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January 23, 1985

JOHN A. DIULUS and THERESA DIULUS, his wife, Plaintiffs,
CHURCHILL VALLEY COUNTRY CLUB, a corporation, MERLE L. DeLUCA, President, JOSEPH F. DiMARIO, Vice President, CHARLES V. HOEY, Secretary, CHARLES R. DENOVI, Treasurer of Churchill Valley Country Club, and its Board of Directors comprised of VINCENT A. AMORE, VICTOR A. DINZEO, JOSEPH G. PALUMBO, FRANK P. REZZETANO, JR., ROBERT P. SHOVEL, WILLIAM L. WARDLE, JR. and PETER C. DOZZI, Ex-Officio, Defendants

The opinion of the court was delivered by: COHILL

 The Complaint in this case was filed by Plaintiffs alleging that their constitutional rights were violated by Defendants' conduct in ongoing state court litigation. The Defendants in this action are Churchill Valley Country Club, its officers and directors (hereinafter "Churchill"). Plaintiffs allege claims pursuant to 42 U.S.C. §§ 1981, 1983 and 1985. Defendants filed a Motion to Dismiss; Plaintiffs responded with a Motion to Amend the Complaint pursuant to Fed. R. Civ. P. 15(a). Since we find the amended complaint fails to state a cause of action, we will deny Plaintiffs' Motion to Amend and will dismiss the case.


 Plaintiffs filed several actions against Churchill in the Court of Common Pleas of Allegheny County as a result of Plaintiff John Diulus' expulsion from Churchill Valley Country Club. Plaintiffs' Complaint in this Court arises out of preliminary objections filed by Churchill in the Court of Common Pleas.

 Plaintiffs allege, in the original Complaint filed in this Court, that Churchill, acting through its attorney in the state court proceedings, 1) filed the preliminary objections knowing the identity of the judge who would be scheduled to hear the motion, and knowing that the judge was a member of Churchill Valley Country Club. Complaint, paras. 5-9. The Complaint further alleges that Defendants refused to consent to having the matter reassigned to another judge. Id. PP 10-14. Plaintiffs then petitioned the President Judge to excuse the judge in question; that judge agreed to his removal from the case. Id. PP 12, 17.

 The gravamen of the Complaint is that, in filing the preliminary objections and then refusing to consent to reassignment, Defendants allegedly intended to deprive Plaintiffs of their right to a fair trial. Id. P 15.

 The proposed amendments to Plaintiffs' complaint further allege that, 1) the motions control clerk and the motions judge of the state court were state officers and, as such, acted under color of state law; Amendment to Complaint, para. 35; 2) the method and procedure by which preliminary objections must be filed and scheduled for argument in state court is controlled by specific local rule, id. PP 26-27, 36; 3) that the state procedures allowed Defendants to select an allegedly biased judge, id. P 34; and 4) in listing Defendants' preliminary objections for argument, pursuant to court rule, the motions control clerk acted jointly with Defendants. Id. PP 37-39.


 The grant or denial of a motion to amend a Complaint pursuant to Fed. R. Civ. P. 15(a) is a matter within the discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S. Ct. 795, 802, 28 L. Ed. 2d 77 (1971). The trial court may properly deny leave to amend where the amendment would not withstand a motion to dismiss. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983); cert. denied, 464 U.S. 937, 104 S. Ct. 348, 78 L. Ed. 2d 314 (1983).

 A. The § 1983 Claim

 The elements of a cause of action brought under 42 U.S.C. § 1983 are 1) deprivation of a constitutional right or privilege; and 2) action under color of state law. See Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692, 61 L. Ed. 2d 433 (1979). The original Complaint wholly fails to allege any action under color of state law, an essential element of Plaintiffs' action under § 1983. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1732, 56 L. Ed. 2d 185 (1978). The proposed amendment to the Complaint attempts to cure the defect by alleging that "Defendants acted together and jointly with the Motions Control Clerk . . . to list Defendants' preliminary objections before Judge Silvestri and deprive Plaintiffs of due process of law and the right to an impartial decisionmaker." Complaint, para. 37. The Complaint further alleges that the Motions Control Clerk acted as a "rubber stamp" by "exercising no independent judgment but serving as a mere conduit or tool for the Defendants. . . ." Id., P 38.

 First, inasmuch as Plaintiffs assert that "state action" exists "by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action." Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983) (citing Clulow v. Oklahoma, 700 F.2d 1291, 1303, overruled on other grounds sub nom. Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984), cert. granted, 469 U.S. 815, 105 S. Ct. 79, 83 L. Ed. 2d 28 (1984)). No facts have been alleged to show that the Motions Control Clerk agreed with the private conspirators or "acted in concert" with them. See Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984); Chicarelli v. Plymouth Garden Apts., 551 F. Supp. 532, 539 (E.D. Pa. 1982).

 Plaintiffs cite Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982) and Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984) for the proposition that, by alleging joint activity between Churchill and a "rubber stamp" state official, they have satisfied the requirement of alleging action "under color of state law."

 In Lugar, the Supreme Court set forth a two-pronged test for determining when private action is "fairly ...

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