Sweeney v. Abramovitz

• Decision Date: 13 March 1978
• Docket Number: Civ. No. N-77-467.
• Citation: 449 F. Supp. 213
• Court: U.S. District Court — District of Connecticut
• Parties: Michael SWEENEY v. Robert ABRAMOVITZ.

449 F. Supp. 213

Michael SWEENEY v. Robert ABRAMOVITZ.

Civ. No. N-77-467.

United States District Court, D. Connecticut.

March 13, 1978.

Donald G. Walsh, New Haven, Conn., for plaintiff.

John R. Williams, Williams, Wynn & Wise, New Haven, Conn., for defendant.

RULING ON MOTION TO REMAND

NEWMAN, District Judge.

This motion to remand a suit removed from state court appears to present an issue of first impression as to the jurisdiction of a federal court to hear a claim for malicious prosecution of a civil suit, where the prior suit had been brought pursuant to a federal statute.

The dispute stems from an incident in which Michael Sweeney, a New Haven police officer and respondent on this motion, arrested Dr. Robert Abramovitz, the petitioner. Thereafter Abramovitz sued Sweeney and others in this Court, alleging essentially a cause of action under 42 U.S.C. § 1983 for an illegal arrest and a denial of free speech rights protected by the First and Fourteenth Amendments. At trial a jury returned a verdict for the defendants. Sweeney then brought suit against Abramovitz in the Superior Court for New Haven County, alleging that Abramovitz' civil action "was commenced and prosecuted . . . without probable cause, and with a malicious intent . . .." Abramovitz removed the second suit to this Court, and Sweeney now moves to have it remanded.

Abramovitz' reliance on 28 U.S.C. § 1443, the civil rights removal statute, is unavailing. His theories for invoking both subsections of § 1443 fail at the outset because § 1983, despite its obvious protection of civil rights, is not a law providing for "equal civil rights" within the meaning of the removal statute, Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); New York v. Galamison, 342 F.2d 255, 271 (2d Cir. 1965), at least where § 1983 is not invoked to vindicate a racially motivated denial of equal protection. See Armeno v. Bridgeport Civil Service Commission, 446 F.Supp. 553, 556 n. 1 (D.Conn. 1978).

However, the jurisdictional argument based on 28 U.S.C. § 1441(b) is far more substantial. In essence, Abramovitz alleges that this Court has original jurisdiction over Sweeney's suit because that suit arises under the laws of the United States within the meaning of 28 U.S.C. § 1331. Tested by Justice Holmes' oft-repeated formulation that "a suit arises under the law that creates the action," American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916), Sweeney's malicious prosecution suit, created by state law, seems at first blush an unlikely candidate for federal question jurisdiction. But the Holmes formulation is not exclusive, and federal jurisdiction has been recognized over causes of action created by state law where "an important question of federal law is an essential element in the case." Wright, Law of Federal Courts (3d ed. 1976) § 17 at 67.

The fountainhead for recognizing federal question jurisdiction over a state law cause of action that depends on a construction of federal law is Smith v. Kansas City Title Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921). There shareholders of a trust company sought to enjoin the directors from investing in certain federal bonds on the grounds that issuing the bonds was unconstitutional and that the directors were not authorized to invest in illegal securities. The Court considered the propriety of federal jurisdiction sua sponte and formulated the standard for a federal question as follows: "where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a reasonable foundation, the District Court has jurisdiction under this provision." Id. at 199, 41 S.Ct. at 245. The Court concluded that since the controversy depended on determining the constitutionality of a federal statute, federal question jurisdiction existed. Id. at 201, 41 S.Ct. 243.

In this Circuit Smith has been relied on for the proposition that "even though the claim is created by state law, a case may `arise under' a law of the United States if the complaint discloses a need for determining the meaning or application of such a law." T. B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir. 1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965). In McFaddin Express, Inc. v. Adley Corp., 346 F.2d 424 (2d Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 643, 15 L.Ed.2d 539 (1966), the Court reformulated the test for determining the existence of a federal question as depending on

whether the complaint is for a remedy expressly granted by an act of Congress or otherwise "inferred" from federal law, or whether a properly pleaded "state-created" claim itself presents a "pivotal question of federal law," for example because an act of Congress must be construed or "`federal common law' governs some disputed aspect" of the claim.

346 F.2d at 426.

That formulation was relied on in Ivy Broadcasting Co. v. American Tel. & Tel. Co., 391 F.2d 486, 489 (2d Cir. 1968). There plaintiffs brought a negligence and breach of contract action against an interstate carrier of telephone service regulated under the Communications Act of 1934, 47 U.S.C. §§ 151-609. After examining the regulatory scheme, the Court concluded that the duties and liabilities of interstate communications carriers should be governed by federal law, 391 F.2d at 491, and that the case therefore arose under federal law. 391 F.2d at 492.¹Ivy Broadcasting is not necessarily authority for exercising jurisdiction over the claim in this case, because all aspects of the state-created malicious prosecution claim are not necessarily governed by federal law simply because the original claim was brought pursuant to a federal statute. But the principle of Smith v. Kansas City Title Co., supra, has been applied in cases where only one aspect of the state-created claim turned on an issue of federal law.

In Chengfan Hsu v. Philippine Air Lines, 98 F.Supp. 805 (N.D.Cal.1951), plaintiff, confined in immigration quarters for a month after arriving in the United States, sued the defendant alleging that the confinement resulted from the defendant's failure to obtain admission papers for the plaintiff. The Court recognized that the cause of action was essentially a common law suit for breach of contract, negligence, or fraud but ruled that it had jurisdiction because "plaintiff's right to recover hinges upon the court's construction or interpretation of a federal immigration law." Id. at 806, citing Smith v. Kansas City Title Co., supra.

A similar result has been reached in cases where a plaintiff sues a competitor for telling the plaintiff's customers that a patent is infringed by plaintiff's products. Dal-Bac (Pty.), Ltd. v. Firma Astorwerk Otto Berning & Co., 244 F.Supp. 513 (S.D.N.Y.1965); Ostow & Jacobs, Inc. v. Morgan-Jones, Inc., 180 F.Supp. 38 (S.D.N.Y.1959). The plaintiff sues for a declaration of patent invalidity and either explicitly, as in Dal-Bac, or implicitly, as in Ostow & Jacobs, complains of unfair competition. In some circumstances, jurisdiction for the unfair competition claim would be supplied by 28 U.S.C. § 1338(b) because the unfair competition claim is joined with a substantial claim of patent invalidity for which 28 U.S.C. § 1338(a) directly supplies jurisdiction. But in Ostow & Jacobs and Dal-Bac, there was uncertainty whether the defendant sufficiently resembled a licensee of the patent owner to warrant a declaratory judgment action by the plaintiff on the patent claim. With jurisdiction over the patent claim uncertain under § 1338(a), and § 1338(b) jurisdiction therefore equally uncertain over the unfair competition claim, the courts grounded jurisdiction over the unfair competition claim directly on § 1338(a).

As Judge Dimock recognized in Ostow & Jacobs,...