Opinion
NO. 99-4910 CIVIL ACTION
August 6, 2003
MEMORANDUM AND ORDER
On October 14, 1999, Don and Theresa Adams ("plaintiffs") brought this suit, alleging that then-Mayor Edward G. Rendell ("Rendell") conspired with individual members of the Teamsters Local 115 ("Local 115") — most notably, with then-Secretary-Treasurer John P. Morris ("Morris") — to prevent plaintiffs from exercising their First Amendment right to freedom of speech at a rally held for then-President William J. Clinton ("Clinton"). They bring this claim pursuant to Section 1983 (Count I) against 1) Rendell, in both his individual and official capacities, 2) Local 115, 3) Morris, 4) Morris' Chief of Staff, Kenneth J. Woodring, Jr. ("Woodring"), 5) the International Brotherhood of Teamsters ("IBT"), and 6) a host of individual members of Local 115. Additionally, plaintiffs allege numerous pendant state law claims.
Specifically, plaintiffs allege that the individual union defendants "act[ed] individually and/or in concert with each other and with Mayor Rendell" to violate their First Amendment rights. Sec. Amd. Compl. at ¶ 86.
They include the following: 1) Kevin McNulty ("McNulty"); 2) Marc A. Nardone ("Nardone"); 3) Charlie Davis ("Davis"); 4) Heather L. Diocson ("Diocson"); 5) Norma Bottomer ("Bottomer"); and 6) Mark and Sharon Hopkins.
Those claims are as follows: 1) Defamation (Count II); 2) Invasion of Privacy/False Light (Count III); 3) Malicious Prosecution (Count IV); 4) Assault and Battery (Count V); 5) Intentional Infliction of Emotional Distress (Count VI); and 6) Civil Conspiracy (Count VII).
Currently pending before the court are the motions of Rendell, Local 115, and IBT for summary judgment on Count I of the second amended complaint, the only federal claim remaining, in which each argues that plaintiffs have failed to produce any evidence from which a rational juror could conclude that the elements of plaintiffs' Section 1983 claim have been established. Because the court concludes that plaintiffs have failed to produce any evidence from which a rational finder-of-fact could conclude that the actions of the union defendants could be attributed to the state, these motions for summary judgment will be granted as to Count I.
Factual Background
The following facts are undisputed. On October 2, 1998, President Clinton came to Philadelphia to attend a political fund-raising event at City Hall, which was arranged and hosted by Mayor Rendell. Sec. Amd. Compl. at ¶ 23. At the time of this visit, the country was in the throws of the Monica Lewinsky controversy, and the President was confronting the possibility of impeachment. Def. Exh. #19 at 111-12 (Rendell Dep.). In an effort to lift the spirits of this visiting dignitary and friend, Rendell wanted large numbers of people to greet the President as he entered and left the event. Id. Consequently, Rendell personally placed phone calls to approximately fifteen to twenty community, civic, and political organizations, asking that their members congregate along the route which the President's car would be traveling and show their support for him. Id. at 111-13. Additionally, his representatives at his request contacted an additional fifty to one hundred similar organizations. Id. at 112 ("And I must have had political people from our city committee and stuff reach out to call another 50 to 60 interest groups. . . ."); see also id. at 113 ("As I said, I must have made twenty or so calls, and I probably farmed out another hundred.").
The parties jointly-filed those exhibits that the court cites herein.
Rendell placed one of his personal soliciting calls to John Morris, the Secretary-Treasurer of Teamsters Local 115, a labor union which had a reputation for becoming embroiled in verbal and, in some instances, physical altercations, at least in union disputes. Rendell told Morris the following:
The President's advance team also placed a call to Morris seeking the presence of union members along the President's route. Pl. Exh. #2 at 2 (Woodring Aff.). An "advance team" is a group of individuals who come to the site of a presidential visit and work with local officials regarding the president's travel routes, security, press opportunities, and general activities.
Morris died in April 2002 and, consequently, was never deposed in this case.
Def. Exh. #24 at 12 (Woodring Dep.).
Def. Exh. #19 at 113 (Rendell Dep.).
The parties dispute the extent of this reputation. For example, while Rendell acknowledged that he knew of previous instances wherein the union had behaved violently, Def. Exh. # 19 at 13-16 155-56 (Rendell Dep.), to his knowledge these instances had not occurred at political demonstrations and were generally limited to incidents on the picket line during labor disputes. See id. at 117-118.
What, however, is undisputed from the record is the following: 1) the National Labor Relations Board requested that the Third Circuit find Local 115 in civil contempt for violating a previous court order by "assaulting," "threatening," and damaging the property of those who crossed their picket line, Pl. Exh. #15 at 6 (NLRB Report and Recommendation); and 2) Local 115 was involved in a physical conflict with members of other unions at one prior political event for then-Governor Tom Ridge. Def. Exh. #8 at 24 (Diocson Dep.); Def. Exh. #10 at 90-91 (Gallagher Dep.); Def. Exh. #24 at 28 (Woodring Dep.).
`The President is coming to town. We want a real good reception for the President. There may be some demonstrators there. And we certainly want to in number and in — in loudness. We want to drown out the demonstrators.' I told him who I was calling, community groups, clergy, African-American clergy, Democratic groups, other labor members. And I said `Can you bring some people to the — to the demonstration?' I told him the route that the President's car was going to take. I said, `Can you, somewhere along that route, bring some people and — and cheer when the President came by?' I specifically said I didn't want any interaction with the demonstrators. I wanted this to be extremely peaceful and extremely positive. I said — I think I recall saying, `I want this story out of this. Clinton comes to Philadelphia welcomed by, you know, tens of thousands. `And that's the story that I wanted. And I said, so, you know, `If anyone heckles or taunts, let them do it.'Id. at 114-15. Plaintiffs do not allege that Mayor Rendell and Morris spoke at any other time that day.
In response to this request, Morris stressed to his Chief of Staff, Kenneth Woodring, "the importance of making sure that a large number of Teamsters from the area were in attendance." Pl. Exh. #2 at 3 (Woodring Aff.). Consequently, "[o]n Mr. Morris' instructions and over his signature, [Woodring] sent an e-mail on September 30, 1998 to Teamsters locals in the Philadelphia and Delaware Valley areas requesting that they have members attend the rally." Id. In response to this e-mail and the other rallying efforts of the union, large numbers of Teamsters came to City Hall to show their support for the President. Furthermore, upon Morris' instruction, Local 115's print shop printed "Teamsters for Clinton" T-shirts. Id. Some of the Teamsters arrived at the rally via buses owned by the union, and were accompanied by a tractor-trailer from which music sounded. Pl. Exh. #3-4 (video footage of the rally); Def. Exh. #24 at 69 (Woodring Aff.). Eventually, Clinton-supporters were given and carried numerous signs on which the slogan "Teamsters for Clinton" was emblazoned. Pl. Exh. #3-4 (video).
It is unclear from the record exactly how many Teamsters were at the rally. A Teamster presence, however, is obvious from the video footage of the event. Pl. Exh. #3-4.
Also in attendance that evening was a group of individuals that was protesting the President's visit and expressing its disapproval of the President's recent conduct. Def. Exh. #18 at 7 (Radich Dep.), Def. Exh. #1 at 33 (Don Adams Dep.). Some of these individuals carried signs on which were written slogans such as "Hail to the Thief," "Liar, Pervert, National Shame," and "Resign or get Impeached." Def. Exh. #1 at 40 (Don Adams Dep.); Def. Exh. #2 at 57 (Don Adams Dep.); Def. Exh. #18 at 7 (Radich Dep.). Throughout the rally, these individuals chanted "Impeach Clinton Now." Def. Exh. #1 at 71 (Don Adams Dep.); Pl. Exh. #3-4 (video). Plaintiffs, Don and Teri Adams, who are adult siblings, were among this group.
While the members of these opposing groups largely opted to remain separated from one another, there were several occasions throughout the day during which they clashed. Only on one of these occasions, however, did the clash turn physical, resulting in the alleged injuries to the plaintiffs. While the parties hotly contest how that clash was initiated and by whom, it is uncontested that initially Don Adams and Morris exchanged words, and soon thereafter the encounter became physical. Def. Exh. #1 at 72 (Don Adams Dep.); Def. Exh.# 8 at 66 (Radich Dep.). During the conflict, Morris placed his hat on Adams' head, after which, several Teamsters rushed forward and began assaulting him. Def. Exh. #1 at 72-73 (Don Adams Dep.); Pl. Exh. #2 at 3 (Woodring Aff.). During the course of this struggle, Adams fell to the ground, whereupon he was further assaulted. Def. Exh. #1 at 72-73 (Don Adams Dep.). In an effort to protect her brother, Theresa Adams "crawled partially on top of Don" and, consequently, sustained injury. Def. Exh. #3 at 56 (Teri Adams Dep.). The police quickly separated the parties, and all fighting ceased. Def. Exh. #1 at 78-79 (Don Adams Dep.), Def. Exh. #3 at 55 (Teri Adams Dep.); Def. Exh. #5 at 16 (Boyle Dep.).
The pro-Clinton group congregated on the sidewalk surrounding City Hall, while the anti-Clinton group congregated on the sidewalk and an island directly across the street. Def. Exh. #14 at 27-28 (McLaughlin Dep.); Def. Exh. #3 at 32 (Teri Adams Dep.).
Plaintiffs allege that the Teamsters verbally harassed them and their fellow demonstrators throughout the day. While the extent of this harassment is unclear, the video footage of the event, which plaintiffs submitted, but which the Teamsters filmed, shows Teamsters heckling anti-Clinton protestors. Pl. Exh. #3-4.
This fact, while contested, is not material to the court's determination of state action. See infra Discussion.
Because of the media presence at the rally, this incident was widely reported on the local newscasts immediately thereafter. As a result, sometime during the two days following the incident, Mayor Rendell's Deputy Mayor for Communications, Kevin Feeley, told a reporter that the incident was "unfortunate," and that although the administration "does not condone" the actions of the Teamsters, "the anti-Clinton groups chose to make their views known. They chose to make their views known in the face of the Teamsters. That is generally not a good career move." Def. Exh. #9 at 76 (Feeley Dep.). According to Feeley's testimony, on October 5, 1998, Rendell expressed his disappointment with Feeley's choice of words, and, consequently, Feeley told reporters that he meant the comment as a joke. Id. at 90, 96, 99, 105.
On the same day, Rendell also spoke with Morris. Pl. Exh. #2 at 4-5 (Woodring Aff.); Def. Exh. #20 at 11 (Rendell Dep.). During the course of this conversation, Morris expressed his frustration with media coverage the Teamsters were receiving. Pl. Exh. #2 at 4-5 (Woodring Aff.). In response, Woodring testified that Rendell told Morris that, "with respect to the Teamsters who had been caught on videotape attacking Don and Teri Adams, . . . `nothing is going to happen to these guys.'" Id. at 5. Furthermore, "Mayor Rendell continued to try to assure Mr. Morris that there would be no negative consequences for the Teamsters, stating `I know how these things go,'" and "also suggested that the Teamsters should file private criminal complaints against Don Adams." Id. Finally, plaintiffs have submitted evidence that "Mr. Rendell did not tell Mr. Morris that he was angry with him nor did he say that the Teamsters' actions had ruined the show of support for President Clinton," and "that the only reference by Mr. Rendell to the filing of a private criminal complaint was with respect [to] the Teamsters filing a private criminal complaint against Don Adams." Id.
At Morris' request and unbeknownst to Rendell, Woodring both listened to and took notes during this conversation. Pl. Exh. #1 at INT005947 (Woodring's Notes); Pl. Exh. #2 at 1, 4-5 (Woodring Aff.).
In his deposition, Rendell gave a different version of this conversion. He testified that he told Morris that he "had ruined what should have been a good show of support for President Clinton and introduced a total collateral issue to it that detracted from the overwhelmingly warm support the President had in Philadelphia." Def. Exh. #20 at 11 (Rendell Dep.). Rendell further testified that he told Morris that "if, in fact, those individuals [i.e. plaintiffs] chose to file a private criminal complaint, they [i.e. the City] would issue against those guys [i.e. the members of Local 115 accused of assaulting plaintiffs]." Id. He further testified that he told defendant Morris to "have your guys file private criminal complaints, too" if in fact the Teamsters had been assaulted. Id. at 39. Finally, Rendell stated in his deposition that he told defendant Morris that "a private criminal complaint is a — a serious thing, like, you know, aggravated assault where someone's, you know, ribs get broken or nose gets broken; that this was an incident that was in the simple assault range and a private criminal complaint, and nobody is going to treat it like a homicide case. But I made it absolutely clear my displeasure with what had happened and absolutely clear that from this point on it would be up to the courts." Id. at 57.
Despite this conversation, however, it is uncontested that after plaintiffs filed private criminal complaints against several members of Local 115 who plaintiffs believed had assaulted them, and a criminal investigation by the police department, four of these union members were criminally charged. Each individual was charged with two counts of aggravated and simple assault, riot, recklessly endangering another, and criminal conspiracy. Pl. Exh. #13 (Criminal Records of Mark Hopkins, Kevin McNulty, Marc Nardone, Norma Bottomer, and Charles Davis). Of these four, 1) all pled guilty to two counts of simple assault and one count of criminal conspiracy, 2) two pled guilty to two counts of riot, and 3) one pled guilty to one count of riot. Id. Additionally, one of the female members of Local 115, Heather Diocson, filed a private criminal complaint against Don Adams, alleging that he punched her in the face during the rally. Def. Exh. #8 at 118 (Diocson Dep.). Adams was eventually tried on these charges and found not guilty. Def. Exh. #1 at 210 (Don Adams Dep.).
According to the investigating officer, during his interview, Morris allegedly telephoned someone whom he identified as Rendell. Def. Exh. #16 at 58 (Motto Dep.). He proceeded to yell into the phone. Id. The police officer who witnessed this, however, did not believe that Morris was speaking with Rendell. Id. at 58-59. Despite the obviously contested nature of these facts, they are not material to the court's final analysis. See infra Discussion.
Although Exhibit #13 also contains the criminal record of Marc Nardone, the counts therein refer to another incident, and not to his involvement in the October 2, 1998 altercation.
On October 4, 1999, plaintiffs first filed this suit, and the case was assigned to Judge Bruce Kauffman. On February 1, 2000, plaintiffs amended their complaint to include additional defendants (Doc. #3). On January 24, 2001, the court dismissed the following claims in their entirety from the first amended complaint: 1) Section 1983 claims for unlawful prosecution violating the Fourth Amendment (listed in the first amended complaint as Counts II and III); 2) Section 1985(2) and (3) claims (listed in the first amended complaint as Count IV and V); and 3) a Section 1986 claim (listed in the first amended complaint as Count VI). Furthermore, the court dismissed pending counts against the following defendants: 1) Mayor Rendell (dismissing the defamation and false light/invasion of privacy claims) and 2) District Attorney Lynn Abraham (dismissing all claims) (Doc. #80).
As a result of this decision, on August 2, 2001, plaintiffs amended their complaint for a second time in an effort to clarify specific claims against former Mayor Rendell and to remove counts and allegations that the court had dismissed. On September 27, 2002, this case was reassigned to this chambers (Doc. #254). Pending currently before the court, are the motions of Rendell, Local 115, and IBT for summary judgment pursuant to Federal Rule of Civil Procedure 56, which plaintiffs oppose.
Standard of Review
Either party to a lawsuit may file a motion for summary judgment, and the court will grant it "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Facts that could alter the outcome are `material, `and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted). When a court evaluates a motion for summary judgment, "[t]he evidence of the non-movant is to be believed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Additionally, "all justifiable inferences are to be drawn in [the non-movant's] favor." Id. Moreover, "[s]ummary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy, 90 F.3d at 744 (citation omitted). However, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). The nonmovant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
Discussion
I. Plaintiffs' Federal Claim
The Supreme Court has stated that in order to succeed in a Section 1983 suit, "the plaintiff must show that the defendant deprived him of [a] constitutional right `under color of any statute, ordinance, regulation, custom, or usage of any State or Territory." Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970). This "under color of law" requirement "is part of the prima facie case for § 1983. . . ." Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Thus, not only does "the plaintiff bear the burden of proof on that issue[,]" but where there is no action under color of law, there can be no liability under § 1983. Id.(citing Versarge v. Township of Clinton, N.J., 984 F.2d 1359, 1363 (3d Cir. 1993)).
42 U.S.C.A. § 1983 states that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
The Court has held that "[i]f the challenged conduct of respondents constitutes state action as delimited by our prior decisions, then that conduct was also action under color of state law and will support a suit under § 1983." Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).
In explaining the policy undergirding this requirement, the Court has stated that "[t]he Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States." Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 619 (1991). It is "[t]his fundamental limitation on the scope of constitutional guarantees [that] `preserves an area of individual freedom by limiting the reach of federal law' and `avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.'" Id. (citations omitted). Thus, as our Court of Appeals has held, "[a] private action is not converted into one under color of state law merely by some tenuous connection to state action. The issue is not whether the state was involved in some way in the relevant events, but whether the action taken can be fairly attributed to the state itself." Groman, 47 F.3d at 638-39 (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
Based on this policy, the Court has narrowly defined the parameters of state action, holding that a defendant acts under color of state law "if, though only if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself.'" Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). While "a host of facts . . . can bear on the fairness of such an attribution," Id. at 296, a nexus may be evidenced by alleging and proving that the state and a private actor acted jointly, such as by conspiring with one another to violate an individual's rights. Adickes, 398 U.S. at 152. If, however, plaintiffs proceed on this theory of state action, they must allege and prove the requisite elements of civil conspiracy. Melo v. Hafer, 912 F.2d 628, 638 n. 11 (1990) (citing Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754 (1980)).
See, e.g., Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230, 231 (1957) (finding state action where a private entity is deemed an "agency of the State"); Edmonson, 500 U.S. at 627-628 (finding state action where the private actor performs what was traditionally an exclusively public function); Evans v. Newton, 382 U.S. 296, 299 (1966) (finding state action when a private party is "entwined with governmental policies" or when the government is "entwined in [the private parties'] management or control"). Plaintiffs, however, only argue state action based on a theory of joint action. Sec. Amd. Compl. ¶ 86; Pl. Br. at 10-16. Consequently, that is the only theory which I will address.
While the Court has defined joint action in many ways, based on plaintiffs' allegations and the undisputed record, conspiracy is the only theory of joint action upon which the plaintiffs could prevail.
Our Court of Appeals has held that, in addition to the theory of conspiracy, joint action between a private party and the state exists where the state actively participates in the conduct which precipitates the constitutional violation. See Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, 598-600 (3d Cir. 1980) (holding that the decision of a private racing institution to terminate a contract constituted state action because state racing officials personally participated in the decision); Horton v. Flenory, 889 F.2d 454, 458 (3d Cir. 1989) (stating in dicta that by observing and not terminating a beating administered by a private party, a police officer could reasonably be considered to have delegated his authority to the private party thereby converting that party's actions into those of the state). Additionally, joint action exists if the private actor "invokes the aid of state officials to take advantage of a state-created legal procedures," Cruz v. Donnelly, 727 F.2 d 79, 82 (3d Cir. 1084) (citing Lugar, 457 U.S. at 942), or acts pursuant to state-created custom. Adickes, 398 U.S. at 171.
In this case, plaintiffs do not claim, nor does the record reflect, that defendant Rendell personally participated in the actual threatening and violent conduct that caused the alleged violation of plaintiffs' First Amendment rights. Indeed, the undisputed record demonstrates that Rendell had no knowledge of the alleged assaults while they were occurring. Def. Exh. #20 at 107, 138, 139 (Rendell Dep.). Moreover, the record does not indicate that the union acted in a threatening and violent manner pursuant to a state-created legal procedure, statute, or custom similar to those upon which the Court has previously found action under color of state law. See Lugar, 457 U.S. at 942 (finding state action where a private party invoked a state-created attachment procedure "whereby state officials will attach property on the ex parte application of one party to a private dispute"); Adickes, 398 U.S. at 171 (finding state action where a private party's actions were predicated on a state-created custom of segregation).
In sum, because Rendell's involvement in the alleged unconstitutional conduct does not rise to that of the state actors in the precedent cited above, the only theory of joint action under which plaintiffs could reasonably proceed would be that of conspiracy.
A civil conspiracy is defined as "a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties `to inflict a wrong against or injury upon another, `and' an overt act that results in damage.'" Hampton, 600 F.2d at 620-21. Such an agreement may be evidenced by either direct or circumstantial evidence. See Ball v. Paramount Pictures, 169 F.2d 317, 319 (3d Cir. 1948) (holding that while conspiracy may be proven by direct evidence, it can also be "inferred when the concert of action `could not possibly be sheer coincidence'").
In this case, plaintiffs allege that the members of Local 115 "acting individually and/or in concert with each other . . . agreed and/or reached an express or implicit understanding with . . . and/or had otherwise been aided and abetted, or received assistance from Mayor Rendell" to "verbally harass, assault and physically batter Plaintiffs for exercising their right to free speech, and/or hindered and otherwise prevented Plaintiffs from exercising their right to free speech." Sec. Amd. Compl. ¶ 86-87. Therefore, in order to prove this conspiracy, plaintiffs must produce either direct or circumstantial evidence that Rendell and the defendant members of Local 115 came to a meeting of the minds that the union would behave in a threatening or violent manner towards the anti-Clinton demonstrators.
While plaintiffs' complaint does not allege a First Amendment violation absent an allegation of violence and threats, plaintiffs argue in their brief opposing Rendell's motion for summary judgment that New York Times v. Sullivan, 376 U.S. 254 (1964) stands for the proposition that the government violates the First Amendment when it asks private individuals to non-violently and in a non-threatening manner support a particular political position. Pl. Br. Opposing Rendell's Mot. at 19-20. Plaintiffs' reliance on this case is woefully misplaced.
In Sullivan, the Court established the "actual malice" standard that public figures must prove in order to maintain an action for defamation without offending the First Amendment. See Sullivan, 376 U.S. at 279-80 ("[A] public official [is prohibited] from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'. . . ."). In the instant case, however, plaintiffs' basis for the alleged violation of their First Amendment rights is not that Rendell defamed them, but rather that he conspired with the union defendants to violate their First Amendment rights by asking the union to threaten and assault plaintiffs. Thus, Sullivan has no application to this case.
In support of their conspiracy theory, plaintiffs argue that "[c]learly, if the mere presence of a police officer was sufficient to create an inference of concerted action and defeat summary judgment in Adickes, then the substantial, compelling evidence presented by Plaintiffs is far more than sufficient to defeat [defendants'] motion[s] for summary judgment in this action." Pl. Br. Opposing Rendell's Mot. at 16; Pl. Br. Opposing Local 115's Mot. at 21; Pl. Br. Opposing IBT's Mot. at 29. Because the facts of plaintiffs' case, however, are readily distinguishable from those of Adickes, I am not persuaded by plaintiffs' argument.
In Adickes, the petitioner, a white New York teacher who, in 1964, volunteered to teach at a Mississippi "Freedom School," was denied service at a lunch counter when she attempted to eat with her black students. Adickes, 389 U.S. at 149. After being so denied, she and her class exited the store, at which time, a police officer, "`who had previously entered [the] store,' arrested petitioner on a groundless charge of vagrancy and took her into custody." Id. In reversing the lower court's grant of summary judgment in favor the respondents, the Court focused on the joint activity of the parties. Consistent with the law of conspiracy, the Court found it highly unlikely that a police officer, who had been in the store at the same time as petitioner, just happened to coincidentally arrest petitioner on a baseless charge. Id. at 158. Consequently, the Court maintained that the conspiracy claim would fail only if respondents could prove that the police officer was not in the store at the same time as petitioner. Id.
Moreover, at least one of our sister courts has recognized that since the Adickes decision, the Supreme Court has narrowed its approach to conspiracy in the summary judgment context. See Morris v. Orman, 1989 WL 17549, *10-12 (W.D. Pa. March 1, 1989) (explaining in detail how the Supreme Court's decisions in Celotex v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith, 475 U.S. 574 (1986) suggest that the "extremely stringent summary judgment standard of Adickes" need not govern every federal civil conspiracy claim). In the interest of prudence, however, I have applied the broader test as established in Adickes since the Court has not yet specifically constricted the language of that case.
In this case, unlike the police officer in Adickes, plaintiffs have produced no evidence that Rendell played a direct and personal role in the alleged assault on plaintiffs. Moreover, unlike the parties in Adickes, it is undisputed that prior to the rally Rendell specifically told Morris not to have any contact with the anti-Clinton demonstrators, and that he wanted the event to be "extremely peaceful." Def. Exh. #19 at 114-15 (Rendell Dep.). Additionally, the undisputed record reveals that Rendell in no way influenced those involved in the planning and execution of security at the rally. See Def. Exh. #5 at 31, 45 (Boyle Dep.) (stating that Rendell did not influence or contact police regarding the protestors and security prior to the rally); Def. Exh. #15 at 18, 23, 27-28 (Mitchell Dep.) (same).
Furthermore, while a conspiracy might be inferred from this situation if either 1) Rendell and Morris had another conversation before the rally, the content of which is disputed or unknown, or 2) Morris understood and Rendell meant the exact opposite of the plain meaning of Rendell's statements, plaintiffs have not alleged, let alone produced evidence of, either scenario. In short, even if I assume arguendo that defendant Morris did instigate threats and assaults on anti-Clinton protestors, there is no evidence from which a rational juror could infer that those actions were taken pursuant to conspiracy with Rendell, a state actor.
It should be noted that plaintiffs make much of the Teamsters' reputation for violence and Rendell's knowledge thereof. As evidence of that knowledge they cite both Rendell's deposition testimony and Feeley's press conference comments. Feeley, however, testified in his deposition that, at the time he made the comment, he did not know that Rendell had asked the Teamsters to attend the rally. Def. Exh. #9 at 48-49, 51, 136 (Feeley Dep.). Additionally, Rendell believed the union's violent reputation only extended to labor disputes and he had no knowledge of the organization behaving violently during political demonstrations. See supra note 7 (citing Rendell's deposition testimony). Thus, there is no evidentiary basis to support a finding by a rational juror that Rendell said one thing, but implied another in his conversation with Morris, thereby implicitly agreeing with Morris that violence should or would occur.
Finally, plaintiffs argue that the content of the post-rally conversation, as relayed by defendant Woodring, between Rendell and Morris evidences the conspiracy. While a rational juror might infer from Woodring's version of this conversation that the parties conspired to protect union members from criminal prosecution, these facts do not evidence the object of the conspiracy which plaintiffs allege; namely, that the union would threaten or assault anti-Clinton demonstrators at the rally. Moreover, even if this conversation were material to the original conspiracy, it is the only evidence which plaintiffs have produced. In addition to the evidence discussed above, the undisputed record reflects that four union members were prosecuted and convicted. See Pl. Exh. #3 (providing the records of the prosecutions and convictions of Mark Hopkins, Kevin McNulty, Norma Bottomer, and Charles Davis). Additionally, although the District Attorney's Office did not prosecute defendant Morris, plaintiffs have failed to produce any evidence that this decision was made at the behest of or pursuant to a request by Rendell. In fact, the undisputed record contains numerous statements by those involved in the criminal case that they were not influenced or inhibited in any way by anyone. See Def. Exh. #21 at 231-256, 269-270, 277-79 (Sagel Dep.) (explaining that defendant Morris was an "unindicted co-conspirator" because the evidence was not sufficient to obtain his arrest and conviction); Id. at 91-93, 338 (discussing his intentions regarding the prosecution generally, and stating that no one had influenced his decisions); Def. Exh. #16 at 204-05 (Motto Dep.) (indicating that he never received instruction to "back off" the Morris investigation). Based on the overwhelming evidence to the contrary, a rational juror could not reasonably infer a conspiracy to threaten and assault plaintiffs on October 2, 1998 from Rendell's single later conversation with Morris.
As regards defendant union members other than Morris, there is no evidence of a connection between them and Rendell or the city. In addition, none of the deposed union members knew of Rendell's invitation, nor did they anticipate violence. Def. Exh. #4 at 14 (Bottomer Dep.); Def. Exh. #7 at 54, 55 (Connolly Dep.); Def. Exh. #8 at 29, 35, 36, 149, 150, 165, 166, 167 (Diocson Dep.); Def. Exh. #10 at 16, 27, 28, 35, 107, 108 (Gallager Dep.); Def. Exh. #11 at 36 (Mark Hopkins Dep.); Def. Exh. #12 at 28, 29, 44 (Sharon Hopkins Dep.); Def. Exh. #22 at 43 (Smith Dep.); Def. Exh. #24 at 298 (Woodring Dep.). In short, there is no evidence that they "agreed and/or reached an express or implicit understanding with . . . and/or had otherwise been aided and abetted, or received assistance from Mayor Rendell" to "verbally harass, assault and physically batter Plaintiffs for exercising their right to free speech, and/or hindered and otherwise prevented Plaintiffs from exercising their right to free speech." Sec. Amd. Compl. ¶ 86-87.
In sum, there is not more than a scintilla of evidence that Rendell conspired with Morris or any other union member to assault plaintiffs. As this conspiracy is the only means by which plaintiffs could prove a nexus between the state and the members of Local 115 alleged to have assaulted plaintiffs, plaintiffs have failed to produce sufficient evidence of state action. Consequently, judgment will be entered in favor of all defendants and against plaintiffs on Count I of the second amended complaint.
II. Plaintiffs' State Claims
Because I am granting defendants' summary judgment motions regarding Count I of plaintiffs' complaint, which contains the only federal claim, pursuant to 28 U.S.C.A. § 1367(c), I will dismiss without prejudice plaintiffs' remaining state law claims.
28 U.S.C.A. § 1367 states that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C.A. § 1367(a) (WEST 2003). Once a district court has determined that it has supplemental jurisdiction pursuant to § 1367(a), it may nonetheless "decline to exercise . . . jurisdiction over a claim under [this] subsection . . . if . . . the district court has dismissed all claims over which it has original jurisdiction. . . ." 28 U.S.C.A. § 1367(c)(3); see also United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.").
In the instant action, defendants have not argued that supplemental jurisdiction does not exist over plaintiffs' state law claims. Hence the court will not address this issue.
Even if the requirements of subsection (c) are met, however, a district court may elect to retain supplemental jurisdiction provided that "judicial economy, convenience and fairness to litigants" require it. Gibbs, 383 U.S. at 726; see also Growth Horizons, Inc. v. Delaware County, Pennsylvania, 983 F.2d 1277, 1284 (3d Cir. 1993) (citing same for the proposition that "[i]n making its determination [to decline to exercise jurisdiction pursuant to § 1367(c)(3)], the district court should take into account generally accepted principles of `judicial economy, convenience, and fairness to the litigants"). However, "if these [factors] are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them." Gibbs, 383 U.S. at 726. Indeed, our Court of Appeals has held that unless these factors "`provide an affirmative justification for doing so[,]'" a district court "` must decline to decide the pendent state claims'" if "`the claim over which the district court has original jurisdiction is dismissed before trial[.]'" Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (emphasis added)).
Although the Gibbs decision predates Congress' amendment of § 1367, our Court of Appeals has held that "[s]ection 1367(c) . . . was intended simply to codify the preexisting pendent jurisdiction law, enunciated in Gibbs and its progeny, concerning those instances in which a district court is authorized to decline to hear a state claim it would have the power to hear because of its relationship to an original federal jurisdiction claim." Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (citing H.R. Rep. No. 416, 1990 U.S.C.C.A.N. at 6875 for the proposition that "[s]ubsection 1367(c) `codifies the factors that the Supreme Court has recognized as providing legitimate bases upon which a district court may decline jurisdiction over a supplemental claim, even though it is empowered to hear the claim.'").
In the instant case, the court will not exercise jurisdiction over plaintiffs' state law claims. Plaintiffs argue that the court should retain jurisdiction because it has "developed a familiarity with this case that another state court would have to duplicate. To require a state court to develop this same familiarity would constitute a significant waste of judicial resources and would be unfair both to the courts involved and to Plaintiffs. . . ." Pl. Br. in Opposition to Local 115 Mot. at 31. Furthermore, they contend that during the time in which it would take a state court to proceed in this case, "memories [would] fade and witnesses [would] become unavailable. . . ." Id. Because, however, discovery has concluded, the memories of all the witnesses have been recorded, thereby mitigating any concern plaintiff might have about wasting time or losing precious information. In addition, no great delay will be involved in state court because, the discovery having been completed, the case can be promptly listed for trial. Moreover, I have no great familiarity with this case, which was recently transferred to me, except with regard to the issue of state action — the only issue I needed to consider. Finally, state courts, by virtue of their experience with and knowledge of state law, are better suited than federal courts to address state law claims, and the site of the trial would be only blocks from the federal courthouse so that none of the parties would be inconvenienced.
Thus, because the court has granted judgement in favor of defendants on plaintiffs' single federal claim, and the interests of judicial economy, convenience, and fairness to the litigants do not militate toward retaining jurisdiction over the state law claims, the court will dismiss plaintiffs' state law claims without prejudice to plaintiffs' right to file these claims in state court.
Conclusion
In short, because state action is a necessary element of any § 1983 claim, and plaintiffs have been unable to produce sufficient evidence thereof, defendants' motions for summary judgment will be granted as to Count I of the complaint. Furthermore, pursuant to 28 U.S.C.A. § 1367(c), plaintiffs' remaining state law claims will be dismissed without prejudice to plaintiffs' right to file these claims in state court. An appropriate order follows.