Opinion
No. CV 00 0595721 S
August 11, 2009
MEMORANDUM OF DECISION
Before this court is the motion to dismiss for lack of subject matter jurisdiction and memorandum of law filed on February 21, 2006 by the defendants, the Wethersfield Board of Education, Ellen Healy, Christopher Dumas, Patricia Strong, Christine Fortunato, Donna Hemmann, Stacey Hodges, John Morris, Frederick Petrelli, Penny Stanziale, in their official capacities, and Lynn Pierson, who was sued in her official and individual capacity. The plaintiff, a teacher employed by the defendant board of education, had originally sued the defendants, seeking an injunction and claiming negligent and intentional infliction of emotional distress as well as allegations of invasion of privacy, violation of his rights under the state constitution and intentional interference with his contractual relations.
The motion to dismiss was premised on the defendants' claim that because the above matter was removed to federal court on February 22, 2000, the federal court assumed pendent jurisdiction over the state law claims. Also before this court is the defendants' motion for summary judgment based, in part, on their assertion that res judicata bars this action. As its tortured procedural history reveals, this case, originally filed in state court and removed to federal court in 2000, underscores the rationale underlying federal and state jurisdictional law. As codified in the 28 U.S.C. § 1446(e), the removal statute was intended to eliminate confusion and the possibility of parallel proceedings in state and federal court by providing a uniform method for removal of civil and criminal prosecution. Butler v. King, 781 F.2d 486, 488 (5th Cir. 1986). Indeed, the doctrine of res judicata also implicates similar policy concerns of judicial resources; Rocco v. Garrison, 268 Conn. 541, 555, 848 A.2d 352 (2004); but since this court grants the motion to dismiss on jurisdictional grounds, it does not reach that and other issues as raised in the motion for summary judgment.
Of interest and significance to the overall litigation of this case is the decision by the Second Circuit on June 3, 2009, affirming the decision of the federal trial court and granting the defendant's motion for summary judgment based on res judicata. Its decision is premised on the same, compelling rationale presented to this court in support of the motion for summary judgment; i.e., that the jury verdict in O'Connor II before the state superior court, discussed infra, barred the federal claims.
The additional, relevant procedural history of this case is as follows. On March 29, 2001, the federal court, Chatigny, J., granted the defendant's motion for summary judgment on procedural due process grounds and on December 10, 2003, granted the defendants' motion for summary judgment as to the substantive due process claims. The state pendent claims were then remanded to state court.
In the interim, the plaintiff had filed on June 4, 2001 what was essentially the same action in state court, O'Connor v. Board of Education, Superior Court, Docket No. CV 01 0808376, judicial district of Hartford [hereinafter, O'Connor II]. In this case, however, the plaintiff named only the board of education as a defendant but nevertheless asserted various causes of action sounding in common-law tort, breach of contract and violations of General Statutes § 31-51q arising from the same set of facts. O'Connor v. Board of Education, 90 Conn.App. 59, 62, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005). In other words, from the date of the filing of O'Connor II until the pendent state claims were remanded by the federal court in December 2003, the plaintiff litigated his state claims against the board of education in state court.
In O'Connor II, following the court's ruling on summary judgment motions filed by the defendant and plaintiff, three remaining counts were tried to the jury. In reaching a verdict for the plaintiff on September 13, 2003, the jury awarded $162,500 to the plaintiff on his invasion of privacy claim.
Following the federal court's remand of the pendent claims to state court in December 2003, both the federal decision of Judge Chatigny and the state court verdict in O'Connor II were appealed by the plaintiff and the defendants in the respective higher courts.
On July 5, 2005, the Appellate Court in O'Connor II reversed the judgment as to the plaintiff and directed a verdict for the defendant. O'Connor v. Board of Education, supra, 90 Conn.App. 70. In that same time frame, the Second Circuit reversed the federal trial court as to the granting of the motion for summary judgment on substantive due process grounds and remanded the case back to the federal trial court. O'Connor v. Pierson, 426 F.3d 187, 203-04 (2d. Cir. 2005).
It is at this juncture of the procedural history of this case when, on February 21, 2006, the defendants filed the motion to dismiss currently before the court. As noted at the outset, and as a result of the Second Circuit's remand, the defendants moved to dismiss what was essentially the pendent state claims purportedly before this court. The defendants also filed on February 24, 2006, a motion for summary judgment asserting, inter alia, that res judicata barred this action given that CT Page 18147 O'Connor II was tried to a verdict.
On July 7, 2006, the plaintiff filed a withdrawal in this action as to all defendants with the exception of the defendant Pierson. As a result of the Second Circuit court's remand, the federal court (Chatigny, J.), also formally vacated its remand of the pendent state claims, following which the defendants filed in this court on August 2, 2006, a supplement to the motion to dismiss, bringing that fact to the court's attention.
Significantly, the plaintiff and defendant signed and filed in this court on August 13, 2006 a stipulation in which the parties agreed that "[b]ecause this matter has been removed to federal court, this case will be stayed until final resolution of the claims in federal court, or in the alternative, remand of the claims back to state court."
On March 31, 2007, the federal court (Chatigny, J.) granted the defendants' motion for summary judgment holding that the verdict in state court in O'Connor II barred the federal court action based on res judicata. O'Connor v. Pierson, 482 F.Sup.2d 228 (D.Conn. 2007). On June 3, 2009, the Second Circuit affirmed the federal court's decision granting summary judgment. O'Connor v. Pierson, 568 F.3d 64, 66 (D.Conn. 2009).
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). The plaintiff argues that the defendant's motion is outdated and abandoned; however, the "subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
"Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003); Esposito v. Specyalski, 268 Conn. 336, 348, CT Page 18148 844 A.2d 211 (2004).
"The right to remove a case from state to federal court derives solely from 28 U.S.C. § 1441." (Internal quotation marks omitted.) Bryan v. BellSouth Telecommunications, Inc., United States District Court, Docket No. 1:02 CV 00228 (M.D.N.C. May 31, 2006), aff'd, 492 F.3d 231 (2007), cert. denied, 128 S.Ct. 882, 169 L.Ed.2d 726 (2008). Once a case has been properly removed to federal court, the state court lacks subject matter jurisdiction over the proceedings. Id., 14. As the court held in United States ex. rel Echevarria v. Silberglitt, 441 F.2d 225, 227 (2d Cir. 1971), "the language of 28 U.S.C. § 1446[(d)] could not be clearer. `[T]he state court is deprived of jurisdiction to proceed with the removed action unless and until the case is remanded, irrespective of whether the action is removable.'" (citing 1A J. Moore Federal Practice ¶ 0.168[3.-8], at 1306 (2d ed. 1965); Baricko v. Chesebrough-Ponds USA Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0395642 (December 9, 1997, Mulvey, J.T.R.) [21 Conn. L. Rptr. 105].
"Removal is effective upon filing a notice of removal in both the relevant federal and state courts, and providing notice to the other parties. 28 U.S.C. § 1446(a), (d). At that time, `the State court shall proceed no further unless and until the case is remanded.' 28 U.S.C. § 1446(d)." "A proper filing of a notice of removal immediately strips the state court of its jurisdiction." Yarnevic v. Brink's,' Inc., 102 F.3d 753, 754 (4th Cir. 1996). "Thus, even if a case is later remanded, it is under the sole jurisdiction of the federal court from the time of filing until the court remands it back to state court. California ex rel. Sacramento [Metropolitan] Air Quality [Management District] v. United States, 215 F.3d 1005, 1011 (9th Cir. 2000) ("[F]urther proceedings in a state court are considered coram non judice and will be vacated even if the case is later remanded" (citing 14C Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice Procedure § 3737 (3d ed. 1998)))." In re Diet Drugs Products Liability Litigation, 282 F.3d 220, 231 n. 6 (3d Cir. 2002). See generally New Orleans, Mobile and Texas Railroad Co. v. Mississippi, 102 U.S. 135, 141, 12 Otto 135, 26 L.Ed. 96 (1880) (state court "was entirely without jurisdiction to proceed" after removal).
Subsection 1446(e) "has consistently been construed, by both federal and state courts, to require that a remand of the matter by the federal court actually occur before the state court may properly proceed. See, e.g., Lowe v. Jacobs, 243 F.2d 432, 433 (5th Cir. 1957), cert. denied, 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed.2d 52 (1957) (where there has been compliance with the removal statute, the state court loses all jurisdiction until there has been a remand); Fischman v. Fischman, CT Page 18149 470 F.Sup. 980, 984 (E.D.Pa. 1979) (following the removal of an action from state court to federal court, exclusive jurisdiction of the action is vested in the federal court); Dorsey v. State, [ 171 Ind.App. 408, 409-10, 357 N.E.2d 280 (1976)] (state court does not resume jurisdiction over an action that has been removed to federal court until action is remanded); McCauley v. Consolidated Underwriters, 301 S.W.2d 181, 185 (Tex.Civ.App. 1957), rev'd on other grounds, [ 157 Tex. 475, 304 S.W.2d 265 (1957)] (any action taken in the state court, after removal of the matter to federal court and prior to remand, is void)." LoSacco v. Serra, Superior Court, judicial district of Middlesex, Docket No. 073177 (Jun. 16, 1995, Stanley, J.) (14 Conn. L. Rptr. 390). "[O]nly the federal court can restore jurisdiction to the state court." Illinois Licensed Beverage Ass'n., Inc. v. Advanta Leasing Services, 333 Ill.App.3d 927, 932, 776 N.E.2d 255, 267 Ill.Dec. 118 (2002), cert. denied, 202 Ill.2d 671, 787 N.E.2d 173, 272 Ill. Dec. 358 (2003), citing Moubry v. Kreb, 58 F.Sup.2d 1041 (D.Minn. 1999).
Moreover, it is of no moment that, following the federal district court remand of the pendent state claims in December 2003 until July 26, 2006, when the district court vacated its remand, this matter was re-opened in state court. In an instructive decision, the court in Bryan v. BellSouth Telecommunications, Inc., supra, United States District Court, Docket No. 1:02 CV 00228, described the case's history in both federal and state court which, procedurally, is remarkably similar to the case before this court. In that case, (1) [p]laintiff filed suit in state court; (2) [d]efendant properly removed the suit to federal district court; (3) the federal district court dismissed counts b and c and, declining to exercise supplemental jurisdiction, remanded count a to state court; (4) defendant appealed the federal district court's remand Order to the Fourth Circuit; (5) while on appeal the suit proceeded in state court during which time the complaint was amended; (6) over a year after the federal district court remanded the remaining claim, the Fourth circuit vacated the district court's Order with instructions to dismiss the remaining claim, (7) the federal district court, per those instructions, dismissed the entire suit with prejudice; (8) defendant filed a motion to dismiss in state court, noting the federal district court's final judgment and (9) the state court denied [d]efendant's motion."
In the Bryan case, the critical issue for the court was "the effect of the Fourth Circuit's vacation of the court's Order remanding Count A to the state court in relation to the proceeding that took place in state court in the interim between those two decisions." In that case, following the federal court's vacation of the remand, the state court had allowed an amendment to the complaint and had denied the defendant's motion to dismiss. After having determined that the court need not give "full faith and credit" to the state court's decisions in that interim period because they were not final judgments, the Bryan court held that the vacation of the remand order rendered all state proceedings since the issuance of the order a nullity. Id., citing Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 524, 106 S.Ct. 768, 88 L.Ed 2d 877 (1986).
As such, Bryan is instructive to the extent that it is also different from the case before the court. In that case, the proceedings in state court, while not resulting in a final judgment, amounted to substantive activity. In contrast, following the district court's vacation of the remand of the pendent claims in July 26, 2006, the activity before the court in this case amounted to a stipulation by the parties with approval of the court that the state matter would be stayed. As such, this court understands the stipulation to represent, not only as a practical matter, the status of the state case, but effectively an acknowledgment that this court did not have subject matter jurisdiction once the district court vacated its remand. Given that all of the claims before the federal court have been resolved, this court, not having had jurisdiction since July 26, 2006 following the federal court's vacation of the remand, continues to lack subject matter jurisdiction in this matter.
The motion to dismiss is granted.
It is SO ORDERED.