CA1: 1983 state action failures are not a matter of subject matter jurisdiction

Alberto San, Inc. v. Consejo de Titulares, No. 07-1605.  While this case involves an office condo, the complaint included 1983 claims as well as claims that various statutes were unconstitutional.  The District Court dismissed for lack of “subject matter jurisdiction.”

The First says this isn’t the way to do it.  The First says that a 1983 claim that is dismissed for a lack of a state actor is a merits issue.  However, the First says that the 1983 claim fails because they didn’t actually state a claim in the complaint.  (This case provides a good guide to how to plead 1983 actions where there is not “direct” state actions.)

On the other hand, the Declaratory Judgment Act, 28 U.S.C. § 2201 doesn’t help, because it requires a some other theory upon which the defendants could prevail.  However, the court reverses the grant of attorneys fees.