaratory

18 relief arising out of Justice Grow’s so‐ordering of the settlement.    We assume the

19 parties’ familiarity with the facts, prior proceedings, and issues on appeal, to which we

20 refer only as necessary to explain our decision to vacate and remand.

21 Upon review, we conclude that the District Court properly dismissed Fraccola’s

claims under the Rooker‐Feldman doctrine.1 22     Under that doctrine, four requirements

23 must be met in order for a claim to be barred: (1) the plaintiff must have lost in state

24 court; (2) the plaintiff must complain of injuries caused by a state court judgment; (3) the

25 plaintiff must invite district court review and rejection of the state court judgment; and

26 (4) the state court judgment must have been rendered before the district court

27 proceedings commenced.    Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 85 (2d

 

1 We interpret the District Court’s memorandum decision and order dismissing Fraccola’s claims as

resting on the Rooker‐Feldman doctrine and in the alternative on judicial immunity grounds.    Because

the Rooker‐Feldman doctrine implicates the subject matter jurisdiction of the District Court, see Mitchell v.

Fishbein, 377 F.3d 157, 165 (2d Cir. 2004), the doctrine’s application in this case should have been analyzed

first and is dispositive.
3 

1 Cir. 2005).    This case meets each of the four requirements: Fraccola lost in state court; he

2 alleges injuries directly caused by the so‐ordered stipulation; he seeks to overturn the

3 stipulation and the subsequent state court orders upholding it; and he filed this federal

4 complaint in July 2015, after the denial of his final state court motion to vacate was

5 affirmed in January 2015.    The District Court therefore properly applied the

6 Rooker‐Feldman doctrine to dismiss Fraccola’s claims.

7 The Rooker‐Feldman doctrine precludes district court review as a matter of

8 subject matter jurisdiction.    Mitchell v. Fishbein, 377 F.3d 157, 165 (2d Cir. 2004).    When

9 a court lacks subject matter jurisdiction, it lacks the power to dismiss with prejudice, as

10 the District Court did here.    Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d

11 Cir. 1999).    For that reason, we vacate the District Court’s dismissal with prejudice and

12 remand to permit the court to dismiss without prejudice.

13 We have considered all of Fraccola’s arguments and conclude they are without

14 merit.    Accordingly, we VACATE the judgment of the District Court and REMAND

15 with instructions to enter an order of dismissal without prejudice.

16 FOR THE COURT:   

17 Catherine O’Hagan Wolfe, Clerk