HE v. OFFICE OF NEW YORK CITY COMPTROLLER (2021)

SUMMARY ORDER

Appellant Xuejie He, proceeding pro se, appeals from the district court's judgment dismissing her action against the Office of the New York City Comptroller, in which she alleged discrimination in violation of her civil rights. He also moves for an award of attorney's fees. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, and refer to them only as necessary to explain our decision to affirm the district court's judgment.

The district court dismissed He's action under Federal Rule of Civil Procedure 41(b) for failure to prosecute after issuing orders directing He to inform the court whether she intended to continue prosecuting her case. In response to these orders, He filed letters stating that the court lacked jurisdiction over her action. On appeal, He does not contend that the district court abused its discretion in dismissing her complaint for failure to prosecute, but instead insists, once again, that the district court lacked subject-matter jurisdiction over her case.

Although He's arguments that the district court lacked subject-matter jurisdiction are without merit, we would affirm the judgment of the district court dismissing this case even if He were correct that the court lacked jurisdiction. When a court lacks subject-matter jurisdiction over an action, it must dismiss the case, and must do so without prejudice to the plaintiff. See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) (dismissal for lack of subject-matter jurisdiction must be without prejudice); see also St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir. 2000) (noting “dismissal for lack of subject matter jurisdiction is not an adjudication of the merits”). The district court dismissed He's complaint without prejudice. Because He points to no reason to vacate this judgment dismissing the case, we AFFIRM the judgment of the district court, and DENY He's motion for attorney's fees, as she identifies no basis for an award of fees.