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.

1 At a stated term of the United States Court of Appeals for the 2 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 3 Foley Square, in the City of New York, on the 14th day of December, two 4 thousand twenty-three. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 MICHAEL H. PARK, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 Marko Byvalets, 14 15 Plaintiff-Appellant, 16 17 v. 22-2766 18 19 1053 Owners Corporation, Cornerstone 20 Group Management, 21 22 Defendants-Appellees. 1 _____________________________________ 2 3 FOR PLAINTIFF-APPELLANT: Marko Byvalets, pro se, 4 Brooklyn, NY. 5 6 FOR DEFENDANTS-APPELLEES: Joshua R. Bronstein, 7 Joshua R. Bronstein & 8 Associates, PLLC, Port 9 Washington, NY. 10

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

12 District of New York (Vitaliano, J.).

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

14 ADJUDGED, AND DECREED that the judgment of the district court is

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

16 with this order.

17 Pro se Appellant Marko Byvalets sued 1053 Owners Corporation and

18 Cornerstone Group Management for violating his federal and state constitutional

19 rights, as well as federal criminal law, by installing and operating video cameras

20 in his apartment building. Byvalets paid the filing fee. The district court

21 dismissed his amended complaint sua sponte without prejudice for lack of subject-

22 matter jurisdiction, denied leave to amend as futile, and entered judgment. See 2 1 Byvalets v. Cornerstone Grp. Mgmt., No. 22-CV-5010 (ENV),

2 (E.D.N.Y. Sept. 30, 2022). Byvalets timely appealed. We assume the parties’

3 familiarity with the remaining facts, the procedural history, and the issues on

4 appeal.

5 Because Byvalets proceeds pro se, we liberally construe his brief to raise the

6 strongest arguments it suggests. See Publicola v. Lomenzo,

(2d

7 Cir. 2022). Byvalets argues, among other things, that he was deprived of due

8 process by the way the district court disposed of his complaint.

9 A district court may dismiss a complaint sua sponte “so long as the plaintiff

10 is given notice and an opportunity to be heard.” Wachtler v. Cnty. of Herkimer, 35

(2d Cir. 1994) (internal quotation marks omitted). Failure to provide

12 such notice and opportunity to be heard can “by itself” be “grounds for reversal.”

13 Catzin v. Thank You & Good Luck Corp.,

(2d Cir. 2018) (quoting Square

14 D Co. v. Niagara Frontier Tariff Bureau, Inc.,

(2d Cir. 1985)). A

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

16 and often produces the “very effect [it] seek[s] to avoid—a waste of judicial

3 1 resources—by leading to appeals and remands.” Id. at 82 (internal quotation

2 marks omitted).

3 Here, the district court dismissed Byvalets’s complaint sua sponte without

4 providing any advance notice that it was contemplating doing so. Nor was

5 Byvalets otherwise on notice of any potential defects in his operative complaint.

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

7 answer that did not mention the ground—lack of state action—on which the

8 district court ultimately relied for dismissal.

9 When a court dismisses without prior notice for lack of subject-matter

10 jurisdiction, the defect must be “unmistakably clear.” Catzin,

.

11 Here, however, Byvalets properly invoked the court’s subject-matter jurisdiction

12 by bringing federal constitutional tort claims under

. Although

13 the district court reasoned that Byvalets failed to plead that Defendants acted

14 under color of state law, see Byvalets,

, at *2 & n.1, the “sufficiency

15 of a color-of-law allegation” is a merits defect “to be tested under Rule 12(b)(6),”

16 not a “jurisdictional deficiency.” Monsky v. Moraghan,

(2d Cir.

17 1997).

4 1 The district court should have provided Byvalets notice and an opportunity

2 to respond before dismissing his complaint. See, e.g., Brookins v. Figuccio, No. 22-

3 731,

, at *2 (2d Cir. Mar. 21, 2023); Phillips v. Long Island R.R. Co.,

4 No. 22-123,

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

5 1253,

, at *1 (2d Cir. Jan. 25, 2023).

6 Accordingly, we VACATE the judgment of the district court and REMAND

7 for further proceedings consistent with this order.

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

5