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Joanne Smith, Donald Smith, and Edward Lilly v. Ben Campbell and New York State Police

September 27, 2011

JOANNE SMITH, DONALD SMITH, AND EDWARD LILLY, PLAINTIFFS,
v.
BEN CAMPBELL AND NEW YORK STATE POLICE, DEFENDANTS.



The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Pending before the Court are two motions, one by each defendant, in this federal civil-rights case brought under 42 U.S.C. §§ 1983 and 1985. Defendant New York State Police ("NYSP") has filed a motion (Dkt. No. 6) to dismiss the complaint for failure to state a claim and for lack of subject-matter jurisdiction, pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure ("FRCP"). NYSP contends that the complaint alleges events occurring outside of the limitations period for federal civil-rights actions. NYSP contends further that Eleventh Amendment sovereign immunity requires dismissal of any causes of action against it. Plaintiffs have agreed to withdraw the fourth cause of action in the complaint. Plaintiff opposes the rest of NYSP's motion on the grounds that the Eleventh Amendment does not reach the scenario of New York citizens suing their own state in federal court for federal civil-rights violations.

Meanwhile, defendant and New York State Trooper Ben Campbell ("Campbell") has filed a motion (Dkt. No. 12) to set aside the entry of default that the Clerk of the Court filed against him on August 30, 2011. Campbell argues that he delayed in appearing in the case only because he had to obtain authorization from the New York Attorney General's Office for private counsel. Campbell argues further that he has a meritorious defense that he should be allowed to pursue through further litigation. Plaintiffs insist that Campbell had enough notice and time to appear in the case and chose not to put in an earlier appearance. As a result, according to plaintiffs, the Court should proceed to a hearing to determine damages, interest, costs, and an order of protection against Campbell.

The Court has deemed both motions submitted on papers pursuant to FRCP 78(b). For the reasons below, the Court grants both motions.

II. BACKGROUND

This case concerns allegations that defendants have harassed and intimidated plaintiffs intermittently since November 22, 2007, in violation of their federal civil rights. In the 109 factual background paragraphs in the complaint, plaintiffs set forth that they are residents of Lewiston, New York who have had several encounters with state police in Lewiston over the past four years. The theme common to all of the alleged encounters with defendants appears to be an initial abuse of law enforcement authority-for example, trumped-up traffic violations and an unprovoked stakeout of plaintiffs' house-followed by attempts at intimidation when plaintiffs assert themselves in their own defense.

Plaintiffs filed their complaint on June 24, 2011, asserting five causes of action against defendants. In the first cause of action, plaintiffs accuse defendants of violating their First Amendment rights, thereby violating 42 U.S.C. § 1983. In the second cause of action, plaintiffs repeat the first cause of action verbatim but allege a violation of 42 U.S.C. § 1985. In the third cause of action, plaintiffs repeat the first cause of action but omit reference to any civil-rights statute. In the fourth cause of action, plaintiffs accuse defendants of intentional infliction of emotional distress under state law. In the fifth cause of action, plaintiffs do not assert any new theory of liability but assert that NYSP is liable for Campbell's conduct through the doctrine of respondeat superior. Plaintiffs served the complaint on Campbell on June 29, 2011 and on NYSP on July 7, 2011. When Campbell did not answer the complaint within the time required by FRCP 12, plaintiffs requested an entry of default on August 29, 2011. The Clerk of the Court filed an entry of default against Campbell on August 30, 2011.

NYSP filed its motion to dismiss on August 12, 2011. NYSP asserts two grounds for dismissal. To the extent that the complaint alleges events occurring more than three years before its filing, NYSP asserts that those allegations now are untimely. Additionally, NYSP asserts that it is part of the State of New York and therefore enjoys the state's Eleventh Amendment sovereign immunity from suit. In response, plaintiffs agree to withdraw the fourth cause of action but otherwise oppose NYSP's motion. In response to NYSP's allegation that the applicable limitations period has expired for plaintiffs' allegations, plaintiffs assert that "there are no untimely causes of action, but what the Plaintiffs have alleged are timely facts within the Statute of Limitations and additional facts that lead to a pattern of action on the part of Trooper Campbell as well as the New York State Division of Police in depriving the Plaintiffs of their rights under the Constitution and the Statutes of the United States." (Dkt. No. 18 at 3.) As for NYSP's claim to sovereign immunity, plaintiffs contend that

The arguments with respect to the 11th Amendment are again not applicable in this case. The 11th Amendment which was passed in 1795 states "The Judicial power of the United States shall not be construed or extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." This is a lawsuit by citizens of New York State against the State of New York. Therefore the State of New York shall not be held to be immune from lawsuit because of the 11th Amendment. (Id. at 2.)

Meanwhile, Campbell filed his motion to set aside the entry of default on September 1, 2011. According to Campbell, he delayed in responding to the complaint only because the New York Attorney General's office took until August 12, 2011 to authorize him to retain private counsel. Campbell contends that he became active in the case within a day or two of retaining private counsel. Additionally, Campbell asserts that all of his interactions with plaintiffs occurred in his official capacity as a state trooper, and that he should be allowed to pursue meritorious defenses such as qualified immunity. Plaintiffs oppose the motion by noting that Campbell was fully on notice of this action when he was served on June 29, 2011. According to plaintiffs, even if Campbell needed time to receive authorization to obtain private counsel, he knew that he had 20 days to respond to the complaint and took no action until considerably later. On this basis, plaintiffs ask the Court to proceed directly to a hearing to determine damages, interest, costs, and an order of protection against Campbell.

III. DISCUSSION

A. Motion to Dismiss by New York ...


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