Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?