13‐4204 Wik v. City of Rochester

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of December, two thousand fifteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x DANIEL JOSEPH WIK, Plaintiff‐Appellant, v. 13‐4204

CITY OF ROCHESTER, THOMAS RICHARDS, CHARLES BENINCASA, JOHN M. CAMPOLIETO, RICHARD FENWICK, SCOTT SMITH, KIM D. JONES, ERIC KMENTT, JOHN DOES 1‐199, individually and in their official capacities, Defendants‐Appellees.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* The Clerk of Court is directed to amend the official caption to conform to the above. FOR PLAINTIFF‐APPELLANT: Daniel J. Wik, pro se, Rochester, N.Y.

FOR DEFENDANTS‐APPELLEES: T. Andrew Brown, Corporation Counsel, John M. Campolieto, of Counsel, Rochester, N.Y.

Appeal from a judgment of the United States District Court for the Western

District of New York (Geraci, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Daniel J. Wik, proceeding pro se, appeals from a

judgment entered on September 30, 2013 in the United States District Court for the

Western District of New York dismissing his

complaint against

defendants‐appellees the City of Rochester (the ʺCityʺ) and various named and

unnamed City employees. The claims arise from the Cityʹs foreclosure for nonpayment

of taxes of seven properties that were wholly‐owned directly or indirectly by Wik.

Following the termination of his state court proceedings, Wik filed a complaint in federal

court seeking the return of his real property and certain personal property seized by the

City. By decision and order dated November 13, 2008, the district court (Siragusa, J.)

dismissed Wikʹs real property claims for lack of subject matter jurisdiction. On

September 30, 2013, the district court (Geraci, C.J.) dismissed Wikʹs remaining personal

property claims for failure to prosecute. We assume the partiesʹ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

2 As an initial matter, despite the Cityʹs argument to the contrary, we have

jurisdiction to review all of the district courtʹs orders, as Wik timely appealed the final

judgment. See

(courts of appeal have jurisdiction over final orders of

district courts); Green Tree Fin. Corp. v. Randolph,

(2000) (a final decision is

one that ʺends the litigation on the meritsʺ (quoting Digital Equip. Corp. v. Desktop Direct,

Inc.,

(1994))).

We address in turn Wikʹs arguments that the district court erred in

dismissing his claims pertaining to his real and personal property.

A. Real Property

The district court dismissed Wikʹs claims stemming from the Cityʹs

foreclosure on his real property for non‐payment of taxes pursuant to the Rooker‐Feldman

doctrine and the Tax Injunction Act,

. See D.C. Court of Appeals v.

Feldman,

(1983); Rooker v. Fidelity Tr. Co.,

(1923). We review

dismissals under the Rooker‐Feldman doctrine de novo. Green v. Mattingly,

(2d Cir. 2009). The Rooker‐Feldman doctrine bars ʺcases brought by state‐court losers

complaining of injuries caused by state‐court judgments rendered before the district

court proceedings commenced and inviting district court review and rejection of those

judgments.ʺ Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

(2005); see also

Green,

.

3 The district court did not err in dismissing the real property claims

pursuant to the Rooker‐Feldman doctrine.1 All four elements of the doctrine are satisfied

in this respect, in that Wik (1) challenged a state foreclosure judgment; (2) alleged

injuries stemming from that judgment (loss of his interest in the properties); (3) sought

review and rejection of the state courtʹs foreclosure judgment; and (4) sued in federal

court after the state courtʹs judgment. Green,

.

B. Personal Property

The district court did not abuse its discretion in dismissing Wikʹs

remaining claims, regarding the seizure of his personal property, for failure to prosecute.

See Lewis v. Rawson,

(2d Cir. 2009) (reviewing failure to prosecute

dismissal for abuse of discretion and reversing only if district courtʹs decision cannot be

located within the range of permissible decisions). Wik did not comply with the district

courtʹs pre‐trial orders and stated that he no longer wished to proceed to trial because a

trial would be a ʺfarceʺ and an ʺexercise [in] futility.ʺ Motion to Compel at 3, ECF Dkt.

No. 137; Letter from Daniel Wik to Hon. Frank P. Geraci at 2‐3, ECF Dkt. No. 145. The

district court acted within its permissible discretion in dismissing the action when Wik

refused to proceed. Zagano v. Fordham Univ.,

(2d Cir. 1990) (ʺIt is beyond

dispute that a district court may dismiss a case under Rule 41(b) when the plaintiff

1 The district court applied the Rooker‐Feldman doctrine to Justice Lindleyʹs order denying Wikʹs motion to vacate the foreclosures, which concluded that Wik lacked an ownership interest in six of the seven properties. The doctrine also applies to Justice Rosenbaumʹs 2006 foreclosure order, which concerned all seven properties. 4 refuses to go forward with a properly scheduled trial.ʺ).

We have considered all of Wikʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk

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