DECISION AND ORDER
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
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.
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).
This Court heard oral argument on defendants' motion on May 5, 1993. At that time, defendants submitted a supplemental brief in support of their motion, which addressed Town of W. Hartford. The Court provided plaintiffs an opportunity to respond to that brief, and specifically to address the viability of their § 1985(3) claim after Town of W. Hartford. The last paper relative to this issue was filed May 26, 1993, and defendants' motion was deemed submitted.
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.