Opinion
01 CIV. 2255 (LAK)(DF)
September 20, 2002
MEMORANDUM AND ORDER
INTRODUCTION
Defendant Solomon Boakye ("Boakye") has moved pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to amend his answer in this action to include a cross-claim against co-defendants The City of New York and Detective Raymona Williams (collectively referred to as the "City Defendants") for the amount of any judgment awarded against Boakye. The City Defendants oppose Boakye's motion to amend on the ground that the amendment would be futile. For the reasons stated below, Boakye's motion to amend his answer is denied.
BACKGROUND
Plaintiff Osvaldo Carrion ("Carrion") brought suit against Boakye, Central Parking Corporation 4/b/a Kinney System ("Kinney") (Boakye's employer), and the City Defendants, asserting claims for unlawful arrest, malicious prosecution, and violation of Carrion's civil rights under 42 U.S.C. § 1983. In the First Amended Complaint in this action, Carrion alleges that Boakye filed a false criminal complaint against him. ( See First Amended Complaint, dated August 22, 2001 ("Am. Compl."), ¶¶ 13, 17, 23.) In that criminal complaint, which was filed with the New York City Police Department, Boakye asserted that, on March 13, 2000, Plaintiff assaulted him and caused him physical injury. ( See Id. ¶ 17.) Plaintiff alleges that these charges led to his false arrest and malicious prosecution for assault. ( See Id. ¶¶ 18-19, 44.)
In its answer to the First Amended Complaint, Kinney denied all allegations and asserted cross-claims against the City Defendants and Boakye for the amount of any judgment obtained against it. ( See Answer to the First Amended Complaint, dated August 29, 2001 ("Kinney Ans."), ¶¶ 1-69.) Boakye similarly denied all allegations in his Answer to the First Amended Complaint, but did not assert any cross-claims. ( See Answer to the First Amended Complaint, dated August 29, 2001 ("Boakye Ans."), ¶¶ 1-12, 14-61.) In January 2002, the City Defendants settled all claims raised by Plaintiff against them. ( See Dkt. No. 22.)
Boakye now moves to amend his answer to include a cross-claim against the City Defendants for the amount of any judgment obtained against him. ( See Notice of Motion, dated March 6, 2002.) Boakye contends that his failure to include the cross-claim in his answer was due to "oversight, inadvertence, and excusable error." (Affirmation of Emilio Grillo, sworn to March 6, 2002 ("Grillo Aff."), at ¶ 11.) He further asserts that the City Defendants can claim no prejudice because they had notice of an existing cross-claim by co-defendant Kinney. ( Id. at ¶ 15.)
DISCUSSION
Rule 15(a) of the Federal Rules of Civil Procedure, which governs the amendment of pleadings, provides that leave to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). A "motion to amend should be denied if there is an `apparent or declared reason — such as undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.'" Dluhos v. Floating and Abandoned Vessel Known as "New York," 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
As noted above, the City Defendants argue here that Boakye's proposed amendment should be rejected as futile. An amendment is futile when the proposed new claim would not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Milanese v. Rust-oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001); see also Whimsicality, Inc. v. Battat, 27 F. Supp.2d 456, 465 (S.D.N.Y. 1998) (court may deny leave to amend where the claim to be added would fail to state a claim upon which relief may be granted); accord Lupowitz, Inc. v. Eclipse Holdings, Inc., No. 94 Civ. 2916 (DC), 1996 WL 285363, at *2 (S.D.N.Y. May 30, 1996), aff'd, 108 F.3d 1370 (2d Cir. 1997). Thus, if the proposed amended complaint would be subject to "immediate dismissal" for failure to state a claim or on some other ground, the Court will not permit the amendment. Jones v. New York State Div. of Military Naval Affairs, 166 F.3d 45, 55 (2d Cir. 1999). If, however, the party seeking to amend "`has at least colorable grounds for relief, justice . . . require[s]'" that its motion be granted. Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 783 (2d Cir. 1984) (citation omitted).
Accordingly, the Court will evaluate Boakye's motion to amend to assert a cross-claim against the City Defendants under the standards applicable to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion is based solely on the allegations in the complaint. See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The Court must accept all factual allegations in the complaint as true and "draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Ed., 131 F.3d 326, 329 (2d Cir. 1997). A claim may not be dismissed under Rule 12(b)(6) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
In this case, the City Defendants claim that Boakye's proposed amendment would fail for the following two reasons: (1) contribution is not available for claims under 42 U.S.C. § 1983, and (2) New York General Obligation Law § 15-108 prohibits claims for contribution from a joint tortfeasor who has previously settled. ( See City Defendants' Memorandum of Law in Opposition to Co-defendant Solomon Boakye's Motion to Amend His Answer, dated March 28, 2002 ("Def. Mem.") at 1.) For the reasons set forth below, the City Defendants have demonstrated that Boakye's proposed cross-claim would not survive a motion to dismiss, and thus should not be allowed.
A. Section 1983 Does Not Provide a Right of Contribution.
The City Defendants first argue that Boakye has no right to contribution under 42 U.S.C. § 1983. (Def. Mem. at 1.) This argument proceeds on the assumption that Plaintiff is seeking damages from Boakye under Section 1983, which establishes liability for "any person who, under color of state law, subjects [an] individual to the deprivation `of any rights, privileges, or immunities protected by the Constitution or laws of the United States.'" Koch v. Mirza, 869 F. Supp. 1031, 1036 (W.D.N.Y. 1994) (quoting 42 U.S.C. § 1983). Boakye argues that he cannot be liable under Section 1983 because he was not acting under color of state law in connection with the events alleged in the complaint. ( See Affirmation in Reply of Emilio Grillo, sworn to April 4, 2002 ("Grillo Reply Aff."), ¶¶ 6-8, 14-15.) Regardless of whether Boakye will ultimately prevail on that argument, the City Defendants are correct that, if plaintiff were awarded a judgment against Boakye for a Section 1983 violation, Boakye would not be able to seek contribution from the City Defendants for the amount of that judgment.
Boakye's motion is properly analyzed in terms of contribution, rather than indemnification. Indemnification is only appropriate when there is either an express or implied agreement between parties. See Rosado v. Proctor Schwartz, Inc., ¶¶ N.Y.2d 21, 23-24, 494 N.Y.S.2d 851, 853 (1985) (Under New York law, "contribution arises automatically when certain factors are present and does not require any kind of agreement between or among the wrongdoers," whereas indemnity "arises out of a contract which may be express or may be implied in law."); Burma Media, Inc. v. Blumberg, 97 Civ. 7167 (RWS), 1999 U.S.Dist. Lexis 9240, 19-20 (S.D.N.Y. June 17, 1999) ("[C]ontribution and indemnification are different claims governed by distinct legal regimes."). Here, there is no indication that Boakye has any express or implied agreement with the City Defendants that would entitle him to indemnification.
Section 1983 does not provide an express right to contribution. See Mason v. City of New York, 949 F. Supp. 1068, 1079 (S.D.N.Y. 1996) ("there is no right to contribution under § 1983"); Rosado v. New York City Housing Authority, 827 F. Supp. 179, 183 (S.D.N.Y. 1989) (same); see also Harris v. Angelina, 31 F.3d 331, 338 (5th Cir. 1994) (noting that most courts have found no right to contribution under § 1983). In considering whether state law contribution claims should nonetheless be allowed in Section 1983 cases, some courts have looked to 42 U.S.C. § 1988, which provides that state law may be invoked when the federal law is "deficient in the provisions necessary to furnish suitable remedies," and where the state law provides a remedy that is not inconsistent with federal law. See Mason, 949 F. Supp at 1079.
The threshold question in this analysis is whether the state law in question would actually provide for contribution in the circumstances presented. While New York generally allows contribution claims under Section 1401 of the New York Civil Practice Law and Rules, New York does not permit such claims to be asserted against any defendant that has already settled with the plaintiff, see New York General Obligation Law § 15-108, as discussed further below. Because Boakye seeks to assert a contribution claim against the City Defendants, which have already settled with Carrion, state law does not provide a remedy here. Thus, neither Section 1983 itself nor Section 1988 provides Boakye with a basis for his proposed cross-claim.
B. New York General Obligation Law § 15-108 Prohibits a Claim For Contribution From Joint Tortfeasors Who Have Already Settled.
Most courts to have addressed the issue have also held that contribution claims are "inconsistent" with the deterrence policy of Section 1983, and thus should not, in any event, be permitted under Section 1988 (which requires that any state laws used to remedy federal civil rights violations be consistent with federal law). See Mason, 949 F. Supp. at 1079 (declining to apportion liability among defendants because "permitting a right to contribution . . . would weaken § 1983's deterrent value."); see also Dobson v. Camden, 705 F.2d 759, 765 (5th Cir. 1983), rev'd on other grounds by 725 F.2d 1003 (5th Cir. 1983) (reasoning that if a person violates Section 1983 without being made to pay the costs there will be no incentive for socially correct behavior in the future).
If Carrion's claims against Boakye arise under state tort law, then New York General Obligation Law § 15-108 comes into play directly to prohibit Boakye's claim for contribution from the City Defendants. This statute provides, in relevant part:
(a) Effect of release of or covenant not to sue tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil procedure law and rules, whichever is greatest.
(b) Release of Tortfeasor. A release given in good faith by the injured person to one tortfeasor as provided in subdivision (a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice laws and rules.
N.Y. Gen. Oblig. Law § 15-108.
Here, the settlement between the City Defendants and Plaintiff relieves the City Defendants from liability to co-defendant Boayke. Under New York law, any recovery by Plaintiff against Boakye will be reduced by the amount of Plaintiff's settlement with the City Defendants or by the City Defendants' equitable share of that recovery, and Boayke is barred from seeking contribution from the City Defendants. See Conrad v. Beck-Turek, LTD, Inc., 891 F. Supp. 962, 965-66 (S.D.N.Y. 1995) ("Upon a pre-trial release from liability, § 15-108 extinguishes any claim for contribution against the settling tortfeasor."); see also Marcroft v. Carvel Corp., 120 A.D.2d 651, 651, 502 N.Y.S.2d 245, 245 (2d Dep't. 1986) ("prior settlement released the third-party defendants from any further liability for contribution").
Section 15-108 was enacted to "promote settlements in multiple-party tort cases." Rock v. Reed-Prentice Division of Package Machinery Co., 39 N.Y.2d 34, 41, 382 N.Y.S.2d 720, 723 (1976); see also Noble v. Ambrosio, 151 Misc.2d 276, 284, 574 N.Y.S.2d 234, 240 (N.Y.Sup.Ct. 1990) ("§ 15-108's purpose is to encourage settlement by wrongdoers."). The New York Legislature enacted Section 15-108 in response to the negative effect contribution rights had on settlement. Orsini v. Kugel, 9 F.3d 1042, 1046 (2d Cir. 1993) ("The Legislature recognized that contribution rights might have the unintended consequence of inhibiting out-of-court settlements, and therefore enacted . . . § 15-108 to limit the right to recover contribution after settlement."). Subdivision (a) assures plaintiffs that settlement with one tortfeasor will not release other tortfeasors from their own liability for damages, while subdivision (b) assures settling tortfeasors that they will not be liable to other non-settling tortfeasors for contribution. See Rock, 39 N.Y.2d at 41, 382 N.Y.S.2d at 723.
Boakye does not challenge the applicability of Section 15-108, except to argue that he can "find no ` good faith' release by the injured person" relieving the City Defendants from liability, as required by Subdivision (b) of that section. ( See Grillo Reply Aff., ¶ 11) (emphasis in original). There is no evidence in the record, however, to suggest that the release given by Plaintiff to the City Defendants was not made and given in good faith. In settling this action, the City Defendants have essentially "[bought their] peace," Conrad, 891 F. Supp. at 966, and are thereby safe from any claims for contribution. Accordingly, Boakye's proposed cross-claim for contribution is barred by Section 15-108, and his motion to amend is therefore futile.
CONCLUSION:
For the foregoing reasons, Boayke's motion to amend his complaint to include a cross-claim against the City Defendants is denied.