ELLMAN et al v. TOWNSHIP OF MILLBURN NEW JERSEY et al

Filing 3

OPINION. Signed by Judge Jose L. Linares on 9/26/2016. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VICTORIA ELLMAN, et al.,
Plaintiffs,

:
:

CIVIL ACTION NO. 16-59 18 (JLL)
0PINI0N

V.

TOWNSHIP OF MILLBURN, N.J., et al.,
Defendants.

LINARES, District Judge

THE PLAINTIFFS bring this action to recover damages linked to the
repossession of an automobile that contained personal items. The plaintiffs name the
bank repossessing the automobile, the bank’s service agent, and

of note here

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the

police department and its chief for the municipality where the automobile was located
when it was repossessed. The plaintiffs assert that the police department and its chief
violated their constitutional rights by allowing, and then failing to investigate, the seizure
of the automobile and the personal possessions in that automobile. çç 28 U.S.C. Sec.
1983; see also 28 U.S.C. Sec. 1331. In conjunction with the complaint, the plaintiffs
move for a temporary restraining order for the return of the automobile and the property
within.
THE gravarnen of the complaint is actually a dispute between the plaintiffs and a
private entity, i.e., the bank effectuating the repossession, and thus raises no proper
federal claim and has no call upon a federal forum. The plaintiffs cannot maintain a

claim under Section 1983 that essentially seeks relief due to the conduct of private actors,
no matter how wrongful the conduct. See Dophin v. Bank of America Mortgage Co., 641
Fed.Appx. 131 (3d Cir. 2016); St. Croix v. Etenad, 183 Fed.Appx. 230 (3d Cir. 2006).
FURTHER1VIORE, to the extent that the plaintiffs assert that the police

department and the chief failed to investigate the circumstances of the repossession, they
have no cause of action. They are private citizens with no federal right to compel an
investigation, because initiating an investigation is a function of govermnental discretion.
See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
THUS, the Court is without subject matter jurisdiction here. The Court will (1)

deny the motion for a temporary restraining order, and (2) dismiss the complaint without
prejudice to the plaintiffs to seek relief in the appropriate state court. The Court notes
that, in any event, there is no irreparable harm here that would mandate the entry of a
temporary restraining order, as any potential damages can be redressed through a
monetary award.
THE COURT will enter an appropriate order and judgment.

States District Judge
Dated: September 26, 2016

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