MCKINNIE v. HUDSON COUNTY PROSECUTOR OFFICE et al

Filing 55

OPINION. Signed by Judge Kevin McNulty on 11/7/16. (cm )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DERECK MCKINNIE,

Civ. No. 13-7290 (KM)(MAH)

Plaintiff,

V.

OPINION

HUDSON COUNTY PROSECUTOR OFFICE
et al.,
Defendants.

Background
This civil rights complaint, filed by Dereck McKinnie, pro Se, arises
primarily from a family dispute over real property in Jersey City, a dispute
which gave rise to state and federal court litigation. I have already filed an
Opinion (“Op.,” ECF no. 48) and Order (ECF no. 49) granting unopposed
motions to dismiss filed by various defendants. Familiarity with that prior
opinion is assumed. Now before the court is the motion (ECF no. 51) of another
defendant, Victor 0. Sison, Esq., to dismiss the Amended Complaint (“AC”,
ECF no. 31). No opposition has been filed. I nevertheless consider the
arguments of the motion in light of all prior filings in the case. For the reasons
stated below, Sison’s motion will be granted.
McKinnie sued his relatives Byron and Rethel McKinnie in Superior
Court, Hudson County, No. HUD-C-128-12, over ownership of the Jersey City
property. See ECF no. 1-1 at 40—55 (various papers, apparently from that
action). In that action, Dereck McKinnie was represented by Gerald Miller, Esq.
I considered and granted the motion to dismiss the complaint filed by Miller.
1

(Op.

at 15—18) The Complaint alleges that Miller advised McKinnie that he
might recover ownership of the property, or at least recover amounts expended
for work on the house. It refers to Miller’s obtaining a $20,000 settlement and
release form, which McKinnie did not sign.
Defendant Victor Sison, Esq., represented the defendants in the action
over the property. The Complaint alleges that Sison gave false information in
court and in court documents. (AC at p. 35) The outcome of the case is not
stated; an online search confirms the existence of the case, but gives no
disposition and states only that the case has been archived.
http: / / njcourts.j udiciary. state.nj .us (Civil Case Public Access).
The causes of action do not specify the particular defendants against
whom they are directed. They include (1) violations of due process and equal
protection; (2) 42 U.S.C.

§

1983; (3) disability discrimination; (4) breach of

trust; (5) duty; and (6) negligence.
Standard on Motion to Dismiss
The defendants move to dismiss the Amended Complaint for lack of
jurisdiction under Federal Rule of Civil Procedure 12(b) (1). Lack of subject
matter jurisdiction may be raised at any time. Iwanowa v. Ford Motor Co., 67 F.
Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges may be either
facial or factual attacks. See 2 Moore’s Federal Practice

§

12.30[4] (3d ed.

2007); Mortensen v. First Fed. Say. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.
1977). A facial challenge asserts that the complaint does not allege sufficient
grounds to establish subject matter jurisdiction. Iwanowa, 67 F. Supp. 2d at
438. A court considering such a facial challenge assumes that the allegations
in the complaint are true, and may dismiss the complaint only if it nevertheless
appears that the plaintiff will not be able to assert a colorable claim of subject
matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721
F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438. A factual attack
may involve the court’s receipt of evidence.

2

The defendants also move to dismiss the Complaint under Federal Rule
of Civil Procedure 12(b)(6). Rule 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, if it fails to state a claim upon which relief can
be granted. The defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011).
At a minimum, a complaint must contain
(1) a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support;(2) a short and plain
statement of the claim showing that the pleader is entitled to relief;
and (3) a demand for the relief sought, which may include relief in
the alternative or different types of relief
FED. R. Civ. P. 8(a).
From the seminal modern cases of Bell Atl. Corp.

V.

Twombly, 550 U.s.

544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Third Circuit
has extracted a three-step process for reviewing a complaint:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S.] at 675; Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.5. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). The complaint’s allegations
must be factual, not conclusory, and they must be sufficient to raise a
plaintiff’s right to relief above a speculative level, so that a claim is “plausible
on its face.” Twombly, 550 U.S. at 570; see also Umland v. PLANCO Fin. Serv.,
Inc., 542 F.3d 59, 64 (3d Cir. 2008).

3

Discussion
Sison, as defense counsel in the state lawsuit, essentially adopts the
arguments of defendant Gerald Miller, plaintiff’s counsel in the state lawsuit,
from the prior motion to dismiss. (See Motion of defendant Gerald D. Miller,
Esq., pursuant to Fed. R. Civ. P. 12(b)(1) and (b) (6), to dismiss the Amended
Complaint for lack of jurisdiction and failure to state a claim (ECF no. 34).) He
cites the “policy of comity” and the New Jersey Rules of Court, grounds which I
do not consider applicable. Nevertheless, I find that the complaint should be
dismissed as against Sison.
The initial basis for dismissal is jurisdictional. One potential basis for
federal jurisdiction is the presentation of a claim arising under federal law. See
28 U.S.C.

§ 1331. That claim, however, must be “colorable”; an “insubstantial”

claim is not sufficient to confer federal-question jurisdiction. Arbaugh v. Y & H
Corp., 546 U.S. 500, 513 & n. 10, 126 5. Ct. 1235, 1244 & n.10 (2006), Counts
1, 2, and 3 cite federal law: specifically, the equal protection and due process
clauses of the U.S. Constitution, 42 U.S.C.

§ 1983, and disability

discrimination.
A constitutional or

§ 1983 claim requires state action, i.e., action by or

behalf of some governmental entity. “The traditional definition of acting under
color of state law requires that the defendant in a

§ 1983 action have exercised

power ‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.”’ W. v. Atkins, 487 U.S. 42,
49, 108 5. Ct. 2250, 2255 (1988) (quoting United States v. Classic, 313 U.S.
299, 326, 61 S. Ct. 1031, 1043 (1941)). Sison is a private attorney, not a
government actor. See Singh v. Harrison, 412 F. App’x 430 (3d Cir. 2011)
(upholding dismissal of

§ 1983 claim because private attorney not state actor).’

See also Love v. Law Office of Roberts, No. 11—4500, 2011 WL 4916196, at *2
(D.N.J. Oct. 17, 2011) (“As a private attorney, Defendant Roberts is not a state actor for
purposes of 1983.”) (citing Polk Cnty. v. Dodson, 454 U.S. 527, 535 (1981); Steward
v. Meeker, 459 F.2d 669 (3d Cir. 1972); Thomas v. Howard, 455 F.2d 228 (3d
Cir. 1972)); Catanzaro v. Collins, No. 09—0922, 2010 WL 1754765, at *8 (M.D. Pa. Apr.
27, 2010) (“Private attorneys and public defenders are generally not considered state
4

The due process and equal protection clauses, as well as

§ 1983, are

protections against government action, not sources of claims between private
parties.
As for disability discrimination,

2

no relevant facts are pled. The

Complaint reveals that had suffered a heart attack and a leg injury. The nature
of any alleged actionable discrimination by Sison, however, is not stated.
Claims 1, 2, and 3 are so devoid of support that they fail to set forth a
colorable basis for federal question jurisdiction. They must be dismissed under
Rule 1 2(b)( 1). Even assuming they passed that jurisdictional threshold,
however, they would be dismissed for failure to state a claim under Rule
12(b) (6). They simply fail to meet the Twombly/Iqbal standard of stating facts
sufficient to make out a plausible claim of a constitutional or federal statutory
violation.
Claims 4, 5, and 6 are state law claims that are difficult to relate to
Sison at all. As to these, the claimed basis for this court’s subject matter
jurisdiction may be diversity of citizenship. The relevant portion of the diversity
statute provides that “[t]he district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between
States.” 28 U.S.C.

...

citizens of different

§ 1332(a). See also Lincoln Ben. Life Co. v. AEI Life, LLC, 800

F.3d 99, 104 (3d Cir. 2015) (quoting statute).
To be a “citizen” of a state is not merely to be a resident of that state, or
to receive mail there. For purposes of diversity jurisdiction, citizenship is
synonymous with domicile, and “the domicile of an individual is his true, fixed
and permanent home and place of habitation. It is the place to which,
actors for § 1983 purposes when acting in their capacities as attorneys.”) (citing
Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (citing Polk Cnty,
supra)), affd by 447 F. App’x 397 (3d Cir.201 1) (per curiam).
I will assume that the reference is to the Americans with Disabilities Act (ADA),
which prohibits discrimination in certain kinds of employment, state and local
government, public accommodations, commercial facilities, transportation, and
telecommunications. See 42 U.S.C. § 1201 et seq.
2

5

whenever he is absent, he has the intention of returning.” Viandis v. Kline,
412
U.S. 441, 454, 93 S. Ct. 2230 (1973). Factors relevant to domicile includ
e
“declarations, exercise of political rights, payment of personal taxes,
house of
residence, and place of business.” Krasnov v. Dinan, 465 F.2d 1298, 1301
(3d
Cir. 1972) (internal quotation omitted). “Other factors to be considered
may
include location of brokerage and bank accounts, location of spouse
and
family, membership in unions and other organizations, and driver’s
license and
vehicle registration.” McCann v. Newman Irrevocable Trust, 458 F.3d
281, 290
(3d Cir. 2006). “The party asserting diversity jurisdiction [here, plaintiff
McKinniej bears the burden of proof.” Id. at 286.
Neither party submits affidavits or other proofs as to jurisdiction. I must
therefore consider this as a facial challenge to the Complaint. The Compl
aint
does not allege that plaintiff and defendant are citizens of different states.
The
facts pled in the Complaint seem to suggest otherwise. Nor does the compl
3
aint
allege an amount in controversy that exceeds $75,000. The actual dollar
amounts referred to are a $20,000 settlement offer and a $5,400 payment
to
Miller.
I will therefore dismiss the claims against Miller for failure to plead
federal subject matter jurisdiction. Because this could be a case of inartfu
l
pleading by a pro se defendant, however, this dismissal will be without
prejudice to the filing of a Second Amended Complaint that alleges, with
specificity, that plaintiff McKinney is a citizen of a state different from that of

3
On the docket, plaintiff has listed a mailing address in Auburn, New York. That
is not a substitute for an allegation of citizenship. McKinnie sues, not just Sison,
but a
host of other defendants. “For over two hundred years, the [diversity jurisdiction]
statute has been understood as requiring ‘complete diversity between all plaintiffs
and
all defendants.” Lincoln Ben. Life. Co., 800 F.3d at 104. “Complete diversity require
s
that, in cases with multiple plaintiffs or multiple defendants, no plaintiff be a citizen
of
the same state as any defendant.” Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d
412, 419 (3d Cir. 2010). As to common law claims, diversity would require that
McKinnie be a citizen of a different state from all defendants.

6

the defendants against whom he asserts diversity-based state law claims
, and
that the amount in controversy exceeds $75,000.4
I also add that if I had jurisdiction, I would dismiss the allegations of
Counts 4, 5, and 6 for failure to state a claim. See Iqbal, supra; Twombly,
supra. What Sison supposedly did wrong, when he did it, or how he did
it,
cannot be gleaned from the complaint. The idea seems to be that, as attorne
y
for the opposing party, he took positions with which Dereck McKinnie
disagrees. That is not enough to set forth the basis of a claim. The dismis
sal on
these alternative grounds is likewise without prejudice to the filing of a Second
Amended Complaint.

CONCLUSION
For the foregoing reasons, the motion to dismiss the Amended Complaint
filed by defendant Victor G. Sison, Esq., is GRANTED and as to Sison, the
Amended Complaint is DISMISSED WITHOUT PREJUDICE to the filing, within
30 days, of a Second Amended Complaint that remedies the defects identified
herein.
Dated:

November 7, 2016
Newark, New Jersey

/

/
—

I

KEVIN MCNULTY/
United States District Judge

I also note that, because the federal allegations have been too insubstantial to
survive a motion to dismiss, I would not exercise supplemental jurisdiction under 28
U.S.C. § 1367.
7