Miles v. Funk

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1057
DANIEL W. MILES, ET AL.,
Plaintiffs, Appellants,
v.
W. JOHN FUNK, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Daniel W. Miles and H. George Hamacher on brief pro se.
Russell F. Hilliard and Upton & Hatfield, LLP on brief for
appellees.
January 15, 2008
Per Curiam. Plaintiffs-appellants Daniel W. Miles and
George Hamacher appeal pro se from the district court's grant of
summary judgment dismissing their federal claim pursuant to 42
U.S.C. § 1983 for failure to make the requisite showing that the
alleged deprivation of constitutional rights was committed under
color of state law, and dismissing their state law claims without
prejudice for lack of subject matter jurisdiction based on their
failure to demonstrate the requisite amount in controversy to
support diversity jurisdiction.1
"'We review a district court's grant of summary judgment
de novo, viewing the facts in the light most favorable to the
nonmovant.' Summary judgment is warranted 'if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.' 'We may affirm a summary judgment
decision on any basis apparent in the record.'" Perry v. Wolaver,
506 F.3d 48, 53 (1st Cir. 2007) (citations omitted).
I. Dismissal of Section 1983 Claim: State Action
Appellants rely upon the following alleged conduct to
establish state action: "the state court's actions, enforcing
Appellees' Settlement offer and appointing a Commissioner to sign
1
Although one of the state law claims (Count XII) was
dismissed with prejudice for failure to state a claim, appellants
do not specifically challenged that ruling in their briefs.
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the Settlement offer and to execute a deed to [Clarice Neumann's]
real estate . . . , which clearly provided Appellees with color of
state action justifying federal jurisdiction." Appellants' Brief at
10.
There are two components to the "state
action" requirement:
"First, the deprivation must be caused by the
exercise of some right or privilege created by
the State or by a rule of conduct imposed by
the State or by a person for whom the State is
responsible. . . . .
Second, the party charged with the deprivation
must be a person who may fairly be said to be
a state actor. This may be because he is a
state official, because he has acted together
with or has obtained significant aid from
state officials, or because his conduct is
otherwise chargeable to the State."
Casa Marie, Inc. v. Superior Court of Puerto Rico for Dist. of
Arecibo, 988 F.2d 252, 258 (1st Cir. 1993) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
Appellants claim that their deprivation was caused by the
appellees' use of state court to enforce an allegedly
unconstitutional settlement agreement. However, we have said that
"something more than resort to state court is required to transform
the moving party into 'a co-conspirator or a joint actor with the
judge.'" Id. at 259. Appellants did not allege that the procedure
for enforcement of settlement agreements under New Hampshire state
law is unconstitutional. Allegations of private misuse of state
procedures is not enough. See Gonzales-Morales v. Hernandez-
Arencibia, 221 F.3d 45, 49 (1st Cir. 2000). Appellants' reliance
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upon Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991),
which held that the exercise of peremptory challenges by a private
litigant in a civil case constituted "state action," is misplaced.
The Court specifically stated there that "private use of state-
sanctioned private remedies or procedures does not rise, by itself,
to the level of state action." Id. at 622.
For essentially the reasons stated by the district court
in its May 30, 2006 Order, we agree that there are no genuine
issues as to any material fact with respect to the "state action"
requirement and that defendants are entitled to summary judgment as
a matter of law on Count I of the complaint (§ 1983 claim).
II. Dismissal of State Law Claims: Amount in Controversy
"We review de novo the district court's dismissal for
lack of subject matter jurisdiction." Spielman v. Genzyme Corp.,
251 F.3d 1, 4 (1st Cir. 2001). Appellants, "as the part[ies]
seeking to invoke jurisdiction . . . ha[ve] the burden of showing
that [they] ha[ve] met the statutory requirements." Id. Where, as
in this case, the "amount in controversy" allegation is questioned,
"'the party seeking to invoke jurisdiction has the burden of
alleging with sufficient particularity facts indicating that it is
not a legal certainty that the claim involves less than the
jurisdictional amount.'" Id. at 5.
Appellants' brief challenges the district court's "amount
in controversy" ruling on the grounds that 1) the plaintiffs'
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response to interrogatories identified the amount of damages that
the parties to the state court suit expected "would accrue to the
interest of the Association (VWTOA)" as $1,496,000, plus attorneys'
fees, and 2) the district court failed to recognize that
"Appellants' 'rights and recoveries' in the state court litigation
were a common, single and undivided claim." Appellants' Brief at
14.
"Courts have repeatedly held that the value of the matter
in controversy is measured . . . by the [potential] judgment's
pecuniary consequences to those involved in the litigation."
Richard C. Young & Co., Ltd. v. Leventhal, 389 F.3d 1, 3 (1st Cir.
2004). In the present action, only the three individual plaintiffs
were "involved in the litigation." As the district court noted,
"[t]he instant action was not brought as a class action or as a
derivative action. The . . . plaintiffs do not allege any basis in
the Complaint for finding that they have standing to recover
damages on behalf of anyone other than themselves." District Court
Order, 7/20/06, Dkt No. 56, p. 6.
Nor was the state court action a class action or
derivative action. The Bill in Equity was specifically amended to
clarify that there was only one petitioner: Clarice Neumann. A
subsequent motion by Attorney Ramsdell to amend the Bill in Equity
to assert claims derivatively on behalf of the Village of
Winnipesaukee Timeshare Owners Association (VWTOA) members was
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denied by the Superior Court. See id., p. 16. Therefore,
plaintiffs' reliance upon amounts that allegedly could have been
recovered on their behalf in the state court action is unfounded.
Appellants rely upon the principle that "when several
plaintiffs unite to enforce a single title or right in which they
have a common and undivided interest, it is enough if their
interests collectively equal the jurisdictional amount." Pinel v.
Pinel, 240 U.S. 594, 596 (1916); see 15 James Wm. Moore, Moore's
Federal Practice § 102.108[3][b] (3d ed.) ("aggregation of damages
allegedly owed to separate plaintiffs may be permitted in the
limited situation in which two or more plaintiffs unite to enforce
a single title or right in which they have a common and undivided
interest"). However, even if such aggregation were permitted here,
it would not excuse the plaintiffs from the need to identify their
individual pecuniary interests which they seek to aggregate. They
have not done so.
For the above reasons, and those stated by the district
court in its Order dated July 20, 2006, we conclude that the
plaintiffs failed to allege "with sufficient particularity facts
indicating that it is not a legal certainty" that the state law
claims involve less than the jurisdictional amount. Spielman, 251
F.3d at 5.
The district court's grant of summary judgment dismissing
Counts I and XII of the complaint with prejudice and dismissing
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Counts II - XI of the complaint without prejudice for lack of
subject matter jurisdiction is affirmed.
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