Plaintiff alternatively relies upon an agency theory based on an alleged conspiracy between Defendant Colapinto and the other Defendants. He claims that because the Defendants are co-conspirators, Colapinto's filing of a false complaint in New York can be imputed to the other Defendants for jurisdictional purposes.
A co-conspirator may be an "agent" as that term is used in § 302(a)(2). Grove Press, Inc. v. Angleton, 649 F.2d 121, 122-23 (2d Cir. 1981). Under New York law, however, conspiracy itself is not a tort, but "'merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act'" committed by a co-conspirator. Id. at 123 (quoting Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844 (1956)). Before an agency relationship will be held to exist under New York law, the plaintiff must allege a prima facie case of conspiracy, as well as a "sufficient relationship between the defendant and the conspiracy to warrant the inference that defendant was a member of the conspiracy." Chrysler Capital Corp. v. Century Power Corp., 778 F. Supp. 1260, 1268-69 (S.D.N.Y. 1991). Section 302(a)(2) does not require a formal agency relationship, but before long-arm jurisdiction can be exercised over an out-of-state co-conspirator, the plaintiff must show that (1) the out-of-state co-conspirator had an awareness of the effects of the activity in New York, (2) the New York co-conspirators' activity was for the benefit of the out-of-state conspirators, and (3) that the co-conspirators in New York acted at the behest of or on behalf of, or under the control of the out-of-state conspirators. Id. at 1269; see also Grove Press, 649 F.2d at 122 (alleged agent must act in New York "for the benefit of, with the knowledge and consent of, and under some control by, the nonresident principal").
Even assuming for the purposes of this motion that Plaintiff has presented a prima facie case of conspiracy, Plaintiff has failed to show that Colapinto's acts in New York were for the benefit of her putative out-of-state co-conspirators. In fact, Plaintiff has not alleged a single fact in relationship to any claim that suggests any type of benefit to anyone but Colapinto herself -- namely, the favorable child support settlement. Nor does Plaintiff allege that Colapinto was under the control of, or acted at the request of, her out-of-state co-conspirators. Plaintiff makes no allegation relating to Wolf's or Zelinsky's control of Colapinto's activities: his sole contention in this regard is that Colapinto acted "under the advice" of Soltis. This bare allegation alone does not suffice to show that she was controlled by Soltis, or was acting at his request.
Because Plaintiff has failed to allege any benefit to Wolf, Zelinsky, or the LA County Defendants deriving from the alleged conspiracy, or that these Defendants either controlled or requested Colapinto's acts in New York, Colapinto's acts as "agent" cannot be imputed to them. Absent a viable theory of agency, this Court cannot assert long-arm jurisdiction over Wolf, Zelinsky, or the LA County Defendants pursuant to § 302(a)(2). These Defendants' motions to dismiss under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction are granted.
B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
In addition, Plaintiff has failed to state a claim upon which relief can be granted, and the Amended Complaint is therefore dismissed as to all Defendants. Plaintiff alleges three causes of action: abuse of process, conspiracy to deprive him of his Fifth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1985(3), and deprivation of his Fourteenth Amendment rights in violation of 42 U.S.C. § 1983.
In the context of a motion to dismiss for failure to state a claim, the allegations in the complaint must be accepted as true, with all reasonable inferences being drawn in favor of the plaintiff. Annis v. County of Westchester, 36 F.3d 251, 253 (2d Cir. 1994). An action cannot be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts" that would entitle the plaintiff to relief. Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
Plaintiff's abuse of process claim against all of the Defendants must be dismissed because it is barred by New York's one year statute of limitations. CPLR § 215(3); Riddell Sports Inc. v. Brooks, 872 F. Supp. 73 (S.D.N.Y. 1995). Colapinto filed the criminal complaint in October 1993. This action was not commenced until February 1996, over two years later. Plaintiff admits that the one year statute of limitations is applicable. See Memorandum of Law in Opposition to Defendants' Motion to Dismiss the Amended Complaint ("Pl.s Mem.") at 7. Accordingly, Plaintiff's abuse of process claim is time-barred and is dismissed against all of the Defendants.
Nor has plaintiff stated a claim under § 1983, which requires that Plaintiff allege that the Defendants deprived him of a right secured by the Constitution or laws of the United States while acting under color of state law. 42 U.S.C. § 1983; Rendell-Baker v. Kohn, 457 U.S. 830, 835, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982). Plaintiff brings this cause of action against the LA County Defendants only. See Am. Compl. PP 49-55. First, this cause of action must be dismissed against the Sheriff's Department because Plaintiff has made no allegations concerning this Defendant. Second, Plaintiff's allegations against Soltis are deficient. Plaintiff alleges that he was arrested as a result of the charges that Soltis advised Colapinto to file in New York, which deprived him of his Fourteenth Amendment right to liberty, and that those charges were later dismissed pursuant to the New York Speedy Trial Rule. Elsewhere in the Amended Complaint, Plaintiff alleges that Soltis knew the charges were false.
However, "'general allegations of cooperation' between private individuals and specific state agents do not make out a claim of action taken under color of state law." Singer v. Bell, 613 F. Supp. 198, 202 (S.D.N.Y. 1985) (citing Annunziato v. The Gan, Inc., 744 F.2d 244, 251 (2d Cir. 1984)). Here, viewed in its best light, Plaintiff has alleged just that: cooperation between Soltis and Colapinto. Soltis did not file the criminal charges against Plaintiff in New York; at most, Soltis advised Colapinto to file criminal charges on her own behalf. Plaintiff has therefore failed to show that Soltis' alleged involvement with the filing of the criminal complaint in New York was an action taken under color of state law. This claim against the LA County Defendants is also dismissed.
Finally, Plaintiff's 42 U.S.C. § 1985(3) claim against all of the Defendants fails as well. The statute provides, in relevant part:
If two or more persons . . . conspire . . . for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws . . . the party injured may . . . have an action for damages . . . against any one or more of the conspirators.