Greenberg v. Mynczywor
| Decision Date | 31 July 1987 |
| Docket Number | Civ. No. 86-56-D. |
| Citation | 667 F. Supp. 901 |
| Court | U.S. District Court — District of New Hampshire |
| Parties | Gerald E. GREENBERG, et al. v. Thomas MYNCZYWOR, et al. |
David J. KillKelley, Laconia, N.H., for plaintiffs.
Malcolm R. McNeill, Jr., Dover, N.H., for Finethy.
Mark F. Weaver, Manchester, N.H. for Thomas Mynczywor and Town of Alton.
Jerome H. Grossman, Rochester, N.H. for Town of Alton.
Plaintiffs Gerald and Anna Greenberg bring this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1988 against three defendants: the Town of Alton, New Hampshire, a municipal corporation ("Alton"); Thomas Mynczywor, in his official capacity as Alton Chief of Police and in his personal capacity; and Dean Finethy, an individual. Plaintiffs allege that these defendants conspired to criminally prosecute Mr. Greenberg in order to force him to pay a disputed debt and that the prosecution culminated in his wrongful arrest, thereby infringing his civil rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and unspecified state constitutional and statutory law. Plaintiffs seek compensatory and enhanced damages, attorneys' fees, expungement of Mr. Greenberg's file from police records, and costs. Subject matter jurisdiction is alleged by way of 28 U.S.C. §§ 1331, 1343, and 1441;1 the Court's power of pendent jurisdiction, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); and diversity jurisdiction, 28 U.S.C. § 1332, the parties being diverse and the amount in controversy exceeding $10,000 exclusive of interest and costs.
Two motions are before the Court. Plaintiffs have moved to amend their complaint under Rule 15(a), Fed.R.Civ.P., and defendants Alton and Chief Mynczywor have moved for dismissal of the claims against them or for summary judgment in their favor under Rules 12 and 56, Fed.R. Civ.P. As defendant Finethy has neither objected to plaintiffs' motion nor joined in his co-defendants' motion, hereinafter in this Order the term "defendants" will refer only to Alton and Chief Mynczywor. The Court resolves the motions on the documents as filed. See Rule 11(g), Rules of the United States District Court for the District of New Hampshire.
On or about June 16, 1984, plaintiffs rented a house located in Alton, New Hampshire, for a monthly rental of $400. In the course of this transaction and at other times pertinent to this litigation, plaintiffs dealt with Dean Finethy, agent and caretaker for Kristen Zani, owner of the property.2
On March 2, 1985, Mr. Finethy was notified by the local utility company that it was about to shut off service to the house because the utility bills were unpaid. According to defendants, upon receipt of this notice Mr. Finethy realized for the first time that the Greenbergs were no longer residing in the Zani house and that they had left town owing four months' rent, a total of $1,600. He reported such to Chief Mynczywor, informing the Chief that the Greenbergs had given no prior notice of their intent to leave. Several days later, Mr. Finethy also informed Chief Mynczywor that the Greenbergs could be found in Putney, Vermont.
Mr. Greenberg disputes this version of events. He alleges that he and his wife experienced serious and unremitting problems with the house which rendered it effectively uninhabitable and that, despite being informed of the problems, Mr. Finethy and Ms. Zani did nothing. Mr. Greenberg alleges that he had informed Mr. Finethy of the impending termination of the lease approximately ten days prior to the date they left and that they had at the same time apprised Mr. Finethy that they were disputing the amount of rent due because of the problems they had experienced. Affidavit of Gerald E. Greenberg ("Greenberg Affidavit") at 1-2.
Allegedly ignorant of the rental dispute, and acting on the information supplied him by Mr. Finethy, Chief Mynczywor sent a letter to the Putney, Vermont, Police Department requesting that department to supply information about the Greenbergs and to "advise him Mr. Greenberg that complaints or warrants will be forthcoming unless he makes payment to Mr. Finethy." Letter from Thomas Mynczywor to Chief of Police, Putney, Vermont (Mar. 12, 1985). A Vermont deputy sheriff visited the Greenberg residence in Putney and advised Mr. Greenberg to contact Chief Mynczywor and the Alton Police Department, which he did the following morning.
Chief Mynczywor was absent when Mr. Greenberg called. Mr. Greenberg asserts that he spoke with a representative of the department and was told that there was concern over the back rent due on the Zani premises, but no warrants were outstanding and he would be contacted if problems arose. Greenberg Affidavit at 3. Mr. Greenberg made no further attempt to contact the Alton Police, id. at 3-4, and Chief Mynczywor made no attempt to return Mr. Greenberg's call or otherwise contact him. Greenberg Affidavit, Attachment A (Deposition of Thomas Mynczywor) hereinafter "Chief Deposition" at 31-34. On March 25, 1985, having conducted no further substantive investigation of Mr. Finethy's allegations, Chief Mynczywor drafted a complaint, supporting affidavit, and arrest warrant charging Mr. Greenberg with the New Hampshire crime of Theft of Services, New Hampshire Revised Statutes Annotated ("RSA") 637:8 (1986), a Class A felony. Chief Deposition at 33-34, 44-46.3 The complaint was signed by the Alton Town Clerk, sent to the Windham County Sheriff, and, pursuant thereto, on April 9, 1985, Mr. Greenberg was arrested, booked, and jailed in Brattleboro, Vermont.
On June 17, 1985, a Belknap County grand jury indicted Mr. Greenberg for violation of RSA 637:8. On September 9, 1985, the charges were dismissed by New Hampshire Superior Court Justice William Cann on Mr. Greenberg's motion to dismiss. This litigation followed.
The complaint in the instant action was filed on February 3, 1986, and alleges three causes of action. Plaintiffs' "First Cause of Action" ("Count I") is brought against Chief Mynczywor and Dean Finethy and is a state law claim for malicious prosecution. Plaintiffs' "Second Cause of Action" ("Count II"), also brought against Chief Mynczywor and Dean Finethy, combines federal claims arising out of alleged violations of the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution with pendent state claims arising out of alleged violation of unspecified New Hampshire statutory and constitutional law. Plaintiffs' "Third Cause of Action" ("Count III") is brought against the Town of Alton on a theory of liability based on inadequate training of police personnel, combining the same federal and state claims asserted in Count II. Finally, although not entitling such as a cause of action, the complaint asserts a claim under state law for Mrs. Greenberg's alleged loss of spousal consortium, which claim the Court hereinafter refers to as "Count V".
On June 15, 1987, the deadline for filing pretrial materials, plaintiffs filed a motion pursuant to Rule 15(a), Fed.R.Civ.P., seeking to amend their complaint to add factual allegations to Count II and to assert, under the state law doctrine of vicarious liability, a "Fourth Cause of Action" ("Count IV") against the Town of Alton for Chief Mynczywor's alleged negligence. Defendants object on the basis that the close of discovery and the length of time since the complaint was filed would cause them undue prejudice were the Court to grant plaintiffs leave to amend.
The decision to grant or deny a Rule 15(a) motion to amend lies within the sound discretion of the district court, Tiernan v. Blyth, Eastman, Dillon & Co., 719 F.2d 1, 4 (1st Cir.1983), but within limits: it is mandated that leave to amend "shall be freely given when justice so requires," Rule 15(a), Fed.R.Civ.P.; Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Amendments are not to be denied solely on the basis of delay. Carter v. Supermarkets Gen'l Corp., 684 F.2d 187, 192 (1st Cir.1982). However, a district court must consider prejudice to the opposing party; if considerable delay has occurred, the burden shifts to the movant to show a valid reason for the Court to excuse the delay. See, e.g., id; Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983).
In the instant action there was no undue delay. Discovery closed on June 1, 1987, and plaintiffs filed their motion within two weeks, prior to the deadline for filing pretrial materials. Furthermore, considerations of delay aside, defendants will suffer no prejudice by the granting of leave to amend because the amendments here sought raise no new issues.
The first requested amendment entails adding an allegation to Count II that Chief Mynczywor was, as Police Chief of Alton, the official policymaker in Alton vis-a-vis police procedures. This issue was not only impliedly raised in the pleadings, but was addressed by defendants in their memorandum. See Defendants' Memorandum of Law in Support of Motion to Dismiss and for Summary Judgment at 5 (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791, reh'g denied, 473 U.S. 925, 106 S.Ct. 16, 87 L.Ed.2d 695 (1985)).
Plaintiffs' second requested amendment posits an additional legal theory of liability, but imposes no evidentiary burden upon defendants they do not already face. In the Count IV here sought to be added by amendment, plaintiffs seek to charge Alton with liability for Chief Mynczywor's alleged negligence based on the doctrine of vicarious liability and state law theories of imputed negligence and respondeat superior. However, inasmuch as a requisite element of vicarious liability is the existence of an underlying tort (in this instance, Chief Mynczywor's alleged negligence), see, e.g., S. Speiser, K. Krause & A. Gans, ...
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