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HODAS v. LINDSAY

April 20, 1977

MARTIN HODAS, EAST COAST CINEMATICS, INC., et al., Plaintiff,
v.
John V. LINDSAY et al., Defendants



The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

 This action is brought under 28 U.S.C. §§ 1331, 1332 and 1343 and 42 U.S.C. §§ 1983, 1985 and 1986. Plaintiffs allege that defendants deprived them of their rights under color of state law. Defendants Redlich, Isenberg, Bardel, Meyerson, Furness, Peterson, Hormon, Gray and Goldberg move pursuant to Rules 56(b) and 12(b)(6), F.R.Civ.P., for summary judgment and/or dismissal for failure to state a claim upon which relief can be granted. Defendant Sherman moves pursuant to Rule 12(c), F.R.Civ.P., for dismissal on the pleadings. In a motion made returnable March 14, 1977, defendants Jacobs and Cavanaugh join in the motion for dismissal under Rule 12(b)(6), F.R.Civ.P.

 Statement of the Case

 Plaintiffs charge various New York State and New York City officials with wholesale violations of plaintiffs' constitutional rights, including illegal search and seizure, failure to bring plaintiff Hodas promptly before a Magistrate for arraignment, unlawful enforcement of unconstitutional laws, making of false statements at arraignment, procuring the indictment of Hodas by perjured grand jury testimony, conspiring to suppress expression and to put plaintiff Hodas and the corporate plaintiffs out of business. Plaintiffs allege that these acts violated their rights under the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution. Defendant Sherman, a newspaper reporter for the Daily News, is alleged to have participated with state officials in certain of the above acts.

 Defendants raise a number of contentions in support of their motion for summary judgment. They assert that the court lacks jurisdiction of certain of plaintiffs' claims; that plaintiffs' claims are time-barred; that defendant Redlich, Corporation Counsel for the City of New York, has absolute immunity from suit; that plaintiffs do not state a claim for relief under 42 U.S.C. §§ 1983, 1985 and 1986; and that plaintiffs have failed to allege facts sufficient to show the existence of a conspiracy. These contentions shall be discussed seriatum.

 Jurisdiction

 Defendants contend, correctly, that this court does not have jurisdiction under 28 U.S.C. § 1332. This provision confers jurisdiction on federal courts where there is diversity of citizenship between the parties and the amount in controversy exceeds $10,000. It is well settled that the essential elements of diversity jurisdiction must be affirmatively alleged in the pleadings. See, e.g., Hodgson v. Bowerbank, 9 U.S. 303, 5 Cranch (9 U.S.) 303, 3 L. Ed. 108 (1809); Gates v. Osborne, 76 U.S. 567, 9 Wall. (76 U.S.) 567, 19 L. Ed. 748 (1869). Plaintiffs have failed to do this. Therefore this court has no jurisdiction under § 1332. *fn1"

 However, that by no means disposes of this case, since plaintiffs have properly alleged jurisdiction under 28 U.S.C. §§ 1331 and 1343, which defendants do not challenge.

 Statute of Limitations

 All parties agree that "since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under [§§ 1983, 1985 and 1986], the controlling period would ordinarily be the most appropriate one provided by state law." Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S. Ct. 1716, 1721, 44 L. Ed. 2d 295 (1975). The parties most emphatically disagree, however, as to what is the most appropriate state limitation period. Defendants would have the court choose General Municipal Law Section 50-i, which provides for a 1 year 90 day limitation period. *fn2" Plaintiffs counter that New York CPLR § 214(2), which provides for a three year limitation period, is the most appropriate state provision. *fn3" I am persuaded by the plaintiffs.

 In Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974), this circuit anticipated the Supreme Court's later decision in Johnson, holding that in federal civil rights actions the absence of a federal statute of limitations required the federal courts to borrow the "state statute of limitations applicable to the most similar state cause of action." Id., at 284. *fn4" The court determined that in New York this is C.P.L.R. § 214(2) -- liability based on a statute. Ibid.

 Contrary to defendants' contention, the validity of this holding is unaffected by the court's more recent decision in Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975). Fine involved a civil rights claim against New York City under 42 U.S.C. § 1983 and under the Fourteenth Amendment. *fn5" Because it held that the City was not a "person" and thus could not be sued under § 1983, the court was faced with the issue of deciding what was the most appropriate state statute of limitations to apply to a civil rights action against a municipality based on the Fourteenth Amendment. See Johnson v. Railway Express Agency Inc., supra. For obvious reasons, the statute chosen was General Municipal Law § 50-i, which governs tort claims against municipalities.

 Clearly, Fine is not inconsistent with Kaiser v. Cahn, supra, and has only limited relevance to this case. The defendants here are individuals, not cities, and Section 50-i of the New York General Municipal Law provides the one year 90 day time limitation only where an action or proceeding is prosecuted against a city. C.P.L.R. Section 214(2), on the other hand, has no comparable limiting provision, but applies to all actions involving liability based on a statute, even though the party being sued is an individual. C.P.L.R. Section 214(2), then, is clearly the most appropriate statute to apply here.

 I find troublesome, however, a recent decision by Judge Platt of the Eastern District of New York which suggests a different result. In Lombard v. Board of Education of the City of New York, 407 F. Supp. 1166 (E.D.N.Y.1976), a teacher who had been fired brought a civil rights action under 42 U.S.C. § 1983 against the Board of Education and the school principal. Plaintiff sought damages and equitable relief, including reinstatement. For reasons that need not be articulated here, the court allowed the plaintiff to amend his complaint and to add a claim for equitable relief, based on 28 U.S.C. § 1331 and the Fourteenth Amendment. In so holding, Judge Platt noted, however, that

 
"even if plaintiff now wished to amend his complaint further to make a claim for . . . money damages, in all probability he would be held to be time-barred. Fine v. The City of ...

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