Remy v. New York State Department of Taxation & Finance

507 F. App'x 16

• Court: Court of Appeals for the Second Circuit
• Decided: January 3, 2013
• Docket: 11-1921
• Status: Unpublished

Opinion

PRESENT: DENNIS JACOBS, Chief Judge, RALPH K. WINTER, and GUIDO CALABRESI, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Lesly Remy, proceeding pro se, appeals from the district court’s judgment partially granting the defendants’s motions to dismiss various claims for lack of jurisdiction and for failure to state a claim. We assume the parties’s familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

As a preliminary matter, although Remy raises challenges to the district court’s November 2011 order granting summary judgment, we lack jurisdiction to consider them because he did not file a separate notice of appeal following entry of that order. See Shrader v. CSX Transp. Inc., 70 F.3d 255, 256 (2d Cir.1995) (where a notice of appeal “fail[s] to mention” a specific order, we are “bar[red] from considering” an appellate challenge to it). We limit our review to Remy’s appeal from the district court’s September 2010 order dismissing the complaint against all parties except the court officers, and April 2011 order denying his motion for reconsideration.

“A challenge under the Rooker-Feld-man doctrine is for lack of subject matter jurisdiction.” Moccio v. N.Y. State Office of Court Admin., 95 F.3d 195, 198 (2d Cir.1996). In evaluating the dismissal of a complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6), we review a district court’s factual findings for clear error and its legal conclusions de novo, construing the complaint liberally, accepting all factual allegations therein as true, and drawing all reasonable inferences in plaintiffs favor. See Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (Rule 12(b)(1)); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (Rule 12(b)(6)). In adjudicating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), courts may consider “evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).

Remy’s protestations about the district court’s application of the Rooker-Feldman doctrine are not persuasive. “Rooker-Feldman directs federal courts to abstain from considering claims when four requirements are met: (1) the plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the state court judgment, (3) the plaintiff invites district court review of that judgment, and (4) the state court judgment was entered before the plaintiffs federal suit commenced.” McKithen v. Brown, 626 F.3d 143, 154 (2d Cir.2010). Here, contrary to Remy’s assertions, the record shows that he lost repeatedly in state court. See, e.g., Matter of Remy v. Mitchell, 60 A.D.3d 860, 874 N.Y.S.2d 387, rearg. denied and Iv. denied, 2009 N.Y. Slip Op. 73279(U), 2009 WL 1425329 (2d Dep’t 2009) (dismissing Remy’s appeal from an order of the Family Court, Queens County, which fixed his child support arrears in the amount of $5,691.13). Remy is incorrect that his losses were merely administrative or ministerial and therefore outside the ambit of Rooker-Feldman. The Family Court’s arrears order was an entirely sufficient judicial loss because Remy had a full and fair opportunity to litigate that issue. See Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir.2002) (“This court may not review the family court’s determinations regarding custody, neglect and visitation, as those issues were decided by the family court after providing [the plaintiff] a full and fair opportunity to litigate those issues.”).

Remy’s federal complaint seeks direct review of prior state court judgments. 1 Thus, under Rooker-Feldman, this court does not have subject matter jurisdiction to disturb his state court judgments. The district court’s partial dismissal of his complaint was therefore appropriate.

We have considered Reilly's remaining arguments on appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

1 . For example, Remy argues that a state memorandum decision "denied [him] the equity of NYS Family Law [and] Domestic Relations Law in the area of [p]arental visitation.”