Opinion

Robert J. Fine v. The City of New York, Anthony Saladino

  • 529 F.2d 70
Court
Court of Appeals for the Second Circuit
Filed
Dec 31, 1975
Status
Published
Author
Smith
On the bench
Kaufman, Smith, Meskill
Cited by
466 cases
Authority
More cited than 25.1%

holding that a “cause of action . . . against [a private] lawyer, whether sounding in professional malpractice, tort, or otherwise, is one of state law insufficient to vest a federal court with jurisdiction over the subject matter”

How later courts described this case

  • holding that a “cause of action . . . against [a private] lawyer, whether sounding in professional malpractice, tort, or otherwise, is one of state law insufficient to vest a federal court with jurisdiction over the subject matter”
  • holding that “[defendant]’s status as an attorney . . . does [not] satisfy the test of state action that must be met before liability may be imposed pursuant to § 1983”
  • finding that private attorney appointed by the court to represent a criminal defendant was not a state actor
  • agreeing that defendant “did not act ‘under color of law’, but merely in the capacity of a private attorney then representing Fine in state criminal proceedings”

Written by the judges who cited it.

The opinion

J. JOSEPH SMITH, Circuit Judge

(concurring and dissenting):

I concur in the opinion of Chief Judge Kaufman and in the disposition of the appeal in all respects except one. I would hold the statute of limitations no defense at least as to the allegations of continuing deprivation of property illegally seized and not returned.

I would therefore find it necessary to reach the merits of the claim against the City and would hold that a claim against the City based on the Fourteenth Amendment is stated, see panel opinion in Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975), and Oakes, J., dissenting in Brault v. Town of Milton, 527 F.2d 744 (2d Cir. 1975) (en banc.) I would also hold that a state law tort claim against the City is stated, as the City appears to concede, (see City’s brief p. 7) and should be entertained by the court under the theories of pendent jurisdiction, United Mine Workers of America v. Gibbs, 383 U.S. 715 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966); Ryan v. J. Walter Thompson Co., 453 F.2d 444 (2d Cir. 1971); see also Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3567 at 451 — 52 particularly n. 35; and pendent parties, Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809-11 (2d Cir. 1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627, 629-30 (2d Cir. 1971).

As to the City, therefore, I would reverse and remand for trial as to all issues.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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