whether, given all of the information available to the police, there was probable cause to arrest Steiner. Although the police might perhaps be criticized for not arresting Steiner and Schiavone, they may not properly be held liable for arresting Steiner.
In sum, taking all of Steiner's allegations as true, and drawing all reasonable inferences in his favor, the defendants have satisfied their burden of demonstrating that a reasonable jury could not find that the defendants' judgment was so flawed that no reasonable officer would have effected the arrests. Therefore, summary judgment is granted to the individual defendants on the grounds of qualified immunity. Lennon v. Miller, 66 F.3d at 424-25; Robinson v. Via, 821 F.2d at 921.
B. The False Arrest Claims
Defendants argue that no genuine issue of material fact exists as to whether there was probable cause to arrest Steiner on February 9, 1989, and March 21, 1989. I do not reach this question because the defendants are entitled to summary judgment on the grounds of qualified immunity.
C. The Malicious Prosecution Claims
For the reasons set forth above, the defendants are entitled to summary judgment, on qualified immunity grounds, on the § 1983 claim of malicious prosecution. See Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995). In addition, summary judgment is appropriate because Steiner cannot establish that the prosecutions of him were terminated in his favor.
A claim of malicious prosecution (under either § 1983 or New York law) requires proof of the following elements: (1) the defendants commenced or maintained a criminal proceeding against the plaintiff; (2) the proceeding terminated in favor of the plaintiff; (3) there was no probable cause for the criminal proceeding; and (4) the criminal proceeding was instituted by reason of actual malice. Conway v. Village of Mount Kisco, 750 F.2d 205 (2d Cir. 1984) (citing Russo v. New York, 672 F.2d 1014, 1018 (2d Cir. 1982)); see also Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 89 L. Ed. 2d 337, 106 S. Ct. 1227 (1986). Under New York law, a "dismissal in the interest of justice" cannot provide the favorable termination required for a claim of malicious prosecution. Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995) While the Second Circuit has observed that the Appellate Division, First Department, has recently suggested that a dismissal in the interest of justice may not necessarily bar a subsequent claim for malicious prosecution, Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995) (citing Hankins v. The Great Atlantic & Pacific Tea Co., 208 A.D.2d 111, 622 N.Y.S.2d 678 (1st Dep't 1995)), the Second Circuit has adhered to the view that the New York Court of Appeals does not consider such a dismissal to be a favorable termination in any circumstances. Singer, 63 F.3d at 118 n.7.
Here, it is undisputed that both of Steiner's prosecutions were dismissed in the interest of justice. Therefore, there is no question that the second element of the malicious prosecution claim cannot be proved; as a matter of law, the prosecutions did not terminate in favor of Steiner.
For this reason, defendants are entitled to summary judgment on the malicious prosecution claims.
D. The Statute Of Limitations
Defendants argue that the false arrest and malicious prosecution claims are barred by § 1983's three-year statute of limitations. At issue is whether plaintiff is entitled to the benefit of Federal Rule of Civil Procedure 15(c), which provides for the relation back of amended pleadings, and whether defendants waived the statute of limitations defense by failing to raise it either in the answer to the first amended complaint or at status conferences with a magistrate judge.
All § 1983 claims are characterized as claims for personal injuries for statute of limitations purposes. Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). Where state law provides multiple statutes of limitations for personal injury actions, courts considering a § 1983 claim should borrow the state's general statute for personal injury actions. Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989). In New York, this limitations period is three years. 109 S. Ct. at 582; see also South Salina Street, Inc. v. Syracuse, 68 N.Y.2d 474, 510 N.Y.S.2d 507, 503 N.E.2d 63 (1986), cert. denied, 481 U.S. 1008, 95 L. Ed. 2d 488, 107 S. Ct. 1880 (1987).
Under Federal Rule of Civil Procedure 15(c), when a complaint is amended to add a party defendant, the amendment relates back to the date when the original complaint was filed. This rule was amended effective December 1, 1991 -- after Steiner's complaint was filed, but before the amended complaint was filed. The amended version of the rule applies to cases pending in the district courts on December 1, 1991, "insofar as just and practicable." Barrow v. Wethersfield Police Dept., 66 F.3d 466 (2d Cir. 1995) (citing Supreme Court Order of April 30, 1991, Adopting Amendments to Federal Rules of Civil Procedure).
Originally, in order to gain the benefit of Rule 15(c), a party was required to show that: (1) the amended complaint arose out of conduct set out in the original pleading; (2) the party to be brought in received such notice that it would not have been prejudiced in maintaining its defense; (3) the party should have known that, but for a mistake of identity, the original action would have been brought against it; and (4) the second and third criteria were fulfilled within the limitations period. Id. (citing Schiavone v. Fortune, 477 U.S. 21, 29, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986)). Under the revised version, the first three requirements are the same but now the second and third requirements must be fulfilled within 120 days of filing the original complaint. Barrow, 66 F.3d at 468 (citing Commentary to Rule 15).
The amendments to Rule 15(c) are largely irrelevant to this motion because the parties in the amended complaint were on notice, if they had notice at all, within 120 days of the filing of the original complaint. Therefore, whether plaintiff is entitled to the benefit of relation-back under Rule 15(c) turns on whether the new parties "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party."
In plaintiff's original complaint filed May 10, 1990 -- the only one filed within the statutory period -- the only individual parties sued were "Various (as of yet unidentified) Police Officers." The Second Circuit recently held that Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities. Barrow, 66 F.3d at 470 (2d Cir. 1995). The lack of knowledge of a party's identity cannot be characterized as a mistake; Rule 15(c) was meant to allow an amendment changing the name of a party to relate back only if the change is the result of an error, such as a misnomer or misidentification. Id. Here, the individual police officers were not misidentified or misnamed in the original complaint. They were not named because plaintiff had not yet identified them.
Therefore, Rule 15(c) does not apply and the amended complaint does not relate back to the date the original complaint was filed. Because the first and second amended complaints were not filed within three years, they were not filed within the statutory period. For this reason, these claims are barred unless, as plaintiff argues, defendants waived the statute of limitations defense.
However, plaintiff's waiver argument fails. Under Federal Rule of Civil Procedure 8(c), the statute of limitations is an affirmative defense that must be asserted in a party's responsive pleadings, at the earliest possible moment, and is a personal defense that is waived if not promptly pleaded. Davis v. Bryan, 810 F.2d 42 (2d Cir. 1987). The defense need not be raised in a pre-answer motion; it is preserved by its bare assertion in a responsive pleading. Santos v. District Council of New York City, etc., 619 F.2d 963, 967 (2d Cir. 1980).
Here, the individual defendants did not waive the statute of limitations defense when the answer to the first amended complaint was filed because they did not respond to the first amended complaint. They were never served with it. Once all of the individual defendants served with the second amended complaint, they filed their answer, and asserted the statute of limitations defense. Thus, their defense was adequately asserted when they responded to the second amended complaint.
The defendants' failure to raise the defense at a status conference before the magistrate judge, when plaintiff indicated he would amend his complaint, does not constitute waiver of the defense. As noted above, pre-answer motions are not required to preserve the defense. Therefore, the false arrest and malicious prosecution claims are barred by the three-year statute of limitations and must be dismissed for this reason as well.
E. The State Claims
Because the federal claims against the individual defendants must fail, I will not retain jurisdiction over the supplemental claims. Defendants make the further argument that the state claims should be dismissed against all parties because plaintiff failed to filed a timely notice of claim. Section 50-e of the New York General Municipal Law provides that serving a notice of claim within ninety days after the claim arises against a municipality or municipal officer or employee is a prerequisite to commencing an action based on state law. Rattner v. Netburn, 733 F. Supp. 162, 166 (S.D.N.Y. 1989) (citing N.Y. Gen. Mun. Law § 50-e (1986)). Failure to comply with this provision requires dismissal. Id. (citing Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 62, 484 N.Y.S.2d 533, 473 N.E.2d 761 (1984)). New York General Municipal Law § 50-e applies to supplemental state claims in § 1983 actions. See, e.g., Shakur v. McGrath, 517 F.2d 983, 984 (2d Cir. 1975).
Here, plaintiff alleges that he filed a notice of claim "on or about September 22, 1991," for actions that are alleged to have accrued on February 9, 1989, March 21, 1989, and May 10, 1990. Steiner does not contest defendants' argument that the notice of claim was filed more than ninety days after the claims arose. For this reason, the supplemental state tort claims should be dismissed.
For the reasons stated above, the individual defendants are entitled to summary judgment. The Clerk of the Court is advised that this Order closes the case against those defendants.
JOHN GLEESON, U.S.D.J.
Dated: March 14, 1996
Brooklyn, New York