The opinion of the court was delivered by: Parsons, District Judge.
This is an action against the City of Chicago, a municipal
corporation of the State of Illinois, and three police officers
of the Chicago Police Department brought under the Federal Civil
Rights Act, 28 U.S.C. § 1343, 42 U.S.C. § 1983, 1985, 1986, to
recover damages for the alleged violation of plaintiff's civil
rights by defendant policemen. The City of Chicago has moved to
dismiss the complaint as to it for lack of jurisdiction and for
failure to state a claim upon which relief can be granted.
It is well settled that a municipality is not subject to suits
for damages under the Federal Civil Rights Act. In the landmark
case of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961), the Supreme Court said:
"[W]e are of the opinion that Congress did not
undertake to bring municipal corporations within the
ambit of § 1979 (42 U.S.C. § 1983)." 365 U.S. at 187,
81 S.Ct. at 484.
It is to be noted that although Monroe also invoked §§ 1985 and
1986 in his complaint, he argued only § 1983 before the Supreme
Court. Accordingly, the opinion of the Court was limited only to
that section. However, two weeks later, in Egan v. City of
Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961), the
Court, in a Per Curiam opinion, held that a municipality could
not be sued for damages under either § 1983 or § 1985. Accord,
Scolnick v. Winston, 219 F. Supp. 836 (S.D.N.Y. 1963); Spiesel v.
City of New York, 239 F. Supp. 106 (S.D.N.Y. 1964), aff'd.,
342 F.2d 800 (2d Cir. 1965); Lee v. State of Illinois, 343 F.2d 120
(7th Cir. 1965). Thus, plaintiff's federally based claim against
the City of Chicago is without merit.
Nor can plaintiff proceed against the City on the basis of
state law. Diversity of citizenship does not exist. Assuming,
arguendo, that plaintiff has a cause of action against the City
under Illinois law, see, Molitor v. Kaneland Community Unit
District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469
(1959), cert. denied, 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900;
Peters v. Bellinger, 19 Ill.2d 367, 166 N.E.2d 581 (1960), there
appears to be no good reason why this Court should assume
"pendent jurisdiction" to hear such a claim, see, Wojtas v.
Village of Niles, 334 F.2d 797 (7th Cir. 1964), cert. denied,
379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558, where, as here, the Court
has determined, before defendant has filed an answer, that the
federal claim against the City is totally without merit, and that
it must be dismissed. Rogers v. Provident Hospital, 241 F. Supp. 633
(N.D.Ill. 1965); Bell v. Hood, 71 F. Supp. 813 (S.D.Cal.
1947); O'Neill v. Maytag, 339 F.2d 764, 766-767 (2d Cir. 1964).
To hold otherwise, i.e., that plenary trial of an ancillary claim
could be compelled by a primary claim which could be disposed of
on the pleadings would, in effect, permit "the dog [to] be wagged
by his tail". Hart & Wechsler, the Federal Courts and the Federal
System 808 (1953).
A final question arises concerning the potential effect of Rule
18(b) F.R.C.P., which provides:
Under Illinois statute, S.H.A. Ch. 24, § 1-4-5, a Chicago
police officer is indemnified against any liability imposed upon
him for having caused injuries to the person or property of
another, provided that he was engaged in the performance of his
duties as policeman, and that the injury did not result from his
willful misconduct. In addition, the officer is defended in the
Federal Court action by the Corporation Counsel of the City of
Chicago and his able assistants. In the event that plaintiff
obtains a judgment against police officers, he has a right, under
the statute, to sue the City in a separate action in order to
satisfy it. Karas v. Snell, 11 Ill.2d 233, 142 N.E.2d 46 (1957).
It has been suggested that joinder of the City under Rule 18(b)
as a party defendant for the sole purpose of collecting upon any
such judgment furthers economy in judicial administration by
avoiding the necessity of a subsequent lawsuit in the state
Putting aside possible problems of prejudice to an indemnitor
through this suggested joinder device, 2 Wigmore on Evidence §
282a; but cf., Rules 20(b) and 42(b) F.R.Civ.P., and without
deciding whether the rule of Kavanaugh v. Parrett, 379 Ill. 273,
277-278, 40 N.E.2d 500 (1942) (that it is improper to inform the
jury that defendant is insured) is a substantive rule of law
binding upon this Court under Erie RR v. Tompkins, 304 U.S. 64,
58 S.Ct. 817, 82 L.Ed. 1188 (1938), it would seem that joinder is
proper only where independent jurisdictional support exists for
plaintiff's claim against the City under the indemnity statute.
Rule 18, like the other federal rules, is qualified by Rule 82
which provides: "These rules shall not be construed to extend or
limit the jurisdiction of the United States district courts or
the venue of actions therein." Under the holding of Strawbridge
v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), complete
diversity of citizenship between plaintiffs and defendants is
required. None exists here. Nor does any other jurisdictional
basis appear for plaintiff's claim against the City.
No great overriding convenience, which underlies the theory of
"ancillary jurisdiction", and which occasionally relaxes the
necessity of independent jurisdictional support for every claim,
is present here. It is doubtful whether, in these cases, Rule
18(b) joinder would actually result in substantial saving of
time. In defending against an action to collect on a judgment
obtained against a police officer, the City may assert 1) that
the officer was not engaged in the performance of his duties as a
policeman, and 2) that the officer was guilty of willful
misconduct. Ordinarily, the latter issue would not be raised in
the action against the officer since willfulness need not be
proven to establish civil, as opposed to criminal, liability.
Monroe v. Pape, supra, at 187, 81 S.Ct. 473; Screws v. United
States, 325 U.S. 91, 101-107, 65 S.Ct. 1031, 89 L.Ed. 1495
(1945). Neither is the former issue relevant to the officer's
liability since the crucial question is whether he acted "under
color of law", not whether he was "engaged in the performance of
his duties as a policeman." Thus, additional proof would have to
be adduced on the claim for satisfaction of judgment.
Even the most liberal concept of ancillary jurisdiction would
not sanction the type of joinder sought herein. Compare, Empire
Lighting Fixture Co. v. Practical Lighting Fixture Co.,
20 F.2d 295 (2d Cir. 1927) (joinder of claim against a debtor with claim
against fraudulent transferee permitted); Huntress v. Huntress'
Estate, 235 F.2d 205 (7th Cir. 1956) (suit in nature of a
creditor's bill or action in equity to reach assets held by other
persons). Economy in judicial administration and avoidance of
multiplicity of suits are salutary goals for which United States
District Courts should strive within the legitimate confines of
their statutory jurisdiction. But the Federal Rules of Civil
merely broaden the content of an action; they do not, nor can
they, extend the limits of federal judicial power. See, Lesnick
v. Public Industrials Corp., 144 F.2d 968, 973 (2d Cir. 1944).
Under the circumstances, it appears that this Court is without
jurisdiction to entertain plaintiff's claim against the City of
Chicago. Accordingly, the motion of the City to ...