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Kulick v. Pocono Downs Racing Ass'n Inc.


filed: April 23, 1987.


On Appeal from the United States District Court for the Middle District of Pennsylvania. D.C. Civil No. 86-0438.

Author: Becker


HIGGINBOTHAM and BECKER, Circuit Judges and DUMBAULD, District Judge*fn*

BECKER, Circuit Judge.

This appeal in a civil rights case concerns the authority of a district court to use its factual findings about the existence of state action made during a preliminary injunction proceeding as a basis for determining its own jurisdiction. The plaintiff, Robert J. Kulick, owns horses which he races at Pocono Downs, a harness track in Wilkes-Barre, Pennsylvania. Defendants are Pocono Downs Racing Association, Inc. and its President and principal stockholder, Joseph Banks. Kulick sued pursuant to 42 U.S.C. § 1983 for damages and injunctive relief, alleging that he had been ejected from the race track under Banks' order without due process of law and thereby lost the right to bet at the track and to be on the premises when his horses were racing.*fn1

Following a preliminary injunction hearing, the district court dismissed the action for want of matter jurisdiction*fn2 on the basis of its conclusion that Kulick had not established that the actions of defendants were taken under color of state law. It may be that Kulick will ultimately have difficulty proving state action or any of the other elements of his due process claim. We conclude, however, that the court should not have treated its preliminary injunction because the presence of state action was properly a concern not of jurisdiction but of the merits. We therefore reverse and remand for further proceedings.


The requirements in a section 1983 case that the challenged conduct be taken "under color of state law" has been treated identically to the "state action" requirement of the fourteenth amendment. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Of the various state action tests summarized in Krynicky v. University of Pittsburgh, 742 F.2d 94, 98 (3d Cir. 1984), two are relevant to this case: the "symbiotic relationship" test and the "nexus" test. The Supreme Court has found state action where the state has so far insinuated itself into the position of interdependence with a private party that the relationship of the two becomes symbiotic.Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961. The Court has also held that state action may exist when there is a sufficiently close nexus between the state and the challenged action of a private entity such that the actions of the private actor may fairly be attributed to those of the state. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974).

Kulick concedes that the mere state regulation of harness racing, albeit heavy, is not along sufficient to satisfy the "symbiotic relationship" test for state action. He relies, however, on Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589 (3d Cir. 1979), in which a sharply divided panel found the nexus requirement satisfied because state officials, acting in their official capacity, participated in the decision of racing track management to expel the plaintiff.

At the preliminary injunction hearing, Kulick tried to satisfy the nexus test by pointing out that his injection slip listed Kulick's violation of a state Racing Commission rule as one reason for ejection. Further, Kulick attempted to establish that state racing officials participated in the decision to expel him through the testimony of Eugene Lipsi, a director of the track. Mr. Lipsi testified that Banks, the track president, had told him that the racing judges had told the general manager that Kulick should be ejected.*fn3 According to Lipsi, Banks was informed that the presiding state racing judge felt that he had no hard evidence to evict Kulick, but "he suggested that Pocono Downs evict him."

On the other hand, Banks' direct testimony was that he had "received no information from anyone, under any circumstances, which indicated what [the racing judge's] opinion might be of Mr. Kulick" or whether the judge though Kulick should be evicted. The district court, which heard the evidence and observed the witnesses, properly proceeded to weigh the conflicting testimony before ruling on the preliminary injunction motion. The court concluded that the racing judges "played no part" in Banks' decision to evict Kulick and accordingly denied the motion for failure to demonstrate a likelihood of success on the merits.


Following its denial of the preliminary injunction, the district court proceeded to dismiss the complaint for lack of jurisdiction on the grounds that Kulick had not established state action. The court relied on its preliminary injunction finding that state officials had not participated in the decision to expel Kulick from the track. Kulick does not challenge this finding as support for the district court's denial of the preliminary injunction. Kulick does challenged the district court's reliance on this finding for dismissal of the case, however, and we agree that this dismissal was in error.

The district court had jurisdiction over Kulick's § 1983 civil rights claim under 28 U.S.C. § 1331's general grant of federal question jurisdiction and under 28 U.S.C. § 1343(3)'s grant of civil rights jurisdiction.*fn4 Under either section, a court has jurisdiction over the dispute so long as the plaintiff alleges that defendant's actions violate the requisite federal law: under § 1331, any federal law: under § 1343, only laws that relate to civil rights. Once the plaintiff has met this threshold pleading requirement, however, the truth of the facts alleged in the complaint is a question on the merits, as is the legal question whether the facts alleged establish a violation. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70-71, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978); Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946).*fn5 Otherwise, the district court could turn an attack on the merits, against which the party has the procedural protections of a full trial including the right to a jury, into an attack on jurisdiction, which a court may resolve at any time without a jury pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12h()(3).*fn6

In this respect, it is important to distinguish elements of a claim that relate to Congress's jurisdiction, i.e., its constitutional authority to act, from issues that relate to the jurisdiction of the courts. For example, one element of a federal antitrust claim is that the defendant's anticompetitive activity have a substantial affect on interstate commerce, and this element brings the antitrust laws squarely within Congress' authority to legislate under the Commerce Clause of Article I, section 8. Similarly, the state action requirement of a § 1983 claim constitutes a basis for Congress to regulate conduct pursuant to § 5 of the Fourteenth Amendment. Courts sometimes refer to these elements as jurisdictional. See McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 62 L. Ed. 2d 441, 100 S. Ct. 502 (1980) (referring to effects on interstate commerce as jurisdictional requirement).

But the jurisdictional concerns that a court has the power to resolve on its own pursuant to a Rule 12(b)(1) motion involve the court's jurisdiction. That jurisdiction is defined first by Article III of the Constitution, which enumerates the kinds of powers that Congress may vest in the federal court, and then by statutes, such as )§§ 1331 and 1343, which actually vest a court with power. Thus, the court independently resolves questions such as standing and diversity. Elements of a claim that are called jurisdictional because they relate to Congress's jurisdiction remain questions of the merits, and the Supreme Court has made clear that a court may resolve them only in the manner that the court may resolve all other questions of the merits. McLain, 444 U.S. at 246.*fn7

In limited circumstances, the Supreme Court has permitted courts to dismiss a claim for lack of jurisdiction if the federal claim is "made solely for the purpose of obtaining jurisdiction" or if the claim is "wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. at 682-83. These exceptions do not permit a court to prejudge the facts alleged in the complaint, however, for a court may dismiss for lack of jurisdiction only if claims are "insubstantial on their face." Hagans v. Lavine, 415 U.S. 528, 542 n. 10 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974) (quoting Brotherhood of Locomotive Eng'rs v. Chicago, Rock Island & Pac. R.R.Co., 382 U.S. 423, 428, 15 L. Ed. 2d 501, 86 S. Ct. 594 (1966)). Moreover, dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false, but only because the right claimed is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974).

In this case, the district court used its finding about the existence of state action on the preliminary injunction motion to resolve the issue of state action for purposes of jurisdiction. This use of the preliminary injunction was improper, for the factual existence of state action was not a question of jurisdiction. Dismissal for lack of jurisdiction was also not appropriate on the theory that Kulick's claim was legally frivolous. Our precedents establish that Kulick's theory of state action was a plausible legal theory. See Fitzgerald, 607 F.2d 589. While Kulick may have difficulty showing other elements of his claim, such as a deprivation of a property or liberty right or a failure to receive adequate process, we cannot say that his claim is so completely devoid of merit as to deprive the district court or this court of jurisdiction.

We have considered the possibility that we should treat the district court's dismissal following its preliminary injunction hearing as a dismissal on the merits for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). However, the district court dismissed solely on the grounds of inadequate state action. The complaint alleged sufficient facts to establish state action under this court's holding in Fitzgerald, and the court had no authority to look beyond the facts of the pleading in deciding whether to dismiss for failure to state a claim. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).


For the foregoing reasons the judgment of the district court dismissing Kulick's complaint for want of subject matter jurisdiction will be reversed and the case remanded for further proceedings.

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