Opinion
CV176072016S
01-18-2018
Tywanna JOHNSON v. STATE of Connecticut, DEPARTMENT OF CHILDREN AND FAMILIES
UNPUBLISHED OPINION
OPINION
Wahla, J.
Present before the court is the defendant, State of Connecticut, Department of Children and Families’ (DCF) motion to dismiss certain parts and/or paragraphs of the plaintiff’s Count One, but not the entire count. The DCF also moves that Count Two should be dismissed in its entirety on the grounds of sovereign immunity. The record reveals that the plaintiff has withdrawn Count Two, see docket entry 107.00. Therefore, no action is necessary for Count Two. As far as Count One is concerned, the court grants the DCF’s motion to dismiss for the reasons set forth below.
I
The plaintiff in her two-count complaint alleges, inter alia, that the DCF violated " Conn. Gen. Statutes § § 46a-60(2), 46a-68, 46a-69, 46a-71 and 52-571aa as enforced through 46a-58a and 46a-72, " and USERRA, in that DCF did not grant her requested accommodation of " no caseload or reduced caseload options, part-time positions, reduced schedule or different response time position, additional brakes, enclosed or protected back space or seating area, allow time for treatment, flexible work schedule or permission to make up time missed, provide organizational tools, electronic scheduling and dictation/recorder, back up coverage, ongoing weekly supervision and increased natural lighting.
The record also reveals that a similar action was filed in Federal District Court against the DCF alleging the violations of American with Disabilities Act, Title VII and USERRA. Upon the DCF’s filing of an objection, asserting that the action was barred by the Eleventh Amendment Immunity, the plaintiff voluntarily withdrew that action. Then plaintiff filed a complaint with the Commission on Human Rights and Opportunities (CHRO) alleging discrimination and retaliation and had not received the requested accommodation. On May 9, 2017, the CHRO issued to the plaintiff a Release of Jurisdiction to bring civil action. On July 6, 2017, the present action was initiated.
The DCF filed a motion to dismiss claiming that the portions of the Count One must be dismissed on the grounds of sovereign immunity which implicates the subject matter jurisdiction and is a basis for granting the motion citing Henderson v. State, 151 Conn.App. 246, 256 (2014). The plaintiff filed an objection contending that the motion to dismiss is not the proper vehicle to test the legal sufficiency of a complaint, it should be done by a motion to strike. Additionally, the plaintiff contends that certain factual claims contained in Count One which are outside of the statute of limitation are affirmative defense, are not jurisdictional bar. The plaintiff further argues that the action seeks injunctive relief, as the prayer for relief includes " ... such other relief as court shall consider to be fair and equitable."
II
" [A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013); Practice Book § 10-30. " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
III
The issue is whether certain parts, paragraphs and/or portions of a count can be dismissed. The second and/or connected issue is what is correct procedural vehicle, i.e., whether to raise this issue through a motion to strike or motion to dismiss?
As noted above, the plaintiff argues that parts, paragraphs and/or portions of a count cannot be dismissed, rather than the entire be dismissed. The plaintiff also argues that the proper method to raise is by a motion to strike and not a motion to dismiss. The defendant counters both arguments.
Judge Peck addressed the similar issue in the case of Cavaciuti v. Gnesda, No. CV 146050720S, 2015 WL 3875300, at *1-2 (Conn.Super.Ct., May 28, 2015) . " In that case the defendant has moved to dismiss certain paragraphs contained in counts one, two, and three, and the entirety of count four, on the ground that the conduct alleged therein is entitled to absolute immunity, and therefore, the court lacks subject matter jurisdiction. As to the paragraphs in question, the defendant argues that they are based on protected statements made by the defendant in quasi judicial or judicial proceedings. Interspersed among these paragraphs, however, are allegations which are admittedly not subject to absolute immunity. Thus, the defendant seeks to excise by dismissal the paragraphs which are subject to absolute immunity, leaving intact other allegations over which the court’s subject matter jurisdiction is undisputed."
Judge Peck prior to addressing the substance of motion to dismiss analyzed the procedural framework by stating, " There are two procedural matters that must be addressed prior to considering the substance of the defendant’s motion. First, the plaintiff has objected to the defendant’s chosen procedural vehicle, arguing that a motion to strike is proper when absolute immunity is asserted. Secondly, the plaintiffs maintain that it is procedurally improper to dismiss paragraphs within counts of a complaint. A motion to dismiss, the plaintiffs argue, must be directed at the complaint as a whole or entire counts therein."
A
" First, there is no question that there are examples of cases wherein absolute privilege has been raised and litigated in the framework of a motion to strike. See, e.g., Simms v. Seaman, 308 Conn. 523, 529-31, 69 A.3d 880 (2013); Dlugokecki v. Vieira, 98 Conn.App. 252, 255-56, 907 A.2d 1269 (2006); Bruno v. Travelers Companies, Superior Court, judicial district of Hartford, Docket No. CV-14-5009251-S (January 5, 2015, Truglia, Jr., J.). However, there are also numerous cases wherein absolute immunity is raised and litigated in the context of a motion to dismiss. See, e.g., Rioux v. Barry, 283 Conn. 338, 339-40, 927 A.2d 304 (2007); Perugini v. Giuliano, 148 Conn.App. 861, 873-75, 89 A.3d 358 (2014); Stone v. Pattis, 144 Conn.App. 79, 97-100, 72 A.3d 1138 (2013). The Supreme Court has stated that " the purpose of the absolute immunity afforded participants in judicial and quasi judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state." Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005). Based on this statement of similarity of purpose, it is reasonable to conclude that both doctrines implicate the subject matter jurisdiction of the court and are properly raised by way of a motion to dismiss. See Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). In two recent cases, the Appellate Court has clearly stated that absolute immunity implicates subject matter jurisdiction, and is properly pleaded in a motion to dismiss. See Perugini v. Giuliano, supra, 148 Conn.App. at 863; Stone v. Pattis, supra, 144 Conn.App. at 96-97. Further, following the lead of the appellate courts, numerous Superior Courts have entertained motions to dismiss for lack of subject matter jurisdiction based on absolute immunity. See Gyadu v. Law Office of Milano & Wanat, Superior Court, judicial district of New Haven, Docket No. CV-14-5034821-S (October 29, 2014, Nazzaro, J.); Mozzochi v. Stone, Superior Court, judicial district of Hartford, Docket No. CV-13-5036782-S (June 11, 2013, Wagner, J.); Jonas v. Delallo, Superior Court, judicial district of Fairfield, Docket No. CV-10-5029297-S (December 11, 2012, Bellis, J.) (55 Conn.L.Rptr. 226, 228). See also Krol v. Halloran & Sage, LLP, Superior Court, judicial district of Fairfield, Docket No. CV-11-6018792-S (January 24, 2014, Gilardi, J.) (treating defendant’s motion to strike on ground of absolute immunity as motion to dismiss and dismissing case for lack of subject matter jurisdiction). For the reasons stated in all these case, the defendant’s assertion of the doctrine of absolute immunity is properly before the court by way of a motion to dismiss for lack of subject matter jurisdiction."
B
" Secondly, where a motion to dismiss implicates subject matter jurisdiction, the court may dismiss portions of a complaint, including individual paragraphs within counts. In considering a motion to dismiss for lack of subject matter jurisdiction directed at a single paragraph in a complaint based on sovereign immunity, the Appellate Court noted that " the appellate courts of this state have ordered the dismissal of portions of a count of a complaint on the basis of sovereign immunity." (Emphasis in original.) Paragon Construction Co. v. Dept . of Public Works, 130 Conn.App. 211, 221 n.10, 23 A.3d 732 (2011). Indeed, in Ware v. State, 118 Conn.App. 65, 78 n.4, 86-87, 983 A.2d 853 (2009), the Appellate Court reversed the trial court’s denial of a motion to dismiss directed only at portions of counts, concluding that such portions should have been dismissed as barred by sovereign immunity. In directing that such portions be dismissed, the court did not require that the specific portions make out complete claims or causes of action. Id., at 78 n.4, 983 A.2d 853. See also Fetterman v. University of Connecticut, 192 Conn. 539, 557, 473 A.2d 1176 (1984) (upholding trial court’s dismissal of portions of counts one through eight as barred by sovereign immunity). Further, several Superior Court cases have followed or approved of the example of Paragon Construction Co. and Ware, dismissing specific allegations over which the court lacks jurisdiction when they are commingled with allegations over which the court’s jurisdiction is undisputed. See Lloyd v. Connection, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6023491-S (December 21, 2011, Young, J.) (dismissing eight paragraphs of a one-count complaint for lack of subject matter jurisdiction because " there is nothing in the practice book precluding dismissal of certain claims within a complaint"); Lennon v. Dolce Vida Medical Spa, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-14-6017172-S (February 10, 2015, Kamp, J.) (entertaining motion to dismiss directed at only portions); Higbie v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6021796-S (November 5, 2014, Tobin, J.) (dismissing portions citing Ware and Paragon Construction Co .)."
Judge Peck went on to state " ... In the present case, the defendant seeks dismissal of several paragraphs within three counts of the complaint on the ground of absolute immunity, all of which are claimed to implicate the court’s subject matter jurisdiction. As noted, the practice book contains no language which precludes this method, and our appellate courts have approved of it. See Practice Book § 10-30. This allows the court to excise claims concerning which it lacks subject matter jurisdiction, and retain those portions over which jurisdiction is present. See Paragon Construction Co. v. Dept . of Public Works, supra, 130 Conn.App. at 221 n.10 and Ware v. State, supra, 118 Conn.App. at 78 n.4, 86-87, 983 A.2d 853; see also Fetterman v. University of Connecticut, supra, 192 Conn. at 557, 473 A.2d 1176. Furthermore, this approach both avoids incentivizing a plaintiff’s burial of non-justiciable claims in otherwise justiciable counts to avoid dismissal, and is in keeping with the Supreme Court’s directive that, in considering a motion to dismiss, " every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013)."
The foregoing cases are very much on point for the case before this court. There are additional cases which lend support for the defendant’s contention. See Longcap PNT, LLC v. Post -N-Track Corp., No. CV126032138S, 2014 WL 2853918 (Conn.Super.Ct. May 15, 2014). Judge Wiese wrote, " The court notes that it may dismiss only portions of a count, citing Fetterman v. University of Connecticut, 192 Conn. 539, 557, 473 A.2d 1176, 1185 (1984) (" In view of our conclusion herein, as to UConn we uphold the trial court’s dismissal of those portions of counts one through eight which may not be pursued due to the doctrine of sovereign immunity"); Noll v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket No. X04-CV-02-4034702-S (October 20, 2008, Shapiro, J.) .
IV
In the light of the foregoing, the court grants the defendant’s motion to dismiss, as requested.