452 F2d 1213 Sinclair v. Spatocco E

452 F.2d 1213

James SINCLAIR, Plaintiff-Appellant,
v.
Gloria Ella SPATOCCO, alias Gloria E. Reed, et al.,
Defendants-Appellees.

No. 71-1905.

United States Court of Appeals,
Ninth Circuit.

Dec. 17, 1971.
Rehearing Denied Feb. 23, 1972.

James Sinclair in pro. per.

John K. Duncan, Los Angeles, Cal., for defendants-appellees.

Before MERRILL, BROWNING and CHOY, Circuit Judges.

PER CURIAM:

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1

Dismissal by the District Court was not error.

2

Appellant's allegations against his attorney do not amount to violation of his civil rights, giving rise to federal jurisdiction under 42 U.S.C. Sec. 1985. Services performed by an attorney in connection with a lawsuit do not constitute action under color of state law. Dyer v. Rosenberg, 434 F.2d 648 (9th Cir. 1970).

3

As to the remaining claims, the finding of the District Court that appellant was a citizen of California was not clearly erroneous. Accordingly, diversity of citizenship did not exist. Nor was it error to refuse to defer determination until the issue could be submitted to a jury. The trial court has discretion to determine the jurisdictional facts itself. Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705 (5th Cir. 1967); Seideman v. Hamilton, 275 F.2d 224 (3d Cir. 1960). See Gilbert v. David, 235 U.S. 561, 568, 35 S.Ct. 164, 59 L.Ed. 360 (1915). See also, 5 J. Moore, Federal Practice p 38.36 (1971). We find no abuse of discretion under the facts of this case.

4

Affirmed.