Seattle Fishing Services LLC v. Bergen Industries & Fishing Co.

Ninth Circuit

Seattle Fishing Services LLC v. Bergen Industries & Fishing Co.

242 F. App'x 436

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 18, 2007

DocketNo. 05-35630

StatusPublished

Cited by2 cases

This text of 242 F. App'x 436 (Seattle Fishing Services LLC v. Bergen Industries & Fishing Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Seattle Fishing Services LLC v. Bergen Industries & Fishing Co., 242 F. App'x 436 (9th Cir. 2007).

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MEMORANDUM

**

Appellant Seattle Fishing Services LLC (“SFS”) appeals the district court’s order granting defendants’ motion to dismiss and remanding to state court. The parties know the facts and procedural history, and [438]*438we do not repeat them here. We have jurisdiction and affirm.

We review de novo the district court’s dismissal for failure to state a claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). To state a claim under § 1988, a plaintiff must establish that (1) the defendant acted under color of state law; and (2) the defendant’s conduct deprived the plaintiff of a right secured by the Constitution or laws of the United States. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Dismissal is proper because the Complaint fails to show that defendants acted under color of state law.

SFS’s complaint is devoid of any facts demonstrating the State’s role, or the defendants’ involvement with the court clerks who issued the writs of garnishment — a purely ministerial act. Moreover, SFS’s complaint describes conduct — private misuse of a state statute — that is not attributable to the state. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (explaining that a deprivation caused by a state-created procedure may be attributed to the state whereas a deprivation caused by the misuse of that procedure cannot); see also id. (“That respondents invoked the statute without the grounds to do so could in no way be attributed to a state rule or state decision.”).

Because SFS’s allegations establish only that private actors obtained writs of garnishment, and/or acted pursuant to those writs, the district court properly concluded that SFS failed to state a claim under § 1983. See Sullivan, 526 U.S. at 50, 119 S.Ct. 977 (stating that § 1983 excludes from its reach “‘merely private conduct, no matter how discriminatory or wrongful’ ”) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)); Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (explaining that a court may find state action only when parties use state procedures “with the overt, significant assistance of state officials”); Gaskell v. Weir, 10 F.3d 626, 628 (9th Cir.1993) (deeming complaint patently frivolous where allegations of state action involved a court clerk performing the ministerial act of accepting and filing settlement documents).

It was further proper to dismiss the complaint without leave to amend. SFS no longer had a right to amend as a matter of course, and SFS never requested leave to amend. Nor does SFS argue on appeal that it was error to deny leave to amend. Furthermore, it is clear from the record that SFS cannot cure the defective pleading by alleging other facts. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000). SFS challenges the defendants’ misuse of the state statute, not “the procedural scheme created by the statute,” Lugar, 457 U.S. at 941, 102 S.Ct. 2744, and allegations of state action arising from a court clerk performing the ministerial act of issuing garnishment writs are insufficient, see Gaskell, 10 F.3d at 628. Thus, the district court properly dismissed without granting leave to amend since it would have been futile.

Nor do we find a due process violation. The dissent finds Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), controlling. We disagree. Here, Keesal, Young & Logan sought post-judgment garnishment of funds held by SFS in a Seattle bank account for the use and benefit of the judgment debtor. Neither case broadly pro[439]*439vides the right to pre-seizure notice and hearing in aid of executing a foreign judgment.

Finally, the district court had discretion to dismiss SFS’s pendant state law claims upon properly dismissing SFS’s § 1988 claim. 28 U.S.C. § 1867(c); O’Connor v. State of Nev., 27 F.3d 357, 362-63 (9th Cir.1994).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

Appellant Seattle Fishing Services LLC (“SFS”) appeals the district court’s order granting defendants’ motion to dismiss and remanding to state court. The parties know the facts and procedural history, and [438]*438we do not repeat them here. We have jurisdiction and affirm.

We review de novo the district court’s dismissal for failure to state a claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). To state a claim under § 1988, a plaintiff must establish that (1) the defendant acted under color of state law; and (2) the defendant’s conduct deprived the plaintiff of a right secured by the Constitution or laws of the United States. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Dismissal is proper because the Complaint fails to show that defendants acted under color of state law.

SFS’s complaint is devoid of any facts demonstrating the State’s role, or the defendants’ involvement with the court clerks who issued the writs of garnishment — a purely ministerial act. Moreover, SFS’s complaint describes conduct — private misuse of a state statute — that is not attributable to the state. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (explaining that a deprivation caused by a state-created procedure may be attributed to the state whereas a deprivation caused by the misuse of that procedure cannot); see also id. (“That respondents invoked the statute without the grounds to do so could in no way be attributed to a state rule or state decision.”).

Because SFS’s allegations establish only that private actors obtained writs of garnishment, and/or acted pursuant to those writs, the district court properly concluded that SFS failed to state a claim under § 1983. See Sullivan, 526 U.S. at 50, 119 S.Ct. 977 (stating that § 1983 excludes from its reach “‘merely private conduct, no matter how discriminatory or wrongful’ ”) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)); Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (explaining that a court may find state action only when parties use state procedures “with the overt, significant assistance of state officials”); Gaskell v. Weir, 10 F.3d 626, 628 (9th Cir.1993) (deeming complaint patently frivolous where allegations of state action involved a court clerk performing the ministerial act of accepting and filing settlement documents).

It was further proper to dismiss the complaint without leave to amend. SFS no longer had a right to amend as a matter of course, and SFS never requested leave to amend. Nor does SFS argue on appeal that it was error to deny leave to amend. Furthermore, it is clear from the record that SFS cannot cure the defective pleading by alleging other facts. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000). SFS challenges the defendants’ misuse of the state statute, not “the procedural scheme created by the statute,” Lugar, 457 U.S. at 941, 102 S.Ct. 2744, and allegations of state action arising from a court clerk performing the ministerial act of issuing garnishment writs are insufficient, see Gaskell, 10 F.3d at 628. Thus, the district court properly dismissed without granting leave to amend since it would have been futile.

Nor do we find a due process violation. The dissent finds Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), controlling. We disagree. Here, Keesal, Young & Logan sought post-judgment garnishment of funds held by SFS in a Seattle bank account for the use and benefit of the judgment debtor. Neither case broadly pro[439]*439vides the right to pre-seizure notice and hearing in aid of executing a foreign judgment.

Finally, the district court had discretion to dismiss SFS’s pendant state law claims upon properly dismissing SFS’s § 1988 claim. 28 U.S.C. § 1867(c); O’Connor v. State of Nev., 27 F.3d 357, 362-63 (9th Cir.1994).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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