14-3864

Whelan v. Pascale

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 30th 4 day of April, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 ROSEMARY S. POOLER,

8 PETER W. HALL,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 David J. Whelan, Mary M. Whelan, 

13 Plaintiffs-Appellants,

14

15 -v.- 14-3864

16

17 Judith A. Pascale, individually and in

18 her official capacity as Clerk of the

19 County of Suffolk, New York; County of

20 Suffolk; David Jannetti; Does, 1-5, 

21 Defendants-Appellees.

22 - - - - - - - - - - - - - - - - - - - -X

23

24 FOR APPELLANTS: PATRICIA WEISS, Sag Harbor, New

25 York.

26

27 FOR APPELLEES: RUDOLPH M. BAPTISTE, Assistant

28 County Attorney (for Dennis M.

1
1 Brown, Suffolk County Attorney),

2 Hauppauge, New York, for

3 defendants-appellees Judith

4 Pascale and the County of

5 Suffolk.

6

7 THOMAS J. McGOWAN, Meltzer,

8 Lippe, Goldstein & Breitstone

9 LLP, Mineola, New York, for

10 defendant-appellee David

11 Jannetti.

12

13 Appeal from a judgment of the United States District

14 Court for the Eastern District of New York (Bianco, J.).

15

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17 AND DECREED that the judgment of the district court be

18 AFFIRMED. 

19

20 Plaintiffs David and Mary Whelan (“the Whelans” or

21 “plaintiffs”) appeal from the judgment of the United States

22 District Court for the Eastern District of New York (Bianco,

23 J.), granting defendants’ motions to dismiss for failure to

24 state a claim under Federal Rule of Civil Procedure

25 12(b)(6). We assume the parties’ familiarity with the

26 underlying facts, the procedural history, and the issues

27 presented for review. 

28

29 We review de novo a district court’s grant of a motion

30 to dismiss for failure to state a claim, accepting all

31 factual allegations as true and drawing all reasonable

32 inferences in favor of the plaintiff. Lotes Co., Ltd. v.

33 Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir.

34 2014). “To survive a motion to dismiss, a complaint must

35 contain sufficient factual matter, accepted as true, to

36 ‘state a claim for relief that is plausible on its face.’” 

37 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

38 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

39

40 1. Defendants contend that, under the Rooker-Feldman

41 doctrine, the federal courts lack subject-matter

42 jurisdiction over the Whelans’ claims. Defendants are

43 incorrect. The Whelans do not “complain[] of injuries

44 caused by state-court judgments,” nor do they “invit[e]

45 district court review and rejection of those judgments.” 

46 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

47 284 (2005). The Whelans bring independent constitutional

2
1 claims, arguing that New York’s notice-of-pendency

2 procedures (codified at N.Y. Civil Practice Law & Rules

3 6501-6516 (“Article 65”)) are unconstitutional. So the

4 Rooker-Feldman doctrine does not apply. See Diaz v.

5 Paterson, 547 F.3d 88, 94 (2d Cir. 2006) (explaining that

6 Exxon Mobil “rendered the Rooker-Feldman doctrine plainly

7 inapplicable” to a similar constitutional challenge to

Article 65).1 8

9

10 2. The Whelans argue that the Article 65 process

11 violates the Due Process Clause of the United States

12 Constitution. Our Court has already rejected virtually

13 indistinguishable claims, holding that Article 65 “provides

14 all the process that is due in respect of the claimed

15 property interests at stake.” Diaz, 547 F.3d at 96. A

16 panel of this Court is “bound by the decisions of prior

17 panels until such time as they are overruled either by an en

18 banc panel of our Court or by the Supreme Court.” United

19 States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004).

20

21 3. The remaining federal claims--brought under the

22 Equal Protection Clause and the Free Speech Clause--were

23 appropriately dismissed for the reasons stated in the

24 district court’s Memorandum and Order.

25

26 4. Having dismissed all federal claims, the district

27 court did not err in declining to exercise supplemental

28 jurisdiction over any remaining state-law claims; in denying

29 as futile plaintiffs’ request to file an amended complaint;

30 or in denying as moot plaintiffs’ motion to disqualify each

31 of defendants’ counsel.

32

33 * * *

34

35 For the foregoing reasons, and finding no merit in

36 plaintiffs’ other arguments, we hereby AFFIRM the judgment

1 Because there is no defect in subject-matter

jurisdiction, we need not consider whether (as the district

ruled) a federal court “may bypass Rooker-Feldman to reach

the merits of a dispute,” Whelan v. Pascale, No. 13-cv-6998,

2014 WL 4638851, at *4 n.3 (E.D.N.Y. Sept. 16, 2014),

notwithstanding that the doctrine eliminates federal

subject-matter jurisdiction when applicable, see Exxon

Mobil, 544 U.S. at 292.

3
1 of the district court. Plaintiffs’ motion for an injunction

2 is DENIED. Plaintiffs’ motion for sanctions is DENIED.

3

4 FOR THE COURT:

5 CATHERINE O’HAGAN WOLFE, CLERK

6

4