The opinion of the court was delivered by: MINER
MEMORANDUM-DECISION and ORDER
This aciton arises out of the alleged violations of plaintiff's civil rights by defendants Ellen M. Dahlberg, Carl F. Becker, Mr. Becker's law firm, Govern, McDowell & Becker, and Harvey E. Stoddard, Jr., sheriff of Schoharie County, New York. The action is brought pursuant to 42 U.S.C. § 1983, and jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. Before this Court are defendant Ellen Dahlberg's motion to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), third party defendants Jordan & Walster's motion to dismiss the third party complaint of defendants Carl Becker and Govern, McDowell & Becker, Fed.R.Civ.P. 12(b)(6), and to disqualify the law firm of Roche and Wolkenbreit, P.C. from its representation of Ellen Dahlberg, and the law firm of Kernan and Kernan, P.C. from its representation of defendants Becker and Govern, McDowell & Becker based on Canons 4, 7, and 9 of the Code of Professional Responsibility.
The unfortunate familial discord which underlies the instant action began, insofar as relevant to this action, in November of 1981 when plaintiff Eric Dahlberg commenced divorce proceedings against his wife Ellen. Mrs. Dahlberg answered the complaint which had been served upon her by her husband and counterclaimed for her own divorce. Apparently, after negotiations between the parties, it was agreed that a judgment of divorce would be entered in favor of Ellen. A stipulation was entered into between the parties on March 12, 1982, and a judgment of divorce was signed on June 30, 1982, apparently adopting the terms of the stipulation.
In November of 1982, the defendant attorneys prepared an order to show cause why the plaintiff Eric Dahlberg should not be punished for contempt for allegedly having failed to make certain payments required by the divorce decree. The order to show cause was based on an affirmation of defendant Becker as well as an affidavit by Ellen Dahlberg and was made returnable on December 16, 1982. Eric Dahlberg never appeared on the return date of the order to show cause. Accordingly, sometime in May of 1983, the defendant attorneys prepared and obtained a commitment order providing for plaintiff's arrest until certain attorney's and maintenance fees were paid and a promissory note in favor of his former wife Ellen was executed. On June 7, 1983, a deputy of defendant Sheriff Stoddard arrested Eric Dahlberg and transported him to the Schoharie County Jail. At the jail, certain sheriff's employees informed plaintiff that in order to obtain release he would have to pay $250.00 in fees to Mrs. Dahlberg's attorneys and $300.00 in maintenance payments as well as execute a promissory note and certain financing statements. Plaintiff was then brought before a county court judge who ordered him held without bail. Later that day, friends of plaintiff provided him with the necessary funds and the promissory note. Despite plaintiff's willingness to execute the note, the county court judge refused to order his release without authorization from a justice of the supreme court or from Ellen Dahlberg's attorneys, since the judge was unable to determine if the promissory note and financing statements were those required by the commitment order. Counsequently, plaintiff was confined in the county jail overnight. It was not until the next morning that Ellen Dahlberg's attorneys called the county court judge and authorized plaintiff's release.
The gravamen of plaintiff's complaint is that these defendants, acting under color of state law, effected an unlawful seizure and imprisonment of plaintiff's person, thereby depriving him of his fourth amendment rights. In particular, plaintiff claims that the defendant attorneys and defendant Ellen Dahlberg "intentionally caused an unreasonable seizure of plaintiff's person . . . [and] intentionally caused the false arrest and imprisonment of plaintiff in violation of the Fourth Amendment . . ." by (1) intentionally preparing a false affidavit and presenting it to a court as a basis for obtaining valuable notes and instruments; (2) intentionally and/or negligently omitting from the order to show cause the notice and warning required by section 756 of the New York Judiciary Law; (3) intentionally and/or negligently serving an order to show cause for contempt upon an attorney whose authority had expired, in violation of section 761 of the New York Judiciary Law; (4) intentionally and/or negligently failing to supply a promissory note and financing statements with the commitment order or failing to describe these documents so that they could be identified by the judge before whom plaintiff was brought. (Complaint, P32(a) -- 32(f).). With respect to defendant Stoddard, plaintiff claims that he caused plaintiff to be "needlessly and unreasonably subject to excessive force, and degrading and humiliating treatment. . . ." (Complaint, P33). On the basis of these allegations, plaintiff seeks compensatory damages totalling $150,000.00.
It is well settled that a complaint should not be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Weisman v. LeLandais, 532 F.2d 308, 310-11 (2d Cir.1976) (per curiam). In deciding a motion to dismiss, the factual allegations in the complaint must be taken as true. Kugler v. Helfant, 421 U.S. 117, 125 & n. 5, 95 S. Ct. 1524, 1531 & n. 5, 44 L. Ed. 2d 15 (1975); Fine v. City of New York, 529 F.2d 70, 75 (2d Cir.1975). Here, even taking plaintiff's allegations as true, this Court concludes that plaintiff's complaint fails to state a claim against the moving defendants.
The threshold inquiry in a § 1983 action is twofold. The Court must consider both whether the conduct complained of was committed by a person acting under color of state law as well as whether that conduct deprived a person of rights, privileges, or immunities secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420 (1981); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970). Because this Court concludes that defendant Ellen Dahlberg's actions were not taken under color or state law consideration of plaintiff's alleged constitutional deprivations is unnecessary.
A. Ellen Dahlberg's motion to dismiss
It is plaintiff's position that defendant Ellen Dahlberg acted under color of state law by invoking the aid of state officials to effect a seizure of plaintiff's person in pursuit of her private pecuniary interests. Defendant, on the other hand, contends simply that under well settled § 1983 doctrine, her actions may not be said to have been taken under color of state law. Both parties point to the relatively recent Supreme Court decision in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982), and, not suprisingly, urge differing interpretations of that decision.
In essence, the Lugar decision held that a private creditor who obtained an ex parte prejudgment attachment order from a state court judge could be sued under § 1983. The Court found that the actions of the state judge constituted state action and that the actions of the creditor were taken under color of state law.The test for state action or action taken under color of state law enunciated by the Court was twofold.
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.
457 U.S. at 937, 102 S. Ct. at 2754. For the reasons which follow, this Court is persuaded that the holding of Lugar does not, as plaintiff contends, dictate a finding that defendant Ellen Dahlberg acted under color of state law.
Concededly, the precise holding of Lugar is an elusive one and has generated, even in its infancy, a host of judicial attempts to effect its proper application. See, e.g., Long v. Citizen's Bank & Trust Co., 563 F. Supp. 1203, 1211 (D.Kan.1983). Notwithstanding any apparent uncertainty spawned in the wake of Lugar, this Court concludes that that decision proves unavailing to plaintiff.
As an initial matter, it is important to note that the Lugar majority expressly limited its holding that state action exists where a private party invokes a state's legal procedures solely to cases involving prejudgment attachment procedures. Specifically, the Court held:
Contrary to the suggestion of JUSTICE POWELL'S dissent, we do not hold today that "a private party's mere invocation of state legal procedures constitute "joint participation" or "conspiracy" with state officials satisfying the § 1983 requirement of action under color of law." Post, at 951. The holding today, as the above ...