Hoffman v. McNamara

• Decision Date: 06 July 1988
• Docket Number: Civ. No. B-82-391 (PCD).
• Citation: 688 F. Supp. 830
• Parties: Robert J. HOFFMAN v. Francis P. McNAMARA, et al.
• Court: U.S. District Court — District of Connecticut

688 F. Supp. 830

Robert J. HOFFMAN v. Francis P. McNAMARA, et al.

Civ. No. B-82-391 (PCD).

United States District Court, D. Connecticut.

July 6, 1988.

Emanuel Margolis, Stephen A. Finn, Wofsey, Rosen, Kiveski & Kuriansky, Stamford, Conn., for plaintiff.

David Treiber, Willimantic, Conn., for City of Willimantic and Estate of Hussey.

RULING ON MOTION TO AMEND ANSWER AND AFFIRMATIVE DEFENSES

DORSEY, District Judge.

Defendants, City of Willimantic and Estate of John P. Hussey, move to amend their answer and affirmative defenses to assert a fifth affirmative defense, to wit: "Any damages sustained by the plaintiff have been paid or satisfied, in whole or in part, by the payment of the sum of $78,000.00 to the plaintiff by co-defendants."

Plaintiff argues that, while Fed.R.Civ.P. 15 authorizes the liberal amendment of pleadings, such should not be allowed in this case because the new affirmative defense would be subject to dismissal under Fed.R.Civ.P. 12(b)(6). He argues that (1) the nature of the claimed wrongful conduct of the remaining defendants differs from that of the defendants which settled and that the remaining defendants cannot, therefore, be considered joint tortfeasors; and (2) neither 42 U.S.C. § 1983 nor Connecticut law, as allegedly made applicable under 42 U.S.C. § 1988, provides for a right of set-off.

Discussion

Rule 15(a), Fed.R.Civ.P., permits amendments absent undue delay, bad faith, dilatory motive, or undue prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979); Grand Sheet Metal Prod. v. Aetna Cas. & Sur. Co., 500 F.Supp. 904, 907 (D.Conn.1980). Amendment is left to the sound discretion of the district court, 3 Moore's Federal Practice, ¶ 15.084, and requires a balancing of the dilatory or prejudicial consequences of the proposed amendment against the policy of permitting disposition of the merits of all issues reasonably raisable in an action. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); Grand Sheet Metal Prod., 500 F.Supp. at 906. Where a motion raises claims which would otherwise be subject to dismissal under Fed.R.Civ.P. 12(b)(6), amendment need not be permitted. Emory v. Texas State Bd. of Medical Examiners, 748 F.2d 1023, 1027 (5th Cir. 1984); Marx v. Centran Corp., 747 F.2d 1536, 1550 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985).

Defendants' motion presents two questions:

1. Are the settling defendants and the non-settling defendants joint tortfeasors with respect to the injuries suffered by plaintiff?

2. If they are, under 42 U.S.C. § 1988, does federal law or state law control the question of defendants' ability to plead setoff as an affirmative defense?

A. Are the settling defendants and non-settling defendants joint tortfeasors?¹

"A right to contribution is recognized when two or more persons are liable to the same plaintiff for the same injury and one of the joint tortfeasors has paid more than his fair share of the common liability." Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 87-88, 101 S.Ct. 1571, 1578-1579, 67 L.Ed.2d 750 (1981), citing Restatement (Second) of Torts § 50, at 307-09 (4th ed. 1971) (emphasis added). Thus, when a plaintiff's injuries and his resulting injuries are divisible among the several defendants, there can be no claim of contribution or set-off. Wren v. Spurlock, 798 F.2d 1313, 1323 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987); Dobson, 725 F.2d at 1006. In this case, plaintiff's claims are not so divisible as to the respective defendants such that a clear line of distinction could be drawn between the injury caused by the settling defendants and the injury caused by the non-settling defendants. The facts which gave rise to plaintiff's dismissal from the police academy and his alleged constructive discharge from the Willimantic Police Department are inseparably linked. See Ruling on Pending Motions at 5 680 F.Supp. 504 (D.Conn.1988). Therefore, any injury he suffered as a result of the deprivation of his liberty interest without due process cannot be easily isolated from the damages claimed against the defendants who have settled.²

B. Controlling Law

Relying principally on the authority of Miller, defendants argue that under 42 U.S.C. § 1988, federal law should control whether any damages eventually awarded to plaintiff are subject to a set-off by the amount he received in settlement. Plaintiff, relying principally on Dobson v. Camden, 705 F.2d 759 (5th Cir.1983), rev'd on other grounds, 725 F.2d 1003 (5th Cir. 1984), and Johnson v. Rogers, 621 F.2d 300 (8th Cir.1980), argue that federal law is deficient on this issue and state law controls. Neither party has cited nor has the court found any controlling pronouncement from the Second Circuit Court of Appeals.

"Whether a right of contribution or setoff exists on behalf of § 1983 defendants who are jointly and severally liable is a complex, open question." M. Schwartz & J. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees, § 14.14 at 314 (1986 & Supp.1987) ("§ 1983 Litigation"). The answer begins with 42 U.S.C. § 1988 which provides, in relevant part:

The jurisdiction in civil ... matters conferred on the district courts by the provisions of this chapter ... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies ... the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause.

"This statute recognizes that in certain areas `federal law is unsuited or insufficient "to furnish suitable remedies;"' federal law simply does not `cover every issue that may arise in the context of a federal civil rights action.'" Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978), quoting Moor v. County of Alameda, 411 U.S. 693, 703, 702, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), quoting 42 U.S.C. § 1988. When federal law is deficient, § 1983 "invites federal courts to adopt state rules to further, but not to frustrate, the purposes of the civil rights act." Miller, 646 F.2d at 106.

In Miller, the court distinguished the issue discussed in Robertson—the survivability of § 1983 causes of action—by noting (1) the rule of contribution or set-off was ultimately tied to the nature of a § 1983 right; (2) federal courts had fashioned common law contribution principles as a matter of federal law; and (3) that contribution rules were not solely a matter of legislative concern. The court thus held that federal law was not deficient insofar as the law of contribution and set-off was concerned and adopted a rule allowing set-off of a jury award by the amount paid in settlement by a joint contributor.

Subsequent to Miller, the Supreme Court held that there is no right of contribution in Title VII and Equal Pay Act actions. Northwest Airlines, 451 U.S. at 90-99, 101 S.Ct. at 1580-1584. "The Court reasoned that (1) in enacting Title VII and the Equal Pay Act, Congress had no intent to create a claim for relief for contribution, and (2) it would not be appropriate to create such a claim for relief as a matter of federal common law." § 1983 Litigation, § 14.14 at 314. Thus, Northwest Airlines undercut the result in Miller. See, e.g., Northwest Airlines, 451 U.S. at 96 & n. 37, 101 S.Ct. at 1583 & n. 37 (judicial recognition of right of contribution as a matter of federal law in admiralty actions does not imply that the principle has been embraced in its entirety). Indeed, based on the authority of Northwest Airlines, the Third Circuit Court of Appeals, on remand, vacated its previous decision upholding a right of contribution as a matter of federal law in Title VII suits—a case which provided the foundation upon which Miller was based. See Glus v. G.C. Murphy Co., 629 F.2d 248 (3d Cir.1980), vacated and remanded sub nom. Retail Wholesale & Dept. Store Union v. G.C. Murphy Co., 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 rev'd on reh'g, 654 F.2d 944 (3d Cir.1981).

Most courts which have confronted the issue of contribution among joint tortfeasors in the wake of Northwest Airlines have held that no such right exists under federal law. TCI Cablevision v. City of Jefferson, 604 F.Supp. 845, 847 (W.D.Mo. 1984) (no right of contribution under federal law or Missouri state law exists under § 1983); Gray v. City of Kansas City, 603 F.Supp. 872, 874-76 (D.Kan.1985) (same applying Kansas law); Valdez v. City of Farmington, 580 F.Supp. 19, 20-21 (D.N. M.1984) (no right of contribution under federal law under § 1983); Melson v. Kroger Co., 578 F.Supp. 691, 696 n. 3 (S.D.Ohio 1983) (dicta same); see also Anderson v. Local Union No. 3, 582 F.Supp. 627, 631 (S.D.N.Y.), aff'd, 751 F.2d 546 (2d Cir.1984) (no right of contribution under federal law or New York state law exists under § 1981); but see Fishman v. DeMeo, 604 F.Supp. 873, 875-77 (E.D.Pa.1985) (right of contribution exists under federal law under § 1983).

Several other courts have approached the problem with a somewhat different test. See Dobson, 705 F.2d at 761-71, rev'd on other grounds, 725 F.2d at 1003 (finding federal law deficient and Texas' one satisfaction rule inconsistent with § 1983, the court adopts as a matter of federal common law that "a...