ninth, and tenth claims are dismissed without prejudice for lack of subject matter jurisdiction.
"[F]ederal courts have an unflagging obligation to adjudicate cases brought within their jurisdiction. It is now black-letter law that abstention . . . is the narrow exception, not the rule." CECOS Int'l, Inc. v. Jorling, 895 F.2d 66, 70 (2d Cir. 1990). "To justify a refusal to assume jurisdiction on Younger grounds, a district court must answer three questions affirmatively: (1) is there an ongoing state proceeding; (2) is an important state interest implicated; (3) does the plaintiff have an avenue open for review of constitutional claims in the state court?" Id.
Turning to the first question, "[a] federal court need not stay its jurisdictional hand when there is no state action pending at the time the federal suit is filed, even if there is a substantial likelihood that a state proceeding will be instituted in the future to vindicate the state's interests." Id. at 72. Defendants argue that there is an ongoing proceeding in the present case because "at any given moment, and surely during the course of these federal court proceedings, a bond forfeiture proceeding is ongoing in New York State." (Defts'. Mem. L. Supp. Summ. J. Under Rooker-Feldman at 18.) Defendants miss the point of the first prong of the Younger analysis. The question is not whether there is some proceeding pending in state court that may implicate the same interests as the one from which abstention is demanded; rather, the requirement is of a parallel proceeding, pending at the time the federal court action was filed, in which the plaintiff may raise and have adjudicated the same claims it seeks to press in federal court and obtain the same relief. To hold that this Court could not exercise its jurisdiction to issue a declaratory judgment to the effect that a state enforcement scheme was unconstitutional simply because that scheme was in regular use would be to eviscerate the federal courts' power and responsibility to remedy state encroachments on federal rights and would allow the states to thwart individuals' ability to seek vindication of their federal rights against the states in the federal courts by the simple act of regularly violating those rights. Younger does not demand this kind of deference to state procedures. Defendants have offered no other proof of a pending state proceeding that would require Younger abstention.
For these reasons, although the second and third prongs of the Younger analysis appear to be satisfied in the present case, I find that abstention under Younger is not warranted. Accordingly, I have no occasion to consider plaintiff's argument that abstention has been waived.
In response to this Court's instructions upon denial of the first round of summary judgment motions in this case, plaintiff has offered three grounds on which this Court might find that it has a protected property interest requiring due process. First, plaintiff argues that a lien against real property implicates constitutional due process protections. As a general matter, this is indisputable. See Connecticut v. Doehr, 501 U.S. 1, 12, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991). However, plaintiff admits that it owns no real property in Kings or Queens Counties and, thus, that it has not suffered any attachment of liens as a result of the judgments of forfeiture entered against it. Therefore, plaintiff has not suffered any actual injury as a result of the lien provision of C.P.L. § 540.10(3) sufficient to confer standing to bring the present action. See Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ("The `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured."); Lujan v. Defenders of Wildlife, 504 U.S. 555, 563, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (same). Accordingly, plaintiff's claims for relief based on the lien provision of C.P.L. § 540.10(3) do not present a cognizable case or controversy under Article III of the Constitution.
Plaintiff's two remaining claimed injuries arise from its obligation to make payment on forfeited bail. In particular, plaintiff claims that it holds funds sufficient to satisfy forfeiture judgments against it in reserve, depriving it of the use of those funds in violation of its property rights. Plaintiff also claims that its failure to pay judgments of forfeiture places its state insurance license—in which it claims a property interest—in jeopardy. In support of the latter contention, plaintiff points out that defendants sought to persuade the New York Department of Insurance to bar plaintiff from writing bail bonds as punishment for its failure to pay judgments of forfeiture, compelling plaintiff to forego challenges to judgments of forfeiture other than those raised in the complaint. I need not decide, however, whether these asserted property interests are sufficient to satisfy the injury-in-fact test, because such injuries, even if they exist, are not "fairly traceable to the defendant's allegedly unlawful conduct." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
Under New York law, bail is forfeited and the surety's obligation to pay arises upon notation of a defendant's nonappearance by the state court on its minutes. See N.Y.C.P.L. § 540.10(1); People v. Bennett, 136 N.Y. 482, 487, 32 N.E. 1044 (1893) (holding that forfeiture of bail is complete when the fact of nonappearance is entered on the record; surety is liable even though formal judgment has not yet been entered); People v. Midland Ins. Co., 97 Misc.2d 341, 343, 411 N.Y.S.2d 521 (1978) (holding that surety's liability for amount of bail accrues when principal's nonappearance is noted on the court's minutes; no formal judgment is necessary to fix the surety's obligation). The district attorneys' subsequent filing of an order of forfeiture within the specified time period in order to obtain a judgment does not impose any additional liability on the surety; it is merely a condition precedent to recovery. People v. Schonfeld, 74 N.Y.2d 324, 547 N.Y.S.2d 266, 546 N.E.2d 395, 397-98 (1989) (explaining that the district attorney's failure to file timely does not alter the substantive obligation of the surety, but merely permanently suspends the remedy for enforcement of that obligation). Therefore, any injury to or burden on a surety's property occasioned by bail forfeiture proceedings, other than the imposition of a lien on real property under § 540.30(3), occurs as a matter of law at the proceeding in which its principal's nonappearance is noted. Plaintiff does not and cannot claim that it has constitutionally insufficient notice of such proceedings. As such, the injuries of which plaintiff complains are not fairly traceable to the actions or procedures it seeks to declare unconstitutional, and plaintiff lacks standing to bring the present action. Allen, 468 U.S. at 751, 104 S.Ct. 3315.
In sum, the present action does not present a case or controversy cognizable under Article III. Plaintiff claims that C.P.L. Art. 540 is unconstitutional because it does not require the district attorney or the court to give actual notice to the surety before entering a judgment of forfeiture of bail. Plaintiff argues that other states' notice and hearing provisions *fn19 satisfy due process by following Federal Rule of Criminal Procedure 46, which requires that notice be sent to the surety after bail is forfeited and before judgment is entered.*fn20 Plaintiff also argues that in the majority of states sureties are entitled to pre-judgment notice or, at least, receive pre-judgment notice in practice.*fn21 Defendants refer the court to the specific language of § 540 and claim that the defendant district attorneys provide written notice of judgment of forfeiture and a demand for payment to the surety.*fn22 As none of these arguments address injuries to any constitutionally protected property interest, the present case amounts to nothing more than a policy dispute between the State of New York and a major supplier of bail bonds over who will bear the costs of monitoring the status of the supplier's contingent liabilities. Understandably, plaintiff would like the state to assume its monitoring costs, but that desire does not rise to the level of a constitutionally protected interest.*fn23 Furthermore, in this case the market seems particularly well equipped to provide the monitoring function plaintiff seeks, in that the retailers through which plaintiff distributes its bail bonds are in a position to follow individual bail forfeiture proceedings and pass the cost of doing so on to bond purchasers. The fact that plaintiff would rather increase its profits by compelling the state to provide this service for free does not create a case or controversy under Article III, where no constitutionally protected property interests are at stake.
Defendants have requested summary judgment on its counterclaims. Having held that plaintiff's claims for declaratory judgment must be dismissed for lack of standing and subject matter jurisdiction, I find that defendants' counterclaim for declaratory relief does not present a "case of actual controversy" ripe for consideration by this Court. See 28 U.S.C. § 2201; Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). In particular, the hardship to defendants from withholding consideration of its claims is nil, since the statutes in question are not in any immediate danger of being declared unconstitutional and defendants are not in danger of being enjoined from acting under their authority. Accordingly, I dismiss defendant's first counterclaim on ripeness grounds.
Defendants' second counterclaim in essence seeks affirmance of state court judgments of forfeiture. For the same reasons given in my discussion of the Rooker-Feldman doctrine above, this claim must be dismissed for lack of subject matter jurisdiction.
Defendants' third, fourth, fifth, and sixth claims seek damages for plaintiff's alleged breach of its state law statutory and contractual duties in that it failed to produce its bonded principals or to pay the judgments of forfeiture. Defendants have already obtained judgments of forfeiture against plaintiff on these very grounds in state court. Under the New York doctrine of double recovery, defendants are precluded from bringing claims seeking a second recovery for the same injury. Zarcone v. Perry, 78 A.D.2d 70, 434 N.Y.S.2d 437, 443-44 (App.Div. 1980), aff'd, 54 N.Y.2d 1028 (1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855 (1982). Accordingly, these counterclaims are dismissed with prejudice.
For the foregoing reasons, plaintiff's first, second, fifth, sixth, seventh, eighth, ninth, and tenth claims for relief are dismissed without prejudice for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. Defendants' motion for Younger abstention is denied. Plaintiff's third and fourth claims for relief are dismissed without prejudice for lack of standing. Defendants' first counterclaim is dismissed without prejudice for lack of ripeness. Defendants' second counterclaim is dismissed without prejudice for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. Defendants' third, fourth, fifth, and sixth counterclaims are dismissed with prejudice under the doctrine of double recovery. I have no occasion to consider defendants' motion to amend the answer.
The Clerk is directed to enter judgment dismissing the complaint and to furnish a filed copy of the within to all parties and to the magistrate judge.