                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1344
                                       ___________

                             HALL MC-NEAL WHITE, JR.,
                                            Appellant

                                             v.

                              LENNOX S. HINDS, ESQ;
                          STEVENS, HINDS & WHITE, P.C.
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 3:13-cv-07441)
                      District Judge: Honorable Michael A. Shipp
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 23, 2016

              Before: FISHER, RESTREPO and SCIRICA, Circuit Judges

                             (Opinion filed January 11, 2017)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Pro se appellant Hall Mc-Neal White Jr. (“White”) appeals from the judgment of

the United States District Court for the District of New Jersey dismissing his civil rights

case. We will affirm.

                                              I.

         In October 2006, White, represented by Lennox Hinds, Esq. (“Hinds)”, brought a

complaint under 42 U.S.C. § 1983 in the District Court of New Jersey against state

defendants.1 In 2009, the District Court allowed Hinds to withdraw from his

representation of White. In December 2013, White filed a new complaint in the District

Court, raising 12 separate § 1983 claims against Hinds and Hinds’ law firm. In eleven of

those claims, White alleged that that his constitutional rights were violated by Hinds’

negligence in prosecuting White I.2 His twelfth claim alleged conspiracy, asserting that

Hinds and the White I defense lawyers had conspired against him in favor of the White I

state defendants, and that, by conspiring with the defense lawyers (one of who was a

municipal attorney), Hinds became a state actor and violated White’s constitutional

rights. Hinds responded with a motion under Fed. R. Civ. P. 12(b)(1) to dismiss the

complaint for lack of subject matter jurisdiction.




1
    See White v. City of Trenton, et al. (“White I”), 3:06-cv-05177 (D.N.J. 2014).
2
 The matter was settled in 2014. See White I, 3:06-cv-05177, ECF # 136 (D.N.J. Apr.
10, 2012); ECF # 170, (D.N.J. Apr. 7, 2014).

                                              2
       In June 2015, the District Court dismissed the complaint for lack of subject matter

jurisdiction.3 The District Court concluded that White’s conspiracy claim, which it

understood as a 42 U.S.C. § 1983 claim, was not valid as pleaded because Hinds was not

a state actor. The District Court concluded that White’s other 11 claims were state-law

legal malpractice claims and that he had not adequately pleaded diversity jurisdiction, as

both he and Hinds were New Jersey residents. The District Court also determined that

amendment would be futile. White filed a motion for reconsideration, which the District

Court denied. This appeal timely followed.

                                              II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review where the District

Court dismisses for lack of subject matter jurisdiction, see Gould Electronics, Inc. v.

United States, 220 F.3d 169, 176 (3d Cir. 2000), and review the denial of a motion for

reconsideration for abuse of discretion, see Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d

Cir. 2010) (per curiam). A defendant may mount a factual or facial challenge to

jurisdiction – and where he mounts a facial attack on jurisdiction, he contests the

sufficiency of the pleadings, and we accept the factual allegations in the complaint as


3
  The District Court cited Bell v. Hood, 327 U.S. 678, 682-83 (1946), for the
substantiality doctrine, i.e., that there are claims so frivolous that federal courts lack
jurisdiction over them. See Hagans v. Lavine, 415 U.S. 528, 538 (1974) (noting that
“substantiality doctrine” is “more ancient than analytically sound”); but see N. Jersey
Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 371 (3d Cir. 2015) (using doctrine).
                                              3
true. See Hartig Drug Co. Inc. v. Senju Pharma. Co. Ltd., 836 F.3d 261, 268 (3d Cir.

2016). We may affirm on any ground supported by the record. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 109 (3d Cir. 2002).

         The District Court’s analysis turned on the conclusion that none of the defense

attorneys in White I were state actors. The Court rejected White’s argument that Hinds

became a state actor by colluding with private attorneys representing state defendants,

and appears not to have noticed that one attorney, Kimberly Wilson, is evidently a

municipal attorney.4 See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d

Cir. 1999).

         We need not decide whether Hinds qualifies as a state actor, however, because we

may treat a dismissal under Rule 12(b)(1) as if it were grounded on Rule 12(b)(6),

especially if a plaintiff treats it as such and the District Court addresses whether the

plaintiff had established the prerequisites for each claim. See Maio v. Aetna, 221 F.3d

472, 481 n.7 (3d Cir. 2000); see also Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247,

254 (2010) (confronting a circumstance where such an error was harmless); Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991). We will do so

here because in White’s Answer to Hinds’ 12(b)(1) motion, he appeared to defend on the

basis of 12(b)(6); the District Court addressed the sufficiency of the complaint; and on



4
    See Hutcherson v. Smith, 908 F.2d 243, 245 n.2 (7th Cir. 1990).

                                              4
appeal, White makes arguments regarding both subject-matter jurisdiction and the

sufficiency of the complaint.5

         When applying Rule 12(b)(6), “we accept the factual allegations contained in the

Complaint as true, but disregard rote recitals of the elements of a cause of action, legal

conclusions, and mere conclusory statements.” James v. City of Wilkes-Barre, 700 F.3d

675, 679 (3d Cir. 2012) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

(2007); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)). Where a complaint has not alleged

sufficient facts to state a claim for relief that is “plausible on its face[,]” dismissal is

appropriate. Ashcroft, 556 U.S. at 678.

         As the District Court explained, White insufficiently alleged that Hinds acted with

defense counsel, received their aid, or otherwise engaged in conduct attributable to the

state. See Angelico, 184 F.3d at 278-79. White did not allege facts sufficient to support

a civil conspiracy claim, instead making conclusory statements without alleging any facts

to show the existence of an agreement between the parties here. See Capogrosso v. The

Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir. 2009); see also Dalhberg v. Becker,

748 F.2d 85, 93 (2d Cir. 1984).6 We perceive no error in the District Court’s decision to

deny White leave to amend. See Grayson, 293 F.3d at 112-13.


5
 The District Court correctly determined that because White and Hinds are both residents
of New Jersey, there is not complete diversity. See Swiger v. Allegheny Energy, Inc.,
540 F.3d 179, 183 (3d Cir. 2008).
6
    Because White’s other claims were state legal malpractice claims, the District Court
                                              5
       Accordingly, we will affirm the District Court’s judgment. To the extent White

asks us to remand his complaint to state court, the motion is denied.




correctly declined to exercise jurisdiction over those claims.
                                              6
