LOWRY v. LEVY, (N.D.Cal. 2001)

VAUGHN R. WALKER, U.S. District Judge.

Before the court is a motion to dismiss filed by defendants Mark P. Levy and Levy, Levy and Levy. The court finds this motion appropriate for decision without oral argument. LR 7-1(b). The hearing scheduled for November 30, 2000, at was, therefore, VACATED.

Defendant Mark Levy is a partner of defendant Levy, Levy and Levy, a private law firm. On July 3, 2000, plaintiff Lowry filed a complaint against defendants that appears on two alleged facts: (1) in January 1999, plaintiff's car was seized by an unnamed San Francisco car dealership and (2) in June 1999, defendants filed a motion for a prefiling order in state court requesting that plaintiff be precluded from filing additional litigation without prior court approval; the motion was denied. Plaintiff asserts three causes of actions based on a combination of these two events: (1) defendants allegedly conspired with the car dealership by filing the motion in state court shortly after plaintiff's car was seized to deprive plaintiff of her civil rights in violation of 42 U.S.C. § 1983 and 1985, (2) the motion in state court constituted malicious prosecution and (3) the motion in state court constituted abuse of the judicial process.

In a FRCP 12(b)(6) motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the plaintiff. Dismissal is appropriate when it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46(1957).

42 U.S.C. § 1983 provides a civil cause of action for individuals who are deprived of "any rights, privileges, or immunities secured by the Constitution and laws" by a person acting "under color of law." Adickes v. SH Kress Co, 398 U.S. 144, 147, 150(1970). To state a claim for relief under section 1983, therefore, plaintiff must demonstrate that defendants acted under color of state law. American Manufacturers Mutual Insurance Co v. Sullivan, 526 U.S. 40, 49-50(1999). "Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'"American Manufacturers, 526 US at 50 (citations omitted). State action requires both an alleged constitutional deprivation "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," and that "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Id (quoting Lugar v. Edmondson Oil Co, 457 U.S. 922, 937(1982)).

There are four tests that a court may utilize in order to determine whether a person was acting under color of state law: (1) the public function test, (2) the nexus test, (3) the joint action test and (4) the state compulsion test. Lugar, 457 U.S. at 939. Defendants do not qualify as a state actor under any of these tests.

First, under the public function test, a defendant may be considered a state actor if he engages in a traditionally exclusive government function. Rendell-Baker v. Robin, 457 U.S. 830, 842(1982). Plaintiff has not alleged that filing a motion in state court is an action traditionally reserved for the state. In any event, defendants clearly do not work for the state.

Second, under the nexus test, plaintiff must show that there is a sufficiently close relationship between defendants and the state such that the actions of defendants may be justifiably attributed to the state. Jackson v. Metropolitan Edison Co, 419 U.S. 345, 351(1974). In the case at bar, plaintiff has not alleged whether defendants are subject to extensive state regulation. Inasmuch as regulation of lawyers is largely governed by statute (and is a matter of which the court has extensive knowledge and experience, at least in its fundamental aspects) this is a matter of which the court may properly take judicial notice. FRE 201. Lawyers are, of course, regulated by the California State Bar. In litigation, at least, they are deemed "officers of the court." Nonetheless, there is not a close nexus between the state and the action of lawyers in private practice that they may properly be is deemed to act "under color of state law" in their private practice activities. A lawyer filing a motion in court, therefore, cannot be fairly treated as acting on behalf of the state itself.

Third, defendants may be considered state actors if they are "willful participant[s] in joint action with the state or its agents." Dennis v. Sparks, 449 U.S. 24, 27(1980). Joint action may be found if the private party conspired with the state in order to deprive someone of his or her constitutional rights. Fonda v. Gray, 707 F.2d 435, 437 (9th Cir 1983). Plaintiff has simply alleged that defendants may have conspired with the car dealership to deprive plaintiff of her constitutional rights. See Compl ¶ 33. Such an allegation, however, does not support the argument that defendants acted jointly with the state.

Finally, under the state compulsion test, plaintiff must demonstrate that the state encouraged or coerced defendants to take the action at issue, thus transforming the action into one of the state. See George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996). Plaintiff's complaint contains no allegations that the state coerced or compelled defendants to file their motion in state court.

In sum, plaintiff's complaint alleges no facts sufficient to support that the conduct of defendants (or the unnamed car dealership) was other than merely private conduct. Accordingly, plaintiff has not demonstrated that defendants acted under color of state law. Plaintiff's claim based on section 1983 must, therefore, be dismissed.

For the section 1985 claim, plaintiff alleges that her civil rights have been deprived by defendants. The "deprivation clause" of section 1985(3) provides a private cause of action for persons injured by conspiracies to deprive them of their right to equal protection of the laws. Canlis v. San Joaquin Sheriff's Posse Comitas, 641 F.2d 711, 718 (9th Cir. 1981). Unlike section 1983, section 1985 covers individuals acting in a purely private capacity. Griffin v. Breckenridge, 403 U.S. 88, 101(1971). As the Supreme Court has noted, however, "in order to prove a private conspiracy in violation of the first clause of section 1985(3), * * * plaintiff must show, inter alia, * * * that `some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action.'" Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267(1993) (quoting Griffin, 403 US at 102); see also Addisu v. Fred Meyer, Inc, 198 F.3d 1130, 1134 (9th Cir. 2000). The Court has thus far declined to define "women in general" as a qualifying class under section 1985(3). Bray, 506 U.S. at 269; Portland Feminist Women's Health Center v. Advocates for Life, Inc, 62 F.3d 280, 284 (9th Cir 1995).

Plaintiff asserts that solely because she is a "female person," she is a member of a protected class. See Compl ¶ 32 (Doc Plaintiff cites no authority in support of this contention because none exists as noted above. Accordingly, plaintiff's claim based on section 1985 must also be dismissed.

In light of the court's conclusion that plaintiff's claims based on federal law must be dismissed, the court declines to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3). The decision to retain or decline jurisdiction over state law claims is within the district court's discretion, weighing factors such as economy, convenience, fairness, and comity. See Brady v. Brown, 51 F.3d 810, 816 (9th Cir 1995); Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th Cir 1996). Plaintiff's state law claims are, therefore, dismissed without prejudice. If plaintiff desires, she may refile her state law claims in the appropriate state court.

Plaintiff requests that she be granted leave to file an amended complaint. To grant or deny an opportunity to amend is within the discretion of the district court. See Foman v. Davis, 371 U.S. 178, 182(1962). Plaintiff asserts that she may have inadvertently omitted from her complaint key elements of sections 1983 and 1985. The court finds that plaintiff's complaint adequately described the laws upon which her asserted claims are based. The "underlying facts [and] circumstances" relied upon by plaintiff, however, are not "a proper subject of relief." Id. Hence, leave to amend is DENIED.

For the foregoing reasons, defendants' motion to dismiss pursuant to FRCP 12(b)(6) is GRANTED. plaintiff's request to file a reply brief to defendants' reply is DENIED as moot and plaintiff's request for leave to amend is also DENIED. The clerk shall terminate all pending motions and close the file.

IT IS SO ORDERED.