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  1. #1
    Join Date
    Jul 2011
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    2

    Default Relitigating a State Case in Federal Court

    My question involves court procedures for the state of: New York

    Taking a State Case to Federal Court
    What is the name of your state (only U.S. law)? New York

    A lawyer once told me that if you start a case in the State court and lose you can have "2 bites of the apple" by starting it again in Federal court.

    I just did this and I am running into res judicata trouble.

    I thought res judicata applied only within each court system, Federal or State, that the same case could be brought just not in the same court system.

    But I guess not.

    This is a civil rights "Separate of Church and State" case. I am pro se.

    While in the State court they had taxed but not yet seized the church. The cause of action is the same, but the circumstances, facts have changed, the church has been seized, which now makes The Lemon Test violations more apparent.

    Any ideas would be appreciated.

    Also I lost in the State court because it said I had no "standing". Does that mean it was dismissed not "on the merits".

    If so I should be able to have a second bite of the apple in the Federal courts according to Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48 (1999) which was dismissed due to "Statue of Limitations" which was deemed not "on the merits" and heard then in Federal court.

  2. #2
    Join Date
    Sep 2005
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    98,846

    Default Re: Relitigating a State Case in Federal Court

    I suspect that you misunderstood the lawyer.

    If your case was dismissed solely on a finding that you lacked standing, you should be able to argue that the dismissal was not on the merits.

  3. #3
    Join Date
    Feb 2011
    Posts
    576

    Default Re: Relitigating a State Case in Federal Court

    If you lack standing, you will never get to the merits. If you lack standing in state court it may be you also lack standing in federal court. What was the basis for the ruling that you lacked standing?

  4. #4
    Join Date
    Feb 2010
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    CT & IL
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    5,273

    Default Re: Relitigating a State Case in Federal Court

    how has your standing changed? if it hasn't then this will always be the result

  5. #5
    Join Date
    May 2011
    Posts
    638

    Default Re: Relitigating a State Case in Federal Court

    I agree completely with the prior posters.

    My understanding is that there are several ways to take two bites at the apple, and that it's a loosely held term. One would be where OJ Simpson won his murder trial but lost a civil suit.

    Another would be where you sue for a specific state tort based on a state statute, and then sue for a completely different federal action based on something like federal civil rights. Neither court would have subject matter jurisdiction on both charges. Each cause of action would need to be brought in the different courts.

  6. #6
    Join Date
    Jul 2011
    Posts
    2

    Default Re: Relitigating a State Case in Federal Court

    ty I am thinking I should have "standing" now because the municipality seized our church building after the State court litigated.

    They locked me and all the other congregants out of the church building I had been attending for 25 years.

    So, I believe this is now a civil rights action which has a longer, 3 year, statute of limitations rather than the previous 4 month NYS Real Property statue of limitations which precluded me in the State courts.

    I am hoping I can have the case judged "on the merits" now. I was precluded before by the NYS Appellate Div, 2d Dept, because my name was not on the property records, so no personal injury.

    But they have locked me and all the other congregants out, June, 2009, and I think I have "standing" now and I am also within the 3 year statue of limitation for civil rights cases.

    The Church corporation expired by its own terms in paragraph 4 of its Certificate of Incorporation which reads: "4. Its duration shall be 100 years."

    It expired after levy of property taxes but before foreclosure and seizure.

    In such cases the Church automagically, by the operation of law, becomes a voluntary association with property rights invested in the individual members jointly and severally.

    I am pro se and cannot represent either a corporation or a voluntary association, only myself.

    But now I would think I have property rights as well and have suffered injury per the 1st Amendment Establishment Clause (The Lemon Test) and the 14th Amendment property clause, Separation of Church and State.

    The case is complicated by the "taxing authority (SBEA) exceeding its power" requiring a tax exemption form to be filed annually.

    So Kahal v Fallsburg, 1991 said, in such a case, the certiorari procedure was "inadequate, even if proper", yet the NYS Court of Appeals held that the 4 month statue of limitations for that certiorari procedure was still valid.

    I would think that if certiorari is deemed "inadequate, even if proper", that the corresponding 4 month statute of limitations is also "inadequate, even if proper".

    But I am hoping the 1st and 14 Amendment Separation of Church and State issue will trump all this.

    What do you think?

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