SIMMONS v. DISTRICT OF NORTHEAST et al

Filing 16

OPINION. Signed by Judge Katharine S. Hayden on 5/26/11. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KERRY SIMMONS,
Plaintiff,
v.
DISTRICT OF NORTHEAST, GREGORY
DIEBOLD, and JOHN FITZGERALD,
Executive Director,

Civil Action No. 10-2305 (KSH)
OPINION

Defendants.
KATHARINE S. HAYDEN, U.S.D.J.
In this action, plaintiff Kerry Simmons (“Simmons”) seeks $50,000 in damages from
defendants Northeast New Jersey Legal Services (“NNJLS”), Gregory Diebold (“Diebold”), and
John Fitzgerald (“Fitzgerald”), who represented her in state court eviction proceedings.
Defendants now move to dismiss for lack of subject matter jurisdiction.
Simmons’s one page complaint lists the names of the defendants and states “(1) Law
Firm, (2) Insufficient Counsel, (3) Evidence That Wasn’t Presented During Hearing, Call No
Witnesses, (4) Sum of 50,000, (5) Unprepared.” (Compl.) The defendants’ moving brief
provides some background 1: Simmons was evicted on the basis of the “one-strike” provision in
her lease, which authorized eviction if a tenant or a member of a tenant’s household committed a
drug violation while a tenant. (Moving Br. at 1.) She contested her eviction and received
representation from Diebold, an attorney with NNJLS. (Id.) Following a bench trial in New

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This background information is not in the record and is not material to the jurisdictional question raised; therefore,
the Court cannot and does not rely on it in reaching its decision. In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1425 (3d Cir. 1997) (stating that a district court ruling on a motion to dismiss is “not permitted to go beyond
the facts alleged in the Complaint and the documents on which the claims made therein were based”). The Court
recounts the history of Simmons’s eviction merely to provide context.

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Jersey Superior Court, the court ruled that the eviction was proper. (Id. (citing Jersey City Hous.
Auth. v. Simmons, HUD-LT-10516-09, at *2 (N.J. Super. Ct. 2009)).
Simmons brought this action pro se against NNJLS, Diebold, and Fitzgerald, who is the
Executive Director of NNJLS. (Moving Br. at 1.) In lieu of an answer, the defendants moved to
dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). (Moving Br. at 1.) Specifically, the defendants argue that Simmons’s failure to plead
subject matter jurisdiction is fatal and should automatically result in dismissal of her complaint.
(Moving Br. at 1–2.) In any event, defendants contend that the Court does not have subject
matter jurisdiction over this case. (Moving Br. at 3.)
Courts must have jurisdiction over the cases they decide. See Ins. Corp. of Ir. v.
Compagnie Des Bauxites De Guinee, 456 U.S. 694, 701–02 (1982). To commence an action in
federal court, a plaintiff must be able to point to a constitutional or congressional grant of subject
matter jurisdiction for the district court to hear the case. Id. at 701. Subject matter jurisdiction
cannot be waived and, as such, a court must dismiss a case that lacks it. Id. at 702.
After careful review, the Court concludes that the complaint does not invoke subject
matter jurisdiction. The civil cover sheet filed with Simmons’s complaint purports to invoke
jurisdiction on the basis of a federal question and on the grounds that the U.S. government is a
defendant. (Civil Cover Sheet, attached to Compl.) However, rather than setting forth a claim
“arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, the
complaint appears to assert a state law legal malpractice claim. Cf. Doug Grant, Inc. v. Great
Bay Casino Corp., 3 F. Supp. 2d 518, 531 (D.N.J. 1998) (declining to exercise supplemental
jurisdiction over legal malpractice claims that did not arise from same set of facts as federal
claims). To the extent that Simmons attempts to state a constitutional claim for ineffective

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assistance of counsel, there is no constitutional or statutory right to counsel in a civil case, Lasko
v .Watts, 373 F. App’x 196, 200 (3d Cir. 2010), and in any event, NNJLS is not an arm of either
the federal or New Jersey government. Rather, it is a private, non-profit organization that
receives federal funding pursuant to the Legal Services Act, 42 U.S.C. § 2996f(c). The mere fact
that NNJLS receives federal funding is insufficient to convert its actions into governmental
action, see Boyle v. Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71 (3d Cir.
1991), and the complaint does not allege that the conduct of NNJLS is fairly attributable to the
state of New Jersey, Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). The fact that
NNJLS and its officers are not state actors precludes a finding that jurisdiction exists under either
42 U.S.C. § 1983 (providing a cause of action against state actors who commit constitutional
torts) or 28 U.S.C. § 1346(a)(2) (vesting in the district courts jurisdiction to hear cases founded
on “the Constitution, or any Act of Congress, or any regulation of an executive department, or
upon any express or implied contract with the United States”).
Furthermore, the requirements for diversity jurisdiction are not satisfied. Section 1332
requires complete diversity and a minimum amount in controversy of $75,000. 28 U.S.C. §
1332. Simmons’s Civil Cover Sheet lists her address as a residence in Jersey City, New Jersey,
and both the Cover Sheet and the Complaint state that NNJLS is a resident of Jersey City, as
well. (Civil Cover Sheet). Additionally, the complaint seeks $50,000 in damages. As such, the
Court does not possess diversity jurisdiction over this action.
For the reasons set forth above, the Court lacks subject matter jurisdiction over this case.
The defendants’ motion to dismiss is granted.

Thursday, May 26, 2011

/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.
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