NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RICHARD MULLARKEY, Civil Action No.: 10-cv-6637 (CCC)

Plaintiff;,

OPINION

V.

ROBERT KORNITZER, ANDREW

MILLER, and BUDD LARNER CORP.,

Defendants.

CECCHI, District Judge.

This matter comes before the Court on the motion of Robert Kornitzer, Andrew Miller,

and Budd Lamer P.C., improperly pled as Budd Lamer Corporation, (collectively “Defendants”)

to dismiss Plaintiff Richard Mullarkey’s (“Plaintiff’) complaint for lack of subject matter

jurisdiction and for failure to file an affidavit of merit (“AOM”). (ECF Docket No. 30). On

February 10, 2012, Magistrate Judge Joseph A. Dickson issued a Report and Recommendation

that the Defendant’s motion to dismiss be granted for lack of subject matter jurisdiction. (ECF

Docket No. 41.) On February 24, 2012, Plaintiff filed an objection to Judge Dickson’s Report

and Recommendation, (ECF Docket No. 43). The Court decides this matter without oral

argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth

below, the Court adopts Judge Dickson’s February 10, 2012 Report and Recommendation, and

grants Defendants’ motion to dismiss.

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I. Factual and Procedural History

This action arises from Defendants’ legal representation of Plaintiff in his matrimonial

action. Plaintiff claims that Defendants mishandled his matrimonial action by allegedly

conducting a “fake trial” and “abandoning [him] mid-trial,” which allegedly caused him to lose

his house and “force[]” him into bankruptcy. (Complaint, ECF Docket No. 1; Amended

Complaint, ECF Docket No, 13.) In his complaint, Plaintiff alleges that Defendants violated his

civil rights, due process rights, and federal consumer protection laws. (Id.) The parties had a

conference with Magistrate Judge Patty Shwartz on April 6, 2011. By way of an Order dated

April 6, 2011, Judge Shwartz granted Plaintiff an extension of time until June 1, 2011 to file an

AOM. (ECF Docket No. 12). As of the date of this Opinion, Plaintiff has not filed an AOM.

On June 20, 2011, Plaintiff submitted an application for pro bono counsel that was denied on

July 11, 2011. (ECF Docket Nos. 23, 29.) Plaintiff submitted a second application for pro bono

counsel on August 16, 2011, (ECF Docket No. 38), which this Court denied on June 25, 2012,

(ECF Docket Nos. 45, 46).

On July 20, 2011, Defendants filed a motion to dismiss for failure to serve an AOM and

for lack of subject matter jurisdiction. (ECF Docket No. 30.) By way of Report and

Recommendation dated February 10, 2012, Magistrate Judge Dickson recommended that this

Court grant Defendants’ motion to dismiss for lack of subject matter jurisdiction. (Rep. & Rec.

at 4.) Plaintiff filed an objection to Judge Dickson’s Report and Recommendation on February

24, 2012. (ECF Docket No. 43.)

IL. Legal Standard

When a magistrate judge addresses motions that are considered “dispositive,” such as to

grant or deny a motion to dismiss, a magistrate judge submits a Report and Recommendation to

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the district court. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72; L. Civ. R. 72.l(a)(2). The

district court may then “accept, reject or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge may also receive further evidence or

recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C); see

also L. Civ. R. 72.1(c)(2). Unlike an Opinion and Order issued by a magistrate judge, a Report

and Recommendation does not have force of law unless and until the district court enters an

order accepting or rejecting it. United Steelworkers ofAm. v. NJ Zinc C’o,, Inc., 828 F.2d 1001,

1005 (3d Cir. 1987). With respect to dispositive motions, the district court must make a de novo

determination of those portions of the magistrate judge’s Report to which a litigant has filed

objections. 28 U.S.C. § 636(b)(1)(c); Fed, R. Civ. P. 72(b); L. Civ. R. 72.1(c)(2); see State Farm

Indem. v. Fornaro, 227 F. Supp. 2d 229, 231 (D.N.J. 2002).

IlL Discussion

By way of Report and Recommendation dated February 10, 2012, Magistrate Judge

Dickson recommended that this Court grant Defendants’ motion to dismiss for lack of subject

matter jurisdiction. (Rep. & Rec. at 4.) Specifically, Judge Dickson found that all of the parties

are citizens of New Jersey; therefore, jurisdiction cannot be premised on diversity. (Rep. & Rec.

at 2.) Furthermore, Judge Dickson concluded that even upon a liberal reading of Plaintiff’s

complaint, Plaintiff’s allegations do not confer federal question jurisdiction upon this Court.

(Rep. & Rec. at 4.) Accordingly, Judge Dickson found that this court lacked subject matter

jurisdiction. (Id.)

As Plaintiff Mullarkey is proceeding pro se, the Court will construe his submissions

liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[AJ pro se complaint, however inartfully

pleaded must be held to less stringent standards than formal pleadings drafted by lawyers.”);

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Aiston v Parker, 363 F.3d 229 (3d Cir, 2004), Despite the Court’s liberal reading of Plaintiff’s

complaint, however, he has failed to articulate a basis for federal jurisdiction.

Federal courts have subject matter jurisdiction over a case if it satisfies federal question

jurisdiction under 28 U.S.C. § 1331, or diversity jurisdiction under 28 U.S.C. § 1332. Hunter v.

Greenwood Trust Co., 856 F. Supp. 207, 211 (D.NJ. 1992). Pursuant to § 1331, federal “district

courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1331. This Court has held that “it is insufficient to

merely allege a federal statute as the basis for the Court’s jurisdiction;” a complaint must state a

claim that arises under federal law. Abulkhair v. Friedrich, No. 06-2521, 2006 U.S. Dist. LEXIS

38156, 2006 WL 1644821, at *3 (D.N.J. June 8, 2006).

Here, Plaintiff alleges that Defendants violated his “civil rights of due process” and

“federal consumer protection law.” (Compl. 1.) In reviewing Plaintiff’s complaint, Judge

Dickson assumed the Plaintiff attempted to assert a claim pursuant to 42. U.S.C. § 1983. (Rep.

& Rec. 3.) In order to state a claim for relief under § 1983, Plaintiff “must establish that [he

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.” American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49-50 (1999). Judge Dickson found that “there are no allegations that

Defendants were acting ‘under the color of law,” (Rep. & Rec. 3.) The Report and

Recommendation also stated that “this Court cannot hazard a guess as to which of the numerous

laws aimed at protecting consumers Plaintiff is relying on.” (Id.) Based on the allegations in the

Complaint, Defendants are not state actors nor were they acting under the color of law in their

representation of Plaintiff in his matrimonial action, Furthermore, the Court cannot determine

from Plaintiff’s Complaint which consumer protection laws Plaintiff relies upon. Therefore, the

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Court agrees with Judge Dickson’s Report and Recommendation and finds that there is no

federal question jurisdiction.

Claims may also be brought in federal district court pursuant to 28 U.S.C. § 1332(a), if

the matter in controversy exceeds the sum or value of $75,000 and is between citizens of

different states. However, under § 1332, there must be complete diversity among all parties, i.e.,

each plaintiff must be a citizen of a different state from each defendant. See Brown v. Francis,

75 F.3d 860, 865 (3d Cir. 1996). Here, the Court agrees with Judge Dickson’s conclusion that

complete diversity does not exist, (Rep. & Rec. 2.) Based on the face of the Complaint, all

parties are citizens of New Jersey. As such, subject matter jurisdiction cannot be based on

diversity.

Plaintiffs objection did not provide any substantive basis to reject Judge Dickson’s

Report and Recommendation. Furthermore, the Court has taken into consideration the fact that

Plaintiff is proceeding pro se and has read Plaintiff’s Complaint and Amended Complaint

liberally. The Court finds, however, that Plaintiffs assertions do not confer jurisdiction on this

Court. As such, the Court agrees with Magistrate Judge Dickson’s Report and Recommendation

and grants Defendants’ motion to dismiss.’

IV. Conclusion

Having thoroughly reviewed Magistrate Judge Dickson’s Report and Recommendation

and the parties’ submissions, this Court hereby adopts Magistrate Judge Dickson’s Report and

Recommendation dated February 10, 2012, including the findings of fact and conclusions of law,

and thus grants Defendants’ motion to dismiss.

‘It should also be noted that Plaintiff failed to file an AOM. However, the Court need not reach

this issue, as the case is being dismissed based on lack ofjurisdiction.

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An appropriate Order accompanies this Opinion.

Dated: July25, 2012

HON. CLAIRE C. CECCHI

United States District Judge

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