ELEUTERI v. ELEUTERI et al

Filing 33

OPINION. Signed by Judge Jerome B. Simandle on 06/20/2011. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LAWRENCE A. ELEUTERI, JR.,
Plaintiff,

HON. JEROME B. SIMANDLE
Civil No. 10-2002 (JBS/AMD)

v.
OPINION
KAREN ELEUTERI, ET AL.,
Defendants.

SIMANDLE, District Judge:
This matter is before the Court on the Court's order to show
cause why the case should not be dismissed for lack of subject
matter jurisdiction.

[Docket Item 23.]

The Court finds as

follows:
1.

This case involves a family dispute between Plaintiff,

Lawrence A. Eleuteri, Jr. and Defendants, Karen Eleuteri,
Lawrence A. Eleuteri, Sr. (since deceased), and Thomas Hurley,
Esq. (Defendants' attorney in another matter).

Plaintiff alleges

that Ms. Eleuteri and Lawrence A. Eleuteri, Sr. reneged on a land
deal, and told Plaintiff that they would not pass the title of
his residence to him unless he relinquished visitation rights to
his children.

(Am. Compl. Count 1 ¶ 1, Count 2 ¶ 3.)

When

Plaintiff brought suit in state court, he claims Defendants
defrauded the state court and otherwise behaved unlawfully
throughout the litigation.

(Am. Compl. Count 3-4.)

Finally,

Plaintiff alleges that unspecified Defendants have abused his

children. (Am. Compl. Count 7 ¶ 4.)
2.

The Amended Complaint originally brought seven claims:

Count 1 brings a claim for conspiracy pursuant to 42 U.S.C. §
1983, § 1985, and § 1982; Count 2 brings a claim for "the tort of
coercion" based on the new condition added to real estate
agreement; Count 3 brings a claim for fraudulent
misrepresentation based on Plaintiff's allegation of Defendants
reneging on their initial offer, and based upon the Defendants'
misrepresentations to the state court; Count 4 brings a claim of
so-called "explicit fraud" based on the alleged taking of the
document from the deposition; Count 5 brings a claim of "acting
under color of law," and makes a number of confusing assertions
such as that "Defendants bought plaintiffs children hundreds of
dollars of clothing without the plaintiff even knowing;" Count 6
brings a breach of contract claim regarding the breach of the
agreement regarding the sale of the real property; and Count 7
brings a claim for "willful neglect and child abuse" alleging
that Defendant Karen Eleuteri "sleeps in the same bed with Jacob
Spering endangering his welfare and that of plaintiffs children
and the public at large," without further explanation.
3.

In its Opinion and Order of March 28, 2011, this Court

ordered Plaintiff to show cause why this Court has subject matter
jurisdiction over this action.

The Court stated:

[T]he alleged basis for subject matter
jurisdiction in this case is federal question
2

jurisdiction arising from Plaintiff's claims
that Defendants were acting under color of
state law and therefore may be liable under 42
U.S.C. § 1983. (Plaintiff also sued under 28
U.S.C. § 1346, but that section applies only
when the United States is a defendant.) Other
than the conclusory assertion that Defendants
were "in privity with local and state
government," there appears to be no factual
basis for the claim that they were acting
under color of state law in taking any of the
actions alleged to have harmed Plaintiff.
Plaintiff must therefore show cause as to why
the Amended Complaint should not be dismissed
for lack of subject matter jurisdiction.
[Docket Item 22 at 7-8.]
4.

Plaintiff submitted two filings on April 11, 2011.

First, he moved to file the supplemental complaint he had
previously sought to file without a formal motion.
24.]

[Docket Item

He also submitted argument on the issue of subject matter

jurisdiction.

[Docket Item 25.]

The Court will consider whether

it has subject matter jurisdiction over either version of the
pleading.
5.

The critical question on subject matter jurisdiction, as

this Court explained in the March 28, 2011 opinion, is whether
there is any "factual basis for the claim that [Defendants] were
acting under color of state law in taking any of the actions
alleged to have harmed Plaintiff."

[Docket Item 22 at 7-8.]

An

explicit requirement for liability under § 1983 is that the
defendant must have acted "under color of state law."
§ 1983.
3

42 U.S.C.

6.

Plaintiff makes two arguments that the conduct of these

individuals constituted state action.

First, he argues that

because Mr. Eleuteri, Sr. was a retired judge, "[l]aw enforcement
and the judiciary view his words and actions differently than an
ordinary person and the case should have been tried out of state
which should be a rule of thumb when retired judges are
involved."

[Docket Item 25 at 2.]

Even a currently employed

state official's actions do not constitute state action unless he
or she depends upon the "cloak of the state's authority" as a
means to commit the alleged acts.

Barna v. City of Perth Amboy,

42 F.3d 809, 816 (3d Cir. 1994).

None of the conduct alleged

with respect to Mr. Eleuteri Sr. required him to have even been
formerly employed as a judge, much less did it depend on some
present governmental status.

Moreover, Plaintiff admits that the

litigation between him and Karen Eleuteri and Mr. Eleuteri, Sr.
was transferred out of the court in which Eleuteri, Sr. had
served, so Plaintiff's concerns about bias seem particularly
unfounded.
7.

Plaintiff's second argument is that Defendants' conduct

involved state courts, and state custody laws, and therefore it
was "under color of state law."

Mere use of legal mechanisms

available to all private citizens does not constitute state
action.

See, e.g., Boyce v. Eggers, 513 F. Supp. 2d 139, 144

(D.N.J. 2007) (holding that even a city employee was not acting

4

under color of law when she filed a complaint with the police);
Bennings v. Kearney, 2 Fed. App'x 218 (2d Cir. 2001).

If

Plaintiff seeks to challenge the conduct of the state or its
courts as unconstitutional, he must bring suit against those
entities, not against private parties appearing before the state
court.
8.

Because neither of Plaintiff's arguments regarding state

action has any merit, and because it is clear that this case has
nothing to do with any actions made under color of state law, as
that term is properly understood, this is a conflict properly
handled in the courts of the State of New Jersey.1
lacks subject matter jurisdiction.

The Court

Pursuant to Rule 12(h) of the

Federal Rules of Civil Procedure, the Court will dismiss the
action without prejudice.

The accompanying Order will be

entered.

June 20, 2011
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

1

The Court has also examined whether an alternative basis
for subject matter jurisdiction would exist under diversity of
citizenship, 28 U.S.C. § 1332. Because Plaintiff and Defendants
are all New Jersey citizens, (Am. Compl. 1), no diversity of
citizenship exists.
5