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ESTATE OF BRUCE v. CITY OF MIDDLETOWN

January 8, 1992

ESTATE OF JIMMY LEE BRUCE, JR. Plaintiff, against CITY OF MIDDLETOWN, THE MIDDLETOWN POLICE DEPARTMENT, and Police Officers HAROLD SIMPSON and GREGORY WARYCKA, individually and in their official capacities as Police Officers of the CITY OF MIDDLETOWN, Defendants.

GOETTEL


The opinion of the court was delivered by: GERALD L. GOETTEL

GOETTEL, D. J.,

 The plaintiff, the Estate of Jimmy Lee Bruce, originally commenced this action against defendants The City of Middletown, the Middletown Police Department, and two of their police officers, Harold Simpson and Gregory Warycka, pursuant to 28 U.S.C. § 1983 and state tort claims for wrongful death and negligence for injuries that occurred during an incident at a local movie theatre. The City of Middletown filed a third-party complaint against Middletown Movie Center, Inc. ("Movie Center"), the owner of the theatre, for contribution. The City of Middletown presently seeks to amend its third-party complaint against Movie Center to include an additional claim for indemnification. Third-party defendant Movie Center moves to dismiss the third-party complaint in its entirety for lack of jurisdiction.

 The Administrators of the estate of Jimmy Lee Bruce originally commenced this action pursuant to 42 U.S.C. § 1983 against the City of Middletown ("Middletown"), the Middletown Police Department, and two of the Police Department's officers, Harold Simpson and Gregory Warycka, in both their individual and official capacities.

 On December 13, 1986, the decedent Jimmy Lee Bruce, Jr. accompanied by several friends went to the movies at the Cinema 10 Movie Theatre, located in the town of Walkill. At some point during the presentation of the movie, a disturbance allegedly occurred in the theatre and the decedent and his friends were asked to leave. After leaving the theatre, an incident occurred between Mr. Bruce and two security guards employed by the theatre, defendants Harold Simpson and Gregory Warycka. During the incident, defendant Simpson placed Mr. Bruce in a choke hold and eventually put him into the back of a Town of Walkill police vehicle that had been summoned to the scene.

 A few minutes later, a New York State Trooper arrived and, with the aid of a flashlight, determined that the decedent's pupils were fixed and dilated and failed to respond to light. Mr. Bruce was rushed to Morton Memorial Hospital. He was declared dead upon arrival. The doctors determined that the cause of death was asphyxia, or a disruption of the blood flow, due to a compression of the carotid arteries that resulted in a deprivation of oxygen to the brain. The doctor concluded that the compression was the result of the choke hold applied by defendant Simpson. A Medical Examiner concurred with these conclusions.

 On March 17, 1987, plaintiffs commenced suit pursuant to 42 U.S.C. § 1983 claiming violations of plaintiff intestate's constitutional rights. Plaintiffs also invoked pendent jurisdiction to seek recovery for negligence and wrongful death under New York law. On June 5, 1991, defendant Middletown filed a third-party complaint for indemnification against Movie Center claiming that the third-party defendant was the actual employer of the police officers at the time of the incident. In the third-party complaint, defendants also sought contribution from the Town of Walkill.

 There are two motion currently before the court. The third-party defendant Movie Center moves to dismiss the third-party complaint for failure to state a claim upon which relief can be granted. The City of Middletown moves to amend its third-party complaint to add, in addition to its existing indemnity claim, a claim for contribution against Movie Center relating solely to the pendent state claims for its alleged negligence in causing the wrongful death of Mr. Bruce.

 Movie Center moves to dismiss Middletown's third-party complaint on two grounds. First, it argues that § 1983 liability may not stem from respondeat superior. Second, it argues that Middletown's complaint, to the extent it rests upon pendent jurisdiction over state indemnification claims, must be dismissed. Middletown concedes that respondeat superior cannot be the basis of § 1983 liability but opposes dismissal of its third-party complaint arguing that pendent party jurisdiction is permissible and properly exercised in this case. Instead, Middletown seeks to amend its third-party complaint to add an additional claim for indemnification against Movie Center based solely on its state tort claims for personal injuries and wrongful death.

 Thus, both motions hinge on the issue of pendent party jurisdiction. If such jurisdiction is proper in this case, Movie Center's motion to dismiss must be denied and Middletown's motion to amend should be granted. For the reasons detailed below, the court finds that pendent jurisdiction exists in this case and its exercise is warranted.

 II. DISCUSSION

 Prior to 1990, the availability of pendent party jurisdiction was seriously questioned except when a statute specifically permitted jurisdiction over other claims against additional parties. See Finley v. United States, 490 U.S. 545, 104 L. Ed. 2d 593, 109 S. Ct. 2003 (1989); Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976); Roco Carriers Ltd. v. M/V Nurnberg Exp., 899 F.2d 1292, 1295 (2nd Cir. 1990). As a result, some courts concluded that pendent party jurisdiction was no longer available. See, e.g., Staffer v. Bouchard Transp. Co., 878 F.2d 638, 643 n. 5 (2nd Cir. 1989).

 If this line of cases, upon which Movie Center relies heavily, had remained unaltered, Movie Center's motion to dismiss would stand on firmer footing. *fn1" The law, however, changed with the passage of the Judicial Improvements Act of 1990. Pub. L. 101-650, § 310, 104 Stat. 5089, 5113-14 (1990) (codified at 28 U.S.C. § 1367). Congress explicitly rejected the Supreme Court's holding in Finley by codifying the concepts of ancillary and pendent jurisdiction, renaming them ...


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