                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-10-2006

Brooks-McCollum v. Emerald Ridge Ser
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1264




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                                                   NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                        No. 05-1264


     CATHY D. BROOKS-MCCOLLUM, on behalf of
         Emerald Ridge Service Corporation
           Derivative Action as a Director,
                              Appellant

                             v.

      EMERALD RIDGE SERVICE CORPORATION
       BOARD OF DIRECTORS, Excluding Plaintiff;
      KENNETH SHAREEF; RENFORD BREVETT;
     MAUDY MELVILLE; VALERIE LONGHURST;
         MARK MARTELL; RUTH VIVARDIS;
    FERRY JOSEPH & PEARCE; EDWARD KAFADER


        Appeal from the United States District Court
                 for the District of Delaware
                (D.C. Civil No. 04-cv-00703)
       District Judge: Honorable Joseph J. Farnan, Jr.


        Submitted Under Third Circuit LAR 34.1(a)
                   December 8, 2005

Before: RENDELL, FISHER and GREENBERG, Circuit Judges

                 (Filed: February 10, 2006)


                OPINION OF THE COURT
RENDELL, Circuit Judge.

       This case arises out of a dispute between Cathy Brooks-McCollum, a resident of

the Emerald Ridge residential development in Bear, Delaware, and the Board of

Directors of the corporation that manages the development, Emerald Ridge Service

Corporation (“Emerald Ridge”). Brooks-McCollum originally sued the directors in the

Delaware Court of Chancery and Delaware Superior Court, alleging various breaches of

the directors’ fiduciary duties to the corporation. After the Chancery Court denied

Brooks-McCollum’s motion for advancement of legal fees from Emerald Ridge for the

cost of pursuing her claims, Brooks-McCollum filed the complaint in this case against the

board of directors of Emerald Ridge, the individual directors and the attorney and law

firm that represented the directors before the Delaware Chancery Court. The District

Court dismissed her claims for lack of subject matter jurisdiction, and she now appeals.1

We will affirm.

       Brooks-McCollum asserts that the District Court had federal question jurisdiction.

Yet her complaint alleges quintessential state law causes of action: slander, violations of

provisions of the Delaware criminal code, questions of corporate governance, and

violations of the Delaware Code of Professional Conduct. Her citation of various



  1
    It is unclear whether Brooks-McCollum also appeals the District Court’s denial of her
motion to amend her complaint. In any event, we find that the District Judge acted within
his discretion when he denied the motion because Brooks-McCollum failed to comply
with local rules requiring the plaintiff to provide the court with a copy of the proposed
amendments. See Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (concluding that
“failure to provide a draft amended complaint would be an adequate basis on which” a
district court could deny plaintiff’s motion to amend).

                                             2
constitutional and federal statutory provisions does not transform these state law claims

into causes of action “arising under” the Constitution or federal law. 28 U.S.C. § 1331.

As the District Court properly noted, the statutes that Brooks-McCollum cites are largely

irrelevant–they are either non-jurisdictional, e.g., 28 U.S.C. §§ 1391, 1401 (regarding

venue), or unrelated to the allegations of her complaint, e.g., 28 U.S.C. §§ 1357

(jurisdiction over revenue and voting rights cases); id. at § 1344 (jurisdiction over

election disputes); id. at § 1350 (jurisdiction over alien tort claims).

       Brooks-McCollum’s appeals to the Constitution are similarly unavailing. The

Supreme Court has repeatedly “insisted that the conduct allegedly causing the deprivation

of a federal right be fairly attributable to the State.” Lugar v. Edmonson Oil Co., 457

U.S. 922, 937 (1982). Thus,

       [T]he 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.

Id. The defendants in this case, the board and individual directors of a private

corporation, and their attorneys, do not in any way qualify as “state actors.”

       “The person asserting jurisdiction bears the burden of showing that the case is

properly before the court at all stages of the litigation.” Packard v. Provident Nat’l Bank,

994 F.2d 1039, 1045 (3d Cir. 1993). Because Brooks-McCollum has not set forth any

basis upon which we could conclude that the District Court had jurisdiction, we will

affirm the dismissal of her complaint.




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