The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRENDA PONSFORD, )
)
Plaintiff, ) Civil Action No. 19-217
)
v. ) Judge Cathy Bissoon
)
MERCYHURST UNIVERSITY, )
)
Defendant. )
MEMORANDUM ORDER
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed. R. Civ.
P. Rule 12(b)(6) (“Def. MTD”), Doc. 3, will be granted.
Plaintiff alleges that she was improperly terminated by Defendant, giving rise to the
following claims: (Count I) breach of contract under the common law of Pennsylvania and
pursuant to Title 42, United States Code Section 1983, (Count II) violation of Plaintiff’s property
interest in continued employment under the Fourteenth Amendment; (Count III) violation of
Plaintiff’s due process rights under the Fifth Amendment rights and (Count IV) violation of
Plaintiff’s due process rights under the Pennsylvania constitution. Plaintiff’s ability to succeed
on the federal law claims (Counts II to IV) depends on Defendant’s status as a state actor.
Should Plaintiff’s federal law claims be dismissed, the Court may decide to exercise or decline
pendent jurisdiction over her state law claim.
For the following reasons, the Court finds that Defendant is not a state actor for the
purposes of 42 U.S.C. § 1983 and will dismiss those claims. With the dismissal of the federal
law claims, the Court declines to exercise pendent jurisdiction over the state law claim in Count I
and will not address that here.1
Both parties agree that the relevant standard for determining whether Defendant is a state
actor is outlined by Kach v. Hose,2 which found that determining whether a private entity’s
challenged action will be construed as the state’s action depends on the following three-prong
test:
(1) Whether the private entity has exercised powers that are traditionally the
exclusive prerogative of the state;
(2) Whether the private party has acted with the help of or in concert with state
officials; and
(3) Whether the state has so far insinuated itself into a position of interdependence
with the acting party that it must be recognized as a joint participant in the
challenged activity.
1 Plaintiff attempts to argue in her Brief in Opposition to Defendant’s Motion to Dismiss
Amended Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Pl.
Opp. Brief”), Doc. 8, that diversity jurisdiction exists because she has resided in Knoxville,
Tennessee, since August 31, 2019, and seeks permission to amend her complaint again to assert
diversity jurisdiction. Pl. Opp. Brief at 20. As the Supreme Court has held, and this Circuit has
applied, diversity jurisdiction is determined by the parties’ citizenship status at the time of filing.
See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71 (2004); Lincoln Ben. Life
Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015). Consistent with Defendant’s argument
in its Reply to Plaintiff’s Brief in Opposition to Motion to Dismiss, Doc. 9, (“Def. Reply”), the
Court notes that Plaintiff’s domicile at the time of filing her Complaint and Amended Complaint
(April 12, 2019, and June 28, 2019, respectively) was Erie, Pennsylvania, and that Defendant is
also a citizen of Pennsylvania. Def. Reply at p. 4-5; Complaint, Doc. 1-1, at ¶ 1; Amended
Complaint, Doc. 1-6, at ¶ 1. Thus, Plaintiff’s response that the Court should exercise diversity
jurisdiction over Count I is unfounded, and her request is denied.
2 The Court notes that Plaintiff also uses general language from cases preceding Kach to support
her arguments, and emphasizes that the inquiry must be fact-specific, viewed in the totality of the
circumstances, and that “strict adherence” to these elements is not the only way to determine
whether a private entity can be found to be a state actor, but since she frames her Response as
fulfilling all the tests proffered by Kach, the Court will structure this Order based on those tests
as well. The Court will, however, also address Plaintiff’s general arguments relying on cases
that precede Kach at the end of this Order.
589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and citations omitted).
Plaintiff argues that the conduct at issue—her purported termination—was a result of a
“symbiotic relationship” between Defendant and the state, demonstrating that Defendant’s action
was a state action, entitling her to relief under 42 U.S.C. § 1983. Amended Complaint at ¶¶ 27-
29, 40-42, 53-56. Specifically, Plaintiff cites examples of Defendant’s contracts with various
federal government entities (such as the Department of Homeland Security and the Department
of Veteran Affairs) both for services and training programs, Defendant’s receipt of state grants
and contracts with the state of Pennsylvania and Defendant’s role in providing training programs
to state employees to support her argument that Defendant is performing “public
functions…primarily reserved for the federal government or State of Pennsylvania.” Amended
Complaint at ¶¶ 30-31, 43-44, and 57-58. According to Plaintiff, all these facts support her
argument that Defendant was a “state actor” under each test set forth by Kach. Pl. Opp. Brief at
p. 10.
She argues that three examples of training and educational programs provided by
Defendant are examples fulfilling the first prong of Kach: Defendant’s training program for
Pennsylvania police officers to become an entry-level law enforcement officer in Pennsylvania,
Defendant’s Military Science Program, which trains students to become members of the military,
and an assortment of educational programs. Id. at 11-13. All these programs, Plaintiff argues,
are functions “primarily” left to the state, and indicate a “symbiotic” relationship between the
state and Defendant. Plaintiff misreads Kach. This prong does not merely ask whether a
mutually beneficial relationship exists, but specifically asks whether the exercised powers are
traditionally the exclusive prerogative of the state.3
As Defendant has emphasized, it is in the business of providing education and
educational programs to individuals who may be employed by the state. Def. MTD at ¶ 22. This
is not the same as exercising the powers of the state. Defendant may be providing
supplementary education for police officers and members of the military. It is not itself engaging
in police or military powers. Nor can individuals become police or military solely by completing
the programs offered by Defendant—as Defendant aptly notes, these are programs for the benefit
of individuals interested in law enforcement careers, not courses provided “as a proxy for state or
local governments.” Def. Reply at 2. Further, the “exercised power” here is providing
additional education to government employees—not performance of those government
employees’ jobs. See id. at 1-2. And Plaintiff has adduced no factual support that education is
an “exclusive prerogative of the state.” Indeed, in her brief, she merely notes that “[e]ducation is
once again a function primarily left to the State of Pennsylvania.” Pl. Opp. Brief at 13 (emphasis
added).4
Plaintiff then proceeds to argue that Defendant has acted with help of or in concert with
state officials because it receives significant grants and contracts from the government,
3 Plaintiff appears to be conflating the test under Kach with other cases. “Symbiotic” does not
appear in Kach—but seems to be adopted from Krynicky v. University of Pittsburgh, which
predates Kach. 742 F.2d 94 (3d. Cir. 1984). The Court addresses this question after reviewing
Plaintiff’s claims under Kach.
4 The Court also notes that Plaintiff’s own briefing undermines her here. She argues that the case
cited by Defendant states that the private entity must be “performing a traditional, exclusive
public function” and then goes on to argue that she has sufficiently alleged that Defendant has
“performed various traditional, public functions” – conspicuously omitting the need for
exclusivity. Pl. Opp. Brief at 13. Nowhere does she provide facts to show that exclusivity is not
a requirement under Kach.
contributes to lobbying efforts, and includes public officials on its Board of Trustees. Id. at 13-
14. Plaintiff argues again that the examples of Defendant receiving government money to
provide training and functions left primarily to the government or state is another example of
Defendant acting in concert with state officials. Id. at 15.
Once again, Plaintiff’s arguments are unavailing. These fairly typical brushes any private
entity may have with the state are not proof that Defendant was acting with help of or in concert
with the state. Simply put, such interactions lack the ability to transform a private entity into a
state actor. See, e.g., Osei v. La Salle University, 493 Fed. Appx. 292 (3d Cir. 2012).
Finally, Plaintiff’s argument under the third prong in Kach is the least persuasive.
Plaintiff argues that “multiple facts…show a close nexus between the Plaintiff and the State to
prove Defendant is a ‘state actor.’” Pl. Opp. Brief at 17. That argument wholly misreads Kach.
The third prong of Kach notes that “state action will be found if there is a sufficiently close
nexus between the state and the challenged action of the regulated entity so that the action may
be fairly treated as that of the State itself.” 589 F.3d at 648 (emphasis in original and internal
citations and quotations omitted). The nexus that must be found is that between the state and the
specific, challenged action of which Plaintiff complains—in this case, her termination. Thus, in
order to prevail under this test, she must prove that a sufficiently close nexus exists between the
government and her termination—not that such a nexus exists generally between the government
and Defendant. See id. at 649 (holding that plaintiff “ignores that the focus of our inquiry is not
on whether the state exercises control over a putative state actor as a general matter, but whether
the state has exercised control over the particular conduct that gave rise to the plaintiff’s alleged
constitutional deprivation”).
Plaintiff has not adequately addressed at all the fact that the state, even if arguably
involved in Defendant’s day-to-day operation, played absolutely no role in her termination.
Indeed, the Third Circuit specifically highlights that “[a]cts of private contractors do not become
acts of the State simply because they are performing public contracts. The State will be held
responsible for a private decision only when it has exercised coercive power or has provided
such significant encouragement, either overt or covert, that the choice must in law be deemed
that of the State.” Id. (emphasis in original and internal quotation marks and citations omitted).
Plaintiff has provided no evidence to demonstrate that either the state or federal government
“exercised coercive power or has provided such significant encouragement…that the choice [to
terminate her] must in law be deemed that of the State.” She merely rehashes her general
arguments that the government is so enmeshed in Defendant’s affairs that all of Defendant’s
decisions can be attributed to the government, which is insufficient under this prong. See Def.
Reply at 3.
Plaintiff’s efforts to shoehorn her allegations into the teachings of Kach are unavailing.
Moreover, her general attempts to show that state action exists under other case law in this
Circuit does not fare any better. Plaintiff also attempts to argue that Krynicky, where the court
determined that the University of Pittsburgh was a state actor for the purpose of 42 U.S.C. §
1983, is analogous. However, as emphasized by Defendant, the University of Pittsburgh was
created as an instrumentality of the state, designated as a “State-related university,” and provided
annual appropriations that were used as specified by the state and kept in a specific account,
among other close ties. Id. at 102. The court in Krynicky explicitly notes that legislative action
would be required to untangle the University of Pittsburgh from the Commonwealth, and that the
University not only receives funding and is subject to audits and state regulations but is an
instrumentality of the state. Id. at 103. This is not analogous in any way to this case. There is
no evidence that Defendant was created in the same fashion and no evidence that Defendant has
the same statutory connections or obligations to the state.
Because Defendant is not a state actor, it need not reach the merits of Plaintiff’s
allegations, nor will it address Plaintiff’s claim for monetary relief under the Pennsylvania
Constitution.
Consistent with the foregoing, Defendant’s Motion to Dismiss (Doc. 3) is GRANTED as
to Counts II to IV of the Amended Complaint. Counts II, III, and IV of the Amended Complaint
are DISMISSED WITHOUT PREJUDICE. Plaintiff’s request to amend her complaint to
assert diversity jurisdiction is DENIED. The Court declines to exercise pendent jurisdiction
over Count I and REMANDS FORTHWITH Count I to the Court of Common Pleas, Erie
County, Pennsylvania.
IT IS SO ORDERED.
March 4, 2020 s\Cathy Bissoon
Cathy Bissoon
United States District Judge
cc (via ECF email notification):
All Counsel of Record