17‐274‐cv
Brady v. Goldman, et al.
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 ASUMMARY ORDER@). A PARTY CITING TO 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 Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 1st day of March, two thousand eighteen.
PRESENT:
AMALYA L. KEARSE,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
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JAMES H. BRADY,
Plaintiff‐Appellant,
v. 17‐274‐cv
JOHN GOLDMAN, Esq., Individually & as
member of HERRICK FEINSTEIN LLP,
JUSTIN BLAKE SINGER, Esq., Individually &
as member of HERRICK FEINSTEIN LLP,
DANIEL ROSS MILSTEIN, Esq., Individually
& as member of GREENBERG TRAURIG LLP,
STEVEN SINATRA, Esq., Individually & as
member of GREENBERG TRAURIG LLP,
RICHARD M. ZUCKERMAN, Esq.,
Individually & as member of DENTONS US
LLP, JOSEPH P. AUGUSTINE, Esq.,
Individually & as member of AUGUSTINE &
EBERLE LLP, MARK KENNETH ANESH,
Individually & as member of LEWIS
BRISBOIS, BISGAARD & SMITH LP, JAMIE R.
WOZMAN, Esq., Individually & as member of
LEWIS BRISBOIS, BISGAARD & SMITH LP,
JUSTIN Y. K. CHU, Esq., Individually & as
member of STEPTOE & JOHNSON, ADAM J.
RICHARDS, Individually & as member of
OʹREILLY, STOUTENBURG, RICHARDS LLP,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: James H. Brady, pro se, Wyckoff, New
Jersey.
FOR DEFENDANTS‐APPELLEES: Richard M. Asche, Litman, Asche &
Gioiella, LLP; Edward J. Reich, Kristen
B. Weil, Dentons US LLP; Jamie Rebecca
Wozman, Lewis Brisbois Bisgaard &
Smith LLP; Jennifer Smith Finnegan,
Herrick, Feinstein LLP; Joseph P.
Augustine, Augustine & Eberle LLP;
Thomas Dewey, Keara A. Bergin,
Dewey Pegno & Kramarsky LLP; and
Adam J. Richards, OʹReilly Stoutenburg
Richards LLP, New York, New York.
Appeal from a judgment and order of the United States District Court for
the Southern District of New York (Daniels, J.).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment and order of the district court are
AFFIRMED as set forth below.
Plaintiff‐appellant James H. Brady, proceeding pro se, appeals from the
district courtʹs judgment entered January 12, 2017 dismissing his complaint with
prejudice for lack of subject matter jurisdiction and failure to state a claim and denying
him leave to amend his complaint, and its subsequent order entered February 3, 2017
imposing a filing injunction. Brady sued defendants‐appellees, who are the lawyers
and law firms that represented Bradyʹs adversaries in prior unsuccessful state court
litigation, for violations of New York Judiciary Law § 487, fraud, intentional infliction of
emotional distress, and violations of his Fifth and Fourteenth Amendment due process
and equal protection rights. Brady also sought to vacate the prior state court
judgment. We assume the partiesʹ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
We review de novo dismissals for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) and dismissals for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Cayuga Nation v. Tanner,
824 F.3d 321, 327 (2d Cir. 2016) (subject matter jurisdiction); Trs. of Upstate N.Y. Engʹrs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016) (failure to state a claim).
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The district court held that it lacked subject matter jurisdiction because
Brady had failed to adequately plead diversity jurisdiction. We agree. The complaint
fails to allege the citizenship of any of the defendants. Moreover, while the complaint
makes two references to the Fifth and Fourteenth Amendments of the United States
Constitution, it fails to allege any facts to support a federal constitutional claim against
the defendants, all of whom are private lawyers and law firms. Likewise, with respect
to Bradyʹs request to vacate the earlier unfavorable state court judgment, the district
court correctly held that it lacked subject matter jurisdiction over this claim pursuant to
the Rooker‐Feldman doctrine. See Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002)
(ʺUnder the Rooker‐Feldman doctrine, lower federal courts lack subject matter
jurisdiction over claims that effectively challenge state court judgments.ʺ); Rooker v. Fid.
Tr. Co. 263 U.S. 413, 415‐16 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486‐87
(1983).
The district court dismissed Bradyʹs state law claims with prejudice for
failure to state a claim. In the absence of subject matter jurisdiction, however, the
district court could not have exercised supplemental jurisdiction over the state law
claims. Cohen v. Postal Holdings, LLC, 873 F.3d 394, 399 (2d Cir. 2017) (holding that the
district court erred by retaining supplemental jurisdiction over state law claims after
dismissing federal claims for lack of subject matter jurisdiction).
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Finally, the district court imposed a filing injunction requiring Brady to
seek permission before filing any additional suits pertaining to his prior state court
litigation. We review an order imposing a sanction for abuse of discretion. See
Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009). For substantially the reasons stated
in the magistrate judgeʹs January 10, 2017 report and recommendation, which the
district court adopted in full, we conclude that the district court did not abuse its
discretion in imposing the filing injunction.
Although the judgment of the district court stated that the dismissal was
ʺwith prejudice,ʺ a caveat not applicable to dismissals for lack of federal jurisdiction, see
e.g., Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54‐55 (2d Cir. 2016); Hernandez v. Conriv
Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999), we instead understand the district court
(a) to have meant that the complaint asserts only claims that Brady cannot pursue in
federal court, and (b) to have had in mind that Brady has been warned by the state
court not to continue his ʺnear perfect example of frivolous conductʺ in ʺprosecuting
claims that have either been determined or that he has been told are not ripe,ʺ see Brady
v. 450 W. 31st St. Owners Corp., 2014 WL 3515939, at *13 (N.Y. Sup. Ct. July 15, 2014).
* * *
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We have considered all of Bradyʹs arguments and find them to be without
merit. Accordingly, the judgment is deemed amended to incorporate our
understanding set forth above, and as thus amended is AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk of Court
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