The court found the federal civil rights laws to be "deficient in not providing for survival." Shaw v. Garrison, 391 F. Supp. 1353, 1361 (1975). It then held that, under Louisiana law, an action like Shaw's would survive only in favor of a spouse, children, parents, or siblings.
It presents a novel question of law: Does an action a plaintiff institutes under 42 U.S.C. § 1983 survive his death despite the fact that the claim would abate under state law? We agree with the district court that it does survive and we borrow liberally from Judge Fred J. R. Heebe's reasoning in his opinion reported at 391 F. Supp. 1353. I.
Nor is there any reason to think that the Ohio statute will necessarily extinguish claims more often than the Louisiana statute. Just as Louisiana law allowed an action to survive for a year "in favor of a spouse, children, parents, or siblings," id. at 591-92, 98 S.Ct. 1991; Shaw v. Garrison, 391 F. Supp. 1353, 1361 n.13 (E.D. La. 1975) (citing La. Civil Code art. 2315 (1971)), so Ohio law also allows an action to survive against a deceased defendant's estate for two months, Ohio Rev. Code § 2117.37, and against his "heirs, next of kin, surviving spouse as next of kin, devisees, and legatees" for six months, id. § 2117.41.
As defined in Title 28 U.S.C. § 451, the phrase "court of the United States" in § 1985(2) refers only to Article III courts and certain federal courts created by act of Congress, but not to state courts. See Shaw v. Garrison, 391 F. Supp. 1353, 1370 (E.D.La. 1975), aff'd, 545 F.2d 980 (5th Cir. 1977), rev'd on other grounds sub nom., Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). Section 1985(2) encompasses conspiracies to deter testimony before a federal grand jury.
The Supreme Court of the United States, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554, having reversed the judgment of this Court of January 24, 1977, 545 F.2d 980, and having remanded the cause to this Court for further proceedings in accordance with its opinion, IT IS NOW HERE ORDERED AND ADJUDGED that the opinion and judgment of this Court of January 24, 1977 are withdrawn and vacated, and the judgment of the District Court appealed from in this cause, 391 F. Supp. 1353, is reversed, and the cause remanded to the District Court with directions to dismiss the action. Reversed and Remanded.
Nonetheless Shaw v. Garrison draws a critical distinction that tells us why the principle of Shaw v. McCorkle controls our treatment of the case at bar. Quoting from the lower court opinion, 391 F. Supp. 1353, the court distinguished between statutes regulating survival, which may entirely bar plaintiffs from ever filing suit, and statutes of limitations, which merely regulate the permissible time for filing suit. Because the hardship worked by the former is much more severe than that occasioned by the latter, inhospitable state limitations provisions will carry greater weight than inhospitable survivorship provisions, and in the normal case recourse the state limitations law will be dispositive. If federal interests are affected, they are not so severely restricted when the state limitations provision applies that we need fear the definition of those interests in state terms for purposes of choosing the applicable statute of limitations.
. The Court found that, for purposes of analyzing survival of the action applying § 1988, “[i]n actions other than those for damage to property [], Louisiana does not allow the deceased's personal representative to be substituted as plaintiff; rather, the action survives only in favor of a spouse, children, parents, or siblings.” Id. at 591 (citing Shaw v. Garrison, 391 F.Supp. 1353, 1361-1363; La. Civ. Code Ann., Art. 2315 (West 1971); J. Wilton Jones Co. v. Liberty Mut. Ins. Co., 248 So.2d 878 (La .App. 1970 and 1971) (en banc)). Because Shaw did not have a living close relative, his claims abated under Louisiana's statute. If Shaw had had a living close relative, the bad faith prosecution claim would have survived for the close relative to pursue.
But, under the first part of § 1985(2), a "court of the United States" is a federal court, not a state court, and certainly not an arbitration proceeding. See , 28 U.S.C. § 451 ; Biby v. Bd. of Regents of Univ. of Neb. at Lincoln , 338 F.Supp.2d 1063, 1076 (D. Neb. 2004) ; Shaw v. Garrison , 391 F.Supp. 1353, 1370 (E.D. La. 1975), aff'd , 545 F.2d 980 (5th Cir. 1977), rev'd sub nom. on other grounds , Robertson v. Wegmann , 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). Second, a claim for interference in a state judicial proceeding under the second part of § 1985(2) requires the plaintiff to establish a class-based animus.
Thus, the plaintiff is barred from raising a claim under the first clause of section 1985(2). The plaintiff argues that Shaw v. Garrison, 391 F. Supp. 1353 (E.D. La. 1975), relied upon by the defendants as support for limiting section 1985(2) to federal court proceedings, was reversed and is therefore inapplicable. The court agrees that the case was reversed, but the reversal concerned rights of survivorship and section 1983 actions — an issue not present in this case.
In order for a cause of action to exist under § 1985(2), clause one, the alleged conspiracy to intimidate the witnesses must have occurred in a federal lawsuit. Shaw v. Garrison, 391 F. Supp. 1353, 1369 (D. La. 1975), aff'd, 545 F.2d 980 (5th Cir. 1977), rev'd on other grounds sub nom., Robertson v. Wegmann, 436 U.S. 584 (1978); see also, McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036, n. 2 (11th Cir. 2000); Lewellen v.Raff, 843 F.2d 1103, 1116, n. 16 (8th Cir. 1988); Bradt v. Smith, 634 F.2d 796, 800-01 (5th Cir. 1981); Carter v. Church, 791 F. Supp. 298, 300 (M.D.Ga. 1992); Graves v. United States, 961 F. Supp. 314, 319 (D.D.C. 1997). Injuries that occur in state trial courts are not included under the first clause of § 1985.