Boruchowitz v. Beckett et al

Filing 47

ORDER denying 43 Motion to Reconsider or Dismiss for Lack of Jurisdiction. Signed by Judge Robert C. Jones on 6/16/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID BORUCHOWITZ,

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This is a malicious prosecution case. Pending before the Court is a Motion to Reconsider

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or Dismiss for Lack of Jurisdiction (ECF No. 43). For the reasons given herein, the Court denies

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the motion.

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Plaintiff,
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vs.
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ROBERT BECKETT et al.,
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Defendants.

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3:12-cv-00196-RCJ-VPC
ORDER

Plaintiff filed the present Complaint in this Court, listing several claims that the Court

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characterized as follows: (1) false arrest, malicious prosecution, and intentional infliction of

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emotional distress (“IIED”) under § 1983; (2) negligent training, supervision, and retention; (3)

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“breach of duty of care,” i.e., negligence; (4) “prosecutorial misconduct,” i.e., common law

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malicious prosecution; (5) civil conspiracy; and (6) defamation. The Court granted summary

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judgment to Defendants as against all claims except those for malicious prosecution (under both

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§ 1983 and state law), civil conspiracy, and defamation. The Court later reconsidered in part,

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noting that Defendants were immune from the malicious prosecution claims insofar as they were

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based on 42 U.S.C. § 1983, but not insofar as they were based on common-law malicious

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prosecution under state law, because the doctrines as to prosecutorial immunity from such a

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claim differed as between federal and state law.

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Defendant Robert Beckett has now asked the Court to dismiss pursuant to 28 U.S.C.

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§ 1367(c)(3), which gives the Court discretion to decline supplemental; jurisdiction and dismiss

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now that the claims over which the Court had original jurisdiction have been dismissed. Plaintiff

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opposes the motion. The Court denies them motion. The gravamen of the complaint remains,

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and the Court has already adjudicated a summary judgment motion as to the state law claims. It

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would be judicially inefficient to require a state court to address the case from the beginning in a

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new action.

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The Court also declines to reconsider its finding that Nevada law does not permit a

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prosecutorial immunity defense to a malicious prosecution action for the reasons given in

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Footnote 1 of the previous order. Defendant’s citation to a case concerning judicial immunity is

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inapposite. Defendant fails to recognize the distinction between judicial and prosecutorial

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immunity. Judges are immunized even when acting with malice, but prosecutors are not—that’s

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why the tort is called “malicious prosecution.”

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider or Dismiss for Lack of

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Jurisdiction (ECF No. 43) is DENIED.

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IT IS SO ORDERED.

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Dated this 16th day of June, 2014.
Dated this 5th day of June, 2014.

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_____________________________________
ROBERT C. JONES
United States District Judge

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