NOT PRECEDENTIAL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.
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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 claimpreclusive 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 
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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”). 
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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.