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January 31, 1978

FREDERICK J. VOYTKO and JANET G. VOYTKO, Plaintiffs in No. 76-0142, and RONALD R. RYAN and BARBARA E. RYAN, Plaintiffs in No. 76-0685,

The opinion of the court was delivered by: GERRY

 GERRY, District Judge

 In these consolidated actions, plaintiffs Frederick Voytko and his wife Janet, and Ronald Ryan and his wife Barbara, allege that the defendants combined to maliciously prosecute Voytko and Ryan for failing to pay a hotel bill, depriving plaintiffs of civil rights under 42 U.S.C. §§ 1983 and 1985(3) (1970), and committing common law torts of malicious prosecution and malicious use of process, inter alia.

 The defendants are the Ramada Inn of Atlantic City, New Jersey, and its manager Raymond Ginnetti who initiated the criminal complaints against Voytko and Ryan. Two partners and an associate of the law firm which allegedly represented the hotel and prosecuted Voytko and Ryan are also defendants.

 This action is before the court on a motion by these defendants *fn1" for an order dismissing the consolidated complaints against all moving defendants for failure to state a claim upon which relief can be granted pursuant to F.R.Civ. P. 12(b)(6), or in the alternative for summary judgment pursuant to F.R.Civ. P. 56.

 For reasons which follow, the instant motion will be granted in part and denied in part.


 In opposing this motion to dismiss under F.R.Civ. P. 12(b)(6) and alternatively for summary judgment under F.R.Civ. P. 56, all factual allegations in the complaints, affidavits, deposition testimony and answers to interrogatories by plaintiffs Voytko and Ryan alleging violations of their civil rights and pendent causes of action must be accepted as true, and all favorable inferences therefrom will sound to the benefit of these plaintiffs. *fn2"

 Frederick Voytko and Ronald Ryan are architects who were employed by Huntington-Larson Architects. They visited the Ramada Inn in Atlantic City, where their firm maintained a hospitality suite for a convention in November, 1974. Huntington-Larson (hereinafter "H-L") had arranged for a party, and Voytko and Ryan were among the H-L employees who drove to Atlantic City to act as hosts at the party. The plaintiffs sought parking places, and they told Ramada's manager, defendant Ginnetti, that they were attending the H-L party and did not intend to stay overnight or to take a room. Mr. Ginnetti said they could park at the hotel if they signed guest cards, which they then signed, giving H-L's name and office address. They remained at the party until mid-evening when they departed for home.

 H-L apparently failed to pay its bill for the hospitality suite, food and liquor. For purposes of this motion, there is no dispute that H-L owed the hotel $907.02 and that Voytko and Ryan were assumedly not liable to the hotel in any way for the H-L bill. *fn3"

 Ramada turned the unpaid bill over to its attorneys, the defendant firm of Feinberg and Ginsburg, for collection. In mid-February, 1975, H-L acknowledged its debt in a letter to the law firm. Nonetheless, on February 27, 1975, defendant Edward Feinberg addressed a letter to the plaintiffs threatening them personally with criminal prosecution if payment were not made promptly.

 Plaintiff Voytko wrote back, offering to pay for one night's lodging if he had incurred such liability by signing the register.

 A second Feinberg letter to the plaintiffs threatened criminal prosecution, and on April 19, 1975, defendant Ginnetti filed criminal complaints against Ryan and Voytko alleging the commission of a misdemeanor pursuant to a defrauding of innkeepers statute, N.J.S.A. 2A:111-19 (1969), *fn4" alleging that Voytko and Ryan "did willfully accept food and lodging . . . and did leave said motel without paying said amount." Warrants were issued for the arrest of Voytko and Ryan. The plaintiffs assert that this charge was knowingly false.

 Mr. Voytko, who knew nothing of the arrest warrant, was arrested at his home in Long Branch, New Jersey, in the evening by officers of the local police department. He was kept in custody for three hours in a Long Branch cell, from which he was then transported in the custody of Atlantic City police officers about 80 miles to Atlantic City, where he was processed, fingerprinted and after several hours admitted to $2500.00 bail and released at 1:30 A.M.

 Plaintiff Ryan, unlike Voytko, was not arrested at home. Ryan was told about Voytko's arrest, and he found out that his hometown police had a warrant for his arrest and that they had called his office to find him. He drove to Atlantic City from his home in Spring Lake Heights. He reported to the clerk of the municipal court, who called the police officers in the same building. Ryan was taken to their office where he was fingerprinted and admitted to bail and released. These events, including Ryan's journey to and from Atlantic City, consumed six hours.

 The Voytko and Ryan matters were taken before the Atlantic County grand jury, which refused to indict finding no probable cause that these plaintiffs had violated N.J.S.A. 2A:111-19.

 Despite dismissal of the indictment, the defendant hotel and its manager, together with the hotel's attorneys, filed new charges against Voytko and Ryan, alleging a violation of the Disorderly Persons Act for intent to defraud a hotel keeper under N.J.S.A. 2A:170-47 (1971). *fn5"

 The plaintiffs were brought to trial on the disorderly charge. Defendant Gold, an associate of the law firm retained by Ramada Inn, actually prosecuted the case for the state, pursuant to N.J. Rules of Practice 7:4-4(b) *fn6" which allows appointment of a private attorney to act as prosecutor in certain criminal cases.

 At the close of the prosecution's case, the pending charges were dismissed for failure of proof.

 This case presents several issues under the Civil Rights Act of 1871, including whether the defendants' conduct was under color of state law within 42 U.S.C. § 1983, whether the plaintiffs have been deprived of rights cognizable under the federal civil rights statutes, and whether prosecutorial immunity shields the conduct of privately retained attorneys under the circumstances of this case.


 A cause of action exists under 42 U.S.C. § 1983 (1970) *fn7" against any person who acts under color of state law to deprive a citizen of any right, privilege or immunity secured by the Constitution and laws. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). The moving defendants claim first that as private parties they have not acted under color of state law, and second that malicious prosecution is not cognizable as a deprivation of a right of constitutional dimension.


 There is no bright line by which the conduct of private parties becomes state action for purposes of the Fourteenth Amendment and civil rights statutes.

 The Third Circuit, in Magill v. Avonworth Baseball Conference, 516 F.2d 1328 (3d Cir. 1975), has identified three categories of state action cases:

(1) [Where] state courts enforced an agreement affecting private parties; (2) where the state "significantly" involved itself with the private party; and (3) where there was private performance of a government function.

 Id. at 1330-31. The requirement of 42 U.S.C. § 1983 that the actions be "under color of state law" is regarded as the functional equivalent of the state action requirement of the Fourteenth Amendment. United States v. Price, 383 U.S. 787, 794-95 n.7, 16 L. Ed. 2d 267, 86 S. Ct. 1152 n.7 (1966); Parks v. "Mr. Ford ", 556 F.2d 132, 135 & n.5 (3d Cir. 1977).

 The narrow question now considered is whether the action by a hotel and its agents in filing and prosecuting a criminal complaint under a defrauding of innkeepers statute, where the hotel's retained attorney acts as ...

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