UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Daniel W. Miles, H. George Hamacher,

Nancy Tavernier

v. Civil No. 05-cv-56-JM

W. John Funk, Michael Ramsdell,

Gallagher, Callahan & Gartrell, P.A.

ORDER ON COUNT I OF THE COMPLAINT

AND ORDER TO SHOW CAUSE

This matter came before the Court on cross motions for

summary judgment. After reviewing the parties’ submissions, the

Court grants the Defendants’ motion for summary judgment on Count

I of the Complaint. The Court further orders the Plaintiffs to

show cause why the remaining Counts in the Complaint ought not be

dismissed for failure to meet the amount in controversy

requirement for diversity jurisdiction.

Count I of the Complaint attempts to assert a cause of

action against the Defendants under 42 U.S.C. § 1983. Section

1983 provides a cause of action for deprivations of federal

rights under color of state law. See American Mfrs. Mut. Ins.

Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (finding that in order

to state a claim under § 1983, plaintiffs “must establish that

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they were deprived of a right secured by the Constitution or the

laws of the United States, and that the alleged deprivation was

committed under color of state law”); see also Monell v. New York

City Dep’t of Social Servs., 436 U.S. 658, 700-01 (1978) (finding

that § 1983 provides a remedy “against all forms of official

violation of federally protected rights.”).

The Defendants in this case are not state actors, and they

did not take any action that can be fairly attributed to the

state for purposes of liability under § 1983. The Court rejects

the Plaintiffs’ argument that the Defendants “used the official

power of the Superior Court of Belknap County” to enforce what

the Plaintiffs consider to be “an extraordinarily unfair,

deceptive and unconstitutional settlement.” See Pl.’s Mem. in

Support of Summary J. Mot. at 25. There is no dispute that the

Defendants withdrew from representing Ms. Clarice Neumann, the

petitioner in the Belknap County Superior Court litigation,

before the respondents in that case issued subpoenas that

compelled Defendants W. John Funk and Michael Ramsdell to testify

at a hearing on the respondents’ motion to enforce the

settlement. Therefore, the Plaintiffs’ allegation that the

Defendants used the power of the Superior Court to enforce the

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settlement is misplaced. The Court finds that there is no

genuine issue as to any material fact, and that the Defendants

are entitled to judgment as a matter of law on the Plaintiffs’ §

1983 claims under Count I. 

Since only Count I asserts a cause of action against the

Defendants under federal law, there is no other basis for federal

question jurisdiction over this action. Plaintiffs have further

alleged that the court has original jurisdiction over this action

based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1). 

For diversity jurisdiction to exist, however, the parties must be

citizens of different states and the amount in controversy must

exceed the sum or value of $75,000. 28 U.S.C. § 1332(a)(1).

 The Court finds that the Complaint is devoid of any facts

that would establish that the amount in controversy meets the

requirement for diversity jurisdiction. Even if the Plaintiffs

were able to succeed on the merits of their state law claims,

they are only entitled to recover those damages that they

suffered individually. In other words, what is the value of the

Plaintiffs’ individual claims? This action is neither a class

action, nor a derivative action. Thus, the Plaintiffs have no

standing to recover damages on behalf of the Villages of

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Winnipesaukee Timeshare Owners’ Association. Moreover, there is

no dispute that the Plaintiffs did not pay the Defendants any

legal fees. Ms. Clarice Neumann is not a party in this action,

and the Plaintiffs have not alleged facts that show that they

have standing to recover legal fees that Ms. Neumann paid. 

The Court orders the Plaintiffs to make a showing in

writing, supported by competent evidence, from which the Court

may reasonably conclude that it is not a legal certainty that the

Plaintiffs’ state law claims involve less than the amount

required to establish diversity jurisdiction. The Court orders

the Plaintiffs to file their submission within 10 days of the

date of this order. The Defendants may file a response to the

Plaintiffs’ submission within 10 days thereafter. If the

Plaintiffs fail to show cause for a finding that they meet the

amount in controversy requirement for diversity jurisdiction, the

remaining state law claims will be dismissed without prejudice

for lack of subject matter jurisdiction.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 30, 2006

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cc: Evan M. Fray-Witzer, Esq.

Michael C. McLaughlin, Esq.

Russell F. Hillard, Esq.

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