The opinion of the court was delivered by: RODRIGUEZ
Plaintiff Leldon P. Pitt, M.D., seeks relief based on the allegedly unconstitutional effect of a Pine Valley Golf Club rule which restricts homeownership in the Borough of Pine Valley to members of the Pine Valley Golf Club. This matter comes before the court on the motions by defendants Pine Valley Golf Club (hereinafter the "Club"); Ernest L. Ransome, Club president, Edward S. Magee, Jr., Club manager, (hereinafter "Club defendants"); and the Borough of Pine Valley (hereinafter "Borough"); Borough Mayor Warner S. Shelly, and Borough Commissioners John R. Ott Jr. and William K. Chapman, (hereinafter "Borough defendants") for dismissal pursuant to Federal Rules of Civil Procedure 12(b) (1), (2) and (6).
Plaintiff alleges the following facts which must be accepted as true for the purpose of ruling on defendants' Rule 12(b) motions. See Conley v. Gibson, 355 U.S. 41, 44-45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1958). In 1929, the New Jersey Legislature created the Borough of Pine Valley. The boundaries of the Borough are coextensive with the boundaries of the Pine Valley Golf Club. All land in the Borough is owned by the Club. Residents of the Borough may own their homes but must lease the land from the Club. There exists a Club rule that "No one may purchase a home within the Borough of Pine Valley without being a member of the Pine Valley Golf Club." (Complaint at para. 13). All Borough officials are members, officers, or employees of the Club. (Complaint at para. 14). Tax dollars collected by the Borough have been used to benefit the Club. (Complaint at para. 15).
In 1976, plaintiff initiated efforts to join the Club and acquire a residence in the Borough. Plaintiff "discussed the possibility" of purchasing the Borough home of the late John Arthur Brown with Ms. Sally Perkins, the daughter of Mr. Brown. At that time, plaintiff was informed by defendant Edward Magee, Jr., the manager of the Club, that "only Club members could own houses in Pine Valley." (Complaint at para. 16). Plaintiff then discontinued his efforts to purchase a home and continued efforts to gain admittance to the Club. Id. In 1977, plaintiff was "preliminarily approved" for membership. (Complaint at para. 17). In 1982, plaintiff was informed that he should deposit two thousand dollars ($ 2000.00) pursuant to his application. In 1985, plaintiff was rejected for membership. (Complaint at para. 18).
The instant complaint, brought pursuant to 42 U.S.C. § 1983, alleges violation of: the equal protection and due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution; the privileges and immunities clause of Article IV, section 2, of the United States Constitution; the New Jersey Constitution, Article 8, § 3; and the New Jersey Constitution, Article 1, para. 1. The complaint also alleges common law tortious interference with prospective economic advantage. Plaintiff seeks compensatory and punitive damages in addition to injunctive relief.
All defendants seek dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief may be granted). In addition, defendant Magee seeks dismissal pursuant to Rule 12(b)(2) (lack of personal jurisdiction).
II. FIFTH AND FOURTEENTH AMENDMENT CLAIMS
A. STANDARD OF REVIEW FOR MOTION TO DISMISS
Dismissal of a complaint for failure to state a claim is permissible only when it appears "beyond doubt that 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, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980); Fed. R. Civ. P. 12(b)(6). The court must view all plaintiff's allegations as true, Bryson, 621 F.2d at 559. In addition, "all inferences favorable to plaintiff will be drawn," Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977). Despite the liberal pleading requirements, the court need only accept the truth of facts. "Conclusory allegations, unsupported by facts, cannot withstand a motion to dismiss." County of Cook v. Midcon Corp., 574 F. Supp. 902, 920 (N.D. Ill. 1983), aff'd 773 F.2d 892 (7th Cir. 1985).
The court notes that civil rights complaints require a higher level of factual specificity. District Council 47, AFSCME v. Bradley, 795 F.2d 310, 313 (3d Cir. 1986). The court recognizes that discovery is particularly necessary in order to develop evidence to support such claims. Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3d Cir. 1986). However, the rule is clear: the complaint will be sustained if "sufficient facts are alleged in the complaint so that the court is satisfied that the complaint is not frivolous and that the defendants have been provided with adequate notice so that they can answer the complaint." Bradley, 795 F.2d at 313.
Plaintiff asserts claims under the due process and equal protection clauses of the Fifth Amendment to the United States Constitution. However, plaintiff does not allege any action by the federal government. The Fifth Amendment is a limitation on the federal government and has no reference to state actions. Ex parte Whistler, 65 F. Supp. 40 (D. Wis. 1945), cert. denied, 327 U.S. 797, 90 L. Ed. 1023, 66 S. Ct. 822 (1946), reh'g denied, 327 U.S. 819, 90 L. Ed. 1041, 66 S. Ct. 959 (1946). Therefore, defendants' motion to dismiss plaintiff's due process and equal protection claims under the Fifth Amendment is granted.
C. FOURTEENTH AMENDMENT - STATE ACTION REQUIREMENT
With regard to plaintiff's equal protection and due process claims brought under 42 U.S.C. § 1983 and the Fourteenth Amendment, defendants argue that plaintiff fails to state a claim upon which relief can be granted due to an absence of the requisite state action. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Defendants claim that the Club rule which excludes non-members from buying homes in the Borough is the act of a private entity and thus not subject to legal scrutiny under either section 1983 or the United States Constitution.
Under the state action doctrine, a plaintiff must demonstrate that the alleged violations of the Constitution are "fairly attributable to the State." Lugar, 457 U.S. at 923. The Supreme Court has applied a number of approaches for determining the existence of state action. Community Medical Center v. Emergency Medical Services, 712 F.2d 878, 880 (3d Cir. 1983). Among the approaches are: (1) a symbiotic relationship between a private and state actor, see Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961); (2) a close nexus relationship between a state actor and the private action in question, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974); and (3) the public function approach, Evans v. Newton, 382 U.S. 296, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966); Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946).
See Community Medical Center, 712 F.2d at 880.
In order to determine the reach of the Fourteenth Amendment in a particular case, a fact specific review of the alleged state action must be made. See Evans, 382 U.S. at 300. See also Lugar, 457 U.S. at 939. The relationship between state and private action must be a strong and direct one. See Blum v. Yaretsky, 457 U.S. 991, 1004-5, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982) ("Mere approval or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.") (citations omitted). However, the Court has "found state action present in the exercise by a private entity of powers traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. at 352 (emphasis added) (citing Evans v. Newton, 382 U.S. 296, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966) (municipal park); Terry v. Adams, 345 U.S. 461, 97 L. Ed. 1152, 73 S. Ct. 809 (1953) (election); Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946) (company town); Nixon v. Condon, 286 U.S. 73, 76 L. Ed. 984, 52 S. Ct. 484 (1932) (election)). In this case, review must be directed at the Club rule. The Club rule as stated in the complaint is that "No one may purchase a home within the ...