The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
According to the plaintiffs' pleadings, in the early morning of April 28, 1973, ten-year-old Clifford Glover and his step father, plaintiff Add Armstead, encountered Detective Thomas Shea and Patrolman Walter Scott of the New York City ("the City") Police Department. When the incident ended, Glover was dead and Armstead wounded. Both Eloise Glover, as administratrix of Clifford Glover's estate, and Armstead commenced separate actions in this court for substantial damages, asserting claims against Shea and the City under state law and 42 U.S.C. § 1983. On July 15, 1974, Judge Costantino ordered the two actions consolidated and granted plaintiffs leave to amend their complaint to add Scott as a defendant in the action.
The City has moved to dismiss for lack of subject matter jurisdiction to adjudicate the claims against it. Plaintiffs have cross-moved for leave to amend again their complaint.
In a Memorandum and Order reported at 401 F.Supp 632 (E.D.N.Y. 1975), Judge Costantino rejected the City's contention that there was no subject matter jurisdiction over the claims against it. Acknowledging that the City was not a "person" for purposes of 42 U.S.C. § 1983, he held that the court nevertheless had jurisdiction over the City as a pendent party, since the complaint stated a claim under § 1983 against the co-defendants Scott and Shea.
He therefore denied the City's motion to dismiss the state law claims and granted the motion to dismiss the claims under § 1983.
The subsequent decision of the Supreme Court in Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), has undermined the basis for Judge Costantino's decision, which assumed that he had discretion to exercise pendent jurisdiction over the City. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). In the Aldinger case, the Court held that in an action alleging a violation of § 1983 by a county employee the federal courts had no power to assert pendent jurisdiction over the county, which was not a "person" within the meaning of § 1983. The Court declined to read the jurisdictional counterpart of § 1983, 28 U.S.C. § 1343(3), as authorizing pendent jurisdiction over the county.
Although the City's motion papers refer to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("failure to state a claim upon which relief can be granted"), it is clear from its Memorandum of Law that the motion again challenges the jurisdiction of this court. In light of the holding in Aldinger, the motion would, were it not for plaintiffs' cross-motion, be granted.
However, plaintiffs move to amend their complaint. The proposed amended complaint asserts a new jurisdictional basis, 28 U.S.C. § 1331 (general "federal question" jurisdiction), and a new claim directly under the Fourteenth Amendment to the United States Constitution. Thus, it is urged that the City, though not a "person" under § 1983, is nevertheless liable under the Fourteenth Amendment and that a state law claim against the City is properly "pendent" to that claim under the Fourteenth Amendment.
The City opposes the motion as not timely. The city charges that, "Plaintiffs are guilty of laches and the delay in amending substantially prejudices defendant's rights." (City Memorandum of Law in Opposition at 4.) The possibility of a claim against the City directly under the Fourteenth Amendment might have been apparent to plaintiffs from the very beginning of this action. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); City of Kenosha v. Bruno, 412 U.S. 507, 514, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Wahba v. New York University, 492 F.2d 96, 103-04 (2 Cir. 1974). But the desirability of asserting such a claim did not become apparent until the Aldinger decision, announced on June 24, 1976. The City waited almost 16 months to move to dismiss the complaint on the basis of Aldinger, and plaintiffs cross-moved promptly thereafter.
The City incurred no real prejudice as time passed. No new facts are alleged in the amended complaint so as unfairly to surprise the City. In essence, in order to repair "defective allegations of jurisdiction" plaintiffs seek to amend their complaint pursuant to 28 U.S.C. § 1653, which permits such an amendment even on appeal. See Gagliardi v. Flint, 564 F.2d 112 (3 Cir. 1977); Rotolo v. Borough of Charleroi, 532 F.2d 920 (3 Cir 1976). Cf. Lombard v. Board of E. of City of New York, 407 F. Supp. 1166, 1170 (E.D.N.Y. 1976). Under the circumstances the motion is not too late.
The City further opposes the motion on the ground that the amended complaint fails to state a federal claim against the City.
But to support pendent jurisdiction over a state claim, a federal claim need only be more than "merely colorable or fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction." Siler v. Louisville and Nashville R. Co., 213 U.S. 175, 192-93, 53 L. Ed. 753, 29 S. Ct. 451 (1909). All that is required is that the federal claim "have substance sufficient to confer subject matter jurisdiction." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).A case in point is Kostka v. Hogg, 560 F.2d 37 (1 Cir. 1977), where the court held that the administrators of the estate of a victim of police bullets failed to state a cause of action for damages under the Fourteenth Amendment against a town. At the same time, however, the court acknowledged its jurisdiction pursuant to 28 U.S.C. § 1331:
"The question of subject matter jurisdiction is, of course, distinct from that whether plaintiffs have stated a claim upon which relief may be granted. See Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946).So long as a claim for federal relief is not frivolous, the action arises under federal law for purposes of § 1331 and the federal court has jurisdiction to adjudicate the claim that a federal right of recovery exists. Id; see also Mount Healthy School Dist. v. Doyle, 429 U.S. 274, 276-282, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). Since no Supreme Court or First Circuit decision forecloses us from ...