Summary
In Lucas, the plaintiff "presented supporting operative facts tending to show agreement and concerted action between the private party and the state actors" and "alleged particular concrete facts" to support an inference of a conspiracy. Id. at *4-5 (internal quotation marks and alterations omitted).
Summary of this case from Vazquez v. CombsOpinion
01 Civ. 5445 (GEL)
December 17, 2002
Attorney for Defendant: Neil J. Lucas. pro se
Attorney for Defendants: Denis P. Kelleher, New York, NY, for Defendants Cortney and Robert Novogratz
OPINION AND ORDER
Plaintiff Neil J. Lucas, appearing pro se, brought this civil rights action against Cortney and Robert Novogratz, the City of New York Police Department, and two individual police officers, in connection with two arrests of plaintiff made by the police after the termination of his business relationship with the Novogratzes in early December 1998. The Novogratzes move for dismissal of the complaint as to them on various substantive and procedural grounds, as well as for leave to amend their answer. The motion will be granted in part and denied in part.
BACKGROUND
The to following facts are taken from plaintiff's complaint, and must be taken as true for purposes of this motion. Lucas is a building contractor who, in August 1998, entered an oral agreement to perform demolition and renovation on defendants' property at 22-24 Thompson Street in Manhattan's SoHo area ("the site"). Unfortunately, the business relationship embodied in this construction contract proved less durable than the structure that was its subject; it quickly soured, and by early December of 1998, had collapsed entirely. Although the parties met and executed mutual releases on December 15, one of which purported to relieve Lucas of criminal as well as civil liability, the hostilities continued.
On December 28, 1998, Lucas was arrested and incarcerated on a warrant issued pursuant to a harassment complaint made by defendant Cortney Novogratz. That complaint alleged that Lucas had, during a four-month period ending December 4, made a number of threatening telephone calls to Ms. Novogratz. Lucas pled guilty in New York County Supreme Court on January 4, 1999, and was sentenced to time served. In addition, the court entered a three-year permanent order of protection enjoining Lucas from having any contact with the Novogratzes.
The second arrest was the result of an alleged violation of that order of protection. Lucas alleges that, after he ceased work at the site, the Novogratzes hired other contractors to continue construction, and that those contractors undertook the work using a Department of Buildings ("DOB") permit issued to Lucas, which Lucas had already informed the DOB should be revoked. On December 21, 1998, Lucas filed a citizen's complaint alerting the Environmental Control Board ("ECB") to the unauthorized work. The ECB issued a Notice of Violation the same day and scheduled a hearing for February 18, 1999.
Unsurprisingly, both Ms. Novogratz and Lucas attended the hearing. The parties dispute whether Lucas attempted to communicate with Ms. Novogratz in the crowded hearinu room as they waited for their case to be called; Lucas asserts that he did not, and that Ms. Novogratz did not accuse him of "some sort of verbal contact in the courtroom" until the following week, after she learned that his mere presence at the hearing was not a violation of the order (Compl. ¶ 45). Lucas alleges that Ms. Novogratz, after informing police officers there that his presence was in violation of an order of protection, telephoned defendant Lieutenant Martin Druin at the First Precinct, whom the Novogratzes allegedly had called upon on several earlier occasions during their dispute with Lucas, to ask him to intervene and cause the hearing to be postponed. Lucas alleges that Druin caused him to be arrested a week later with respect to this supposed violation of the order of protection. Seventeen months later, in July 2000, that criminal complaint was dismissed on Lucas's motion under New York's speedy trial law.
Plaintiff's pro se complaint is largely devoted to his claim, under 42 U.S.C. § 1983, that the two arrests violated his Fourth, Fifth and Fourteenth Amendment rights. He also makes claims under 42 U.S.C. § 1981 and for various intentional torts under New York common law. Lucas asserts that the two arrests were made without probable cause, as a result of a conspiracy between Druin and the Novogratzes, in order to prevent him from pursuing his own remedies against the Novogratzes with respect to the disappearance of his equipment from the site and the fraudulent use of his name for various licensing and insurance purposes following termination of his employment. He also alleges that apart from those arrests, his efforts to pursue his remedies against the Novogratzes were deliberately obstructed by Druin, who on three occasions interfered with Lucas's attempts to file complaints at the First Precinct.
The Novogratzes move for dismissal, contending that the complaint does not allege facts sufficient to support an inference of any conspiracy with state actors, and therefore fails to meet, as to them, the state action requirement for a suit under 42 U.S.C. § 1983. They further contend that the complaint does not state a cause of action under 42 U.S.C. § 1981, because it fails to allege that their actions were based upon plaintiff's race or national origin. Moreover, assuming the federal claims must be dismissed, they seek dismissal of the pendent state law claims for lack of subject-matter jurisdiction. Finally, the Novogratzes contend that, regard less of the substantive merits, all state and federal counts must be dismissed because Lucas (1) failed to file his claims within New York's one-year statute of limitations for the relevant torts, and (2) his claims are precluded by an unsuccessful civil action brought by Lucas against the Novogratzes in the New York State courts for breach of contract and associated business torts.
DISCUSSION
I. Standard for Dismissal under Rule 12(b)(6)
On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept "as true the facts alleged in the complaint," Jackson Nat'l Life Ins. Co. v. Merrill, Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994), and may grant the motion only if"it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998) (citations omitted); see also Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (when adjudicating motion to dismiss under Fed.R.Civ.P. 12(b)(6), the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims" (internal quotation marks and citations omitted)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the complaint as exhibits or incorporated in it by reference. Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). All reasonable inferences are to be drawn in the plaintiffs favor, which often makes it "difficult to resolve [certain questions] as a matter of law." In re Independent Energy Holdings PLC, 154 F. Supp.2d 741, 747 (S.D.N.Y. 2001).
II. Plaintiff's § 1983 Claims
Although the introductory portion of the complaint states that "This litigation arises out of the plaintiffs [sic] arrest on December 27 [sic], 1998, and again on February 18, 1999, and the preferral of charges against the plaintiff' (Compl. ¶ 3), the complaint as a whole can be fairly read to encompass additional violations of Lucas's civil rights arising out of the alleged obstruction by ruin of Lucas's attempts to file his own complaints at the First Precinct against the Novogratzes and/or their agents. Perhaps because the complaint is unclear in this respect, the Novogratzes do not address those incidents in their motion to dismiss. The Court will treat the Novogratzes' motion to dismiss as encompassing Lucas's claims relating to Druin's interference (and the Novogratzes alleged role in obtaining it), at least to the extent that their arguments with respect to the arrests are applicable.
A. Heck v. Humphrey
Defendants argue that Lucas's claims relating to his December 1998 arrest must be dismissed because under Heck v. Humphrey, 512 U.S. 477, 489 (1994), a plaintiff may not use § 1983 to collaterally attack a criminal conviction "unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Rut "a wrongful arrest claim, like many Fourth Amendment claims, does not inevitably undermine a conviction because a plaintiff can wage a successful wrongful arrest claim and still have a perfectly valid conviction." Washington v. Summerville, 127 F.3d 552, 556 (7th Cir. 1997). Thus, the Second Circuit has made clear that Heck does not preclude a claim for false arrest under § 1983 unless the sole basis for the conviction was evidence seized as a result of the illegal arrestCovington v. New City of York, 171 F.3d 117, 123 (2d Cir. 1999). That is not alleged here. Accordingly, Heck does not require dismissal of the complaint.
Lucas's state law malicious prosecution claim with respect to the December 1998 arrest however, must be dismissed. Under New York law, a plaintiff cannot succeed on a claim of malicious prosecution when the outcome of the criminal proceeding was inconsistent with innocence.Martinez v. City of Schenectady, 97 N.Y.2d 78, 84 (2001). In contrast, favorable termination of the criminal proceeding is not required for a plaintiff to succeed on his state law false arrest and false imprisonment claims. Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996).
B. Color of State Law
The Novogratzes next contend that Lucas's federal claims must be dismissed because, as private actors, they did not act under color of state law. Section 1983 creates a federal cause of action for a person who has been deprived of any federal "right, privilege, or immunit[y]" by a person acting "under color of any statute, ordinance, regulation, custom, or usage of any State." 42 U.S.C. § 1983. The requirement that the challenged action be taken "under color of" state law has both "state actor" and "state action" components. Dahlberg v. Becker, 748 F.2d 85, 89 (2d Cir. 1984). While these components "collapse into each other" when the defendant is an employee of the state acting in an official capacity, they are independent, and must be separately proved, where the defendant is a private party. Id. at 89 n. 3. There is no question that the "action" here — an arrest by officers of the NYPD — constituted state action. However, the Novogratzes contend that, with respect to their role as private complainants causing the arrests, the "state actor" requirement is not met.
Simply reporting plaintiff's presence or alleged behavior at the ECB hearing to the police truthfully or otherwise, did not make the Novogratzes state actors. Ginsberg v. Healey Car Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999) (person providing "background information" to police not subject to § 1983 liability); Moore v. Marketplace Restaurant, Inc, 754 F.2d 1336, 1352 (2d Cir. 1985) ("[P]roviding false information to an arresting officer is not, by itself, sufficient to state a claim against that private party under § 1983."). Rather, plaintiff must make factual allegations that permit the court to infer that the Novogratzes were in some way "jointly engaged with state officials in the challenged action." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (quoting Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)). For example, if plaintiff makes factual allegations that tend to show a conspiracy between the private party and the police to deny plaintiff a federal right, the private parties may be deemed to be acting under color of state law. Id.
Defendants correctly point out that "complaints containing only 'conclusory,' 'vague,' or 'general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed." Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977). By the same token, however, defendants cannot obtain dismissal by means of their own conclusory assertion that plaintiff has not made the required supporting factual allegations. Lucas has done more than merely allege a conspiracy. He has "present[ed] supporting operative facts tending to show agreement and concerted action between the private party and the state actors."Studifin v. New York City Police Dep't, 728 F. Supp. 990, 993 (S.D.N.Y. 1990). Those operative facts include the following allegations in the complaint: (a) Mr. Novogratz stated to Lucas on December 21, 1998, that he "had all his ducks in the water, and had a friend in the detective division at the First Precinct whom he was going to see" (Compl. ¶ 25); (b) sometime in January 1999 defendant Druin caused a clerk at the First Precinct to "abruptly terminate the taking" of a complaint from Lucas concerning the removal of equipment from the site (Compl. ¶ 35); (c) Druin on a later occasion informed Lucas that "plaintiff would never have a complaint involving the Novogratzes accepted at his precinct, or at any other" (Compl. ¶ 36), (d) Druin again intervened on or about January 27 1999, when Lucas attempted to file a criminal complaint at the First Precinct relating to city permits that allegedly had been fraudulently obtained under plaintiff's name, allegedly telling Lucas "that he would not allow any criminal complaints to be made that would implicate the Novogratzes" (Compl. ¶ 38-39); (e) at the February 18, 1999, ECB hearing (which apparently took place in the Seventeenth Precinct), Ms. Novogratz telephoned Druin to report that Lucas was in the courtroom, and, as a result of Druin's intervention, the hearing was adjourned (Compl. ¶ 43); and (f) the following week, Druin sent Detective Matuzak to arrest Lucas while he was hospitalized in the St. Vincent's Hospital Coronary Care Unit, notwithstanding that detectives had earlier agreed to permit Lucas to surrender voluntarily at the precinct after his discharge from the hospital (Compl. ¶ 45).
Thus, Lucas has not merely made a generally conclusory allegation of conspiracy, but has alleged particular concrete facts which, if proved, might support an inference of joint action or agreement between the Novogratzes and Druin, by which Druin exercised his state-conferred power as a police officer at the behest of the Novogratzes. See Moore, 754 F.2d at 1353 (suggesting that a § 1983 action would lie if "a customary plan existed between Mr. Schneiter and the sheriff department to arrest persons at the beckon of Mr. Schneiter"). of course, it remains to be seen whether these allegations can be proved, and even if they can be, the inference of conspiracy is hardly compelling. Nevertheless, particularly in light of the liberal reading to be given to pro se complaints, the facts alleged are sufficiently suggestive that it cannot be said with certainty that Lucas "can prove no set of facts in support of his claim which would entitle him to relief." Thomas, 143 F.3d at 36-37. Therefore, plaintiff's allegations are sufficient to state a § 1983 claim against the Novogratzes as to his arrests.
C. Jurisdiction Over State law Claims
Because Lucas has success fully stated a federal claim, the Court has supplemental jurisdiction over the state law' claims associated with his arrests, 28 U.S.C. § 1367, and the motion to dismiss those claims for lack of subject-matter jurisdiction is denied.
III. Plaintiff's § 1981 Claim
Section 1981 states that "All persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . ." 42 U.S.C. § 1981(a) (emphasis added). Thus, to state a cause of action under § 1981, a complaint must allege "facts supporting . . . defendants' intent to discriminate on the basis of race." Brown v. City of Oneonta, 195 F.3d 111, 121 (2d Cir. 1999). Plaintiff's complaint makes no such allegation of intent; indeed, it makes no reference at all to his or anyone else's race. The complaint contains no allegations suggesting that the Novogratzes had a racial motivation or even consciousness in adopting the alleged course of action. Thus plaintiff's claims under § 1981 must be dismissed.
IV. Statute of Limitations
Defendants argue that all of plaintiff's claims are time-barred under New York's one-year statute of limitations for the relevant torts — false arrest, false imprisonment, malicious prosecution, defamation, and intentional infliction of emotional distress ("IIED"). CPLR § 215(3). As to the federal claims, defendants are simply wrong; as to the state claims, their argument requires more careful analysis.
A. Federal Claims
It is firmly established that New York's residual statute of limitations of three years for personal injury actions, CPLR § 214(5), not § 215(3)'s one-year statute applicable to intentional torts, applies to federal civil rights action under § 1983. Owens v. Okure, 488 U.S. 235, 249-51 (1989); Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Both the December 1998 and February 1999 arrests occurred less than three years before the filing of this suit on June 15, 2001. Thus Lucas's § 1983 claims with respect to the arrests are not time-barred. Similarly, plaintiff's complaint is timely with respect to any federal claims he may have arising out the alleged actions of the defendants in late 1998 and early 1999 in conspiracy with state officers to obstruct him from filing complaints at the First Precinct or appearing at the February 18, 1999, ECB hearing.
B. State Tort Claims
Lucas's state law claims of "false arrest and imprisonment and malicious prosecution and intentional infliction of mental distress," however, are subject to New York's one-year statute of limitations for intentional torts. CPLR § 215(3). Although the statute by its terms applies only to certain listed torts, the New York courts have interpreted it to apply to all intentional torts. See Gallagher v. Directors Guild of America, Inc., 533 N.Y.S.2d 863, 864-65 (1st Dep't 1988) (noting that the state's appellate courts have uniformly interpreted CPLR § 215 as applying to all intentional torts, including IIED). Thus, since this action was filed on June 15, 2001, any cause of action for an intentional tort under New York law that accrued before June 15, 2000, must be dismissed as time-barred.
Causes of action for false arrest and false imprisonment accrue when the confinement terminates. Kramer v. Herrera, 576 N.Y.S.2d 736, 737 (4th Dep't 1991); Mejia v. City of New York, 119 F. Supp.2d 232, 284 (E.D.N.Y. 2000). Similarly, since "accrual of a cause of action for abuse of process need not await the termination of an action in claimant's favor," the statute of limitations expires one year from institution of the process, that is, from the arrest or complaint. Cunningham v. State, 53 N.Y.2d 851, 853 (1981). Since, following the December arrest, Lucas was not in custody after his guilty plea on January 4, 1999 (Compl. § 29), and since, following the February 1999 arrest, Lucas was held in custody for only three days (Compl. ¶ 46), the limitations periods for these three torts had all expired by the end of February 2000, long before Lucas filed this suit.
With respect to malicious prosecution, however, "A cause of action alleging malicious prosecution accrues when the action alleged to have been brought maliciously terminates favorably to the plaintiff." Scomello v. Caronia, 648 N.Y.S.2d 688, 689 (2d Dept 1996); see also Mejia, 119 F. Supp.2d at 278. As already noted, the December 1998 arrest did not terminate favorably to Lucas, precluding a malicious prosecution suit altogether. The charges leading to the February 1999 arrest, however, were not dismissed until July 2000, eleven months prior to the filing of this suit. (Compl. ¶ 47). Thus the defendant's motion to dismiss Lucas's state law malicious prosecution claim relating to that arrest must be denied.
Lucas argues that the statute of limitations with respect to the December 1998 arrest was tolled from the time he was arrested in February 1999. However, he neither states what he believes the duration of the tolling period should be, nor what the statutory or other legal basis is for tolling. New York law provides for tolling of statutes of limitations on a number of grounds. See, e.g., CPLR §§ 204(a) (stay of action by court or statutory prohibition), 207 (defendant's absence from state), 208 (infancy or insanity of plaintiff). Being arrested does not satisfy any of these tolling provisions. Nor did anything about the second arrest prevent Lucas from bringing a timely action with respect to the first.
Lucas alternatively contends that both arrests should be deemed part of a "continuing tort," in which case the limitations period runs "from the commission of the last wrongful act" — the February 1999 arrest, for which the limitations period began to run in July 2000. Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980). This claim must be rejected with respect to Lucas's claims of false arrest, false imprisonment, abuse of process and malicious prosecution. New York's continuing tort doctrine does not extend the limitations period for any continuing pattern of tortious conduct, but rather is limited to certain recognized torts that involve continuing harm. See id. ("certain wrongs are considered to be continuous wrongs") (emphasis added); Tinker v. Abrams, 640 F. Supp. 229, 231-32 (S.D.N.Y. 1986) ("New York has not extended the continuing tort . . . theor[y] to an action for abduction and intentional interference with a parent's rights to custody of her children, and it seems that New York would not do so.") While False arrest and imprisonment are recognized as continuing torts, their continuity is restricted to the period of actual restraint. See Karen v. Abrams, 444 N.Y.S.2d 381, 384 (Ct. Claims 1981) (false arrest is a continuing tort that accrues at the end of restraint).
The December 1998 and February 1999 arrests and prosecutions were separate and distinct acts that imposed separate harms on Lucas and, if wrongful, constituted discrete torts. Even if they were committed pursuant to a common scheme of plan, the torts were distinct, and Lucas was required to bring an action within one year of the earlier tort or forgo that action. Commission of a second tort a few months later does not extend the statute of limitations period for an earlier tortious act.
Although the New York case law is not unanimous on the subject, courts in this District have held that "claims for IIED that allege a continuing pattern and practice of actionable behavior may invoke the continuing tort doctrine to provide an exemption from the statute of limitations where the 'last actionable act' of the alleged course of conduct falls within the statute of limitations." Neufeld v. Neufeld, 910 F. Supp. 977, 983 (S.D.N.Y. 1996) (Motley, J.) (citing conflicting state court authority).See also Bonner v. Guccione, 916 F. Supp. 271, 274-78 (S.D.N.Y. 1996) (Cote, J.) (discussing state case law). Lucas's complaint is clearly intended to state a claim for IIED with respect to the entire course of conduct alleged (Compl. ¶¶ 45, 53, 55), and, if properly pled, this claim need not be dismissed on statute of limitations grounds as the continuing course of conduct alleged did not terminate until July 2000. The Novogratzes have not moved to dismiss the IIED cause of action for failure to state a claim, so the Court will not address whether the complaint is sufficient in that respect. Since all the events referred to in the complaint will be the subject of discovery in connection with the federal claims, this issue can be addressed at the summary judgment stage, when the factual basis of the claim of a continuing course of conduct may be clearer.
V. Res Judicata and Collateral Estoppel
Finally, the Novogratzes assert that Lucas's claims must be dismissed because he has already filed, and lost, an action in state court for fraud, forgery, negligence, and breach of contract, based on the alleged actions of the Novogratzes after the collapse of their business relationship with him in early December 1998. Defendants' assertion that the instant action arises "from the same or similar transaction and occurrences" (D. Mem. 13) is unconvincing.
The conduct of the Novogratzes alleged here — abuse of the criminal law system to further unlawful private ends — is related only indirectly to the allegations of the state court action. While the failed business relationship may be the "but for" cause of all of the subsequent troubles, the test for determining whether a lawsuit is barred by res judicata is not "but for" causation.
As defendants point out, New York uses a "transactional" test for the purposes of res judicata. O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981) ("[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy."). The "transactions" that were the subject of the state court action differ from those that are the subject of the instant action in ways more significant than the legal theories cited or type of remedy sought by the plaintiff. Arrests for harassment and violation of an order of protection are not "the same transaction" as any of the Novogratzes' alleged acts that precipitated the state court lawsuit failure to pay under a contract, negligent custody of plaintiff's equipment, and fraudulent applications for city permits and licenses.
Furthermore, the arrests and other acts complained of here are of an entirely different kind that cannot sensibly be described as forming a "series of transactions" with the business transactions alleged in the state lawsuit. The transactions here consist of the Novogratzes' alleged conspiracy with police officers to have Lucas falsely arrested in December 1998 and February 1999. They involve additional actors inflicting a kind of harm entirely different from the economic harms that were the gravamen of the state court action. Cf. Smith v. Russell Sage College, 54 N.Y.2d 185, 193 (1981) (finding new suit barred where both suits related to events leading up to allegedly unlawful dismissal from employment and where "the chief participants [were] the same").
As to collateral estoppel, the factual issues in this lawsuit overlap only partially and peripherally with the issues central to the earlier suit. The central issues here — the relationship between the Novogratzes and Druin, the basis for the arrests, and the terms of the order of protection upon which Lucas was arrested — are all distinct from those raised in the earlier suit, which did not put into question whether there was probable cause to arrest or prosecute Lucas, but only whether the Novogratzes had breached a contract, misused a license, or wrongfully detained Lucas's property. Thus neither res judicata nor collateral estoppel require dismissal of this action.
VI. Motion to Amend Answer
Finally, defendants seek leave to amend their answer. Such leave is to be "freely given" in the interests of justice, Fed.R.Civ.P. 15(a), absent prejudice or bad faith. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). The defenses of statute of limitations and res judicata that defendants seek to add to their answer should be dealt with on their merits or lack of them; there is no reason to preclude their assertion because counsel, answering the complaint under time pressure and in the wake of the tragedy of September 11, 2001, omitted them from the initial answer. Accordingly, the motion to amend the answer is granted.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is
GRANTED as to all of plaintiff's claims under 42 U.S.C. § 1981;
GRANTED as to all of plaintiff's state law claims concerning his arrest on or about December 28, 1998, and as to his state law claims of false arrest, false imprisonment, and abuse of process concerning his arrest on February 25, 1999;
DENIED as to plaintiff's claims under 42 U.S.C. § 1983 for violation of his rights under the Fourth Amendment relating to his arrest and detention on or about December 28, 1998, and February 25, 1999, and his claims under § 1983 for violation of his rights under the First Amendment relating to the alleged obstruction of his attempts to file various complaints at the First Precinct;
DENIED as to plaintiff's claim of malicious prosecution under state law relating to his arrest on February 25, 1999, and as to his claim under state law of intentional infliction of emotional distress.
The defendants' motion to amend their answer is GRANTED.