Nader v. McAuliffe

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RALPH NADER et al., :
:
Plaintiffs, : Civil Action No.: 08-0428 (RMU)
:
v. : Document Nos.: 47, 48
:
TERRY MCAULIFFE et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ MOTIONS TO DISMISS THE PLAINTIFFS’ AMENDED COMPLAINT

I. INTRODUCTION

This matter is before the court on the motions to dismiss filed by defendants Terry

McAuliffe, former Chairman of the Democratic National Committee (“DNC”), and Steven

Raikin, Director, Treasurer and Secretary of a political organization called the Ballot Project.

The plaintiffs – Ralph Nader, his former running mate Peter Camejo and six of their supporters –

brought the instant suit and many others following Nader’s unsuccessful presidential bid in 2004.

They claim that the defendants committed conspiracy, abuse of process, malicious prosecution

and violations of the United States Constitution1 and 42 U.S.C. § 1983. The defendants have

moved to dismiss. Because the court’s dismissal of the plaintiffs’ claims in Civil Action No. 07-

2136 bar the state law claims raised in this action under the doctrine of res judicata, the court

grants the defendants’ motions to dismiss those claims. And because the court rejects the

plaintiffs’ allegation that the defendants acted “under color of state law” as required for a § 1983

claim, the court grants the defendants’ motions to dismiss the plaintiffs’ federal claims.

1
Specifically, the plaintiffs allege that the defendants violated the Qualifications Clause and the
First and Fourteenth Amendments. Am. Compl. ¶¶ 252-257.
 II. FACTUAL & PROCEDURAL BACKGROUND

The facts giving rise to the plaintiffs’ claims have been set forth in greater detail in

several prior opinions. See Nader v. Democratic Nat’l Comm., 2008 WL 5273109, at *1-*2

(D.D.C. Dec. 22, 2008); Nader v. Democratic Nat’l Comm., 555 F. Supp. 2d 137, 144-46

(D.D.C. 2008); Nader v. McAuliffe, 549 F. Supp. 2d 760, 761-62 (E.D. Va. 2008). In short, the

plaintiffs allege that supporters of the Kerry-Edwards 2004 campaign “presided over a

nationwide conspiracy to suppress voter choice during the 2004 General Election” by filing ballot

eligibility complaints to undermine Nader’s candidacy. Pls.’ Opp’n to Defs.’ Mots. to Dismiss

(“Pls.’ Opp’n”) at 3-4. To rectify the alleged violations of state and federal law, the plaintiffs

brought suit in this court, in the Superior Court of the District of Columbia and in the United

States District Court for the Eastern District of Virginia against various individuals associated

with the Democratic ticket.

More specifically, the plaintiffs filed suit in the D.C. Superior Court against the DNC and

three DNC officials, Kerry-Edwards 2004, John Kerry individually, Reed Smith LLP (“Reed

Smith”), the Ballot Project and two Ballot Project officials, America Coming Together (“ACT”)

and the Service Employees International Union (“SEIU”), alleging conspiracy, abuse of process,

malicious prosecution and violations of 42 U.S.C. § 1983 and the Constitution. The defendants

removed the action to this court, where it was docketed as Civil Action No. 07-2136. The

plaintiffs then amended their complaint and removed the federal claims, leaving only the

allegations of civil conspiracy, abuse of process and malicious prosecution. See Am. Compl.,

Nader v. Democratic Nat’l Comm., 555 F. Supp. 2d 137 (No. 07-2136). On May 23, 2008, the

court dismissed Civil Action No. 07-2136, determining that it lacked jurisdiction to consider the

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plaintiffs’ malicious prosecution claims that directly attacked prior state court judgments, and

that the First Amendment barred the plaintiffs’ remaining claims. Nader v. Democratic Nat’l

Comm., 555 F. Supp. 2d at 145.

The day after the plaintiffs filed suit in the D.C. Superior Court, they filed the instant

complaint against defendants McAuliffe and Raikin in the Eastern District of Virginia.2 The

amended complaint in this action, which is nearly identical to the original complaint in Civil

Action No. 07-2136 save for the identities of the defendants, compare Compl. with Compl.,

Nader v. Democratic Nat’l Comm., 555 F. Supp. 2d 137 (No. 07-2136), was later transferred

from the Eastern District of Virginia to this court, see Mem. Op. (Mar. 7, 2008) (granting the

defendants’ motion to transfer venue to this court). Finally, after this court dismissed the

plaintiffs’ amended complaint in Civil Action No. 07-2136, the plaintiffs filed Civil Action No.

08-0963 against the DNC, Kerry-Edwards 2004, John Kerry and Reed Smith in this court,

alleging conspiracy and violations of 42 U.S.C. § 1983 and the Constitution. After determining

that its dismissal of Civil Action No. 07-2136 was res judicata as to the claims raised in Civil

Action No. 08-0963, the court dismissed the latter action on December 22, 2008. See generally

Nader v. Democratic Nat’l Comm., 2008 WL 5273109 (D.D.C. Dec. 22, 2008).

Defendants McAuliffe and Raikin have moved to dismiss the instant amended

complaint.3 With respect to the state law claims, they incorporate by reference the defendants’

2
Because the complaint filed in the Eastern District of Virginia bore the caption “In the Superior
Court of the District of Columbia,” see Compl., the plaintiffs amended the complaint to correct
the caption, see Am. Compl.
3
Each defendant’s motion to dismiss incorporates the other by reference. See Def. McAuliffe’s
Mot. to Dismiss (“McAuliffe Mot.”) at 1; Def. Raikin’s Mot. to Dismiss (“Raikin Mot.”) at 2.

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motions to dismiss in Civil Action No. 07-2136. See Def. McAuliffe’s Mot. to Dismiss Am.

Compl. (“McAuliffe Mot.”) at 1; Def. Raikin’s Mot. to Dismiss Am. Compl. (“Raikin Mot.”) at

1. And in support of their motions to dismiss the plaintiffs’ federal claims, the defendants

contend that the claims fail to allege state action, see McAuliffe Mot. at 4-11; Raikin Mot. at 6-8;

fail to allege a constitutional violation, see McAuliffe Mot. at 11; are time-barred, see Raikin

Mot. at 8-10; and are conclusory, see id. at 10. The court now turns to these arguments.

III. ANALYSIS

A. Legal Standard for Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED . R. CIV . P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his

prima facie case in the complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or

“plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134,

136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

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 Yet, the plaintiff must allege “any set of facts consistent with the allegations.” Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007) (abrogating the oft-quoted language from

Conley, 355 U.S. at 45-56, instructing courts not to dismiss for failure to state a claim unless it

appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”);

Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)

(affirming that “a complaint needs some information about the circumstances giving rise to the

claims”). While these facts must “possess enough heft to ‘sho[w] that the pleader is entitled to

relief,’” a complaint “does not need detailed factual allegations.” Twombly, 127 S. Ct. at 1964,

1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual

allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004); Browning, 292 F.3d at 242. The court’s resolution of a Rule 12(b)(6) motion

represents a ruling on the merits with res judicata effect. Haase v. Sessions, 835 F.2d 902, 906

(D.C. Cir. 1987).

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 B. The Court Grants the Defendants’ Motions to Dismiss
Counts I and II of the Amended Complaint

1. Legal Standard for Res Judicata

“The doctrine of res judicata prevents repetitious litigation involving the same causes of

action or the same issues.” I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944,

946 (D.C. Cir. 1983). Res judicata has two distinct aspects – claim preclusion and issue

preclusion (commonly known as collateral estoppel) – that apply in different circumstances and

with different consequences to the litigants. NextWave Pers. Commc’ns, Inc. v. Fed. Commc’ns

Comm’n, 254 F.3d 130, 142 (D.C. Cir. 2001); Novak v. World Bank, 703 F.2d 1305, 1309 (D.C.

Cir. 1983). Under claim preclusion, “a final judgment on the merits of an action precludes the

parties or their privies from relitigating issues that were or could have been raised in that action.”

Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry, 449

U.S. 90, 94 (1980)). Under issue preclusion or collateral estoppel, “once a court has decided an

issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue

in a suit on a different cause of action involving a party to the first case.” Yamaha Corp. of Am.

v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Allen, 449 U.S. at 94). In short,

“claim preclusion forecloses all that which might have been litigated previously,” while issue

preclusion “prevents the relitigation of any issue that was raised and decided in a prior action.”

I.A.M. Nat’l Pension Fund, 723 F.2d at 949; Novak, 703 F.2d at 1309. In this way, res judicata

helps “conserve judicial resources, avoid inconsistent results, engender respect for judgments of

predictable and certain effect, and [] prevent serial forum-shopping and piecemeal litigation.”

Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); see also Allen, 449 U.S. at 94.

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 Because “res judicata belongs to courts as well as to litigants,” a court may invoke res

judicata sua sponte. Stanton v. D.C. Ct. of Appeals, 127 F.3d 72, 77 (D.C. Cir. 1997); see also

Tinsley v. Equifax Credit Info. Servs., Inc., 1999 WL 506720, at *1 (D.C. Cir. 1999) (per curiam)

(noting that a district court may apply res judicata upon taking judicial notice of the parties’

previous case).

2. The Res Judicata Doctrine Bars Counts I and II of the Amended Complaint

Presumably because the parties briefed the motions to dismiss in April 2008 – that is,

before the court dismissed Civil Action No. 07-2136 on May 27, 2008 – the defendants did not

raise res judicata as a bar to the plaintiffs’ claims of conspiracy, abuse of process and malicious

prosecution. See generally McAuliffe Mot.; Raikin Mot. All parties, however, agree that the

claims raised in Civil Action No. 07-2136 are identical to the state law claims brought in Counts

I and II of the instant action. See McAuliffe Mot. at 1; Raikin Mot. at 1; Pls.’ Opp’n at 1-2. The

court’s dismissal of Civil Action No. 07-2136 was based on its determination that it lacked

jurisdiction to consider the plaintiffs’ malicious prosecution claims that directly attacked prior

state court judgments and that the First Amendment barred the plaintiffs’ remaining claims.

Nader v. Democratic Nat’l Comm., 555 F. Supp. 2d at 145. Because Counts I and II of the

instant complaint are identical to the state law claims dismissed in Civil Action No. 07-2136, the

court will not permit the parties to relitigate those claims here. See I.A.M. Nat’l Pension Fund,

723 F.2d at 949. Accordingly, the court grants the defendants’ motions to dismiss Counts I and

II of the amended complaint.

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 C. The Court Grants the Defendants’ Motions to Dismiss
Counts III and IV of the Amended Complaint

1. Legal Standard for § 1983 Claims

Section 1983 creates a cause of action against

[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.

42 U.S.C. § 1983. A plaintiff bringing a § 1983 claim “must allege both (1) that he was deprived

of a right secured by the Constitution or laws of the United States, and (2) that the defendant

acted ‘under color of’ the law of a state, territory or the District of Columbia.” Hoai v. Vo, 935

F.2d 308, 312 (D.C. Cir. 1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)).

Although § 1983 ordinarily does not create a cause of action related to the conduct of private

parties, private conduct may be deemed to be “under color of state law” when it is “fairly

attributable” to the state. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). This

occurs in two circumstances: when private parties “conspire with state officials, and when they

willfully engage in joint activity with a state or its agents.” Hoai, 935 F.2d at 313. A showing of

state action required to demonstrate a violation of the Fourteenth Amendment encompasses a

showing of action “under color of state law” for the purposes of § 1983. LaRouche v. Fowler,

152 F.3d 974, 988 n.18 (D.C. Cir. 1998). Courts must adhere carefully to the dichotomy between

state action and private action, as it “preserves an area of individual freedom by limiting the

reach of federal law and federal judicial power.” Lugar, 457 U.S. at 936. Thus, a § 1983 claim

brought against a private party cannot survive a motion to dismiss if the plaintiff fails to allege

8
that the defendant was engaged in state action or acted under color of state law. Hoai, 935 F.2d

at 312.

2. The Defendants Are Not State Actors and Did Not Act Under Color of State Law

The defendants move to dismiss Counts III and IV of the amended complaint – which

allege conspiracy and violations of § 1983 and the Constitution – contending that they are not

state actors and did not act under color of state law. McAuliffe Mot. at 4-11; Raikin Mot. at 6-8.4

The plaintiffs disagree, see Pls.’ Opp’n at 8-14, arguing that their “allegations are sufficient to

establish state action under a ‘public function’ test or a ‘joint action’ test,” id. at 13. The court

now addresses each of these two theories.

First, the plaintiffs allege that the defendants “were engaged in a public function when

they conspired, by and through the DNC and its state Democratic Party affiliates, to suppress

voter choice in the 2004 presidential election by preventing a competing candidacy from gaining

ballot access.” Id. at 4. Noting that the “operative test” for whether a private party has engaged

in a public function in this context is whether the party “exercise[d] power over the electoral

process,” the plaintiffs maintain that the defendants satisfied this standard by “exercis[ing] a

unilateral power delegated by the State to challenge competing candidates,” as well as by

“engag[ing] in the public function of testing the candidates’ qualifications for public office.” Id.

at 11.

4
The defendants advance three other arguments in support of their motions to dismiss: first, they
contend that the plaintiffs have failed to allege a constitutional violation because there is no
constitutional right to be free of challenges to ballot access petitions, McAuliffe Mot. at 11;
second, they assert that the plaintiffs’ claims are time-barred, Raikin Mot. at 8-10; and third, they
submit that the plaintiffs failed to plead with sufficient particularity their allegations of
conspiracy, id. at 10. As a result of its determination that the defendants’ conduct is not
actionable under § 1983 because it did not take place under color of state law, the court has no
occasion to reach these contentions.

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 The defendants refute the plaintiffs’ characterization, noting that “[f]iling challenges to

ballot petitions . . . is not a function traditionally performed by the state or traditionally

employing state powers;” to the contrary, state ballot access statutes give private citizens the right

to file challenges of the sort that the defendants filed here. Def. McAuliffe’s Reply in Support of

Mot. to Dismiss (“McAuliffe Reply”) at 6. Further, citing Fulani v. McAuliffe, a case brought

against defendant McAuliffe by supporters of the Nader-Camejo ticket in 2004, the defendants

argue that “to the extent that Plaintiffs accuse Defendants of using State election law to impede

the Nader/Camejo candidacy and violate Plaintiffs’ equal protection rights or right to vote, that

claim fails as a matter of law” because “‘merely resorting to the courts and being on the winning

side of a lawsuit does not make a party’ responsible for depriving a plaintiff of his rights.”

McAuliffe Mot. at 6 (quoting Fulani v. McAuliffe, 2005 WL 2276881 (S.D.N.Y. Sept. 19,

2005)). In the defendants’ view, the plaintiffs’ true grievance is with the “fairness and

constitutionality of the ballot access statutes,” but that “is an issue for a different case.” Id.

As a preliminary matter, the court agrees with the defendants’ observation that merely

filing, and winning, a lawsuit does not give rise to a constitutional claim unless the plaintiff

alleges that the judge presiding over the lawsuit was a co-conspirator or a joint actor with a

private party. Dennis v. Sparks, 449 U.S. 24, 28 (1980). The plaintiffs make no such allegation;

therefore, to the extent that the plaintiffs’ reliance on the “public function” test stems from the

defendants’ appeal to the courts, see, e.g., Pls.’ Opp’n at 7 (declaring that the defendants

“conspired to prevent Mr. Nader and Mr. Camejo from running for public office . . . and to deny

Plaintiff-voters the choice of voting for them, by . . . wag[ing] a nationwide assault of groundless

and abusive litigation”), their § 1983 claim fails. Further, it is well-settled that a public function

10
“is not simply one ‘traditionally employed by governments,’ but rather one ‘traditionally

exclusively reserved to the State.’” LaRouche, 152 F.3d at 990 (quoting Flagg Bros. v. Brooks,

436 U.S. 149, 157 (1978)). The plaintiffs offer no facts that plausibly suggests that filing ballot

access challenges is a function “traditionally exclusively reserved to the States.” See Twombly,

127 S. Ct. at 1965 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (stating that “on a

motion to dismiss, courts ‘are not bound to accept as true a legal conclusion couched as a factual

allegation’”)).5 Moreover, the fact that private citizens may file challenges under the ballot

access statutes6 is antithetical to the assertion that doing so is a function traditionally exclusively

reserved to the States. As a result, the court rejects the plaintiffs’ assertion that the defendants

engaged in an exclusively public function by filing challenges under the state ballot access

statutes.

In addition to arguing that the defendants are liable under § 1983 based on a “public

function” theory, the plaintiffs also contend that “[a] finding of state action . . . is further justified

by the joint participation [in the defendants’ alleged conspiracy by] state officials in several

states.” Pls.’ Opp’n at 13. They cite eight specific acts of state officials in Illinois, New Mexico,

Oregon, Pennsylvania, the District of Columbia and West Virginia that, in their view,

5
The plaintiffs make much of the fact that the act of conducting and regulating an election has
been held to be an exclusively public function, Pls.’ Opp’n at 10; see also Flagg Bros. v. Brooks,
436 U.S. 149, 158 (1978), but because the allegedly unconstitutional conduct here consisted of
filing challenges to eligibility for office rather than actually conducting or regulating an election,
that authority is not on point.
6
Although the pleadings do not provide the text of all of the state ballot access statutes under
which the defendants challenged the Nader candidacy, they cite two such statutes as examples,
one of which provides that “[a]ny legal voter . . . having objections to any certificate of
nomination or nomination papers or petitions filed, shall file an objector’s petition [with] the
State Board of Elections,” 10 ILL . COM P . STAT . 5/10-8, and the other of which places no limit on
who may object to a nomination paper or petition, see 25 PA . STAT . ANN . § 2937.

11
demonstrate that the defendants were engaged in joint action with state officials and can therefore

be held liable under § 1983. Id. at 4-6, 13.

The defendants counter that although the plaintiffs argue that the defendants engaged in

joint activity with state officials, they fail to name any state actors as defendants or as non-

defendant co-conspirators. Def. Raikin’s Reply in Support of Mot. to Dismiss at 4. Further, the

defendants note that the state officials the plaintiffs identify “fall into two categories: (1)

employees of state legislatures who assisted the alleged co-conspirators to draft ballot access

challenges, and (2) state court judges, secretaries of state and state attorneys with responsibility

to see that the state’s statutes were enforced.” McAuliffe Reply at 8. As to the former category,

the defendants aver that the employees of state legislatures who helped draft ballot access

challenges did not lend the imprimatur of the state to the ballot access challenges. Id. at 8-9.

And as to the latter, while the defendants concede that the state officials performed a state

function by enforcing the states’ ballot access laws, they submit that these officials’ actions are

protected by qualified immunity. Id. at 9.

A private party can be held liable under § 1983 when he or she conspires or acts in

concert with state actors. Rendell-Baker v. Kohn, 457 U.S. 830, 838 & n.6 (1982) (contrasting

cases in which the Supreme Court upheld § 1983 suits based on the joint activity principle with

cases in which it declined to apply the principle because the state officials’ role in the conduct

was not sufficiently prominent); see also Adickes, 398 U.S. at 152 (quoting United States v.

Price, 383 U.S. 787, 794 (1966)) (explaining that “[t]o act ‘under color’ of law does not require

that the accused be an officer of the State[, because] [i]t is enough that he is a willful participant

in joint activity with the State or its agents”). Here, despite advancing vague assertions that the

12
defendants engaged in a “conspiracy that involved the State . . . and which implicates the State,”

Pls.’ Opp’n at 4, and accusing state actors of “engag[ing] in acts that furthered Defendants’

conspiracy,” id. at 13, the plaintiffs do not contend that state officials entered into a conspiracy

with the defendants to violate the plaintiffs’ constitutional rights, see Am. Compl. ¶¶ 25-46

(failing to list any state officials as alleged “non-defendant co-conspirators”); cf. Adickes, 398

U.S. at 152 (holding that private defendants could be held liable as state actors if they “reached

an understanding” with state officials to deny the plaintiffs’ constitutional rights); Hoai, 935 F.2d

at 313 (rejecting the plaintiff’s claim that the defendant acted under color of state law because the

plaintiff failed to allege that the defendant conspired with state officials). Nor do they “identify

any facts that are suggestive enough to render a . . . conspiracy plausible.” Twombly, 127 S. Ct.

at 1965. As a result, the court rejects the plaintiffs’ assertion that the defendants acted in concert

with state actors.

Furthermore, although the plaintiffs acknowledge that a key factor in the joint action

analysis is whether the private conduct received the imprimatur of the state, see Blum v. Yaretsky,

457 U.S. 991, 1003 (1982); Franz v. United States, 707 F.2d 582, 594 n.45 (D.C. Cir. 1983), they

fail to articulate how the defendants’ conduct here received the public imprimatur of the state.

As the defendants correctly point out, the public officials who were involved in the ballot access

challenges – state court judges, secretaries of state and state’s attorneys – are shielded from

liability. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a

State nor its officials acting in their official capacities are ‘persons’ under § 1983”). And the sole

remaining allegation on which the plaintiffs’ joint activity theory rests – that some individuals

employed by state legislatures assisted in drafting ballot access challenges – fails to establish “a

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sufficiently close nexus between the State and [the defendant] . . . so that the action of the latter

may be fairly treated as that of the State itself.” Blum, 457 U.S. at 1004 (quoting Jackson v.

Metro. Edison Co., 419 U.S. 345, 351 (1974) (affirming the dismissal of the complaint because

the defendant’s conduct did not constitute state action)); see also Griffin v. Maryland, 378 U.S.

130, 135 (1964) (noting that “[i]f an individual is possessed of state authority and purports to act

under that authority, his action is state action”) (emphasis added). Accordingly, the court rejects

the plaintiffs’ claim that the defendants’ conduct is actionable under § 1983 and grants the

defendants’ motions to dismiss Counts III and IV of the amended complaint.

IV. CONCLUSION

For the foregoing reasons, the court grants the defendants’ motions to dismiss the

plaintiffs’ amended complaint. An Order consistent with this Memorandum Opinion is

separately and contemporaneously issued this 7th day of January, 2009.

RICARDO M. URBINA
United States District Judge

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