                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 1 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 RUSSELL J. DIEFENDERFER,

               Plaintiff - Appellant,                   No. 98-4230
          v.                                                (D. Utah)
 OFFICE OF RECOVERY SERVICES                      (D.C. No. 96-CV-960-B)
 FOR THE STATE OF UTAH, Offset
 Coordinator, Robert Jowery;
 COMMONWEALTH OF
 PENNSYLVANIA, Dauphin County
 Domestic Relations Section, Child
 Support Offset Coordinator;
 SANDRA L. CASTANEIRA;
 COMMUNICATIONS AND POWER
 INDUSTRIES, Patty Johnson, Payroll
 Manager; ROBERT G. JOWETT aka
 Robert Jowery,

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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. Diefenderfer’s 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.

Diefenderfer’s parental rights were involuntarily terminated in Pennsylvania in

1988. In 1992, Utah’s 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 judge’s report and

recommendation, dismissed the case as to all defendants. As to defendants the

State of Utah, Office of Recovery Services (ORS), Robert Jowett   1
                                                                      (of the ORS),

and the Commonwealth of Pennsylvania, it held that the Eleventh Amendment




      In his pleadings, Diefenderfer erroneously referred to Jowett as “Robert
      1

Jowery.”

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provided immunity. It held that defendant Mary Rider was never properly served.

It held that Diefenderfer’s pleadings failed to state a claim against defendants

Communication and Power Industries (CPI) (Diefenderfer’s 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 (Diefenderfer’s 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.” Appellant’s

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

Castaneira’s estate. Diefenderfer makes no mention of the fact of Castaneira’s

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 Pennsylvania’s 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

defendant’s conduct and connection with the forum State [must be] such that he

should reasonably anticipate being haled into court there.”    World-Wide

Volkswagen Corp. v. Woodson , 444 U.S. 286, 297 (1980).

       Diefenderfer next argues that a Washington court order governs his child

support obligation, not the actions of the ORS. This argument, which goes to the

merits of Diefenderfer’s suit, avails him nothing at this stage, given the district

court’s dismissal of the action on other grounds.

       The third argument Diefenderfer raises is that there is federal funding of

the ORS which makes it not an arm of the state for Eleventh Amendment

purposes. This particular argument was not presented to the district court, and

moreover, the facts alleged are nowhere supported in the record. Therefore the

issue is not properly before us.   See Lyons v. Jefferson Bank & Trust   , 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.

       Diefenderfer’s 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


                                            -4-
Johnson were required by law to garnish Diefenderfer’s wages; private actors who

merely comply with state law are not thereby acting under color of state law.

Diefenderfer’s allegations of conspiracy are without substance, and are meritless.

      AFFIRMED

                                              ENTERED FOR THE COURT



                                              Stephen H. Anderson
                                              Circuit Judge




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