Patricia DODSON, Plaintiff-Appellant, v. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, By and Through the UNIVERSITY OF ARKANSAS SYSTEM BOARD OF TRUSTEES; James E. Lindsey, Trustee, in his official capacity only; Tim E. Hunt, Trustee, in his official capacity only; Jane Rogers, Trustee, in her official capacity only; Carl Johnson, Trustee, in his official capacity only; John Ed Anthony, Trustee, in his official capacity only; Mike Akin, Trustee, in his official capacity only; Sam Hilburn, Trustee, in his official capacity only; Jim Von Gremp, Trustee, in his official capacity only; John Tyson, Trustee, in his official capacity only; Ben Hyneman, Trustee, in his official capacity only; B. Alan Sugg, President of the University of Arkansas System, in his official capacity only; I. Dodd Wilson, M.D., Chancellor, University of Arkansas for Medical Sciences, in his official and individual capacity; Jackson O. Lay, Defendants-Appellees, 601 F.3d 750

PER CURIAM. Appellant Patricia Dodson seeks control over the fate of eighteen cryogenically frozen embryos, which she created with her ex-husband through the In-Vitro Fertilization (“IVF”) Program at the University of Arkansas for Medical Sciences (“UAMS”). Dodson brought this action, alleging that UAMS’s refusal to allow her control over the disposition of the embryos violates her constitutional rights and breaches an implied contract. The district court dismissed the complaint because subject matter jurisdiction was lacking pursuant to the Rooker-Feldmcm doctrine. We affirm. 1.

Background In 1995, Patricia Dodson (formerly Patricia Lay) and her then-husband, Dr. Jackson Lay, participated in the IVF Program at UAMS with the goal of creating an embryo to be implanted into Dodson. When they enrolled in the IVF Program, Dodson and Lay signed a two-page document called a “Control and Disposition of Embryos Statement” (“the Disposition Statement”). The Disposition Statement governed the IVF Program’s responsibility for custody of Dodson’s ova, Lay’s sperm, and any resulting embryos. Moreover, UAMS acknowledged that Dodson and Lay would control and direct the disposition of the tissues.

At any time prior to implantation in Dodson’s uterus, the couple or the surviving single spouse could direct that the tissues be destroyed, used for medical research, or transferred to the custody of another physician or health-care facility. Finally, in the Disposition Statement, Dodson and Lay agreed that in the event of dissolution of their marriage by court order, “all control and direction of [their] tissues will be relinquished to the medical director” of the IVF Program (“the IVF Program Director”).

Through the IVF Program, the couple produced eighteen embryos, which were cryogenically frozen and stored at UAMS. Dodson and Lay divorced in 1997. The Chancery Court of Hot Springs County, Arkansas entered a divorce decree, which incorporated a property settlement agreement. In paragraph seven of the property settlement agreement, Dodson and Lay acknowledged and reaffirmed the terms of the Disposition Statement.

Furthermore, they agreed that Dodson “shall have the right to choose from available options, if any, for disposition as listed in the [Disposition Statement].” In 1999, Dodson asked UAMS to implant the embryos into her. However, UAMS would not comply with her request unless she obtained explicit written consent from Lay. Lay authorized UAMS to either destroy the embryos, use the embryos for medical research, or allow the embryos to be legally adopted by another married couple in connection with the IVF Program.

Lay consented to Dodson choosing among those three options, but he refused consent for implantation into Dodson. In response, Dodson requested the Hot Springs County Chancery Court to order that Lay, through the divorce decree, had consented to whatever procedure Dodson negotiated with UAMS, including implantation into herself. Jackson O. Lay v. Patricia Dodson, No. E-96-287 (Nov. 10, 1999) (‘Dodson I”). The court denied relief, finding that Lay only consented to those options listed in the Disposition Statement.

Next, the chancery court found under the terms of the Disposition Statement, all control and direction of the tissues was relinquished to the IVF Program Director upon the dissolution of the marriage by court order. UAMS was not a party in Dodson I, and the chancery court noted that it “was not called upon to interpret the third party contract.” Subsequently, the IVF Program Director allowed Dodson twenty-one days to elect one of the three options available under the Disposition Statement: destruction, medical research, or transfer/adoption by another couple.

In January 2000, Dodson sued UAMS, the UAMS Chancellor, and the IVF Program Director in the Chancery Court for Pulaski County, Arkansas. Patricia Dodson v. UAMS et al., No. IJ 2000-0307 (Feb. 15, 2000) (‘Dodson II ”). Dodson later substituted the UAMS Board of Trustees for the Chancellor and Director.

According to the chancery court’s opinion, Dodson sought the following relief: [A] declaratory judgment that 1) her ex-husband consented or relinquished his right to consent or object to the implantation of certain embryos into [Dodson], 2) she fulfilled her obligation under the agreement with UAMS, and, 3) UAMS must fulfill its obligation to implant the embryos into her. Plaintiff also sought a temporary restraining order and preliminary injunction prohibiting UAMS from disposing of or injuring the embryos until a final hearing on the merits.

The defendants in Dodson II asserted state law sovereign immunity as a defense. Dodson argued that sovereign immunity did not apply because she sought to enjoin arbitrary, capricious, and ultra vires actions of state officials. The court dismissed Dodson’s claim with prejudice. First, the court construed the complaint as requesting declaratory — not injunctive— relief, and therefore her claim was not cognizable.

Second, the court held that, even if construed as a request for injunctive relief, Dodson’s claim failed as a matter of law because UAMS’s actions were “reasonable, sound, and within their authority.” The court explained: Finally, considering the evidence in the light most favorable to [Dodson], the court cannot conclude that defendants’ actions are arbitrary or ultra vires. To the contrary, [Dodson] and Dr. Lay authorized the medical director of the IVF Program to take control of the embryos in the event the couple divorced. The medical director has full authority to decide how to dispose of the embryos.

He has been more than reasonable in allowing [Dodson] to choose which of the three previously agreed-upon options should be selected. It was reasonable for him to ask [Dodson] to get her ex-husband’s consent to become the biological father to a child born to his ex-wife more than two years after they divorced. Dodson appealed the chancery court’s ruling. The Arkansas Supreme Court dismissed her appeal in December 2001 for failure to order a transcript of the chancery court proceedings.

Notwithstanding the court orders in Dodson I and Dodson II, UAMS continued to send bills to Dodson for embryo storage fees due to an apparent clerical mistake. In total, Dodson paid the storage fees on a monthly or quarterly basis for nearly eleven years after her divorce from Lay and for over six years after the Pulaski County Chancery Court found that she had no right to control the disposition of the embryos. Then, in February 2008, UAMS notified Dodson that it was closing the embryo cryopreservation program and that it would transfer the embryos to another facility.

In March 2008, UAMS sent Dodson a consent form required for UAMS to ship the frozen embryos elsewhere. Dodson requested UAMS allow her to decide the fate of the embryos. UAMS informed her that the IVF Program Director retained sole authority over the embryos and that UAMS was not bound to honor her requests. In October 2008, Dodson filed this action in federal district court against UAMS through the Board of Trustees for the University of Arkansas System, the UAMS President, the UAMS Chancellor, the Trustees individually, and Lay.

In Count I, Dodson alleges a claim under 42 U.S.C. § 1983 for violations of her rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution and Amendment Sixty-Eight to the Arkansas State Constitution. Count II is a state-law cause of action, alleging that UAMS breached an implied contract based upon Dodson’s payment of storage fees for the embryos. Dodson requested injunctive relief to prevent UAMS from interfering with her right to control the “potential life” and the disposition of the embryos.

Simultaneously, Dodson moved for a temporary restraining order to prevent UAMS from jeopardizing the safety of the embryos. That request was denied as moot after UAMS agreed to maintain the embryos in their current condition pending the resolution of this litigation. The defendants moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

Lay also sought dismissal because the requested relief would force him to become a biological father against his will, violating his alleged right to procreative autonomy. The district court granted the motions to dismiss for lack of subject matter jurisdiction under the Rooker-Feldman doctrine.

In support, the district court found the complaint “inextricably intertwined” with previous state-court proceedings because “[Dodson’s] claims could succeed only upon a finding that the state courts wrongly decided the issues.” In this appeal, Dodson argues that the Rooker-Feldman doctrine is inapplicable because the Dodson II was decided on the basis of sovereign immunity, a jurisdictional bar under Arkansas law. In addition, Dodson contends that Rooker-Feldman is inapplicable because she does not seek to overturn a state court decision.

Appellees maintain that dismissal under Rooker-Feldman was proper, and alternatively, that Dodson’s claims are barred due to res judicata, collateral estoppel, the Eleventh Amendment, and failure to plead a right that can be vindicated under § 1983. II. Subject Matter Jurisdiction A. Law “The ‘basic theory’ of the Rooker-Feldman doctrine is ‘that only the United States Supreme Court has been given jurisdiction to review a state-court decision,’ so federal district courts generally lack subject-matter jurisdiction over ‘attempted appeals from a state-court judgment.’ ” Friends of Lake View Sch. Dist. No. 25 v.

Beebe, 578 F.3d 758, 758 (8th Cir.2009) (quoting 18B Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4469.1, at 97, 101 (2d ed.2002)). The doctrine is narrow. Id. The “doctrine ‘is confined to cases ... brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced.’ ” Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)).

This court has expressly cautioned against a state court loser seeking victory against his adversary in a subsequent § 1983 action in federal court. Litigants can choose whether to pursue ... claims in state or federal court. Charchenko v. City of Stillwater, 47 F.3d 981, 984 (8th Cir.1995). Once a party has litigated in state court, however, he “cannot circumvent Rooker-Feldman by recasting his or her lawsuit as a [section] 1983 action.” Bechtold v. City of Rosemount, 104 F.3d 1062, 1065 (8th Cir.1997). In other words, if a litigant has raised and lost claims in state court, he may not recast those claims under

section 1983 and try again. He must follow the appellate procedure through the state courts and seek review before the Supreme Court. See Rooker [v. Fid. Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923) ]. Prince v. Ark. Bd. Exam’rs in Psychol., 380 F.3d 337, 340 (8th Cir.2004). B. Count I We affirm the dismissal of Count I because Dodson is a “state-court loser[] complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced.” Friends of Lake View, 578 F.3d at 758.

Although the precise context of the Hot Springs Chancery Court’s ruling in Dodson I is unclear from the record before us, it is undisputed the Hot Springs Chancery Court specifically found as follows: “Under the terms of the [Disposition Statement], upon the dissolution of the marriage by court order, all control and direction of the tissues as of January 29, 1997, was relinquished to the [the IVF Program Director].” Any ruling in the case at bar in Dodson’s favor, i.e., that the federal constitution demands the return of the embryos to Dodson, would wholly undermine this part of the Hot Springs Chancery Court’s ruling in Dodson I.

In Dodson II, the Pulaski Chancery Court determined the IVF Program Director had the right to dispose of the embryos. Even if that determination were technically obiter dictum, it was not a stray remark on an issue not presented to it. Cf. Stemler v. Florence, 350 F.3d 578, 589 (6th Cir.2003) (holding Rooker-Feldman did not preclude a federal lawsuit, where state court only discussed related claim, which was “not an issue that was salient” to the state court, in dicta). This is not a case in which the state court simply held it lacked jurisdiction and dismissed the plaintiffs case without prejudice.

Rather, the state court discussed the merits of Dodson’s case extensively and dismissed Dodson II with prejudice. C. Count II Nothing in the foregoing analysis applies to Count II. All of the conduct alleged in Count II occurred after Dodson I and II and, therefore, the Rooker-Feldman doctrine is inapplicable as to Count II.

See Exxon, 544 U.S. at 284, 125 S.Ct. 1517 (stressing the Rooker-Feldman doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments”).

Neither the Hot Springs Chancery Court nor the Pulaski Chancery Court considered Dodson’s allegations that the defendants continued to bill her for storage of the embryos, accepted payment therefor, and made statements to her in which defendants indicated Dodson had the right to dispose of the embryos. With Count I properly dismissed, there are no federal claims in this case and jurisdiction under 28 U.S.C. § 1331 abates.

The Supreme Court has recognized that, “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). While “this rule is not inflexible,” Grain Land Coop v.

Kar Kim Farms, Inc., 199 F.3d 983, 993 (8th Cir.1999), it is difficult to say the district court expended such a substantial amount of time and resources on Dodson’s case to warrant retention of Count II in federal court. Cf. Murray v. Wal-Mart, Inc., 874 F.2d 555, 558 (8th Cir.1989) (noting substantial investment of the district court’s time and resources may justify continued exercise of supplementary jurisdiction). We remand for the dismissal of Count II without prejudice. III. Conclusion We affirm the district court’s dismissal of Count I under the Rooker-Feldman doctrine.

We remand for dismissal of Count II without prejudice. . The Honorable James M. Moody, United States District Judge for the Eastern District of Missouri. . Dodson included Lay as a defendant in order to determine his "rights and responsibililies ... based on his conduct and agreements previously entered.” . In this appeal, Dodson clarified that she hopes to donate the embryos for adoption. .

It appears there is some tension in our prior precedents as to whether the Rooker-Feldman doctrine will bar a federal court from exercising jurisdiction when a state court previously ruled against the plaintiff without reaching the merits of the dispute. In Friends of Lake View, for example, this court stated " ‘the Rooker-Feldman doctrine does not bar federal claims brought in federal court when a state court previously presented with the same claims declined to reach their merits.' ” Friends of Lake View, 578 F.3d at 758 (quoting Simes v. Huckabee, 354 F.3d 823, 830 (8th Cir.2004)).

In other cases, however, this court held ‘‘[a]pplication of the Rooker-Feldman doctrine does not depend on a final judgment on the merits of an issue.” Goetzman v. Agribank, FCB (In re Goetzman), 91 F.3d 1173, 1178 (8th Cir.1996).