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ELLIOTT v. BLOOR

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


December 30, 1976

CHARLES H. ELLIOTT
v.
W. SPENCER BLOOR

The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

 BECHTLE, J.

 Plaintiff brings this action against his former supervisor seeking to redress an alleged deprivation of his property right to continued employment without due process of law, in violation of the Fourteenth Amendment. Presently before the Court is defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Specifically, defendant contends that plaintiff's dismissal from employment did not constitute state action and, hence, is not subject to judicial scrutiny under the Fourteenth Amendment. Also before the Court is plaintiff's motion to amend the complaint and to add Leeds and Northrup Company, Incorporated ("Leeds"), his former employer, as a party defendant.

 On March 29, 1969, plaintiff was hired by Leeds as an engineering computer programmer. Plaintiff remained with Leeds until June 23, 1972, when he was informed by his supervisor, defendant Bloor, that his employment with Leeds was terminated and that he would be arrested for trespass if he attempted to reenter Leeds' premises. The next day, plaintiff returned and made an attempt to enter through Leeds' Technical Center gate. He was prohibited from doing so by a security guard, who had been previously instructed not to permit plaintiff to enter the premises.

 On January 7, 1976, plaintiff filed a pro se complaint which alleged that, as a result of his dismissal from employment at Leeds, he was deprived of a property right in violation of the Fourteenth Amendment's guarantee of procedural due process of law. It further alleged that defendant's threat to have plaintiff arrested for trespass, and defendant's order to the security guard, who was licensed by the Commonwealth of Pennsylvania, to not permit plaintiff to enter the premises, constituted "state action" within the purview of the Fourteenth Amendment. Defendant filed his answer on March 11, 1976, and, on April 26, 1976, he filed a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. *fn1" On June 18, 1976, plaintiff filed a motion to amend the complaint and to add Leeds as a party defendant. On September 16, 1976, plaintiff filed a motion to withdraw his June 18 motion *fn2" and a second motion to amend the complaint and to add Leeds as a party defendant. The proposed amended complaint alleges that, as a result of his dismissal from employment, plaintiff was deprived by Bloor and Leeds of both a property right and liberty interest, *fn3" in violation of the Fourteenth Amendment. It further alleges, in proposed paragraph 8.2, as follows:

 

In terminating Plaintiff's employment, Defendants [Bloor and Leeds] acted in contravention of Pennsylvania common law, which permits an employee with an employment contract for an indefinite term to seek modification of that contract without limitation; the Agreement between Leeds and Northrup Company, Inc., and the Professional Engineers and Scientists Association (PESA), which provides for employee grievances; and, the Free Speech Clause of the First Amendment to the United States Constitution.

 It also restates the above-mentioned state action allegations. *fn4"

 Before we begin our discussion of the issues raised by the motion to dismiss and the motion to amend, it should be noted that, in a civil rights case such as this, a plaintiff is required to plead facts with specificity in order to withstand a motion to dismiss. See Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976); Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 (1970); Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967). It is also true, however, that the allegations of a pro se complaint are not held to the same rigorous standards of pleading that are applied to those drafted by an attorney, Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam), and that such a complaint should not be dismissed unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 521, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251, 45 U.S.L.W. 4023 (1976). It is with awareness of the above precepts that we now address defendant's motion to dismiss and plaintiff's motion to amend.

 Motion to Dismiss

 In order to maintain an action under the Fourteenth Amendment against a nominally "private" party, the plaintiff is required to establish that the defendant's allegedly unconstitutional act or acts constituted "state action." *fn5" This state action requirement may be satisfied if either of two conditions is met. First, state action may be found where "there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972); Hollenbaugh v. Carnegie Free Library, 545 F.2d 382, slip op. at 4 (3d Cir. 1976); Broderick v. Associated Hospital Service, 536 F.2d 1, 4 (3d Cir. 1976). Second, state action is present where the state and the defendant have entered into a symbiotic relationship, in which the state has "so far insinuated itself into a position of interdependence with [the defendant] that it must be recognized as a joint participant in the challenged activity . . . ." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961). See Jackson v. Metropolitan Edison Co., supra, 419 U.S. at 357-358; Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 175; Hollenbaugh v. Carnegie Free Library, supra, slip op. at 2, 7; Broderick v. Associated Hospital Service, supra, 536 F.2d at 4 n.15.

 An examination of the original complaint reveals no allegations that the Commonwealth of Pennsylvania in any way fostered or encouraged, via regulation or otherwise, the termination of plaintiff's employment by defendant. The question that remains, therefore, is whether there exists a symbiotic relationship between defendant and the Commonwealth of Pennsylvania. Plaintiff relies on the allegation that the security guard who barred him from reentering the premises was licensed by the Commonwealth of Pennsylvania. That fact alone is patently insufficient to support a finding of state action under the symbiotic relationship test. *fn6" Accordingly, defendant's motion to dismiss the original complaint will be granted.

 Motion to Amend

 "[It] is clear that the Court need not grant a motion to amend if the complaint, as amended, could not withstand a motion to dismiss." Bernstein v. National Liberty International Corp., 407 F. Supp. 709, 715 (E.D.Pa. 1976). Since, for the reasons stated below, we do not believe that the proposed amended complaint could withstand a motion to dismiss, the motion to amend the complaint and to add Leeds as a party defendant will be denied.

 With respect to that portion of the proposed amended complaint which alleges that plaintiff was deprived of both a property right and a liberty interest, in violation of the Fourteenth Amendment, and his right to free speech, in violation of the First Amendment, it is clear that, for the reasons already discussed, those allegations would have to be dismissed for failure to establish the requisite state action. *fn7" Furthermore, even if we allowed plaintiff to add Leeds as a party defendant, the alleged constitutional violations would still have to be dismissed for lack of state action. Accordingly, the motion to amend the complaint to restate the "property cause of action" and to add the "liberty and free speech causes of action," and the motion to add Leeds as a party defendant with respect to those causes of action, will be denied with prejudice.

 There are two remaining allegations in the proposed amended complaint which must be considered. First, as previously quoted, it alleges that, "[in] terminating [his] employment, Defendants acted in contravention of . . . the Agreement between Leeds and Northrup Company, Inc., and the Professional Engineers and Scientists Association (PESA), which provides for employee grievances . . . ." We assume that, by the above allegation, plaintiff is contending that he was discharged from employment by Bloor and Leeds in violation of a collective bargaining agreement. *fn8" Second, also as previously quoted, plaintiff alleges that, "[in] terminating [his] employment, Defendants acted in contravention of Pennsylvania common law, which permits an employee with an employment contract for an indefinite term to seek modification of that contract without limitation . . . ." Without attempting, at this time, to characterize exactly what cause of action plaintiff is attempting to articulate, it is at least clear that it is a state cause of action, presumably based upon Pennsylvania law.

 Since plaintiff mentions no jurisdictional bases in support of the above allegations, and since "[federal] jurisdiction must be pleaded according to the nature of the case," Rotolo v. Borough of Charleroi, supra, 532 F.2d at 922, they could not withstand a motion to dismiss for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1) and 12(h)(3). We will not allow the motion to amend the complaint to add such jurisdictionally defective allegations, or to add Leeds as a party defendant with respect to those allegations. However, since we believe that federal jurisdiction may nonetheless exist under § 301 of the Labor Management Relations Act (Taft Hartley Act), 29 U.S.C. § 185, and under the doctrine of pendent jurisdiction, the denial of plaintiff's motion to amend the complaint and to add Leeds as a party defendant, as concerns the above allegations, will be without prejudice, so as to afford plaintiff the opportunity to file an amended complaint.

 An appropriate Order will be entered.

 ORDER

 AND NOW, TO WIT, this 30th day of December, 1976, IT IS ORDERED as follows:

 1. Defendant Bloor's motion to dismiss the original complaint, for failure to state a claim upon which relief can be granted, is granted. The granting of said motion, however, shall not take effect until fifteen (15) days from the date of this Order.

 2.Plaintiff's motion to withdraw his June 18, 1976, motion to amend the complaint and to add Leeds and Northrup Company, Incorporated ("Leeds"), as a party defendant, is granted.

 3. Plaintiff's motion to amend the complaint and to add Leeds as a party defendant, filed on September 16, 1976, is denied in part with prejudice and denied in part without prejudice. The motion is denied with prejudice with respect to those allegations which are based upon alleged deprivations of rights secured by the First and Fourteenth Amendments. The motion is denied without prejudice with respect to all remaining allegations contained in the proposed amended complaint.

 IT IS FURTHER ORDERED that plaintiff shall have fifteen (15) days from the date of this Order within which to file an amended complaint which conforms to our ruling here. The amended complaint should incorporate the applicable jurisdictional bases. See Court's Memorandum at pages 7 and 8. NO EXTENSIONS WILL BE GRANTED.

 LOUIS C. BECHTLE, J.


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