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PRO-CHOICE NETWORK OF WESTERN NEW YORK v. PROJECT

July 30, 1993

PRO-CHOICE NETWORK OF WESTERN NEW YORK, BUFFALO GYN WOMENSERVICES, P.C., ERIE MEDICAL CENTER, PAUL J. DAVIS, M.D., P.C., SHALOM PRESS, M.D., BARNETT SLEPIAN, M.D., MORRIS WORTMAN, M.D., HIGHLAND OBSTETRICAL GROUP, ALEXANDER WOMEN'S GROUP, Plaintiffs,
v.
PROJECT RESCUE WESTERN NEW YORK, OPERATION RESCUE, PROJECT LIFE OF ROCHESTER, OPERATION RESCUE NATIONAL, FRIENDS TO THE WEARY, CHRISTIAN ACTIVIST LIFELINE, CHRISTIANS IN ACTION OF ROCHESTER NEW YORK, PRO-LIFE RESCUE MOVEMENT OF WESTERN NEW YORK, REV. PAUL SCHENCK, REV. JAMES L. EVANS, REV. TED CADWALLADER, DWIGHT SAUNDERS, DAVID ANDERSON, JEFFREY BARAN, BRIAN BAYLEY, BONNIE BEHN, RONALD BREYMEIER, GILBERT CERTO, SCOTT CHADSEY, KIM DAY, CONSTANCE DEBO, MARK DENT, WAYNE DENT, PAUL DIEMERT, JOAN GIANGRECO, DELORES GLASER, CARMELINA GOLBA, KEVIN GOLBA, LINDA HALL, NANCY HALL, THOMAS HALL, REV. DANIEL HAMLIN, JAMES HANDYSIDE, PAMELA HUFFNAGLE, REV. JOHNNY HUNTER, DONNA JOHANNS, ERIC JOHNS, NEAL KOCHIS, PAULETTE LIKOUDIS, CHARLES MCGUIRE, CHRISTOPHER MORROW, ANNEMARIE NICE, NICHOLAS PUKALO, CARLA RAINERO, THOMAS RILEY, PATRICIA OSTRANDER, LINDA ROSS, REV. ROBERT SCHENCK, DAVID SMITH, LINDA SMITH, MARK STERLACE, JOYCE STRIGEL, KAREN SWALLOW-PRIOR, REV. KEITH TUCCI, RANDALL TERRY, JOHN THOMANN, JOHN TOMASELLO, PAUL WALDMILLER, JR., NANCY WALKER, LEONARD WINTER, HORACE WOLCOTT, GERALD CRAWFORD, DAVID LONG, JOHN DOE(S) AND JANE DOE(S), the last two being fictitious names, the real names of said defendants being presently unknown to plaintiffs, said fictitious names being intended to designate organizations or persons who are members of defendant organizations, and others acting in concert with any of the defendants who are engaging in, or intend to engage in, the conduct complained of herein. Defendants.


ARCARA


The opinion of the court was delivered by: RICHARD J. ARCARA

INTRODUCTION

 Presently before the Court is defendants' motion to dismiss the fourth amended complaint and vacate the Court's February 14, 1992 preliminary injunction. The basis for defendants' motion is that dismissal of the federal claim under 42 U.S.C. § 1985(3) is compelled by the recent decision of the United States Supreme Court in Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993), and without the federal claim, the Court is precluded from exercising pendent jurisdiction *fn1" over the remaining state-law claims, or in the alternative, should decline to do so in the interests of judicial economy, convenience, fairness and comity. For the reasons set forth below, the Court grants defendants' motion to dismiss as to plaintiffs' § 1985(3) claim only, with leave to plaintiffs to amend their complaint; denies defendants' motion relative to the continued exercise of pendent jurisdiction over plaintiffs' state-law claims; and denies defendants' motion to vacate the injunction.

 PROCEDURAL BACKGROUND

 On February 14, 1992, this Court rendered a Decision and Order granting plaintiffs' motion for a preliminary injunction. Pro-Choice Network of W. New York v. Project Rescue W. New York, 799 F. Supp. 1417 (W.D.N.Y. 1992). The injunction was based on a finding of irreparable harm and plaintiffs' likelihood of success on their 42 U.S.C. § 1985(3) claim and two state law claims: N.Y. Civ. Rights Law § 40-c, and New York State trespass law. Id. at 1429-32. The Court noted that the outcome of Bray, which was at the time pending before the Supreme Court, could require the Court to revisit its decision. Id. at 1422 n.2.

 On January 13, 1993, the Supreme Court decided Bray, holding that the complaint in that case failed to state a claim upon which relief could be granted under § 1985(3) for an alleged conspiracy to deprive women of their rights to interstate travel and to obtain an abortion. 113 S. Ct. 753, 122 L. Ed. 2d 34.

 On January 20, 1993, defendants filed the instant motion to dismiss the complaint and vacate the injunction based on their interpretation of Bray that it forecloses the use of § 1985(3) in all abortion protest cases and further, that it is tantamount to an assertion that this Court never had subject matter jurisdiction over this action, and therefore has no authority to continue to exercise jurisdiction over the state-law claims. Plaintiffs filed a memorandum of law in opposition to defendants' motion on February 12, 1993, and defendants filed a reply memorandum on March 12, 1993. Prior to oral argument on defendants' motion, the Second Circuit Court of Appeals interpreted the Bray decision in Town of W. Hartford v. Operation Rescue, 991 F.2d 1039 (2d Cir. 1993), leaving open the possibility that plaintiffs seeking to enjoin the activities of abortion protesters could, after Bray, state a federal claim under § 1985(3).

 DISCUSSION

 Initially, defendants have not specified whether they are moving for dismissal for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), or failure to state a claim pursuant to Rule 12(b)(6). "As frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action." Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249, 71 S. Ct. 692, 95 L. Ed. 912 (1951).

 
Where the complaint 'is so drawn as to seek recovery under the Constitution or laws of the United States,' the district court must entertain the suit unless the federal claim 'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such claim is wholly insubstantial and frivolous.'

 Spencer v. Casavilla, 903 F.2d 171, 173 (2d Cir. 1990) (quoting Bell v. Hood 327 U.S. 678, 681, 682-83, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). Defendants assert that Bray rendered plaintiffs' § 1985(3) claim so insubstantial that this Court no longer has jurisdiction even to decide whether to, in its discretion, continue to exercise pendent jurisdiction over the state-law claims. This is an argument that the Court lacks subject matter jurisdiction and that the complaint must be dismissed pursuant to Rule 12(b)(1). The Court, however, finds this argument without merit and contrary to the explicit holding in Bray that "while respondents' § 1985(3) causes of action fail, they were not, prior to our deciding of this case, 'wholly insubstantial and frivolous,' so as to deprive the District Court of jurisdiction." 113 S. Ct. at 768 (quoting Bell, 327 U.S. at 682-83). Defendants' reliance on the phrase "prior to our deciding of this case" as meaning that after January 13, 1993, all such causes of action are frivolous even if asserted prior to that date, is a contortion of the plain meaning of the Court's holding.

 The Second Circuit, when presented with a similar request to find the § 1985(3) claim insubstantial in Town of W. Hartford, cited the above language in Bray in summarily denying the request. 991 F.2d at 1048-49; see also New York State NOW v. Terry, 961 F.2d 390, 396 (2d Cir. 1992) ("Terry II") (noting that even if Supreme Court reversed the Fourth Circuit in Bray, that holding would be of little benefit to defendants unless Supreme Court also found that the federal question was, from the inception, wholly insubstantial and frivolous), vacated, remanded sub nom. Pearson v. Planned Parenthood Margaret Sanger Clinic, 122 L. Ed. 2d 640, 113 S. Ct. 1233, reinstated, 996 F.2d 1351, 1993 U.S. App. LEXIS 16355 (2d Cir. 1993); NOW v. Operation Rescue, 816 F. Supp. 729, 730 (D.D.C. 1993) (court rejected defendants' assertion that § 1985(3) claims were so insubstantial after Bray that it lacked subject-matter jurisdiction over the action, including the state-law claims); United States v. Terry, 815 F. Supp. 728, 730 n.4 (S.D.N.Y. 1993) (noting that inasmuch as the Preliminary Injunction was issued prior to the Bray decision, and was not, therefore, based on claims that were, at the time, 'wholly insubstantial and frivolous,' this Court is not divested of subject-matter jurisdiction.").

 Thus, the Court is not deprived of jurisdiction as a result of Bray, and must consider whether plaintiffs' § 1985(3) claim, as set forth in their fourth amended complaint, states a claim, after Bray, upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

 
If dismissal for facial insubstantiality is avoided, further inquiry into the existence of federal question jurisdiction . . . turns on the existence of the underlying claim as pleaded. The existence of such a claim is of course a necessary predicate for the existence of federal jurisdiction over it. But if it is determined on this inquiry that jurisdiction fails because no such federal claim exists, the proper disposition is to dismiss on the merits for failure to state a claim rather than for a want of subject matter jurisdiction.

 Ridenour v. Andrews Fed. Credit Union, 897 F.2d 715, 719 (4th Cir. 1990) (citing Bell, 327 U.S. at 682; Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 279, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)); see also Town of W. Hartford v. Operation Rescue, 915 F.2d 92, 99-100 (2d Cir. 1990); Spencer, 903 F.2d at 173.

 I. The Viability of Plaintiffs' Section 1985(3) Claim after Bray.

 In general, in order to prevail on a § 1985(3) claim, a plaintiff must prove that: (1) defendants engaged in a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws; and (3) acted in furtherance of the conspiracy; (4) whereby a person is either injured in his or her person or property or deprived of any right or privilege of a citizen of the United States. See New York State NOW v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989) ("Terry I") (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)), cert. denied, 495 U.S. 947 (1990)).

 The Supreme Court in Bray focused on two requirements: "(1) [a showing that] 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action,' [hereinafter "animus" requirement]; and (2) that the conspiracy 'aimed at interfering with rights' that are 'protected against private, as well as official, encroachment.'" [hereinafter "interference" requirement]. 113 S. Ct. at 758 (quoting Griffin, 403 U.S. at 102; United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 833, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983)).

 A. Plaintiffs' Fourth Amended Complaint2

 Plaintiffs' first cause of action sets forth a claim under § 1985(3), involving both the right to travel and the right to obtain an abortion. With respect to the class-based animus requirement, the fourth amended complaint ("complaint") alleges that defendants have conspired together for the purpose of denying women seeking abortions and other family planning services the equal protection of the laws and equal privileges and immunities under the law, and further, that defendants continue to be motivated by an invidiously discriminatory animus directed at women seeking to exercise their constitutional and legal right to choose abortions. Item No. 329, P 130.

 With respect to the right to travel, the complaint alleges that defendants do not accept decisions of the Supreme Court that the Constitution protects a woman's right to travel across state lines to obtain medical care including abortion id. P 84, and that defendants' activities have and continue to disrupt and prevent the delivery of all health care services to patients from Western New York, other parts of New York, Pennsylvania and Ohio. See, e.g., id. PP 94-104.

 As to the right to an abortion, plaintiffs allege that defendants do not accept the decisions of the Supreme Court that the Constitution guarantees and protects a women's right to choose abortion and to carry out that decision, and that they intend to interfere with those rights of women attending the targeted clinics and providers. Id. P 83.

 B. The Preliminary Injunction Decision and Order

 This Court in its Preliminary Injunction Decision and Order found that, with respect to the animus requirement:

 
it is clear under Terry that defendants have the requisite class-based animus. There is uncontroverted evidence that defendants are opposed to the constitutional right of a woman to choose to have an abortion and that the object of their "rescue" activities is to hinder or prevent women--a group that is a protected class under § 1985(3)--from exercising that right.

 799 F. Supp. at 1429-30 (citing Terry I, 886 F.2d 1339).

 With respect to the interference requirement, this Court found that plaintiffs had established, by a preponderance of the evidence, that defendants' conspiracy infringed both the right to ...


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