Opinion
Civil Action No. 03-3661.
December 2, 2003
MEMORANDUM AND ORDER
Plaintiffs Nanya-Nashut and Nanya-Adhiym (collectively "Plaintiffs") filed this action pro se against Centex Home Equity Corporation and its counsel, Purcell, Krug Haller (collectively "Defendants"). Presently before the Court is Defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
In their original Complaint, Plaintiffs included the Sheriff of Philadelphia County ("Sheriff") as a Defendant. However, in their Amended Complaint, the Plaintiffs no longer include the Sheriff as a named Defendant. Therefore, the Sheriff of Philadelphia is no longer a party in this case.
I. BACKGROUND
The Court has construed Plaintiff's amended complaint in light of the liberal standards set forth in Haines v. Kerner, 404 U.S. 519 (1972).
This action arises from the foreclosure of real property located at 533 So. 60th Street in Philadelphia, Pennsylvania. Defendant Centex Home Equity Corporation ("Centex") is the foreclosing mortgage lender and Defendant Purcell, Krug Haller is its counsel.
On February 6, 2003, the Honorable John R. Padova dismissed a complaint filed by these same Plaintiffs against the Defendants in this case, Centex Home Equity Corporation and Purcell, Krug Haller, as well as various other law firms and mortgage companies. In that case, Plaintiffs alleged their claims based on the foreclosure of two properties: (1) the same property at issue here; and (2) 211 So. 61st Street, also in Philadelphia, Pennsylvania. Judge Padova dismissed Plaintiffs' alleged claims of fraud, constructive fraud, alleged violations of the Fourth Amendment, alleged conspiracy, as well as alleged violations of the Fair Debt Collection Act and 18 U.S.C. § 641. See Hand v. Centex Home Equity, No. 02-8625, 2003 U.S. Dist. LEXIS 16151 (E.D. Pa. Feb. 6, 2003).
On March 20, 2002, Centex commenced a state foreclosure action against the property located at 533 So. 60th Street. On January 29, 2003, a default judgment was filed in favor of Centex in the Court of Common Pleas of Philadelphia County. The property was sold at a Philadelphia County Sheriff's sale on May 6, 2003, and was purchased by Centex.
Plaintiffs initiated this suit on June 16, 2003 and assert numerous claims against Defendants arising from the foreclosure. Specifically, Plaintiffs assert claims for violations of 42 U.S.C. § 1983, 1985, and 1986, as well as for fraud. Defendants now move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the entire case against them.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the complaint. See Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). When considering a 12(b)(6) motion, the Court must accept as true all facts alleged in the complaint and any reasonable inferences that can be drawn from them. See, e.g., H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989); Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001); Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000). Claims by pro se litigants may be dismissed only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996); see Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Further, pro se litigants must "abide by the Federal Rules of Civil Procedure and when confronted by motions to dismiss must articulate reasons why the motions should not be granted." Nanya-Nashut ex rel Kevin Hand v. Bank One, National Association Trustee, No. 03-4022, 2003 WL 22120263, at *2 (E.D. Pa. Sept. 9, 2003) (Kelly, S.J.) (citations omitted).
III. DISCUSSION
To establish a claim under 42 U.S.C. § 1983, Plaintiffs must "demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law." Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); see Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970). "Under color of state law" has the same meaning as "state action." See United States v. Price, 383 U.S. 787, 794 n. 7 (1966). In general, state action may be found only when there is such a "close nexus between the State and challenged action that private behavior may be fairly treated as that of the State itself."Brentwood Acad. v. Tennessee Secondary Sch., 531 U.S. 288, 295 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
In examining Plaintiffs' amended complaint, the Court cannot find any action by the Defendants that rises to the level of state action. Even when a bank and an attorney utilize state foreclosure procedures, that will not constitute state action.See Shipley v. First Federal Savings Loan Ass'n of Del., 703 F. Supp. 1122, 1129-31 (D. Del. 1988), aff'd 877 F.2d 57 (3d Cir. 1989) (holding that bank and attorney who filed foreclosure action against real property did not engage in state action for purposes of § 1983). Accordingly, since Plaintiffs have failed to assert any "state action" by Defendants, Plaintiffs' § 1983 claim against Defendants is dismissed.
Reading the amended complaint liberally, the Court construes Plaintiffs' general § 1985 claim to be a conspiracy claim under § 1985(3).
To establish a claim under 42 U.S.C. § 1985(3), Plaintiffs must allege (1) a conspiracy; (2) motivated by a racial animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States. See Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997). Section 1985(3) by itself does not create substantive rights but rather "serves as a vehicle for vindicating federal rights and privileges which have been defined elsewhere." Brown v. Philip Morris Inc., 250 F.3d 789, 805 (3d Cir. 2001) (citations omitted). Further, "the absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations." Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (emphasis added); see Moles v. Griffy, No. 00-2147, 2001 WL 1152984, at *4 (E.D. Pa. Sept. 18, 2001). Accordingly, since Plaintiffs' § 1983 claim is dismissed, Plaintiffs' § 1985(3) claim must also be dismissed. C. 42 U.S.C. § 1986
The Court recognizes that, in limited circumstances, "the conspiracy provision of § 1985(3) provides a cause of action . . . against both private and state actors." Brown, 250 F.3d at 805. However where, as here, the action is being brought against private conspirators, "the Supreme Court has thus far only recognized two rights protected under § 1985(3), the right to be free from involuntary servitude and the right to interstate travel." Id. Since Plaintiffs have not alleged either of these two rights and Plaintiffs' § 1983 claims have been dismissed, it follows that their § 1985 claims must also be dismissed for failure to state a claim.
Section 1986 is a companion to § 1985(3) and "provides the claimant with a cause of action against any person who, knowing that a violation of § 1985 is about to be committed and possessing power to prevent its occurrence, fails to take action to frustrate its execution." Rogin v. Bensalem Township, 616 F.2d 680, 696 (3d Cir. 1980). Thus, "because transgressions of § 1986 by definition depend on a preexisting violation of § 1985, if the claimant does not set forth a cause of action under [§ 1985], its claim under [§ 1986] necessarily must fail also." Id.; see Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994) ("[T]ransgressions of § 1986 by definition depend on preexisting violation[s] of § 1985.").
Since Plaintiffs have failed to state a cause of action under § 1985, the Court must also dismiss Plaintiffs' § 1986 claim. See Toth v. Bristol Township, 215 F. Supp.2d 595, 599 (E.D. Pa. 2002) ("Without a properly pled claim under § 1985, a plaintiff cannot bring a § 1986 claim."); Messa v. Rubin, 897 F. Supp. 883, 886-87 (E.D. Pa. 1995) ("Because [plaintiff's] § 1985 claims must fail, so must his claims under 42 U.S.C. § 1986 which grants a cause of action against persons who know of an impending § 1985 violation and fail to prevent it.").
D. Fraud
Lastly, Plaintiffs also allege fraud. Allegations of fraud must be pled with particularity. See Fed.R.Civ.P. 9(b). Rule 9(b) requires a plaintiff to plead "(1) a specific false representation of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damage." Stevens v. Citigroup, Inc., No. Civ. A. 00-3815, 2000 U.S. Dist. LEXIS 18201, at *15 (E.D. Pa. Dec. 15, 2000) (citingShapiro v. UJB Financial Corp., 964 F.2d 272, 284 (3d Cir. 1992)). Here, Plaintiffs fail to allege any specific false representation of material fact. Accordingly, Plaintiffs' fraud claim is also dismissed.
Plaintiffs' allegations of fraud as it relates to the property in this case has been dismissed previously by Judge Padova in an Order dated February 6, 2003. See Hand, 2003 U.S. Dist. LEXIS 16151, at *2.
IV. CONCLUSION
For the reasons stated above, Defendants' motion is granted and the case is dismissed in its entirety.
An appropriate Order follows.
ORDER
AND NOW, this ____ day of December, 2003, upon consideration of Defendants Centex Home Equity Corporation and Purcell, Krug Haller's Joint Motion to Dismiss Plaintiffs' Complaint (Docket No. 4) and Plaintiffs' response thereto (Docket No. 5), IT IS HEREBY ORDERED that Defendants' Motion is GRANTED and the case is DISMISSED.The Clerk of the Court shall mark this case CLOSED for statistical purposes.