Opinion
HHDCV195057252S
01-06-2020
Frank Ngo v. Eileen Wirtes et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #120
CESAR A. NOBLE, J.
Before the court is the motion of the defendant, Rabbi Andrew Hechtman, to dismiss the action of the plaintiff, Frank Ngo, for lack of subject matter jurisdiction on the grounds that Rabbi Hechtman is entitled to absolute immunity. Because the alleged misconduct of Rabbi Hechtman flows from acts integrally related to a judicial proceeding, the court finds that he is cloaked by absolute immunity and the court is deprived of subject matter jurisdiction over the action. The motion to dismiss is therefore granted.
The plaintiff brought this action against his former wife, Eileen Wirtes; Robert Katz, her divorce attorney; Dr. Bruce Freedman, a clinical psychologist/family therapist; and the movant, Rabbi Hechtman. The factual allegations of the plaintiff’s complaint derive from conduct related to a prior action brought by the plaintiff’s former wife for dissolution of their marriage. Ngo v. Ngo, Superior Court, judicial district of Hartford, Docket No. FA 14-4075288, 2016 WL 1266066 (March 7, 2016, Suarez, J.). The plaintiff alleges in his complaint that Rabbi Hechtman is a "marriage and family therapist licensed to practice in the State of Connecticut." On June 14, 2016, Rabbi Hechtman was appointed by the Superior Court to facilitate reunification of the plaintiff and his minor child. The plaintiff further alleges that Rabbi Hechtman failed to remain neutral during the reunification process, made misrepresentations and committed perjury, and failed to exercise reasonable care or competence in obtaining or communicating information. In the view of the plaintiff, Rabbi Hechtman’s conduct was part of a conspiracy with the other defendants to "maintain high-conflict and vexatious litigation for no other reason than to commit a fraud and prevent [plaintiff] from having ... parenting time with [his] daughter." Counts two and three respectively assert claims, against Rabbi Hechtman, of "Misrepresentation and Perjury" and "Intentional Infliction of Emotional Distress." All of the misconduct alleged against Rabbi Hechtman is intimately related to his participation, pursuant to court order, in the judicial process inhering to the dissolution action.
The court previously dismissed the action as to Wirtes, Katz, and Freedman on the grounds of the absolute immunity conferred by the litigation privilege. See Ngo v. Wirtes, Superior Court judicial district of Hartford, Docket No. CV-19-5057252-S, 2019 WL 4322666, *1 (August 20, 2019, Noble, J.)
The court takes judicial notice of the contents of the dissolution action, Ngo v. Ngo, supra, Superior Court, Docket No. FA 14-4075288. See State v. Gaines, 257 Conn. 695, 705 n.7, 778 A.2d 919 (2001) (Court may take judicial notice of files in other proceedings).
"[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). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). The doctrine of "absolute immunity implicates the trial court’s subject matter jurisdiction." Bruno v. Travelers Companies, 172 Conn.App. 717, 723, 161 A.3d 630 (2017).
The doctrine of absolute immunity bars most claims related to communications published in the course of judicial or quasi-judicial proceedings if the communications are in some way pertinent to the litigation. See Tyler v. Tatoian, 164 Conn.App. 82, 88, 137 A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d 710 (2016). "The purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements ... [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint ... Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, 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 ... As a result, courts have recognized absolute immunity as a defense in certain retaliatory civil actions in order to remove this disincentive and thus encourage citizens to come forward with complaints or to testify." (Internal quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 539, 69 A.3d 880 (2013).
The ambit of the privilege extends to "all participants in judicial proceedings, including judges, attorneys, parties, and witnesses"; MacDermid, Inc. v. Leonetti, supra, 310 Conn. 627; to the tort of intentional infliction of emotional distress; Simms v. Seaman, supra, 308 Conn. 569-70; and "to all communications, even those that are allegedly false, made in the course of the underlying lawsuit on issues pertinent to the controversy [including misrepresentation.]" Ngo v. Wirtes, supra, Superior Court, Docket No. CV-19-5057252-S, *4, citing Simms v. Seaman, supra, 308 Conn. 563. Moreover, absolute immunity has been applied where the acts of a private actor, such as a therapist who provided information and reports in a child custody proceeding, "are integrally related to an ongoing judicial proceeding." Cleary v. Bonjour, United States District Court, Docket No. 3:17-CV-1957 (VLB), 2018 WL 2390140, *3 (D.Conn. May 25, (2018). In the present case, Rabbi Hechtman’s conduct was integrally related to an ongoing judicial proceeding.
For the foregoing reasons, Rabbi Hechtman’s actions, as alleged in the plaintiff’s complaint, are subject to absolute immunity. The motion to dismiss is granted.
This court noted in its prior decision as to Wirtes, Katz, and Freedman that there is no civil remedy for perjury. See Terracino v. Buzzi, 121 Conn.App. 846, 857 n.7, 1 A.3d 115 (2010). Because the plaintiff is self-represented, the court opted, and does so again, to treat the theory of perjury asserted by the plaintiff as one of misrepresentation. Ngo v. Wirtes, supra, Superior Court, Docket No. CV-19-5057252-S, *4.