22-1158 Smulley v. Liberty Mutual Holding Company, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of March, two thousand twenty-three.
PRESENT: REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. ∗ _____________________________________
Dorothy A. Smulley,
Plaintiff-Appellant,
v. 22-1158
Liberty Mutual Holding Company, Inc., Safeco Insurance Company of Illinois, Liberty Mutual Insurance Company, Howd & Ludorf LLC, Philip T. Newbury, Jr., Berchem Moses PC, Jonathan D. Berchem, Daniel H. Kryzanski,
Defendants-Appellees. _____________________________________
∗ Circuit Judge José A. Cabranes, originally a member of the panel, has recused himself from considering this matter. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). FOR PLAINTIFF-APPELLANT: Dorothy A. Smulley, pro se, Stratford, CT.
FOR DEFENDANTS-APPELLEES LIBERTY Philip T. Newbury, Jr., MUTUAL HOLDING COMPANY, INC., Howd & Ludorf, LLC, SAFECO INSURANCE COMPANY OF Wethersfield, CT. ILLINOIS, LIBERTY MUTUAL INSURANCE COMPANY, HOWD & LUDORF LLC, PHILIP T. NEWBURY, JR.:
FOR DEFENDANTS-APPELLEES BERCHEM Peter J. Biging, MOSES PC, JONATHAN D. BERCHEM: Goldberg Segalla LLP, New York, NY.
FOR DEFENDANT-APPELLEE DANIEL H. No appearance. KRYZANSKI:
Appeal from a judgment, entered on May 3, 2022, of the United States District Court for
the District of Connecticut (Omar A. Williams, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Dorothy A. Smulley, proceeding pro se, sued defendants-appellees, bringing
claims under 42 U.S.C. § 1983 and state law. Her claims arise from a Connecticut state court
action in which she sued Safeco Insurance Company of Illinois (“Safeco”) and two auto repair
shops in connection with a dispute as to whether to repair her car or consider it a total loss. In the
instant action, Smulley sues Safeco and affiliated insurance entities (the “insurance company
defendants”), as well as the law firms and attorneys involved in representing the defendants in the
state court litigation (the “law firm/attorney defendants”), for various torts and constitutional
violations. Smulley appeals the district court’s judgment dismissing her complaint for lack of
subject matter jurisdiction. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
2 In reviewing a district court’s dismissal of a complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), this Court reviews factual
findings for clear error and legal conclusions de novo. Morrison v. Nat’l Austl. Bank Ltd., 547
F.3d 167, 170 (2d Cir. 2008). We may “affirm on any ground with support in the record,” Cox v.
Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir. 2014), “including grounds upon which
the district court did not rely,” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).
The district court erred in grounding dismissal in lack of subject matter jurisdiction, rather
than failure to state a claim. In determining whether the district court has jurisdiction under 28
U.S.C. § 1331, “[a] non-frivolous allegation of a cause of action under federal law suffices to
invoke federal court jurisdiction.” Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (citing
Bell v. Hood, 327 U.S. 678, 682 (1946)); see Shapiro v. McManus, 577 U.S. 39, 45 (2015) (stating
that court should not dismiss for lack of subject matter jurisdiction unless federal claim is “wholly
insubstantial and frivolous”). The failure to name a state actor in a § 1983 action is not a
jurisdictional defect here, but should instead be evaluated under Federal Rule of Civil Procedure
12(b)(6). Id.
Under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is
plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in a complaint are accepted
as true, this tenet does not apply to legal conclusions. Iqbal, 556 U.S. at 678. Courts are
obligated to construe pro se complaints liberally to raise the strongest claims they suggest. Hill
v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
2 “[T]o state a claim under § 1983, a plaintiff must allege that he was injured by either a state
actor or a private party acting under color of state law.” Ciambriello v. County of Nassau, 292
F.3d 307, 323 (2d Cir. 2002). Private parties act under color of state law when their conduct is
“fairly attributable to the state.” Den Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d
Cir. 2010) (per curiam).
Here, none of the defendants are state actors. The insurance company defendants are not
state actors for purposes of § 1983 simply because they are regulated by the state, see Jackson v.
Metro. Edison Co., 419 U.S. 345, 350–51, 358 (1974), and Smulley has not plausibly alleged that
their conduct was fairly attributable to the state. Similarly, the law firm/attorney defendants’
participation in the state court action did not render them state actors. See Polk County v. Dodson,
454 U.S. 312
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22-1158 Smulley v. Liberty Mutual Holding Company, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of March, two thousand twenty-three.
PRESENT: REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. ∗ _____________________________________
Dorothy A. Smulley,
Plaintiff-Appellant,
v. 22-1158
Liberty Mutual Holding Company, Inc., Safeco Insurance Company of Illinois, Liberty Mutual Insurance Company, Howd & Ludorf LLC, Philip T. Newbury, Jr., Berchem Moses PC, Jonathan D. Berchem, Daniel H. Kryzanski,
Defendants-Appellees. _____________________________________
∗ Circuit Judge José A. Cabranes, originally a member of the panel, has recused himself from considering this matter. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). FOR PLAINTIFF-APPELLANT: Dorothy A. Smulley, pro se, Stratford, CT.
FOR DEFENDANTS-APPELLEES LIBERTY Philip T. Newbury, Jr., MUTUAL HOLDING COMPANY, INC., Howd & Ludorf, LLC, SAFECO INSURANCE COMPANY OF Wethersfield, CT. ILLINOIS, LIBERTY MUTUAL INSURANCE COMPANY, HOWD & LUDORF LLC, PHILIP T. NEWBURY, JR.:
FOR DEFENDANTS-APPELLEES BERCHEM Peter J. Biging, MOSES PC, JONATHAN D. BERCHEM: Goldberg Segalla LLP, New York, NY.
FOR DEFENDANT-APPELLEE DANIEL H. No appearance. KRYZANSKI:
Appeal from a judgment, entered on May 3, 2022, of the United States District Court for
the District of Connecticut (Omar A. Williams, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Dorothy A. Smulley, proceeding pro se, sued defendants-appellees, bringing
claims under 42 U.S.C. § 1983 and state law. Her claims arise from a Connecticut state court
action in which she sued Safeco Insurance Company of Illinois (“Safeco”) and two auto repair
shops in connection with a dispute as to whether to repair her car or consider it a total loss. In the
instant action, Smulley sues Safeco and affiliated insurance entities (the “insurance company
defendants”), as well as the law firms and attorneys involved in representing the defendants in the
state court litigation (the “law firm/attorney defendants”), for various torts and constitutional
violations. Smulley appeals the district court’s judgment dismissing her complaint for lack of
subject matter jurisdiction. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
2 In reviewing a district court’s dismissal of a complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), this Court reviews factual
findings for clear error and legal conclusions de novo. Morrison v. Nat’l Austl. Bank Ltd., 547
F.3d 167, 170 (2d Cir. 2008). We may “affirm on any ground with support in the record,” Cox v.
Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir. 2014), “including grounds upon which
the district court did not rely,” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).
The district court erred in grounding dismissal in lack of subject matter jurisdiction, rather
than failure to state a claim. In determining whether the district court has jurisdiction under 28
U.S.C. § 1331, “[a] non-frivolous allegation of a cause of action under federal law suffices to
invoke federal court jurisdiction.” Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (citing
Bell v. Hood, 327 U.S. 678, 682 (1946)); see Shapiro v. McManus, 577 U.S. 39, 45 (2015) (stating
that court should not dismiss for lack of subject matter jurisdiction unless federal claim is “wholly
insubstantial and frivolous”). The failure to name a state actor in a § 1983 action is not a
jurisdictional defect here, but should instead be evaluated under Federal Rule of Civil Procedure
12(b)(6). Id.
Under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is
plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in a complaint are accepted
as true, this tenet does not apply to legal conclusions. Iqbal, 556 U.S. at 678. Courts are
obligated to construe pro se complaints liberally to raise the strongest claims they suggest. Hill
v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
2 “[T]o state a claim under § 1983, a plaintiff must allege that he was injured by either a state
actor or a private party acting under color of state law.” Ciambriello v. County of Nassau, 292
F.3d 307, 323 (2d Cir. 2002). Private parties act under color of state law when their conduct is
“fairly attributable to the state.” Den Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d
Cir. 2010) (per curiam).
Here, none of the defendants are state actors. The insurance company defendants are not
state actors for purposes of § 1983 simply because they are regulated by the state, see Jackson v.
Metro. Edison Co., 419 U.S. 345, 350–51, 358 (1974), and Smulley has not plausibly alleged that
their conduct was fairly attributable to the state. Similarly, the law firm/attorney defendants’
participation in the state court action did not render them state actors. See Polk County v. Dodson,
454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law when
performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”);
Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (per curiam) (holding that law guardians
appointed to represent children in a state court custody dispute were not state actors); Fine v. City
of New York, 529 F.2d 70, 74 (2d Cir. 1975) (“Although Klein’s status as an attorney provides him
with no immunity, neither does it satisfy the test of state action that must be met before liability
may be imposed pursuant to § 1983.”).
Nor does the complaint support a plausible claim that any defendant conspired with a state
actor. A private actor “engaged in a conspiracy with state officials to deprive another of federal
rights” acts under color of state law for the purposes of § 1983. Tower v. Glover, 467 U.S. 914,
920 (1984). “In order to survive a motion to dismiss on [a] § 1983 conspiracy claim, [a plaintiff]
must allege (1) an agreement between a state actor and a private party; (2) to act in concert to
3 inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages.” Ciambriello, 292 F.3d at 324–25. “A merely conclusory allegation that a private
entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private
entity.” Id. at 324.
Notwithstanding Smulley’s conclusory assertions in her complaint, she has not alleged
facts that could support a plausible inference that the defendants engaged in a conspiracy with the
state court judge. Her factual allegations only demonstrate that the law firm/attorney defendants
performed the traditional lawyer functions of representing their clients. “[M]erely resorting to the
courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint
actor with the judge.” Dennis v. Sparks, 449 U.S. 24, 28 (1980).
In sum, because Smulley has not alleged any state action, she has failed to state a claim
under § 1983. Therefore, we affirm the district court’s dismissal of her § 1983 claims. In light
of the dismissal of her federal claims, we do not address Smulley’s state law claims, which the
district court dismissed without prejudice. Travelers Ins. v. Keeling, 996 F.2d 1485, 1490 (2d
Cir. 1993); see also Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 122–23 (2d Cir. 2006).
We have considered Smulley’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court