GELBER v. KIRSCH et al
OPINION. Signed by Judge Jose L. Linares on 5/20/2015. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STEVEN V. GELBER,
Civil Action No. 14-6768 (JLL) (JAD)
LAURA KIRSCH, ESQ., et al.,
LINARES, District Judge.
This matter comes before the Court by way of Plaintiff's motion to remand the matter to
state court pursuant to 28 U.S.C. § 1447. This Court had referred Plaintiff's motion to the
Honorable Joseph A. Dickson, United States Magistrate Judge, pursuant to 28 U.S.C. §
636(b)(1)(B). Magistrate Judge Dickson filed a Report and Recommendation in connection with
said application on March 30, 2015. In particular, Magistrate Judge Dickson recommended that
Plaintiff's motion to remand be denied. To date, the Court has received no objections with
respect to Magistrate Judge Dickson's March 30, 2015 Report and Recommendation; and the
Court will therefore adopt it as the findings of fact and conclusions of law of this Court. 1 Also
before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint.
Plaintiff filed a motion to remand the instant action to state court on November 18, 2014. That
motion was referred to Judge Dickson. Judge Dickson filed his Report and Recommendation on
December 17, 2014. Plaintiff filed objections to the Report and Recommendation on December
31, 2014. On March 30, 2015, Judge Dickson sua sponte reconsidered his Report and
Recommendation as he is permitted to do. See, e.g., Chase Manhattan Bank v. Iridium Africa
Corp., 294 F. Supp.2d 634, 637 (D.Del. 2003). No objections were received to the operative
Report & Recommendation.
The instant action stems from a prior defamation action that the settling Defendant,
Richard E. Salkin, brought against Plaintiff, Steven V. Gelber, in state court. Defendants Laura
Kirsch, Esq. and Kirsch & Kirsch LLP represented Mr. Salkin, a part-time municipal prosecutor.
The defamation action alleged that Mr. Salkin was defamed by statements Mr. Gelber made in a
letter in May 2012, claiming that Mr. Salkin “consorted and commiserated with criminals.” Mr.
Gelber filed a counterclaim in that action, alleging that Mr. Salkin was acting on behalf of the
municipality. The defamation action was settled earlier this year, along with the claims in the
instant action against Mr. Salkin.
Plaintiff now seeks to amend the Complaint he filed to remove his federal claims against
the Kirsch Defendants, and remand the action back to state court. These federal claims are
grounded in Plaintiff’s allegation that Defendants were acting under color of state law when they
filed the defamation action. Plaintiff, however, wishes to withdraw those federal claims without
For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Federal Rule of Civil
Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader
is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Twombly, 550 U.S. at 545 (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)).
In determining the sufficiency of a complaint, the Court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the
non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.2008).
Additionally, in evaluating a plaintiff's claims, generally “a court looks only to the facts alleged
in the complaint and its attachments without reference to other parts of the record.” Jordan v.
Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994).
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
his constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory ... subjects,
or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress....
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of
a right secured by the Constitution or laws of the United States and, second, that the alleged
deprivation was committed or caused by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.1994).
In the instant case, Plaintiff’s Complaint is devoid of any plausible allegations which
would establish that Defendants Laura Kirsch, Esq. or Kirsch & Kirsch LLP are persons who
acted under color of state law. It is clear that Defendants were not acting under color of state law
when they filed and prosecuted Mr. Salkin’s claim against Mr. Gelber. The Kirsch Defendants
were simply acting as private attorneys representing a client who claimed to have been defamed.
Such does not constitute actions under state law. See United States v. Classic, 313 U.S. 299, 326
(1941) (An action under color of state law by a defendant requires “misuse of power, possessed
by virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law”); West v. Atkins, 487 U.S. 42, 49 (1988) (noting that it is firmly
established that a defendant in a § 1983 suit acts under color of state law when he abuses the
position given to him by the State, and thus, generally, a public employee acts under color of
state law while acting in his official capacity or while exercising his responsibilities pursuant to
state law); Bradley v. Atlantic City Bd. of Ed., 736 F.Supp.2d 891, 895 (D.N.J. 2010) (concluding
that a school board official was not acting under color of state law when he and his wife filed a
defamation action against the school board official’s secretary); Accordingly, Plaintiff’s § 1983
claims must be dismissed for failure to state a claim.
Having dismissed Plaintiff’s federal claim as asserted in Count Two of Plaintiff’s
Complaint, this Court declines to exercise supplemental jurisdiction over the remaining New
Jersey state law claims asserted in Counts One, Three, Four, Five, and Six. “Supplemental
jurisdiction allows federal courts to hear and decide state-law claims along with federal-law
claims when they are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy.” Wisconsin Dept. of Corrections v. Schacht, 524 U.S.
381, 387 (1998) (citation and internal quotation marks omitted). Where a district court has
original jurisdiction pursuant to 28 U.S.C. § 1331 over federal claims and supplemental
jurisdiction over state claims pursuant to 28 U.S.C. § 1367(a), the district court has discretion to
decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has
original jurisdiction. 28 U.S.C. § 1367(c)(3); Growth Horizons, Inc. v. Delaware County,
Pennsylvania, 983 F.2d 1277, 1284-1285 (3d Cir. 1993). In exercising its discretion, “the district
court should take into account generally accepted principles of ‘judicial economy, convenience,
and fairness to the litigants.’” Growth Horizons, Inc., 983 F.2d at 1284 (quoting United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966)). Where the federal claims are dismissed at an early
stage in the litigation, courts generally decline to exercise supplemental jurisdiction over state
claims. United Mine Workers v. Gibbs, 383 U.S. at 726; Growth Horizons, Inc., 983 F.2d at
1284-1285. In this case, the Court is dismissing the only claim over which it had original subject
matter jurisdiction at an early stage in the litigation and declines to exercise supplemental
jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367(c)(3).
The Court hereby adopts Magistrate Judge Dickson’s March 30, 2015 Report and
Recommendation as the findings of fact and conclusions of law of this Court. Plaintiff’s
Motions to Remand are denied. For the reasons set forth above, Defendants’ motion to dismiss
is granted. The Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining
state law claims. Plaintiff’s Complaint is hereby remanded to the Superior Court of New Jersey,
Law Division, Passaic County. An appropriate Opinion accompanies this Order.
May 18, 2015
s/ Jose L. Linares
JOSE L. LINARES
U.S. DISTRICT JUDGE
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