22

- 2766 Byvalets v. 1053 Owners Corp

. 

### 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 “ SUMMARY ORDER ” ). A PARTY CITING 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 1 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 2 Foley Square, in the City of New York, on the 14 th da y of December , two 3 thousand twenty

- three

. 4 5 PRESENT: 6 GERARD E. LYNCH, 7 MICHAEL H. PARK, 8 STEVEN J. MENASHI, 9 Circuit Judges. 10

_____________________________________ 11 12 Marko Byvalets , 13 14 Plaintiff

-

Appellant , 15 16

v. 22

- 2766 17 18 1053 Owners Corporation, Cornerstone 19 Group Management , 20 21 Defendant s - Appellee s . 222 _____________________________________ 1 2 FOR PLAINTIFF

- APPELLANT: Marko Byvalets , pro se , 3 Brooklyn , NY

. 4 5 FOR DEFENDANT S

- APPELLEE S : Joshua R. Bronstein , 6 Joshua R. Bronstein & 7 Associates , PLL C , Port 8 Washington , NY

. 9 10
Appeal from a judgment of the United States District Court for the Eastern 11

District of New York ( Vitaliano , J

. ). 12

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 13
ADJUDGED, AND DECREED that the judgment of the district court is 14

VACATED , and the matter is REMANDED for further proceedings consistent 15

with this order

. 16

Pro se Appellant Marko Byvalets sued 1053 Owners Corporation and 17
Cornerstone Group Management for violating his federal and state constitutional 18
rights, as well as federal criminal law, by installing and operating video cameras 19
in his apartment building. Byvalets paid the filing fee. T he district court 20
dismissed his amended complaint sua sponte without prejudice for lack of subject

21
matter jurisdiction, denied leave to amend as futile , and entered judgment

. See 223 Byvalets v. Cornerstone Grp. Mgmt. , No. 22

- CV

- 5010 ( ENV ), 2022 WL 4662264 1
( E .D.N.Y. Sept

. 30 , 2022)

. Byvalets timely appealed. We assume the parties ’ 2
familiarity with the remaining facts, the procedural history, and the issues on 3
appeal. 4
Because Byvalets proceeds pro se, we liberally construe his brief to raise the 5
strongest arguments it suggests. S ee Publicola v. Lomenzo , 54 F.4th 108, 111 (2d 6
Cir. 2022) . Byvalets argues, among other things, that he was deprived of due 7
process by the way the district court disposed of his complaint. 8

A district court may dismiss a complaint sua sponte “ so long as the plaintiff 9
is given notice and an opportunity to be heard. ” Wachtler v. Cnty. of Herkimer , 35 10
F.3d 77, 82 (2d Cir. 1994) (internal quotation marks omitted)

. Failure to provide 11

such notice and opportunity to be heard can “ by itself ” be “ grounds for reversal .” 12
Catzin v. Thank You & Good Luck Corp. , 899 F.3d 77, 83 (2d Cir. 2018) (quoting Square 13
D Co. v. Niagara Frontier Tariff Bureau, Inc. , 760 F.2d 1347, 1365 (2d Cir. 1985) ). A 14

dismissal without notice deviates from “ the traditions of the adversarial system ” 15

and often produc es the “ very effect [it] seek [s] to avoid

— a waste of judicial 164 resources

— by leading to appeals and remands.” Id. at 82 (internal quotation 1
marks omitted)

. 2
Here, the district court dismissed Byvalets’s complaint sua sponte without 3
providing any advance notice that it was contemplating doing so. Nor was 4
Byvalets otherwise on notice of any potential defect s in his operative complaint. 5

D efendants had not moved for dismissal and had instead filed only a verified 6

answer that did not mention the ground

— lack of state action

— on which the 7
district court ultimately relied for dismissal

. 8

W hen a court dismisses without prior notice for lack of subject

- matter 9
jurisdiction, the defect must be “unmistakably clear.” Catzin , 899 F.3d at 82

. 10
Here, however, Byvalets properly invoked the court’s subject

- matter jurisdiction 11
by bringing federal constitutional tort claims under 42 U.S.C. § 1983. Although 12

the district court reasoned that Byvalets failed to plead that D efendants acted 13

under color of state law, see Byvalets , 2022 WL 4662264 , at *2 & n.1, t he “sufficiency 14

of a color

- of

- law allegation ” is a merits defect “ to be tested under Rule 12(b)(6) , ” 15
not a “jurisdictional deficiency.” Monsky v. Moraghan , 127 F.3d 243, 245 (2d Cir. 16
1997)

. 175 The district court should have provided Byvalets notice and an opportunity 1
to respond before dismissing his complaint

. See, e.g. , Brookins v. Figuccio , No. 22

- 2
731, 2023 WL 2579043, at *2 (2d Cir. Mar. 21, 2023) ; Phillips v. Long Island R.R. Co. , 3

No. 22

- 123, 2023 WL 2317231, at *1 (2d Cir. Mar. 2, 2023) ; Nwoye v. Obama , No. 22

- 4
1253, 2023 WL 382950, at *1 (2d Cir. Jan. 25, 2023)

. 5
Accordingly, w e VACATE the judgment of the district court and REMAND 6
for further proceedings consistent with this order. 7

FOR THE COURT: 8 Catherine O ’ Hagan Wolfe, Clerk of Court 9 10