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).
2

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). 
3

“[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 
4

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