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

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 we 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.…

dissenting:

I respectfully dissent. Seattle Fishing Services LLC (“SFS”) properly alleged facts demonstrating that its constitutional rights were violated and that this violation took place under color of state law. Moreover, even if SFS’ complaint was technically deficient, the appropriate disposition of the case would be dismissal with leave to amend.

The majority correctly identifies the requirements for stating a claim under 42 U.S.C. § 1983 . SFS “must establish that [it was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 , 119 S.Ct. 977 , 143 L.Ed.2d 130 (1999). While the deprivation-of-a-right and color-of-state-law inquiries are analytically distinct, the former subsumes the latter when a due process violation is alleged. This is because state action is required for the Due Process Clause to be violated, and a state actor necessarily acts under color of state law. See id. at 50 n. 8, 119 S.Ct. 977 ; West v. Atkins, 487 U.S. 42, 49 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988); Lugar v. Edmondson Oil Co., 457 U.S. 922,…