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FRASCA v. YAW

March 26, 1992

LAWRENCE FRASCA and MARGARET FRASCA, Plaintiffs, against R. STEPHEN YAW as Town of Ticonderoga Police Officer, MICHAEL CONNERY, as Police Commissioner, Town of Ticonderoga, TICONDEROGA TOWN POLICE DEPARTMENT, TOWN OF TICONDEROGA, JOHN MCDONALD, as DISTRICT ATTORNEY OF ESSEX COUNTY, and JOHN MCDONALD, INDIVIDUALLY, ESSEX COUNTY, JULIUS DABY, JAMES LEFEVRE and LOUIS LEFEVRE,


The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 In this action brought pursuant to 42 U.S.C. § 1983 for alleged violations of the plaintiffs' civil rights, the ten defendants uniformly move to dismiss the action, pursuant to 28 U.S.C. § 1406(a), or to transfer venue of this case, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Northern District of New York.

 The primary issue to be resolved, is whether venue in the Northern District of New York is appropriate pursuant to the statutory provisions.

 For the reasons set forth below, the Court grants the defendants' motions to transfer venue to the federal district court for the Northern District of New York.

 I. FACTUAL BACKGROUND

 On May 25, 1990, at approximately 5:15 p.m. in the Town of Ticonderoga, Essex County, New York, the plaintiff Lawrence Frasca was arrested by Police Officer R. Stephen Yaw ("Yaw") and charged with criminal mischief in the fourth degree, a misdemeanor, in violation of PL § 145.00(1). Officer Yaw ("Yaw") was employed by the Town of Ticonderoga.

 According to the complaint, the plaintiff was then subjected to a warrantless search of his person. The search was allegedly conducted in a violent manner, during which time the officer verbally assaulted and abused the plaintiff with the intention of humiliating and embarrassing him in front of his children and the general public.

 Officer Yaw then took Lawrence Frasca to the Ticonderoga Police Station. The complaint alleges that Officer Yaw, along with Police Commissioner Connery ("Connery"), the Ticonderoga Town Police Department, the Town of Ticonderoga, John C. McDonald ("McDonald") and Essex County ("the County") "unlawfully imprisoned and detained [the plaintiff] for four hours, all without probable cause, or any lawful cause whatever" (Complaint, P16).

 Thereafter, Lawrence Frasca was booked, fingerprinted and photographed by personnel of the Ticonderoga Police Department. As a result, Frasca employed legal counsel to represent him in proceedings before the Town Justice of Ticonderoga.

 The plaintiffs allege that the arrest was proximately caused by the "improper and illegal conduct" of defendant McDonald, acting District Attorney for Essex County, who was also acting as private attorney for defendants Julius Daby, Louis LeFevre and James LeFevre at the time (P19). The charge against Lawrence Frasca were dismissed by the court in the interest of justice.

 None of the defendants has as yet filed an answer in this case.

 II. PROCEDURAL SETTING

 In separate motions, the defendants move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a) "for improper venue or, in the alternative," pursuant to 28 U.S.C. § 1404(a) "if it be deemed in the interest of justice," that this action be transferred to the United States District Court for the Northern District of New York.

 According to the defendants, all of the defendants reside in Essex County, within the Northern District of New York, and the cause of action arose in Essex County since Lawrence Frasca was arrested there. The defendants add that the majority, if not all of the witnesses to be called, reside in Essex County. The underlying dispute between neighbors which gave rise to the arrest occurred in Essex County and the prosecution of Mr. Frasca took place there. Consequently, the defendants urge, this case should be heard in the Northern District of New York.

 The defendants also move, pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the action as to plaintiff Margaret Frasca for failure to state a claim upon which relief can be granted. The defendants contend that all of the allegations in the complaint center on events involving Lawrence Frasca, not Margaret Frasca. In addition, no derivative claim is made and the defendants argue that even if such a claim were set forth, the derivative spousal claim cannot be asserted under 42 U.S.C. § 1983.

 Pursuant to Fed. R. Civ. P. 12(b)(6), the defendants further move to dismiss the claim pursuant to 42 U.S.C. § 1985(3). According to the defendants, any claim based upon 42 U.S.C. § 1985(3) must allege a deprivation based on racial or other class-based discrimination, and no such allegations have been asserted in this case.

 The plaintiffs, however, oppose the motion to dismiss or transfer venue and claim that "upon information and belief" (Conti Affidavit in Opposition at p. 3), two of the defendants -- the LeFevre brothers -- are residents of New Jersey. Counsel for the plaintiffs further alleges that the initial civil dispute from which the instant action arose "evolved from the contract of sale under which the plaintiffs purchased their home in Lake George" (id.). However, these facts are not asserted in the complaint. Counsel maintains that this land contract was executed in Hempstead, a fact also omitted from the complaint.

 In reviewing the equities, the plaintiffs urge the Court to consider that Lawrence Frasca is a retired New York City fireman who lives on a pension and who is the sole support of his wife and three children. Counsel adds that "family funds are limited, and they should not be forced to expend large sums of money traveling to and from Albany in order to seek redress for the wrongs perpetrated upon them by the defendants" (id.).

 In regard to the claim of Margaret Frasca, the plaintiffs allege that since she was forced to suffer the humiliation and degradation of having her husband arrested, and since defendant Yaw illegally entered the Ticonderoga premises of which she is a co-ower, she is entitled to recover.

 In reply, the defendants emphasize that this lawsuit was commenced for the alleged violation of the civil rights of the Frascas (i.e., false arrest, unlawful imprisonment) which arose in the Northern District of New York. Therefore, the land contract referred to by the plaintiffs has no connection to this lawsuit.

 The defendants add that the plaintiffs have presented no affidavit by any one with personal knowledge that the LeFevres are residents of New Jersey. Furthermore, the defendants claim that the plaintiffs are not impoverished and that they have supplied no affidavit to support this contention. The defendants state that the Frascas maintain a residence in East Rockaway, New York, as well as a summer residence in Ticonderoga, with access to Lake George.

 The Court first considers the propriety of a transfer before addressing the issue of a § ...


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