               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 07-1057

                     DANIEL W. MILES, ET AL.,

                      Plaintiffs, Appellants,

                                    v.

                       W. JOHN FUNK, ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. James R. Muirhead, U.S. Magistrate Judge]


                                 Before

                       Boudin, Chief Judge,
              Torruella and Lynch, Circuit Judges.



     Daniel W. Miles and H. George Hamacher on brief pro se.
     Russell F. Hilliard and Upton & Hatfield, LLP on brief for
appellees.



                          January 15, 2008
          Per Curiam.    Plaintiffs-appellants Daniel W. Miles and

George Hamacher appeal pro se from the district court's grant of

summary judgment dismissing their federal claim pursuant to 42

U.S.C. § 1983 for failure to make the requisite showing that the

alleged deprivation of constitutional rights was committed under

color of state law, and dismissing their state law claims without

prejudice for lack of subject matter jurisdiction based on their

failure to demonstrate the requisite amount in controversy to

support diversity jurisdiction.1

          "'We review a district court's grant of summary judgment

de novo, viewing the facts in the light most favorable to the

nonmovant.'   Summary   judgment   is    warranted   'if   the   pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.'    'We may affirm a summary judgment

decision on any basis apparent in the record.'" Perry v. Wolaver,

506 F.3d 48, 53 (1st Cir. 2007) (citations omitted).

          I. Dismissal of Section 1983 Claim: State Action

          Appellants rely upon the following alleged conduct to

establish state action: "the state court's actions, enforcing

Appellees' Settlement offer and appointing a Commissioner to sign


     1
       Although one of the state law claims (Count XII) was
dismissed with prejudice for failure to state a claim, appellants
do not specifically challenged that ruling in their briefs.

                                   -2-
the Settlement offer and to execute a deed to [Clarice Neumann's]

real estate . . . , which clearly provided Appellees with color of

state action justifying federal jurisdiction." Appellants' Brief at

10.

               There are two components to the "state
          action" requirement:
          "First, the deprivation must be caused by the
          exercise of some right or privilege created by
          the State or by a rule of conduct imposed by
          the State or by a person for whom the State is
          responsible. . . . .
          Second, the party charged with the deprivation
          must be a person who may fairly be said to be
          a state actor. This may be because he is a
          state official, because he has acted together
          with or has obtained significant aid from
          state officials, or because his conduct is
          otherwise chargeable to the State."

Casa Marie, Inc. v. Superior Court of Puerto Rico for Dist. of

Arecibo, 988 F.2d 252, 258 (1st Cir. 1993) (quoting Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

          Appellants claim that their deprivation was caused by the

appellees'   use   of   state   court   to   enforce   an   allegedly

unconstitutional settlement agreement. However, we have said that

"something more than resort to state court is required to transform

the moving party into 'a co-conspirator or a joint actor with the

judge.'" Id. at 259.    Appellants did not allege that the procedure

for enforcement of settlement agreements under New Hampshire state

law is unconstitutional.    Allegations of private misuse of state

procedures is not enough.       See Gonzales-Morales v. Hernandez-

Arencibia, 221 F.3d 45, 49 (1st Cir. 2000).    Appellants' reliance

                                 -3-
upon Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991),

which held that the exercise of peremptory challenges by a private

litigant in a civil case constituted "state action," is misplaced.

The Court specifically stated there that "private use of state-

sanctioned private remedies or procedures does not rise, by itself,

to the level of state action." Id. at 622.

          For essentially the reasons stated by the district court

in its May 30, 2006 Order, we agree that there are no genuine

issues as to any material fact with respect to the "state action"

requirement and that defendants are entitled to summary judgment as

a matter of law on Count I of the complaint (§ 1983 claim).

          II. Dismissal of State Law Claims: Amount in Controversy

          "We review de novo the district court's dismissal for

lack of subject matter jurisdiction."    Spielman v. Genzyme Corp.,

251 F.3d 1, 4 (1st Cir. 2001).        Appellants, "as the part[ies]

seeking to invoke jurisdiction . . . ha[ve] the burden of showing

that [they] ha[ve] met the statutory requirements." Id. Where, as

in this case, the "amount in controversy" allegation is questioned,

"'the party seeking to invoke jurisdiction has the burden of

alleging with sufficient particularity facts indicating that it is

not a legal certainty that the claim involves less than the

jurisdictional amount.'"   Id. at 5.

          Appellants' brief challenges the district court's "amount

in controversy" ruling on the grounds that 1) the plaintiffs'


                                -4-
response to interrogatories identified the amount of damages that

the parties to the state court suit expected "would accrue to the

interest of the Association (VWTOA)" as $1,496,000, plus attorneys'

fees,    and     2)    the    district     court      failed    to    recognize    that

"Appellants' 'rights and recoveries' in the state court litigation

were a common, single and undivided claim." Appellants' Brief at

14.

               "Courts have repeatedly held that the value of the matter

in controversy is measured . . . by the [potential] judgment's

pecuniary      consequences        to   those    involved      in    the   litigation."

Richard C. Young & Co., Ltd. v. Leventhal, 389 F.3d 1, 3 (1st Cir.

2004). In the present action, only the three individual plaintiffs

were "involved in the litigation."                   As the district court noted,

"[t]he instant action was not brought as a class action or as a

derivative action.           The . . . plaintiffs do not allege any basis in

the Complaint for finding that they have standing to recover

damages on behalf of anyone other than themselves." District Court

Order, 7/20/06, Dkt No. 56, p. 6.

               Nor    was    the   state   court      action    a    class    action   or

derivative action.           The Bill in Equity was specifically amended to

clarify that there was only one petitioner: Clarice Neumann.                            A

subsequent motion by Attorney Ramsdell to amend the Bill in Equity

to    assert    claims       derivatively       on   behalf    of    the     Village   of

Winnipesaukee Timeshare Owners Association (VWTOA) members was


                                           -5-
denied   by    the   Superior   Court.   See   id.,   p.   16.     Therefore,

plaintiffs' reliance upon amounts that allegedly could have been

recovered on their behalf in the state court action is unfounded.

              Appellants rely upon the principle that "when several

plaintiffs unite to enforce a single title or right in which they

have a common and undivided interest, it is enough if their

interests collectively equal the jurisdictional amount."              Pinel v.

Pinel, 240 U.S. 594, 596 (1916); see 15 James Wm. Moore, Moore's

Federal Practice § 102.108[3][b] (3d ed.) ("aggregation of damages

allegedly owed to separate plaintiffs may be permitted in the

limited situation in which two or more plaintiffs unite to enforce

a single title or right in which they have a common and undivided

interest"). However, even if such aggregation were permitted here,

it would not excuse the plaintiffs from the need to identify their

individual pecuniary interests which they seek to aggregate.             They

have not done so.

              For the above reasons, and those stated by the district

court in its Order dated July 20, 2006, we conclude that the

plaintiffs failed to allege "with sufficient particularity facts

indicating that it is not a legal certainty" that the state law

claims involve less than the jurisdictional amount.              Spielman, 251

F.3d at 5.

              The district court's grant of summary judgment dismissing

Counts I and XII of the complaint with prejudice and dismissing


                                    -6-
Counts II - XI of the complaint without prejudice for lack of

subject matter jurisdiction is affirmed.




                               -7-
