behavior is alleged to be a common practice. Therefore, contends plaintiffs they were deprived of their property and personalty therein without due process of law.
I find that these allegations are sufficiently specific to state a cause of action under Rotolo. Moreover, the plaintiff has adequately alleged a policy or practice of unconstitutional behavior under Monell so as to survive a motion to dismiss.
C. Pendent State Claims
Defendants move to dismiss the pendent state claim for trespass on the grounds that the statute of limitations has run.
Plaintiff counters, alleging that a cause of action in trespass was contained in the original complaint. I disagree.
The original complaint was styled as a civil rights action -- jurisdiction was alleged only under 28 U.S.C. § 1343(3). The complaint explicitly stated that the claims were brought pursuant to the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983 (1976).
However, a comparison with the amended complaint is most telling. Pendent jurisdiction is specifically invoked and the tort claim is clearly set out in a separate count. Simply put, there is absolutely no indication in the original complaint that it was anything other than a civil rights action.
Plaintiff maintains that the factual elements of a trespass action were contained in the original complaint. This may be true. However, this did not serve to place the other party on notice of that claim -- and thereby accomplish the purpose of the "notice pleading" system of the Federal Rules of Civil Procedure. See Lobianco v. Valley Forge Military Academy, 224 F. Supp. 395, 400 (E.D. Pa.) aff'd. 331 F.2d 851 (3d Cir. 1963). I find that the original complaint did not contain a trespass claim.
The court in Harris v. Commonwealth of Pennsylvania, 419 F. Supp. 10 (M.D. Pa. 1976) faced a similar problem. Harris brought a Title VII suit alleging sexual discrimination in employment. The plaintiff amended her complaint to add, inter alia, a claim under the civil rights statutes arising out of the same alleged discrimination. The administrative proceedings before the EEOC resulted in a time lapse, causing the statute of limitations to run on the civil rights claim. Even though these claims were based upon the same alleged discrimination as the Title VII suit, the court held that the two actions were totally separate. The court stated: "neither does the Title VII claim in the first complaint toll the running of the applicable limitations periods [for the other claims] nor does inclusion of such actions in the amended complaint relate back to the initial complaint pursuant to F.R.C.P. 15(c)." 419 F. Supp. at 15. Accord, Johnson v. Railway Express Agency, 421 U.S. 454, 465-66, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975).
I find the Harris opinion to be controlling here. An action in trespass is very different from one under section 1983. The filing of a complaint in the latter in no manner tolls the statute of limitations in the former. Thus, the statute of limitations has run on plaintiff's pendent state claim and it shall be dismissed.
D. Joinder of Anthony J. and Florence Verdi
Both defendants object to the joinder of Anthony J. and Florence Verdi as parties plaintiff in the amended complaint. They argue that since the cause of action arose in April, 1980, the statute of limitations ran in April, 1982 and thus the Verdis would be barred from bringing suit at the present time. If they are barred from suing now, defendants reason that they should not be able to indirectly assert their rights in this action. Defendants' argument is without merit.
Rule 17(a) of the Federal Rules of Civil Procedure provides that; "no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed . . . for . . . joinder or substitution of the real party in interest . . . ." Although the original plaintiff did purport to be the assignee of his parents' rights, no one would dispute the fact that the Verdis, as the record owners, are the real parties in interest with respect to the house.
Thus, to prohibit the joinder of the Verdis would be contrary to both the language and spirit of Rule 17.
Additionally, Rule 17(a), which contains its own "relation-back" provision, provides that the "joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest." Therefore, under Rule 17, joinder of the Verdis is appropriate.
Nor will the joinder prejudice the defendants in any way. As Wright and Miller noted:
As long as defendant is fully apprised of a claim arising from specific conduct and has prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense.