The opinion of the court was delivered by: CURTIN
JOHN T. CURTIN, District Judge
This is a most unusual case, involving claims of secret meetings, bounty hunting, and kidnapping across international borders.
Plaintiffs are Sidney L. Jaffe and his wife, Ruth M. Jaffe. Defendants are a Florida bonding company, Accredited Surety & Casualty Co.; its president, Hank M. Snow, Jr.; two of its agents, Timm Johnsen and Daniel J. Kear (collectively referred to as the bonding company defendants); its one-time attorney, Joseph C. Miller; an attorney from the Florida Department of Business Regulation, William Hatch; three attorneys from the Florida office of the State Attorney, Seventh Judicial District, Stephen L. Boyles, Clyde E. Shoemake, and Louis R. Stark; one investigator from that office, Glenn E. Norris (collectively referred to as the Florida State defendants); and an inspector with the Niagara County Sheriff's Department in New York, Francis L. Giles.
On or about August 7, 1980, Sidney Jaffe was arrested in Florida on charges of violating the Florida Land Sales Practices Act. Defendant Accredited Surety & Casualty Co. posted bail bonds totaling $137,500 to secure Jaffe's release.
Jaffe's trial was set for May 18, 1981. At that time, Jaffe and his wife were living in Canada. On the scheduled date of trial, Jaffe's attorney appeared and told Judge Robert Perry that Jaffe would not be available due to health reasons. Accredited's bond was forfeited, and Judge Perry issued a warrant for Jaffe's arrest, instructing prosecutor Stark, one of the Florida State defendants, to begin extradition proceedings. Three of the Florida State defendants twice applied to the Office of the Governor of Florida for Jaffe's extradition from Canada. These requests were rejected. Judge Perry entered a final judgment forfeiting the bonds.
At this point, the parties dispute the facts and their implications. According to plaintiffs, three of the florida State defendants--Shoemake, Stark, and Norris--met with defendant Miller, Accredited's attorney, to devise a plan to return Jaffe to Florida in light of the thwarted extradition requests. The Florida State defendants are said to have urged Miller to persuade Accredited to "go get" Jaffe and agreed to seek to vacate the judgment of forfeiture on the bonds to provide economic incentive to the bonding company. Plaintiffs allege that other secret meetings were held during the summer of 1981 and into the autumn.
At one such meeting, plaintiffs believe a kidnapping scheme was solidified. On September 15, 1981, the Florida State Attorney's Office, the Board of County Commissioners of Putnam County, Florida, and Accredited, the bonding company, are said to have entered into a "tri-party agreement." The judgment of forfeiture was to be vacated and placed in escrow until the bonding company returned Jaffe to Florida. According to plaintiffs, all defendants (except Giles) were informed of the nature of the "tri-party agreement."
Defendants Snow and Accredited Co. are then said to have ordered defendants Kear and Johnsen to kidnap Jaffe in Canada and forcibly bring back to Florida. Plaintiffs say Johnsen was either provided with or somehow obtained certified copies of the bail bonds, a specially drawn Florida bench warrant, and papers indicating that he was acting pursuant to Florida authority. Plaintiffs claim that on September 18, 1981, Florida State defendant Norris telephoned Johnsen in Canada with the final go-ahead to abduct Jaffe.
On September 23, 1981, the alleged kidnapping plot was put into motion. Defendants Johnsen and Kear seized Jaffe at his apartment building in Toronto, Canada, as Jaffe was returning from jogging. Jaffe was taken, against his will, through Ontario. He was then taken across the Canadian-American border across the Rainbow Bridge at Niagara Falls. From there, he was whisked to the Niagara Falls International Airport and forced to board a plane to Orlando, Florida. Plaintiffs claim that during this process, Johnsen and Kear made several misrepresentations to Canadian and American Customs officers and to members of the Niagara County Sheriff's Office at the airport.
Jaffe's son had called the Niagara County Sheriff's Department, and officers were sent to the airport. One of the officers is said to have called defendant Giles, who then is said to have called Niagara County District Attorney Peter Broderick. Broderick reportedly advised defendant Giles that Johnsen and Kear should be permitted to take Jaffe back to Florida. Plaintiffs claim Jaffe told Giles that he was being forcibly abducted from Canada but that Giles permitted Johnsen and Kear to drag Jaffe on board the waiting plane. Jaffe arrived in Orlando, Florida, from where he was taken to the Putnam County Jail in Palatka County, Florida, to await trial. The Canadian government filed several diplomatic protests and eventually filed suit in United States District court in Florida. In re Application of Canada, 83-661-Civ-j-16.
Jaffe was convicted and sentenced to consecutive Jail terms totaling 145 years. He was imprisoned until September 2, 1983, when the Florida Fifth District Court of Appeal reversed his conviction (except as to the one count of failure to appear). On July 18, 1983, defendant Boyles filed new charges against Jaffe for violating the Florida organized fraud statute, section 817.036, Florida Statutes. He was released on $150,000 bail on that charge. On March 2, 1984, another charge, this one alleging perjury, was filed against Jaffe by defendant Boyles. Defendants have sought to extradite Jaffe from Canada on these new charges. Jaffe moved to dismiss the organized fraud charges against him on the grounds of double jeopardy and collateral estoppel. This motion was denied by the District Court of Appeal for the State of Florida, Fifth District, on December 27, 1984. Jaffe's motion for rehearing was denied on February 8, 1985.
In this action plaintiffs claim that the defendants violated plaintiffs' rights under 42 U.S.C. §§ 1983 and 1985, committed torts cognizable under the Alien Tort Act, 28 U.S.C. § 1350, committed torts in violation of New York State law, and caused loss of consortium on the part of Mrs. Jaffe. Plaintiffs originally included a count involving malicious prosecution and abuse of process in their complaint (Count IV). In a letter brief to the court submitted after oral argument, plaintiffs agreed that allegations involving malicious prosecution were not ripe and withdrew those allegations (Item 76).
For the reasons below, the court has determined that venue is not proper in this district and transfers this case to the Middle District of Florida. 28 U.S.C. § 1406(a).
Subject Matter Jurisdiction
The bonding company defendants and defendant Miller challenge this court's subject matter jurisdiction under 28 U.S.C. § 1343(a) (3), the jurisdictional base for actions under 42 U.S.C. § 1983.
28 U.S.C. § 1343(a)(3) provides that district courts have original jurisdiction to
redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.
Defendant claim that since plaintiffs are not citizen of or in the jurisdiction of the United States, there is no jurisdiction under section 1343(a)(3). Jaffe, however, was within the jurisdiction of this country during part of the alleged deprivation of rights. The provisions of 28 U.S.C. § 1343 and 42 U.S.C. § 1983 are complementary. Examining Board of Engineers v. Flores de Otero, Puerto Rico, 426 U.S. 572, 583, 49 L. Ed. 2d 65, 96 S. Ct. 2264 (1976). Aliens may bring suit under 42 U.S.C. § 1983. Simon v. Lovgren, 368 F. Supp. 265, 268-69.
This court also has jurisdiction pursuant to 28 U.S.C. § 1331 and, presumably, § 1350 (see discussion, infra). There is also subject matter jurisdiction under 28 U.S.C. § 1332. The action is between "citizens of a State and citizens or subjects of a foreign State."
Mr. Jaffe has stated that he is a citizen of Canada (Item 43). Mrs. Jaffe is described as a Canadian citizen in the complaint, which has not been contested by defendants. Defendants are each citizens of a state of the United States. It is not necessary that all defendants are residents of the same state. In Re Paris Air Crash of March 3, 1974, 399 F. Supp. 732, 748-49 (C.D. Cal. 1975).
Plaintiffs assert personal jurisdiction over the defendant by virtue of the New York "long-arm statute," C.P.L.R. § 302. The bonding company defendants and defendant Miller have moved to dismiss on the ground that this court lacks personal jurisdiction over them. The Florida State defendants raised a lack of personal jurisdiction as an affirmative defense in their answer. The Florida State defendants have not moved to dismiss on this basis, nor have they briefed this issue.
In view of the determination that venue is improper in this district, a detailed discussion of personal jurisdiction is not necessary. LeRoy v. Great Western United Corp., 443 U.S. 173, 180, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (1979). Although plaintiffs have made a prima facie showing of jurisdiction, some discussion might prove useful.
In support of their claim that the court has personal jurisdiction over the defendants, plaintiff rely most heavily on section 302(a)(2), the commission of a tortious act in the State:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act.
The bonding company defendants and defendant Miller claim that no tortious act has been committed, since bondsmen such as johnsen and Kear have a private common law right to seize and return their principal (citing Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371, 21 L. Ed. 287 (1872)). However, as was noted by Judge Murnaghan of the Court of Appeals for the Fourth Circuit, the private right of bondsmen to seize their principal extends only throughout the United States. Kear v. Hilton, 699 F.2d 181, 182 (4th Cir. 1983). See also, Reese v. United States, 76 U.S. (9 Wall.) 13, 21-22, 19 L. Ed. 541 (1869): "[T]he power of arrest can only be exercised within the territory of the United States . . .."
The acts alleged by plaintiffs amount to a tortious act. Johnsen and Kear may have had the right to seize Jaffe had they found him in New York and had they not been working in concert with State officials. Under the facts alleged, Jaffe's arrest was illegal. This tort continued in New York. The bonding company defendants and defendant Miller also claim there is no personal jurisdiction over them because only Johnsen and kear were physically present in New York when the tort was committed. However, they all need not have been present during the commission of the tort. C.P.L.R. § 302(a) covers acts by an individual or his agent. Kear is an employee of the bonding company; Johnsen was recruited to seize Jaffe (Item 43, Exh. 2, p.579).
In any event, formal agency relationship is not necessary to impute the acts of the agent to a defendant when he is being sued by a third party. Galgay v. Bulletin Company, 504 F.2d 1062, 1065 (2d cir. 1974). The Court of Appeals for the Second Circuit noted New York's broad construction of the term "agent" under section 302 in Grove ...