[DO NOT PUBLISH]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

- C ounter Defend ant
- Appellee, JASON NOEL, Purchaser of the Property, Defendant.

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

________________________ (November 12, 2013) Case: 12-15222 Date Filed: 11/12/2013 Page: 1 of 112 B efore W ILSON , M ARTIN and F AY , 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 S FFCU’s motion for summary judgment, and Florida’s Third District Court of Appeal affirmed. Velazquez then filed a notice of removal to federal court . T he federal distri ct 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
. W e affirm the district court and deny SFFCU’s request s to sanction Velazquez and order him to pay costs
. 2 A court must dismiss an action if it “dete rmines at any time that it lacks subject

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

Case: 12-15222 Date Filed: 11/12/2013 Page: 2 of 113 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 L ocal R ule 7.1(c) is a dismissal on the merits. See Fed . R. C iv. 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 whethe r 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 ca se 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)
. T he Rooker

- Feldman doctrine “bars federal district courts from review ing 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).

Case: 12-15222 Date Filed: 11/12/2013 Page: 3 of 114 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 C n ty. Bd. of Tax Assessors , 347 F.3d 1249, 126 5 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 t o 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 judg ments” 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 artic ulated by the First Circuit and adopted by this court in Nicholson
. See i d. at 1275 (citing Federaci ó n de Maestros de P. R
. v. Junta de

3 Amos applied the following four

- factor test to determine whether the district court lac ked 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).

Case: 12-15222 Date Filed: 11/12/2013 Page: 4 of 115 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 127 5 (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 ha s not been satisfied here because Velazquez continues to litigate both federal and state issues.

Case: 12-15222 Date Filed: 11/12/2013 Page: 5 of 116 The state court proceedings have nevertheless ended for Rooker

- Feldman purposes because the second test under Nicholson has been satisfied
. In Federaci ó n , the First Circuit provided an example to illustrate when the second test would be satisfied: “F or 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: “ C onversely, 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 Des pite 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 o n June 8, 2012 when Velazquez’s motion for rehearing in state court was denied . T his 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.

Case: 12-15222 Date Filed: 11/12/2013 Page: 6 of 117 the second test suggest that state court proceedings ha d ended for Rooker

- Feldman purposes in this case
. In Exxon Mobil , the Court reminded lower courts that Rooker

- Feldman only applies to cases brough t by those “complaining of injuries cause d by state
- court judgment s 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 tha t time, there was never parallel litigation in this case. M oreover, Federaci ó n ’s second test requires that litigation “ reach [] a point where neither party seek s further action ” before declaring state litigation ended for Rooker

- Feldman purpose s . 410 F.3d at 24. The court noted, however, that l itigation 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

Case: 12-15222 Date Filed: 11/12/2013 Page: 7 of 118 barred from changing his mind. See Ware v. Polk Cnty. Bd. of Cnty. Comm’rs , 394 F. App’x 606, 609 (11th Cir. 2010) (p er curiam) (“ Ware had no intention of appealing the judgment to a state appel late 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 en ded 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. W e 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 15 21

– 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

Case: 12-15222 Date Filed: 11/12/2013 Page: 8 of 119 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 A mendment and other federal civil rights; in reality, he objects to the trial court ’s order granting summary judgment for SFFCU . He alleges that he wa s denied Fifth Amendment rights arising from seizure of certain property; in reality, he objects to the tr ial 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 op posing counsel. In short, Velazquez is seeking reversal of the state courts’ decisions. Velazquez makes this perfectly clear in his brief: “This is
an ac tion to vacate Summary Judgment Procured by fraud, fabricated evidence, and illegal debt collection w ithout 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

Case: 12-15222 Date Filed: 11/12/2013 Page: 9 of 1110 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)
. M ore importantly, e ven 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 occ ur simply because a court is un persuaded 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 deprive d it of jurisdiction . The exception to Rooker

- Feldman that Velazquez seeks has n ot been recognized by this circuit and would be inapplicable

Case: 12-15222 Date Filed: 11/12/2013 Page: 10 of 1111 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, w e need not address the district court’s dismissal on the merits for failure to comply with local court rules
. AFFIRMED. Case: 12-15222 Date Filed: 11/12/2013 Page: 11 of 11