Filed: Patrick Fisher
Filed: Patrick Fisher
TENTH CIRCUIT
JUL 1 1999
PATRICK FISHER
Clerk
RUSSELL J. DIEFENDERFER,
v.
Plaintiff - Appellant,
No. 98-4230
(D. Utah)
Defendants - Appellees.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This litigation concerns Russell J. Diefenderfers challenges to wage
garnishments enforcing a child support obligation arrearage. In 1983 the State of
Washington ordered Diefenderfer to pay $100 per month in child support.
Diefenderfers parental rights were involuntarily terminated in Pennsylvania in
1988. In 1992, Utahs Office of Recovery Services (ORS) received a Uniform
Reciprocal Enforcement of Support Act request from Pennsylvania to collect
$4250 from Diefenderfer, who was residing in Utah. Diefenderfer challenged the
garnishment of his wages, both before the ORS and in Utah state court; that
litigation was dismissed in February 1994.
Diefenderfer filed this 42 U.S.C. 1983 action on November 25, 1996.
The district court, in an order adopting the magistrate judges report and
recommendation, dismissed the case as to all defendants. As to defendants the
State of Utah, Office of Recovery Services (ORS), Robert Jowett
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provided immunity. It held that defendant Mary Rider was never properly served.
It held that Diefenderfers pleadings failed to state a claim against defendants
Communication and Power Industries (CPI) (Diefenderfers then-employer) and
Patty Johnson (payroll manager), because neither had acted under color of state
law, 42 U.S.C. 1983. As to defendant Castaneira (Diefenderfers ex-wife), the
court held it did not have personal jurisdiction.
Diefenderfer raises four issues on appeal. He first argues that the court did
have jurisdiction over Castaneira, by virtue of the fact that she was receiving
benefits from Utah and had contracted with Utah for services. Appellants
Br. at 2. It appears from the record that Castaneira passed away, insolvent, in
1997; her attorney notified the district court and all parties that she was no
longer a party.
See R. Vol. III Doc. 56. The district court, however, never
dismissed her as a party, and its opinion makes no mention of the fact of her
passing. No representative has filed an appellate brief in this court on behalf of
Castaneiras estate. Diefenderfer makes no mention of the fact of Castaneiras
passing in either of his briefs. In any event, even if we assume for purposes of
argument that Castaneira is still properly a party, we agree with the district court
and the magistrate judge that the court lacked personal jurisdiction over her. That
Utah collected, at Pennsylvanias request, monies owed to Castaneira, is not a
sufficient nexus to hail Castaneira into the district court in Utah. To exercise
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jurisdiction over Castaneira in Utah would be to violate the principle that the
defendants conduct and connection with the forum State [must be] such that he
should reasonably anticipate being haled into court there.
World-Wide
, 994 F.2d
716, 721 (10th Cir. 1993). Diefenderfer states that he made at least a passing
reference below, but we see nothing in the record sufficient to raise the issue.
Diefenderfers final argument is that the district court improperly dismissed
the action against defendants Castaneira, CPI, and Johnson, because, he claims,
each acted under color of state law by conspiring with state officials. As to
Castaneira, as we have stated, there is no jurisdiction. As to CPI and Johnson, we
agree with the reasoning of the district court. It is undisputed that CPI and
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Johnson were required by law to garnish Diefenderfers wages; private actors who
merely comply with state law are not thereby acting under color of state law.
Diefenderfers allegations of conspiracy are without substance, and are meritless.
AFFIRMED
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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