*2 Judge, MULLIGAN, Circuit Before BRYAN, and District and WEINFELD Judges.
OPINION WEINFELD, District EDWARD Judge. City of motion
This belated dismiss New York complaint ground the court on grant plaintiff’s lacks damages requires his- claim a brief for litigation, approaching tory now of this case year, in which time Supreme its fourth twice has been before determination on final without a merits. Plaintiff, wox-ker Service social Civil City's De- employ
in the
of New Yox'k
Services,
placed
pax'tment
was
of Social
involuntax-y
a heax'-
leave without
ing.
on Oc-
this action
commenced
She
1972, upon
that sec-
a claim
tober
Sexwiee
New York
Civil
Law,
governs leaves of absence
which
mentally
em-
unfit Civil Sexwiee
for
ployees,
moved
was unconstitutional. She
convening
three-judge
of a
court, and, pending
detex'mina-
the final
(2) a
panel,
the merits
temporary
injunction
preliminax'y
and
restraining
directing defendants
order
pay.
to reinstate
predicated upon U.S.
was
Jurisdiction
1343(4)
1331, 1343(3)
C.,
and
sections
U.S.C.,
The defendants ex'oss-moved to dis-
complaint
miss the
Rules
(b)(6)
12(b)(1)
of the Federal
grounds
Rules of Civil Proeedux-eon the
ju-
that the court lacked
matter
risdiction and the
failed to
Jones,
Meyer-
state a claim
Nathaniel R.
relief
James I.
granted.
son, N.A.A.C.P.,
City,
The motion to
a three-
New York
Thom-
convene
court, upon
remand,
granted,
second
judge
the motion
heard
but
July 22,
temporary
injunctive
direct-
determined on
relief
for
ing
was 1975 that the action was not moot since
reinstatement
original
relief,
prayer
denied.1
seeking
addition to
a declaration
argued
Thereafter,
be-
the defendants
*3
unconstitutional, also
section 72 was
sought
three-judge court for dismissal
the
fore
po
to her former
reinstatement
grounds (1)
upon
that
the
of the action
Although plain
pay.6
sition with back
process
comported
due
statute
the
“City
reinstated,
stub
tiff had
bornly
the
been
plaintiff
(2)
failed
requirements,
that
give
pay,”
refuse
to
her back
fd]
remedies, and
administrative
to exhaust
directed
three-
which had been
the
from
abstain
court should
that this
original disposition
judge
in
in
court
in
to
merits
order
a determination
Accordingly,
three-
the
March 1973.
opportunity
courts an
the. state
afford
judge
plaintiff
en
held that
was
court
plaintiff’s
to meet
section 72
to construe
awarding
judgment
her back
titled to
challenge. The three-
constitutional
pay.
rejected
judge
con-
the defendants’
court
litigation,
Up
point
the
in
to this
the
tentions,
New
72 of the
declared
challenges to
in
various
defendants
the
unconstitutional,
Law
York Civil Service
plaintiff’s
made
for
never
relief
claims
taking any ac-
enjoined
from
any contention
to lack of
thereunder,
that
ordered
respect
to
a claim with
or failure
state
pay
the
for
be reinstated with
tiff
period
Following
pay.
to the demand for back
involuntary
ab-
of
leave
of her
three-judge
ruling that
court’s latest
the
sence.2
plaintiff
moot,
action was not
the
which,
Supreme
August
proposed judgment
Upon appeal,
va
a
Court
1975
matters,
among
judgment
the state
other
declared
cated the
remanded
unconstitutional,
plain
directed
of
for further consideration
statute
case
(which
light
already
process
of its deci
issue in the
tiff’s reinstatement
due
plaintiff
to
Kennedy,
effect), adjudged
v.
entitled
in Arnett
416
sion
U.S.
(1974).3
$12,630
from
L.Ed.2d 15
recover
in back
40
94 S.Ct.
municipal
hearing
follow
defendants,
further
her
After
and awarded
holding
remand,
court,
ing
that
this
sick leave and vacation
of which
benefits
deprived during
differences between
had
there were critical
she
been
her invol
prior
untary
adhered to its
delay
Arnett and this
leave of absence. After ruling
did
by dilatory
the New York statute
that
occasioned
tactics of the Cor
process requirem poration
comply
assistants,
during
with due
not
Counsel
appeal
Upon
they
from
ents.4
defendants’
object
failed to
or consent
Supreme
determination,
Court
proposed judgment,
this
to the
plaintiff’s
of
form the
again
judgment,
time
vacated
counsel was forced
move
to
three-judge
remanding
entry
to the
judgment
the case
for the
of a
formal
ruling. Then,
court for consideration of the
effectuate this court’s
for
Supreme
during
of mootness.5 While the
the first
time
the entire course
identify
issue,
litigation,
did not
of this
municipal
the mootness
evi
defend
dently
jurisdic
ants
its remand was based
raised
issue of lack of
plaintiff
respect
to tion
fact
had been reinstated
to the
claim
three-judge
position.
pay.
opposing plaintiff’s
for
former
In
Department
Department
Services,
1. Snead v.
Services,
Social
Snead v.
Social
351
of
389
F.Supp.
(S.D.N.Y.1972).
F.Supp.
(S.D.N.Y.1974).
1300
935
Department
Services,
5. 421
Snead v.
Social
L.Ed.2d
F.Supp.
(S.D.N.Y.1973).
Depavtment
Services,
6. Snead
40 L.Ed.2d
S.Ct
Social
(S.D.N.Y.1975).
F.Supp.
Constitution,
they
laws, or trea-
judgment,
re
under the
entry of
motion for
States.”
ties of
United
to dismiss
motion
an earlier
newed
ago,
years
three
denied almost
alleged
deprivation
plaintiff
Since
moving
to Rules
dismiss
now
rights
dam-
and her
her constitutional
12(h)(3)
the new
12(b)(6)
$10,000,
age
there
excess
claim was
jurisdic
lacks
“grounds that the Court
had “fed-
can be no doubt
grant
for dam
plaintiff’s claim
question”
of her claim
eral
they
Essentially
urge,
in reli
ages.”
section.
under
v. Bruno
Kenosha
ance
position
Defendants’
is that
municipalities
Pape,8 that
Monroe v.
and
may
having
been awarded a
declar-
equitable re
liable
not
held
ing
and hav-
section 72 unconstitutional
violation
in an action
lief or
ing
job,
to her
the court
been reinstated
U.S.C.,
rights
of civil
*4
thereby
jurisdiction
had
its
exhausted
was without
the court
and hence
jurisdiction
subject
and had no
matter
28
under
jurisdiction
a -claim
over such
claim,
wage aspect
over
of her
the back
accepting
U.S.C.,
But
section 1343.
“arising
one
under” the
since it was not
nonliability
munici
of the
principle of
Constitution or
laws of
the United
provisions
those
pal
under
This effort
to truncate
States.
pre
question now
does not resolve
jurisdiction
respect to the
court’s
case,
in
its
which from
sented in this
ception
claim after
generated
own facts.
has
tiff’s favor
fail.
must
Preliminarily,
municipal
it is observed that this
defendants’ chal
rights
lenge
damages
is not a civil
class action.
While
to an award of
grant
Congress
expressly
asserted a claim under
the Civil
did not
Rights Act,
U.S.C.,
power
42
section
hear
a cause
district court
such
respect
alleged jurisdiction
premised directly
thereto
of action
U.S.C.,
argument
under
1343(3)
sections
and Fourteenth Amendment. The
(4),
Congress
proceeds
she did not confine her claim or
affirma
further
jurisdiction
provisions.
tively
to those
Plain-
created such
cause of action to
tiff, aggrieved by
suspension
her
aas
Amendment when
enforce the Fourteenth
employee, charged
passed
Rights
Civil Service
that the
it
of
the Civil
Act
(now U.S.C.,
1983),
state statute was void for
denial
her
and since
right
process
right
predi
to due
under the Four-
it
no
of action
created
other
directly
teenth
leged
Specifically,
Amendment.
she al-
cated
Amend
Fourteenth
“seeking
jurisdiction
the action was one
ment there
no
under sec
deprivation
sum,
express
redress for the
con-
tion
absent an
1331—in
[her]
rights,
congressional
stitutional and civil
the matter
to award
authorization
damages
exceeding
in controversy
the value of
for a
of Fourteenth
violation
$10,000,
rights,
ju
exclusive of interest and costs.” Amendment
the courts lack
Thus,
aspect
she
risdiction to make
an award.
such
grounded
squarely
jurisdiction on sec-
This
the distinction
blurs
1331(a),
provides:
subject
jurisdiction
between
matter
orig-
“The district courts shall
failure to state
claim.
It runs direct-
have
ly
principles
inal
of all
afoul of
civil actions
announced
plaintiffs sought
controversy
wherein the matter in
Bell v. Hood9
ex-
There
alleged
$10,000,
ceeds the sum or
violations of their
value of
ex-
costs,
rights
clusive of
under
Fourth and Fifth
interest and
and arises
327 U.S.
S.Ct.
ed jurisdiction. matter The Su- holding This was reaffirmed in Wheel preme reversed, holding: Wheeler,12 recently din v. adopted complaint, here, is here the Circuit in “[W] Second a case cited directly recovery- parties so drawn as to seek which considered but did not pass upon very under the Constitution or laws raised here— States, implied right United federal court whether there is an to dam ages . . . must entertain-the suit. the Fourteenth Amendm
ent.13
reliance
The defendants’
not de-
...
“Jurisdiction
Supreme
Bruno,14 the
Kenosha
contend,
respondents
feated as
seem to
recognized
ruling which
latest
Court’s
*5
by
possibility
the
the averments
that
a
municipality
from
immune
is
that a
might fail
of
to state a cause
action
Rights
Act
claim under the Civil
petitioners
actually
on which
re-
could
juris-
consequently
lacks
that
the Court
cover. For it well settled that
the
is
1343, misplaced.
under
diction
proper
failure to state a
cause of ac-
majority
significant
re-
that
the
It
judgment
tion calls for a
on the merits
to
to the district
manded the case
and not for a dismissal
for want of
availability
consider the
of
jurisdiction.
complaint
Whether
alleged
jurisdiction,
but
which had been
states a cause of
on
action
which re-
by
Ad-
passed upon
the court below.
not
granted
lief
could be
is a
of
ditionally,
Brennan,
in his
Mr. Justice
just
law and
as issues of
it must
fact
concurrence,
joined
Mr.
in
Justice
be decided after and not
before
Marshall, stated:
jurisdiction
court has assumed
over the
allega-
prove
controversy.
appellees
“If
can
their
If the court does later ex-
$10,000
jurisdiction
ercise
least
is in contro-
that at
to determine
versy,
allegations
jurisdiction
complaint
that
is avail-
in
then
§
ground
Hood,
relief,
do not
Bell
[66
state a
able.
stated in Bell v. to “the failure proper $10,- state a of action calls for a cause was excess Plaintiff’s claim judgment merits,” litigant sought on the recovery a viola- then a 000 and permitted should rights. not be to The raise such tion of her constitutional failure after a determination to hear and deter- court had 1331(a).16 support merits. This finds in Rule view mine the suit under section 12(h) (2) of the Federal Rules of Civil Procedure, provides de- “[a] Although express the defendants now fense of failure to state a claim ly any upon plain disavow attack “based granted which relief can be allege tiff’s failure facts sufficient to may any pleading be made . action,” state a cause of in view of history judgment plead- of this case this or branch of the motion for ings, motion put also should be or at resolved and trial on the merits.” First, to rest. clear to the extent that at thrust of the Rule is that a failure City’s tack is any a renewal state a claim earlier be raised at dismiss, may properly disposition motion to time on the merits before comply denied for Any but not failure to with Local other construction after. 9(m) only General Rule would delay, .18 not But there add to are ad intolerable weightier ditional uncertainty validity reasons for its but create as to the denial. of a final on the merits. stage post-judgment
Finally, at this
hold,
litigation,
as-
long-drawn
of this
Plaintiff’s
claim for back
correct,
suming
are
very
wages
from its
in the case
has been
*6
for
a claim
plaintiff
failed to state
has
in
three-judge court
inception,
the
and
for
wages
defendants
reward
12,1973 back
would
original disposition on March
its
Upon
plaintiff.
penalize
dilatoriness
plaintiff
reinstated
that
be
“ordered
conceded
the
defendants
period
her involun
pay
for the
back
tary
27,
action dismissed
that were this
On March
of absence.”
leave
an
required
anew
to commence
tiff now
plain
1973, municipal
recovery of
court for
action
the state
pay
stipulated
award
“that the
tiff
unpaid
wages, the claim would
deposition
stayed pending
final
be
by
of limitations.
barred
statute
adjudicated
appeal
de
of the
of the
[sic]
recognition
claim
that a
Accordingly,
cision.” The
hold that defendants
we
allowed,
made and
objection
been
had
for back
waived their
have
379,
556,
U.S.App.D.C.
n.13
512 F.2d
15. Id.
at 2228.
16. It
is not without
interest
to
note
Municipal
Supplementary
Defendants’
Agents,
v.
Bivens
Six Unknown Fed. Narcotics
note, however,
Memorandum at 5. We
L.Ed.2d 619
the defendants’ notice of motion does refer
(1971),
upheld
damages
which
a claim for
12(b) (6),
governs
to Rule
which
motions for
based
a violation of Fourth Amendment
“failure
to
a
state
claim
which relief
rights,
jurisdiction was asserted under
granted.”
can be
very
by
sections relied on
here.
jurisdiction
upheld
The Court
under section
9(m)
requires
18. Rule
that a notice of motion
1331(a),
but noted that neither
reargument
28 U.S.C.
for
days
be served within 10
1343(3)
1343(4),
§
nor 28 U.S.C.
filing
§
com
of the court’s determination
of the
support
bined with 42 U.S.C.
original
§
would
City’s
motion.
The
“renewal” mo-
jurisdiction
damage
over the
claim.
also
See
gap
tion
years.
here followed a
of almost three
Greenya
George Washington Univ.,
v.
fails to
a
of action
state
cause
to section 5 of the Four
damages.19
enacting
The
motion teenth Amendment. But in
sec
entry
granted.
Congress
rejected
relief
against municipalities.4
Bivens
Hence
(concur-
MULLIGAN,
Judge
Agents,5
Named
Circuit
Six Unknown
distinguish
ring
result):
Fourth Amendment
spe
able. In Bivens
also were “no
there
agree
majority that
I cannot
counselling
in the
cial factors
hesitation
jurisdiction under
has
section
absence of affirmative action
gress,”
Con
damages
to
for a violation of
award
explicit
and there was “no
con
rights.
Fourteenth Amendment
Since
gressional
persons
declaration that
in
expressly
municipalities
excluded
are
jured by federal officer’s violation
Congress
liability,1
from section 1983
the Fourth Amendment
not recov
hardly
could
them to be
have intended
money
agents.”7
er
from the
included in a Fourteenth Amendment
special
In this case there is a
factor
predicated
action
section
counselling hesitation, namely, the fis
general
federal
section. The
sorely
vulnerability
pressed
cal
of a
mu
legislative background
of section
nicipality,
explicit language
and the
Lynch
which is discussed in
v. House
limiting
liability
“per
to
Corp.,2 hardly
hold Finance
indicative
sons,” which has been construed not to
congressional
of a
intention to create a
encompass municipalities.
jurisdictional
against
base for actions
I would hold instead that we have
municipalities
directly
founded
pendent
plain
here. The
Constitution.
tiff does have a
state cause of action
Amendment,
wages following
the Fourth
Unlike
recover back
an im
explicit provision proper
Fourteenth contains an
dismissal.8
feder
The state and
(section
Congress
power
5) giving
al claims here arise out of a “common
appropriate legislation.
pred
enact
operative
nucleus of
fact” and
cer
(and
jurisdic
tainly
ecessor of section
judicial
inis
the interest of
econ
1343)
predicate,
omy
tional
sec
dispose
together.9
of the claims
Rights
tion 1 of the Civil
Act of
argue
The defendants
that the claim has
Congress expressly
was en
stated
been
raised
plaintiffs,
too late
but
provisions
they
acted to enforce the
of the
juris
themselves did not raise the
Fourteenth Amendment.3 Thus section
stage
dictional issue until this
product
congressional
litigation.10
1983 is ac*
majority opinion
As the
*7
Richard
v.
S.
538,
Albert
Co.
546-48,
19.
C.
Sauter
2.
1113,
See
405 U.S.
92 S.Ct.
L.
31
(E.D.Pa.
501,
Co.,
F.Supp.
(1972).
511
368
Sauter
Ed.2d 424
414,
Carpenter,
1973).
274 F.2d
v.
Smeed
Cf.
3.
Carter,
District
Columbia v.
409
Green,
1960) ;
(9th
Munson Line v.
Cir.
418, 423,
602,
(1973).
93 S.Ct.
notes, equities are pendent question of plaintiff; since discretion our is one within entertain,11 account take we should already delay suffered hardship argument that here. by res pendent jurisdiction is foreclosed
judicata state because the been, litigated already claims have specious,
dismissed New York since
it is clear that the New York dismissal12
was for failure to exhaust administra
tive remedies. That not bar sub would sequent state action on the merits. Since. already
we have determined that section
72 of the New York Civil Service Act is
unconstitutional, wages the claim for back properly
should be determined
here. Tenn., Adams, Jr., Memphis, B.
Ural plaintiffs. Mitchell, George WEBSTER and Willie Individually and on of all sim- behalf ilarly Plaintiffs, situated, ORDER ON MOTION FOR SUMMARY JUDGMENT GROCERS, INC.,
LIBERTY CASH Defendant. Judge. McRAE, District Civ. A. No. C-74-609. employment discrimination This an Court, United States District brought by George Webster action Tennessee, W. D. W. D. Mitchell, of themselves on behalf Willie June against similarly situated and all others Liberty to U. Cash Grocers 2000e-5(f) and 42 U.S.C. §§
S.C. § before and 1986. Now Motion Defendant’s is the for Sum- or in the Alternative Dismiss Judgment nine- mary based period in the ty day contained limitation statute, 2000e- 42 U.S.C. § title VII 5(f)(1)- *8 VII statute Because the title brought
requires that a civil action aggrieved days the time an within 90 ef party that conciliation receives notice the record failed and because forts have Plain- to the contains letters in this case Aug. 11, N.Y.L.J., at 2. Gibbs, supra, 12. Mine Workers 11. United at