Appeal from an opinion and order of the United States District Court for the Southern District of New York, Stanton, J., which granted plaintiff-appellant Thomas Gleason's motion to amend his complaint in a consolidated action and dismissed the amended complaint based on the running of the statute of limitations, failure to state a claim for which relief may be granted, lack of subject matter jurisdiction and res judicata.
Feinberg, Meskill and Kearse, Circuit Judges.
This is an appeal from an April 22, 1988 opinion and order of the United States District Court for the Southern District of New York, Stanton, J., which granted plaintiff-appellant Thomas Gleason's motion to amend his complaint in a consolidated action brought against numerous defendants-appellees and dismissed the amended complaint based on the running of the statute of limitations, failure to state a claim upon which relief may be granted, lack of subject matter jurisdiction and res judicata.
We now affirm in part, reverse in part, and remand.
In a complaint dated November 25, 1981, Gleason filed suit against the Village of North Tarrytown, New York (the Village), Village Mayor William McBride, Village Trustees Paul Ranieri, Vincent Buonanno, Phillip Zegarelli, John Malandrino, Thomas Cavalieri and James Timmings, Village Attorney Robert Ponzini, Village Chief of Police John Jandrucko, and Village police officers Gordon Ferguson, Rocco Rea and Michael O'Shaughnessy. An amended complaint dated November 26, 1982 added as defendants the Village of Mt. Kisco, New York, the County of Westchester, Justice Vincent Cerbone, and prosecutors Carl Vergari and Lynn Farrell. (Gleason I). The complaints were substantially similar, in that they alleged violations of Gleason's constitutional rights and of his statutory rights under 42 U.S.C. §§ 1983, 1985 (1982), stemming from his arrest at a November 27, 1978 Village Board meeting and his subsequent conviction for disorderly conduct at that meeting. The November 26, 1982 complaint also alleged that defendants Farrell, Vergari, the County of Westchester and Cerbone were motivated by malice in their prosecution of Gleason.
On November 25, 1985, Gleason withdrew and discontinued the action with respect to defendants Ferguson, Rea, Cerbone, Vergari, Farrell, the Village of Mt. Kisco and the County of Westchester, but continued the action with respect to all other defendants. On August 26, 1986, the action was withdrawn and discontinued with respect to defendant O'Shaughnessy.
Gleason also filed a separate suit against, among others, the Village, Village Police Chief Richard Spota, John Jandrucko and the County of Nassau, New York alleging violations of sections 1983 and 1985 in connection with a purportedly false arrest in February 1979 for bank robbery (Gleason II). Gleason II was voluntarily discontinued by stipulation and order of discontinuance with prejudice dated July 28, 1984. See Gleason v. Jandrucko, 860 F.2d 556, 557 (2d Cir. 1988). Gleason sought to vacate that order by filing a complaint on August 23, 1986, claiming that the voluntary dismissal was procured through the perjury of key witnesses and their fraudulent withholding of evidence. Id. The United States District Court for the Southern District of New York, Leval, J., dismissed Gleason's complaint for failure to state a claim upon which relief may be granted, id. at 558; Fed. R. Civ. P. 12(b)(6). We affirmed. Gleason, 860 F.2d 556.
Gleason instituted a third action against defendants Spota, Police Officers James Whalen, William Booth, Gabriel Hayes, Jr., James Brophy and the Village, alleging violations of sections 1983 and 1985 in relation to Gleason's May 17, 1981 arrest and his subsequent conviction for harassment of Lanning Fiala, a teenager who resided in the Village (Gleason III). The complaint was dated July 18, 1983; however, it was not filed until May 11, 1984. The action was withdrawn and discontinued with respect to defendants Hayes and Brophy on September 19, 1986.
Gleason I and Gleason III were consolidated and a consolidated amended complaint (First Amended Complaint) was filed on March 10, 1986. The district court granted Gleason's motion to amend his complaint further. The Second Consolidated Amended Complaint contained eight counts alleging violations of Gleason's constitutional rights and his rights under 42 U.S.C. §§ 1983, 1985. He also claimed that the defendants had committed several common law torts against him. Specifically, Count I alleged violations of Gleason's rights under the First, Fourth, Fifth, Sixth, Ninth, Tenth and Fourteenth Amendments to the United States Constitution; Count II alleged that the defendants conspired to violate sections 1983 and 1985 and that they engaged in a cover-up of those violations; Count III alleged tortious interference with contract and employment; Count IV alleged tortious interference with Gleason's career and prospective economic advantage, and due process violations; Count V alleged intentional infliction of emotional distress; Count VI alleged a violation of Gleason's right to privacy; Count VII alleged a prima facie tort; and Count VIII alleged libel per se. The district court dismissed the amended complaint based on the running of the statute of limitations, failure to state a claim for which relief may be granted, lack of subject matter jurisdiction and res judicata.
1. The Dismissal of Gleason I Claims
Gleason filed the original complaint in Gleason I on November 27, 1981. That complaint, however, was never served on the defendants. Gleason filed an amended complaint on November 29, 1982. The amended complaint was not served on the defendants until September 16, 1985. Fed. R. Civ. P. 4(j) provides for dismissal of an action if service of a summons and a complaint is not made within 120 days after the filing of the complaint. However, Rule 4(j) was not in effect when the complaint in Gleason I was filed. Therefore, the district court properly applied a "due diligence" standard in evaluating the timeliness of the service of the complaint. Applying this standard, the court dismissed as untimely the claims arising out of Gleason's arrest and conviction for disorderly conduct.
On appeal, Gleason argues that the district court erred in dismissing the complaint as untimely and that the appellees waived their objections to the delay in the service of process by not raising the issue promptly in their answer. Gleason also contends that the defendants-appellees had constructive notice of the lawsuit because of its mention in a local newspaper article and the fact that Gleason sent certain letters to the Village Board indicating his "intent to file" suit. Appellees assert that they have not waived ...