DICKERSON v. DESIMONE, INC. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 8/1/11. 8/1/11 ENTERED AND COPIES MAILED TO UNREPS, E-MAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DESIMONE, INC., et al.
August 1, 2011
This case involves a failed transaction between the
plaintiff and the defendants for the sale of a truck.
plaintiff alleges that after a truck was sold to him, the
defendants failed to obtain financing as promised.
As a result,
the plaintiff returned the truck to the defendants, but without
the original rims.
The plaintiff’s claims arise from the actions taken by
the defendants, DeSimone Auto Group (“DeSimone”), the general
manager Randy Foreman (“Foreman”), and sales representative
Anthony Weiss (“Weiss”), in an effort to secure the return of the
The defendants filed a complaint with the
Philadelphia Police Department.
ultimately nolle prossed.
Criminal charges for theft were
The plaintiff alleges a violation of
his civil rights under 42 U.S.C. § 1983, and state law claims for
abuse of process and malicious prosecution.
The defendants have
moved to dismiss all claims for failure to state a claim.
Court will dismiss the plaintiff’s civil rights claim with
prejudice; but will decline to exercise supplemental jurisdiction
over the plaintiff’s remaining state law claims, and, therefore,
will dismiss them without prejudice.
Facts Alleged in Complaint
The plaintiff alleges that on January 12, 2008, he
received a call from the defendant, DeSimone, informing him that
he was pre-approved for financing for a new vehicle.
plaintiff subsequently went to DeSimone and purchased a 2004
Chevy Silverado for $16,383.03, with no money down.
plaintiff took the vehicle home and installed a toolbox in the
bed of the truck, and removed and replaced the tires and spinning
rims that were originally on the truck.
Compl. ¶¶ 10-15.
On or around January 17, 2007, defendant Weiss called
the plaintiff at home and asked for a $1,500.00 payment for the
truck. The plaintiff told Weiss that he could not make the
payment, and Weiss told him to contact his credit union for a
Around that time, the plaintiff began receiving
notices of rejection for various loans applied for in his name by
DeSimone, due to the fact that the loans were requested for a
greater amount than the value of the truck.
Compl. ¶¶ 16-21.
The plaintiff alleges that on January 21, 2008, he
believed that DeSimone failed to secure financing on his behalf.
On January 22, 2008, the plaintiff voluntarily returned the truck
The plaintiff had removed the toolbox, but the
plaintiff forgot to replace the original rims.
defendant Foreman called the plaintiff and demanded the return of
the rims and accused the plaintiff of vandalism.
Compl. ¶¶ 22-
On January 24, 2008, the plaintiff was arrested by the
Philadelphia Police Department, and was charged with theft by
unlawful taking and receiving stolen property.
After spending a
night in jail, he was released on his own recognizance.
24, 2007, the plaintiff appeared for a preliminary hearing at
which defendant Foreman testified that he turned over the truck
to the plaintiff so that he could obtain his own financing.
judge ordered the plaintiff to be tried on both charges.
the trial was delayed several times, the District Attorney's
office decided to nolle prosse the charges against the plaintiff.
Compl. ¶¶ 27-42.
The plaintiff filed a complaint on April 13, 2009,
alleging that defendants DeSimone, Foreman, and Weiss violated
the plaintiff's rights in the sale of the truck and initiation of
criminal proceedings against him.
The plaintiff brought claims
with respect to the sale of the truck under the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, the
Pennsylvania Motor Vehicle Sales Finance Act, and the Federal
Equal Credit Opportunity Act.
The plaintiff also brought claims
of fraud and fraudulent misrepresentation, abuse of process,
malicious prosecution and the violation of the plaintiff’s civil
rights under 42 U.S.C. § 1983.
The defendants moved to dismiss
the case based on an arbitration agreement between the parties.
After oral argument, the Court dismissed most of the
claims based on the arbitration agreement.
The Court also
dismissed with prejudice the abuse of process, malicious
prosecution, and civil rights claim for failure to state a claim.
The plaintiff moved for reconsideration, which was denied.
Although discussed at oral argument, the parties had not briefed
the issue of whether the plaintiff failed to state a claim under
The plaintiff appealed and the United States Court of
Appeals for the Third Circuit remanded the § 1983 civil rights
claim to allow the parties the opportunity to brief the issue of
whether the complaint fails to state a claim.
See Dickerson v.
DeSimone, 400 Fed. Appx. 636, 638 (3d Cir. 2010).
Circuit also remanded the abuse of process and malicious
prosecution claims for the Court to consider whether to retain
supplemental jurisdiction over these claims if the federal civil
rights claim is dismissed.
The defendants have filed a Supplemental Motion to
Dismiss plaintiff’s claims that were remanded by the Court of
Appeals pursuant to Fed. R. Civ. P. 12(b)(6).1
argue that the plaintiff fails to state a claim for civil rights
violations under § 1983 because the defendants were not state
The defendants also argue that the Court should retain
jurisdiction over the abuse of process and malicious prosecution
claims, in the interest of judicial economy, convenience, and
fairness, and should dismiss those claims with prejudice for
failure to state a claim.
Pursuant to Fed. R. Civ. P. 12(b)(6), a complaint
should be dismissed when the allegations in the complaint fail to
state a claim upon which relief can be granted. The court must
“accept all factual allegations in the complaint as true and view
them in the light most favorable to the plaintiff.” Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). The
Supreme Court has stated that “while a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.
To state a claim under § 1983, a plaintiff must show
that the alleged deprivation was committed by a person “acting
under color of state law.”
West v. Atkins, 487 U.S. 42, 48
A private actor may be liable for a deprivation of
rights under § 1983 if (1) “the deprivation [was] caused by the
exercise of some right or privilege created by the State or by a
rule of conduct imposed by the State or by a person for whom the
State is responsible . . . and (2) the party charged with the
deprivation [is] a person who may be fairly said to be a state
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
A private actor can be considered a state actor in one
of two ways.
“The first category involves an activity that is
significantly encouraged by the state or in which the state acts
as a joint participant.”
Leshko v. Servis, 423 F.3d 337, 340 (3d
“Determining state action in such cases requires
tracing the activity to its source to see if that source fairly
can be said to be the state.
The question is whether the
fingerprints of the state are on the activity itself.”
second category of cases involves an actor that is controlled by
the state, performs a function delegated by the state, or is
entwined with government policies or management.”
To establish state action, the plaintiff must allege
“the existence of a prearranged plan by which the police
substituted the judgment of private parties for their own
Cruz v. Donnelly, 727 F.2d 79, 80 (3d Cir.
“The Third Circuit has concluded that ‘the critical issue
. . . is whether the state, through its agents or laws, has
established a formal procedure or working relationship that
drapes private actors with the power of the state.”
Id. at 82.
The complaint alleges that the defendants “clothed
themselves with the color of state authority through the use of
the Philadelphia Police Department and Court of Common Pleas.”
Compl. ¶ 60.
The only activity that could plausibly be involved
is the act of the defendants calling the police to report the
The complaint does not allege that the defendants
had any sort of agreement or prearranged plan with the police or
“Merely calling the police, furnishing information to
the police or communicating with a state official does not . . .
transform a private entity into a state actor.”
See Lawson v.
Rite Aid of Pennsylvania, Inc., 2006 U.S. Dist. LEXIS 51829, at
*12 (E.D. Pa. July 26, 2006)(citing Cooper v. Muldoon, 2006 U.S.
Dist. LEXIS 23388, at *7 (E.D. Pa. Apr. 26, 2006) (finding that a
store security guard who called the police and subdued plaintiff
until the police arrived is not a state actor without allegations
of a pre-arranged plan).
See also, Moore v. Marketplace Rest.,
Inc., 754 F.2d 1336, 1352-53 (7th Cir. 1985)(private entity who
simply reported customers to police not state actor); Benavidez
v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983)(private entity who
reported crime to state official not state actor); Butler v.
Goldblatt Bros., Inc., 589 F.2d 323, 327 (7th Cir. 1979)(private
entity who merely furnished information to police not state
actor); Caswell v. BJ's Wholesale Co., 5 F. Supp. 2d 312, 318-19
(E.D. Pa. 1998) (private entity who reported possible crime to
police not state actor); Dirocco v. Anderson, 655 F. Supp. 594,
598 (E.D. Pa. 1986) (private entity who merely assisted police in
investigating suspected shoplifter not state actor).
In Cruz v. Donnelly, an A&P store manager called the
police when he suspected the plaintiff, Cruz, of shoplifting.
727 F.2d at 79.
Two police officers arrived at the scene and
strip searched the plaintiff.
Cruz subsequently sued the A&P
manager and the police officers under § 1983.
The only alleged
involvement of the manager was that he accused the plaintiff of
shoplifting, ordered the police to strip search the plaintiff,
joined the police in mocking Cruz’s heritage, and failed to
prevent the activity of the police officers.
Id. at 79-80.
The Third Circuit held that the store manager could not
be liable under § 1983 unless “(1) the police have a pre-arranged
plan with the store, and (2) under the plan, the police will
arrest anyone identified as a shoplifter by the store without
independently evaluating the presence of probable cause.”
The Court of Appeals found that there were no allegations or
facts showing a prearranged plan that could bring the store
manager within the scope of a § 1983 claim.
The allegation that
the manager “ordered” the police to conduct a strip search could
be construed to “assert the existence of a plan whereby private
store employees were substituted as commanding officers for
policemen,” but the complaint did not assert that the police
officers would not have taken the same actions without the
It was not sufficient that the store
manager called the police or even that he “ordered and commanded”
the police officers to conduct a strip search.
Similarly, it is not sufficient for liability of the
defendants in this case that they called the police alleging
theft of the rims.
There is no allegation of a prearranged plan,
formal procedure, or working relationship, and there are no
alleged facts that would suggest the police did not independently
evaluate the presence of probable cause.
The plaintiff points to Watson v. Haverford Twp. Police
Dep’t, 2011 U.S. Dist. LEXIS 60858 (E.D. Pa. June 6, 2011), to
support his argument.
In Watson, the plaintiff alleged that she
was cleaning leaves from her property when her neighbor, Pili,
called the police to come to her home for the purpose of
Pili, formerly employed by Haverford Township,
allegedly used his influence and position with the police
department to harass the plaintiff.
Watson was harassed,
injured, and arrested by the responding police officers.
court found Pili liable under § 1983, even though his only act
was calling the police. Id. at *13.
Watson is distinct from the case at hand, and does not
support Dickerson’s claims.
The court in Watson acknowledged
that “merely calling the police, furnishing information to the
police, or communication with a state official does not rise to
the level of joint action necessary to transform a private entity
into a state actor.”
LEXIS 3388 at *2).
Id. at *11 (quoting Cooper, 2006 U.S. Dist.
However, the complaint “provided additional
facts enabling the court to infer the requisite level of
collaboration between Defendant Pili and the Haverford police.”
“Ms. Watson has alleged a previous connection between
Defendant and local official via his employment with the
Township, identified a phone conversation during which Defendant
allegedly instructed local police to harass her, and averred that
police engaged in unprompted verbal and physical abuse
immediately after the first officer on the scene stated that he
was there as a result of Ms. Watson’s problems with Defendant
Pili.” Id. at *13.
In contrast, Dickerson fails to allege any facts that
would allow the Court to infer any kind of collaboration between
the defendants and the Philadelphia Police Department or Court of
The plaintiff must allege that “the state, through
its agents or laws, has established a formal procedure or working
relationship that drapes private actors with the power of the
Cruz, 727 F.2d at 82.
Dickerson fails to do so.
complaint does not allege that the police or courts had any
prearranged plan or prior relationship with the defendants.
does not allege that the police or courts substituted the
defendants’ judgment for their own.
The plaintiff requests leave to amend the complaint to
allege that the defendants lied to the police and on the witness
stand, which precluded the police and courts from exercising
their own judgment.
The plaintiff seems to suggest that anytime
a private actor lies to the police, he can be liable for civil
rights violations under § 1983.
This is not persuasive.
The plaintiff argues that the Court should decline to
exercise supplemental jurisdiction over the remaining malicious
prosecution and abuse of process state law claims, if the Court
dismisses the plaintiff's § 1983 claim.
The plaintiff requests
that these state law claims be dismissed without prejudice.
defendants argue that the Court should exercise supplemental
jurisdiction, and should dismiss the abuse of process and
malicious prosecution claims with prejudice for failure to state
28 U.S.C. § 1367(c) provides that “the district courts
may decline to exercise supplemental jurisdiction over a
claim . . . if (1) the claim raises a novel or complex issue of
State law, (2) the claim substantially predominates over the
claim or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims
over which it has original jurisdiction, or (4) in exceptional
circumstances, there are other compelling reasons for declining
jurisdiction.” (emphasis added).
The Court declines to exercise jurisdiction over the
malicious prosecution and abuse of process state law claims, and
they are dismissed without prejudice.
motion to dismiss stage.
This case is still at the
Neither judicial economy nor fairness
would be promoted by retaining the claims.
An appropriate order shall issue separately.
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