The opinion of the court was delivered by: Marovitz, District Judge.
Count I of the complaint brought pursuant to 42 U.S.C. § 1983
alleges that Lake Forest police officers acting under color of
state law subjected plaintiff, Donald L. Drennan, to illegal
search and seizure, illegal arrest and detention and cruel and
unusual punishment, all in violation of plaintiff's Fourteenth
Amendment rights. Count II reiterates the same § 1983 charges in
regard to plaintiff Flora Lam. Counts III and IV of the complaint
allege the same set of facts as Counts I and II but rather than
seeking relief based upon the Federal Statutes seek recovery
under Illinois law for assault, battery, false arrest and
imprisonment and negligence.
Defendant, Charles W. Gilbert has moved for the dismissal of
Counts III and IV which are based on Illinois law on the grounds
that this is not a case where pendent jurisdiction ought to be
exercised on the independent state claims. Defendant, City of
Lake Forest, has also moved to dismiss Counts I and II, the
Federal claims, as to the City of Lake Forest on the grounds that
a 42 U.S.C. § 1983 suit cannot be brought against a municipality.
In addition, the City argues that even assuming that pendent
jurisdiction is proper for the State claims in regard to
defendant individuals, if the City is dismissed from the Federal
Counts then pendent jurisdiction would not be applicable to the
City in view of the fact that the sole basis for jurisdiction
would be grounded in the pendent State claims.
Defendant Gilbert has now indicated that the motion to dismiss
Counts III and IV for lack of pendent jurisdiction will be
withdrawn. In view of the preponderance of law that decision is a
wise one. There is no doubt that the State and Federal claims in
this case not only arrive from a common nucleus of operative
facts, but are in fact identical, that a substantial Federal
claim exists and that plaintiffs' claims irrespective of their
Federal or State character would be tried in one judicial
proceeding. Consequently it is obvious that the requirements for
pendent jurisdiction as stated in United Mine Workers v. Gibbs,
383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) have been met.
Thus this Court will exercise its power of pendent jurisdiction
over Counts III and IV.
We will however grant the motion to dismiss the City of Lake
Forest from all Counts. As to Counts I and II, the Federal claims
brought pursuant to 42 U.S.C. § 1983, the law has been clear
since Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961) that municipalities are excluded from liability under the
Civil Rights Act since they are not "persons" as defined in the
Some exceptions to this rule have admittedly arisen. Although
the District of Columbia Court in Carter v. Carlson, 144
U.S.App.D.C. 388, 447 F.2d 358 (1971) conceded that the language
in Monroe seemed to preclude a suit against a municipality
under § 1983 the Court went on to limit the holding of Monroe
to a suit for damages against a municipality which had been
clothed in immunity by its parent state. The reasoning of the
Court was that the intent of Congress was to defer to the
immunity that existed under local common law rather than to
create municipal immunity and where that local law itself has
abolished municipal immunity the scope of § 1983 immunity should
The Seventh Circuit in Ries v. Lynskey, 452 F.2d 172 (7th Cir.
1971) has also explicitly refused to follow the Carter decision
citing Brown, supra, and indicating that Monroe clearly
excludes municipalities from liability under the Civil Rights
Act. We therefore dismiss the City of Lake Forest from Counts I
and II of the complaint.
Counts III and IV present somewhat of a more difficult problem.
Having exercised pendent jurisdiction over the State law claims
plaintiffs would have us now retain the City of Lake Forest in
Counts III and IV of this suit since the City can be sued under
State law. The question to be resolved therefore is whether
parties not present in the Federal portion of suit can be
joined solely on the basis of the State claims through pendent
The doctrine of pendent jurisdiction has been applied in
connection with service of process in order to permit
extra-territorial service over non-resident defendants as to the
nonfederal claim even where service would not be permitted under
State law so long as service as to the Federal claim is proper.
See Cooper v. North Jersey Trust Co., 226 F. Supp. 972 (S.D.N Y
1964) and Sprayregen v. Livingston Oil, 295 F. Supp. 1376
(S.D.N.Y. 1968). The extension of jurisdiction in cases such as
these is understandable when one considers that the
jurisdictional power emanates from the Federally based claim to
bring within its ambit the State claims also.
Several Courts have permitted the extension of jurisdiction
over additional parties who were not involved in the Federal
claim and whose sole connection with the case arose from the
pendent State law claim such as in our case. See Hatridge v.
Aetna Cas. & Sur. Co., 415 F.2d 809 (8th Cir. 1969); Connecticut
Gen. Life Ins. Co. v. Craton, 405 F.2d 41 (5th Cir. 1968);
Jacobson v. Atlantic City Hosp., 392 F.2d 149 (3rd Cir. 1968);
Wilson v. American Chain and Cable Co., 364 F.2d 558 (3rd Cir.
1966); Stone v. Stone, 405 F.2d 94 (4th Cir. 1968).
However this Circuit as well as several others have reached the
opposite conclusion. Wojtas v. Village of Niles, 334 F.2d 797
(7th Cir. 1964). See also Moor v. Madigan, 458 F.2d 1217 (9th
Cir. 1972); Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969); Williams
v. United States, 405 F.2d 951 (9th Cir. 1969); Barrows v.
Faulkner, 327 F. Supp. 1190 (N.D.Okla. 1971); Hall v. Pacific
Maritime, 281 F. Supp. 54 (N.D.Cal. 1968); Rosenthal & Rosenthal,
Inc. v. Aetna Casualty and ...