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    United States Court of Appeals, Third Circuit.: (D. C. Civil Action No. 364-69) No. 18115

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    1) The plaintiff filed a complaint seeking damages against various government officials for allegedly malicious prosecution relating to a firearm charge. 2) The district court dismissed the complaint, finding the applicable statute of limitations had passed based on when the acts complained of occurred. 3) While the plaintiff argued the statute of limitations for malicious prosecution claims in New Jersey is six years from the termination of the criminal case, and he had initially filed a complaint pro se just before the six years lapsed, the court found his current complaint with counsel added new parties and allegations and could not relate back to the initial pro se filing, making the dismissal appropriate.

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    United States Court of Appeals, Third Circuit.: (D. C. Civil Action No. 364-69) No. 18115

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    1) The plaintiff filed a complaint seeking damages against various government officials for allegedly malicious prosecution relating to a firearm charge. 2) The district court dismissed the complaint, finding the applicable statute of limitations had passed based on when the acts complained of occurred. 3) While the plaintiff argued the statute of limitations for malicious prosecution claims in New Jersey is six years from the termination of the criminal case, and he had initially filed a complaint pro se just before the six years lapsed, the court found his current complaint with counsel added new parties and allegations and could not relate back to the initial pro se filing, making the dismissal appropriate.

    Original Description:

    Filed: 1970-04-03 Precedential Status: Precedential Citations: 423 F.2d 1116 Docket: 18115_1

    Original Title

    Lloyd M. Butler v. Jack F. Sinn, Individually and as Mayor of Point Pleasant Beach, New Jersey, Russell Archer, Individually and as Chief of Police of Point Pleasant Beach, New Jersey, James T. Ferguson, Harold N. Laird, George Spiegel and John Donahue, Individually and as Police Officers of Point Pleasant Beach, New Jersey, Gerald H. Kolb and Alfred L. Kubach, Individually and as Investigators of the United States Internal Revenue Service, Joseph M. Kraft, Individually and as Assistant United States Attorney for the State of New Jersey, and the United States of America, Jointly and Severally, 423 F.2d 1116, 3rd Cir. (1970)

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    1) The plaintiff filed a complaint seeking damages against various government officials for allegedly malicious prosecution relating to a firearm charge. 2) The district court dismissed the complaint, finding the applicable statute of limitations had passed based on when the acts complained of occurred. 3) While the plaintiff argued the statute of limitations for malicious prosecution claims in New Jersey is six years from the termination of the criminal case, and he had initially filed a complaint pro se just before the six years lapsed, the court found his current complaint with counsel added new parties and allegations and could not relate back to the initial pro se filing, making the dismissal appropriate.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    23 views3 pages

    United States Court of Appeals, Third Circuit.: (D. C. Civil Action No. 364-69) No. 18115

    Uploaded by

    Scribd Government Docs
    1) The plaintiff filed a complaint seeking damages against various government officials for allegedly malicious prosecution relating to a firearm charge. 2) The district court dismissed the complaint, finding the applicable statute of limitations had passed based on when the acts complained of occurred. 3) While the plaintiff argued the statute of limitations for malicious prosecution claims in New Jersey is six years from the termination of the criminal case, and he had initially filed a complaint pro se just before the six years lapsed, the court found his current complaint with counsel added new parties and allegations and could not relate back to the initial pro se filing, making the dismissal appropriate.

    Copyright:

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    of 3

    423 F.

    2d 1116

    Lloyd M. BUTLER, Appellant,


    v.
    Jack F. SINN, individually and as Mayor of Point Pleasant
    Beach, New Jersey, Russell Archer, individually and as Chief of
    Police of Point Pleasant Beach, New Jersey, James T. Ferguson,
    Harold N. Laird, George Spiegel and John Donahue,
    individually and as police officers of Point Pleasant Beach, New
    Jersey, Gerald H. Kolb and Alfred L. Kubach, individually and
    as investigators of the United States Internal Revenue Service,
    Joseph M. Kraft, individually and as Assistant United States
    Attorney for the State of New Jersey, and the United States of
    America, jointly and severally.
    (D. C. Civil Action No. 364-69)
    No. 18115.

    United States Court of Appeals, Third Circuit.


    Argued March 16, 1970.
    Decided April 3, 1970.

    Edmund E. Lynch, Jersey City, N. J., for appellant.


    Raymond D. Battocchi, Dept. of Justice, Civil Division, Washington, D.
    C., for federal appellees.
    John G. Graham, McGlynn & McGlynn, Newark, N. J., for appellees
    Sinn, Archer, Ferguson, Laird, Spiegel and Donahue; Richard B.
    McGlynn, Newark, N. J., of counsel and on the brief.
    Before McLAUGHLIN, FREEDMAN and GIBBONS, Circuit Judges.
    OPINION OF THE COURT
    PER CURIAM.

    On March 27, 1969 plaintiff-appellant filed a complaint in the district court


    seeking compensatory and punitive damages against the Mayor and the Chief
    of Police of Point Pleasant Beach, New Jersey, four police officers of that
    borough, two investigators of the Alcohol and Tobacco Tax Division of the
    United States Treasury Department, an Assistant United States Attorney, and
    the United States. He charged that the several defendants maliciously
    prosecuted him for an alleged violation of Int.Rev. Code of 1954, 5841,
    (possession of an unregistered firearm), that his conviction on this charge was
    reversed by this court on October 29, 1962, and that a judgment of acquittal on
    the firearm charge was entered in the district court on October 31, 1962.
    Federal jurisdiction was asserted under the Civil Rights Act, 42 U.S.C. 1983
    and 1985 (1964).

    On June 26, 1969 the district court entered an order dismissing the complaint
    with prejudice on the ground that the applicable statute of limitations is a bar to
    the action. All of the acts by the several defendants of which plaintiff
    complains took place prior to October 31, 1962.

    The statute of limitations applicable to an action brought pursuant to 42 U.S.C.


    1983 or 1985 (1964) is that of the state in which the cause of action arose.
    O'Sullivan v. Felix, 233 U.S. 318 (1914); Hileman v. Knable, 391 F.2d 596 (3
    Cir. 1968); Jones v. Bombeck, 375 F.2d 737 (3 Cir. 1967). Plaintiff-appellant
    contends that an action for malicious prosecution in New Jersey may be
    commenced within six years after the cause of action has accrued (N.J.Stat.
    2A:14-1, N.J.S.A. (Supp.1969)); Earl v. Winne, 14 N.J. 119, 131, 101 A.2d 535
    (1953), and that cause of action for malicious prosecution accrues upon
    termination of the criminal prosecution favorably to the defendant. Muller Fuel
    Oil Co. v. Ins. Co. of No. Amer., 95 N.J. Super. 564, 577, 232 A.2d 168, 174
    (App. Div. 1967); Kearney v. Mallon Suburban Motors, Inc., 23 N.J.Misc. 83,
    41 A.2d 274 (Cir.Ct.1945), aff'd, 135 N.J.L. 457, 52 A.2d 692 (E. & A. 1947);
    Lowe v. Wartman, 47 N.J.L. 413, 1 A. 489 (Sup. Ct.1885). This, he contends,
    occurred on October 31, 1962 when the district court entered a judgment of
    acquittal on the firearm charge.

    Assuming these contentions to be correct, the six year statute of limitations


    became operative on October 31, 1968, and the complaint was properly
    dismissed. Plaintiff-appellant contends, however, that on October 30, 1968 he
    filed in the district court a different complaint, prepared inartiscally without the
    benefit of counsel, and that the complaint in this action should be deemed an
    amendment of that one.

    There are several difficulties with this contention. In the first place, the October

    30, 1968 action was by an order dated March 6, 1969 dismissed without
    prejudice, and no appeal was taken from that dismissal. The parties have
    stipulated that the docket entries, complaint, and transcript of hearing on the
    dismissal motion in the first case be included in the appendix of the federal
    defendant-appellees, but such a stipulation could not extend the time for appeal
    in that case. 28 U.S.C. 2107 (1964); Fed. R.Appel.P. 4(a). Moreover, the
    March 27, 1969 complaint adds both substantive allegations and several
    additional parties not included in the earlier complaint. Thus, even if the district
    court had been asked, prior to the March 6, 1969 dismissal of the first
    complaint, to permit relation back of such an amendment, after the running of
    the statute of limitations, it probably should not have done so. Fed.R.Civ.P.
    15(c). In any event, no motion to amend was made in the first case prior to its
    dismissal. There was no motion to alter or amend the judgment within the time
    permitted by Rule 59(e), Fed.R.Civ.P., nor was there any motion for relief from
    judgment under Rule 60(b).

    The present attorney for plaintiff-appellant has with diligence and ingenuity
    attempted, but failed, to resuscitate a cause of action which had by the passage
    of time expired before he was retained.

    The order of the district court dismissing the complaint will be affirmed.

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