614 F. App'x 773
5th Cir.
2015

Rodney C. WILLIAMS, Plaintiff-Appellant v. John C. MORRIS, IV, Substitute Trustee; Morris & Associates; Wells Fargo Bank, N.A.; Bank of Fayette County; Adams & Edens, P.A.; Freddie Mac, Defendants-Appellees.

No. 14-60439

United States Court of Appeals, Fifth Circuit.

Aug. 25, 2015.

773 F.3d 773

Summary Calendar.

North Carolina solicitation statute could be a “crime of violence” even though solicitation is not one of the enumerated crimes. To this end, we compared “the mens rea (mental state) and actus reus (action or conduct) of the prior offense to those of conspiracy, aiding and abetting, and attempt” to determine whether the prior offense is “clearly less serious” than the enumerated offense. Id. at 238; see also Mejia-Aguilar, 575 Fed.Appx. at 237 (applying the same methodology to determine whether solicitation under Arizona law is a crime of violence). Upon comparing the North Carolina statute to the “generic, contemporary meaning” of conspiracy, we found that the “mens rea and actus reus of solicitation [under North Carolina law] are not clearly less serious than those of conspiracy.” Mendez-Casarez, 624 F.3d at 239. First, North Carolina‘s solicitation statute required the same mens rea as conspiracy: “the defendant must intend that the underlying crime be committed.” Id. Second, “both offenses involve the defendant taking a step, whether agreeing or soliciting, towards fulfilling his intention that the crime be committed.” Id. at 240. Moreover, the fact that solicitation did not require an overt act, whereas conspiracy statutes often require an overt act, did not render solicitation “clearly less serious” than conspiracy. Id. In reaching the conclusion, we explicitly rejected the argument “that the response of the other person determines the seriousness of the acts of soliciting or agreeing.” Id.

The New York statute here is similar to the North Carolina statute. Like the North Carolina law, the New York solicitation statute requires proof that the defendant intended that the underlying crime be committed (the mens rea) and that the defendant “solicits, requests, commands, importunes or otherwise attempts to cause [another] person to engage in such conduct” (the actus reus). N.Y. PENAL LAW § 100.10; People v. Cheathem, 239 A.D.2d 595, 596, 658 N.Y.S.2d 84 (N.Y.App.Div. 1997). As we have previously found that it is the act of the defendant, and not the other person, that determines the seriousness of the act of soliciting, we reject Godoy-Castaneda‘s argument that solicitation cannot be a crime of violence because it is unilateral. We conclude that Godoy-Castaneda fails to show reversible error in the district court‘s conclusion that conviction for solicitation in the second degree based on the underlying crime of second-degree murder under New York law constitutes a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).

AFFIRMED.

Rodney C. Williams, Nesbit, MS, pro se.

Michael Alan Jedynak, Morris & Associates, Monroe, LA, Sheryl W. Bey, Esq., Adria Lynn Hertwig, Frederick Natale Salvo, III, Esq., Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Jackson, MS, for Defendant-Appellee.

Before JOLLY, WIENER, and COSTA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Rodney C. Williams appeals the district court‘s dismissal of his pro se complaint which asserted various federal and state law claims in relation to the 2012 foreclosure of real property (“the Property“) located at 2815 Austin Road, Nesbit, Mississippi. On motion of some of the defendants pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6), the district court concluded that Williams failed to state a claim on which relief may be granted, that he lacked standing, and that his claims are barred by res judicata.

Article III standing is a jurisdictional prerequisite. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir.1989). Article III requires that, at a minimum, a plaintiff show an “injury in fact” that is fairly traceable to the defendant‘s conduct and that is likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An injury in fact is one that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (internal quotation marks and citation omitted).

Williams has failed to allege any injury in fact that is not barred by collateral estoppel. All of Williams‘s claims and the alleged injuries resulting from the defendants’ actions rest on his alleged ownership interest in the Property. In dismissing Williams‘s state law claims stemming from the foreclosure proceedings with prejudice, the DeSoto County (Mississippi) Chancery Court expressly determined that Williams has “no valid, lawful interest” in the Property. Thus, Williams cannot seek recovery for any of the alleged harms set forth in his federal complaint, as amended, without relitigating his purported interest in the Property. See Stafford v. True Temper Sports, 123 F.3d 291, 295 (5th Cir. 1997). Without any injury in fact, he does not have standing to bring this action. See Rohm & Hass Tex., Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 209 (5th Cir.1994).

Although we affirm the district court‘s dismissal of Williams‘s amended complaint for lack of standing, we modify the judgment. Ordinarily, when a complaint is dismissed for lack of jurisdiction, including lack of standing, it should be without prejudice. We therefore modify the district court‘s judgment to make it without prejudice and affirm it as thus modified. See, e.g., In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir.2010); cf. FED.R.CIV.P. 41(b).

AFFIRMED AS MODIFIED.

Notes

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.