Menchaca v. Chrysler Credit Corp.

• Decision Date: 07 March 1980
• Docket Number: No. 77-3186,77-3186
• Citation: 613 F.2d 507
• Parties: Tomas MENCHACA and wife, Irma Menchaca, Plaintiffs-Appellants, v. CHRYSLER CREDIT CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 507

613 F.2d 507

Tomas MENCHACA and wife, Irma Menchaca, Plaintiffs-Appellants, v. CHRYSLER CREDIT CORPORATION et al., Defendants-Appellees.

No. 77-3186.

United States Court of Appeals, Fifth Circuit.

March 7, 1980.

J. G. Hornberger, Jr., J. G. Hornberger, Laredo, Tex., for plaintiffs-appellants.

Horace C. Hall, III, Laredo, Tex., for City of Laredo and Blume.

George P. Kazen, Richard N. Hansen, Laredo, Tex., for Chrysler Credit Corp. Appeal from the United States District Court for the Southern District of Texas.

Before AINSWORTH, INGRAHAM and GARZA, Circuit Judges.

INGRAHAM, Circuit Judge:

This appeal emerges from a dispute surrounding the presence of the defendant police officers during the course of a repossession of plaintiffs' automobile by agents of defendant Chrysler Credit Corporation. Plaintiffs' civil rights complaint under 42 U.S.C. § 1983 was the subject of a motion to dismiss for lack of the requisite subject matter jurisdiction. The district court held a hearing and found that the necessary state action element was missing. Accordingly, the motion was granted and the complaint dismissed. Plaintiffs timely appealed to this court seeking reversal of the district court judgment. We affirm. ¹

In December 1974, plaintiffs Tomas and Irma Menchaca purchased a 1975 Chrysler Cordoba automobile which was financed under a retail installment agreement with defendant Chrysler Credit Corporation (Chrysler). The contract included the usual acceleration clause and a provision permitting Chrysler to retake the automobile in the event of default by the plaintiffs. ² At this time, plaintiffs also purchased two insurance policies that were included in the same installment agreement. One policy covered physical damage to the automobile. There is a dispute as to what the other policy covered; plaintiffs claimed the policy was disability insurance, however, Chrysler contended it was credit life insurance. In any event, the resolution of that dispute between the Menchacas and Chrysler is not in issue in this lawsuit. ³

Subsequently, in August 1977, plaintiffs became two months delinquent on their obligation to make installment payments. Sometime around August 25, 1977, defendant Norman Clark, an agent for collection, went to plaintiffs' home in Laredo, Texas, to seek payment of the past due amounts. He spoke with Mrs. Menchaca and informed her that the automobile would be repossessed on the following Monday at noon if both payments were not received by then. It appears from the record that Mrs. Menchaca did not tell Mr. Menchaca about the visit from defendant Clark.

At this time, Mr. Menchaca was unemployed due to a disabling injury he suffered while at work. Mrs. Menchaca was employed at Autophones of Laredo, earning approximately $90 per week. Mr. Menchaca's workmen's compensation benefits were $77 per week and the couple was receiving food stamp assistance. The Menchacas, parents of four children, were unquestionably experiencing financial difficulties in trying to meet the approximately $175 per month note payments.

On that following Monday noon, August 29, 1977, two men arrived in a pickup truck equipped with a winch and proceeded to ready the Menchacas' car for towing. It is undisputed that the Menchacas' automobile was parked on the public street at that time. Upon noticing this event, Mr. Menchaca rushed out to try and prevent the repossession. Apparently some rather loud and abusive language was spoken by Mr. Menchaca, which eventually resulted in the defendant police officers being summoned to check out the disturbance.

Meanwhile, Mrs. Menchaca phoned her attorney, who would not be able to arrive until about 2 P.M. She explained this to the men and to the defendant police officers. One of the men showed Officer Blume the repossession papers and told her and the Menchacas that they could not wait for two hours until the Menchacas' attorney arrived. The Menchacas were informed by Officer Blume that repossession was a civil matter and that the only reason the police were there was to quiet a reported disturbance. Mr. Menchaca was informed that he could be arrested if he continued to use loud and abusive language and create a breach of the peace.

The situation became somewhat less volatile and the officers left. The car was still hooked to the winch; however, the men remained for five minutes or so while Mr. Menchaca removed from the car some possessions, including a CB radio and antenna. Subsequently, the men left with the Menchacas' automobile in tow.

The Menchacas brought this action under 42 U.S.C. § 1983 against all the defendants, alleging a conspiracy to deny them their rights, privileges and immunities under the Fourteenth Amendment to the United States Constitution. They sought damages, injunctive relief requiring return of the car pending the outcome of the suit, attorney's fees and costs. The district court granted the injunction; however, that order was modified to require merely that defendant Chrysler not dispose of the vehicle until the court granted its approval.

Defendant Chrysler filed a motion to dismiss, challenging the district court's subject matter jurisdiction. The court held a full evidentiary hearing in which both plaintiffs and three of the defendants gave oral testimony under direct and cross examination. At the close of the hearing, the district court found, based on its evaluation of the testimony of all the witnesses, that there was no conspiracy between the officers and the men seeking to repossess the automobile. Moreover, the court could find no other indicia of state involvement, ⁴ and hence no state action as jurisdictionally required under 42 U.S.C. § 1983. Accordingly, the motion was granted and the action was dismissed as to all parties.

Plaintiffs have appealed and they argue numerous errors in the district court proceeding. While we are not unmindful of the points that plaintiffs raise, we conclude that the existence of state action was a question central to the district court's own jurisdiction to hear the case. It was thus within the province of the court to decide the merits of that issue, and the district court did not err when it found no state action and dismissed the complaint. We therefore need not consider the other issues raised.

In order for plaintiffs to maintain this claim under 42 U.S.C. § 1983 there are two essential elements which they must show. First, that defendants have deprived them of a right secured by the Constitution and the laws of the United States; second, that this deprivation has occurred while the defendants were acting under color of law. ⁵ Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185, 193 (1978). Plaintiffs alleged in their complaint that they were deprived of rights, privileges and immunities secured by the Fourteenth Amendment of the United States Constitution when defendants repossessed their car without judicial notice and a hearing. Additionally, plaintiffs alleged that officers Palacios, Blume and, vicariously, the City of Laredo, acted in concert with defendant Chrysler to deprive them of those rights without due process of law.

Despite plaintiffs' allegations of multiple bases of jurisdiction in their original complaint, the parties agree that the sole basis of jurisdiction that could support this claim is 42 U.S.C. § 1983. As such, the existence of the "under color of law" element of the claim, I. e., state action, is required in order to invoke the district court's jurisdiction. We therefore must limit our initial inquiry to that narrow question. Adding another dimension to this inquiry, however, plaintiffs claim that the district court holding that there was no state action denied plaintiffs their Seventh Amendment right to a jury trial. We disagree.

It is axiomatic that a district court may inquire into the basis of its subject matter jurisdiction at any stage of the proceedings. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3522 (1975). A fortiori a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction must include an inquiry by the court into its own jurisdiction.

A "facial attack" on the complaint requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A "factual attack," however, challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered. Id. Moreover, a "factual attack" under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist. Id. at 891-92; McLain v. Real Estate Board of New Orleans, Inc., 583 F.2d 1315, 1318 n. 1 (5th Cir. 1978), Vacated and remanded on other grounds, --- U.S. ----, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980). See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 555 (1969). Accord, Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979).

In the instant case the district court held a hearing on October 5, 1977, on defendant Chrysler's motion to dismiss for lack of subject matter jurisdiction, at which time testimony was heard from both plaintiffs, both defendant police officers and defendant Norman Clark. Some of the facts were disputed. In particular, both officers vehemently denied that either of them ever told either of the plaintiffs that defendant Chrysler's agents had a right to repossess the automobile or that Mr. Menchaca would be arrested if he resisted. In fact, Officer Blume testified, and was corroborated by Officer Palacios and the plaintiffs themselves, that she told the...