Opinion
UWYCV166031744
03-02-2017
Lisa Motillo v. Connecticut Department of Labor
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
Brazzel-Massaro, J.
INTRODUCTION
This action was filed by way of writ, summons and complaint dated August 17, 2016. The plaintiff brought this action against one defendant, the Connecticut Department of Labor alleging a cause of action for Age Discrimination pursuant to 29 U.S.C. § 621 et seq. The defendant entered an appearance on August 23, 2016 and filed this motion to dismiss arguing that the action must dismissed because the action is barred by sovereign immunity. The plaintiff included in the complaint a notation that the action is being filed pursuant to the accidental failure of suit statute. The defendant also argues that the accidental failure of suit statute does not apply to this action.
The matter was scheduled for argument on October 11, 2016. The Practice Book Section 10-31 provides as to opposition that, " Any adverse party shall have thirty days from the filing of the motion to dismiss to respond to the motion to dismiss by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition and, where appropriate supporting affidavits as to facts not apparent on the record." On the morning of October 11, 2016 the plaintiff submitted an opposition to the motion which counsel for the defendant received as part of a message that she was in another court on that morning. Therewas no request to continue the motion to file a response nor a request to continue the argument on October 11, 2016. Counsel for the defendant was present and argued. The court permitted defense counsel to respond to the late opposition memorandum by October 25, 2016.
The method of Service noted in Practice Book Sec. 10-13 permits service by electronic means if consented to in writing by the person served. There was no information provided to the court as to whether the defendant has consented or whether the attachment to a note that counsel was in another court was proper. However, the defendant did not object to the court considering the memorandum but requested some time to review and respond.
II. PROCEDURAL BACKGROUND
The plaintiff filed this action after pursuing two other actions for relief based upon the same allegations. The plaintiff was employed by the Connecticut Department of Labor (the " Department"). She brought a claim against the Department with the Commission on Human Rights and Opportunities alleging that she was denied a promotion on March 6, 2013 because of age discrimination in violation of Connecticut Fair Employment Practices Act (CFEPA). C.G.S. § 46a-60(a)(1) and 46a-71, as well as the Age Discrimination Act of 1967, 29 U.S.C. § § 621-634 (ADEA). The plaintiff thereafter voluntarily withdrew her CHRO complaint on February 24, 2016 and received a right to sue letter dated March 2, 2016.
The plaintiff filed a one-count complaint in the United States District Court for the District of Connecticut on May 16, 2016 naming as the defendant the State of Connecticut Department of Labor (DOL). The plaintiff alleged a violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § § 621-634. The defendant, DOL, filed a motion to dismiss in the federal action arguing the action was barred by sovereign immunity. In response to the motion the plaintiff filed a Rule 41(a) Voluntary Dismissal of the action without prejudice on July 22, 2016. The plaintiff filed this one-count complaint with the same allegation that the defendant violated the ADEA. The defendant filed this motion to dismiss.
III. DISCUSSION
" A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter . . ." Practice Book § 10-30(a). " 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). " When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). Pursuant to Practice Book Section 10-30, a motion to dismiss is used to assert: " (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process and (4) insufficiency of service of process."
The defendant argues that the accidental failure of suit does not apply when the plaintiff has voluntarily withdrawn or allowed a dismissal of the action. The accidental failure of suit statute C.G.S. § 52-592 states: " [i]f any action commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by death of a party or for any matter or form . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action . . ."
The plaintiff filed an action in the federal district court after she received a release from jurisdiction from the Commission on Human Rights and Opportunities. Both the CHRO case and the federal action contained allegations that the defendants discriminated against her as a result of her age. These are the same allegations that the plaintiff has raised in the instant action. It is uncontroverted that the plaintiff chose to withdraw the action in the federal court through a voluntary dismissal. It is also obvious that the action of the plaintiff was the result of the filing of the motion to dismiss. However, this court must determine whether the filing satisfies the accidental failure of suit statute as noted above. The defendant argues that the accidental failure of suit statute does not apply because the plaintiff chose to voluntarily withdraw the federal action. The statute permits the filing if the action has been dismissed for lack of jurisdiction. The motion to dismiss which was filed in the federal action argued that the court lacked jurisdiction because of the doctrine of sovereign immunity. The motion was never acted upon because the plaintiff filed the voluntary dismissal of the action. In Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 976 A.2d 723 (2004), the court addressed some of the very same arguments in this action. The Viejas court involved a claim in federal court that the action should be dismissed for lack of diversity jurisdiction because the Indian tribes were not citizens. In response to the motion the plaintiffs filed a voluntary dismissal of the federal action and thereafter filed in the state court. The defendant argued that the state court action could not be filed as an accidental failure action because the case was voluntarily dismissed by the plaintiff and not entered by the court. The Appellate Court found that: " § 52-592(d) allows plaintiff to pursue the state law claims that were dismissed without prejudice in federal court." (Internal quotation marks omitted.) Daoust v. McWilliams, 49 Conn.App. 715, 721, 716 A.2d 922 (1998). Section 52-592 contains no caveat, and neither this court nor our Supreme Court has attached one, that the statute applies only if such claims were dismissed without prejudice but not on the plaintiff's motion." Viejas Band of Kumeyaay Indians v. Lorinsky, id. 160. Thus, the fact that the claim in the federal action for dismissal was a lack of jurisdiction provides the support to permit the filing of this action pursuant to the accidental failure of suit statute. However, as noted below the lack of jurisdiction argument regarding sovereign immunity warrants the dismissal by this court of the present action.
This is also the second argument of the defendants in this motion to dismiss.
The defendant also argues that the plaintiff has improperly brought this action against the state because it is barred by the doctrine of sovereign immunity. Sovereign immunity implicates subject matter jurisdiction and is therefore a basis to grant a motion to dismiss. Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (2006). In Manifold the court addressed the application of sovereign immunity. The court stated: " [W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect against the state." Id., 114, citing Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). There are several limited exceptions to the state's immunity from suit, namely, when " 1) the legislature . . . statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." Miller v. Egan, supra, 313. The plaintiff does not argue either of these exceptions nor can the court determine from the pleadings that there is any claim other than a claim for damages. Thus, if as the plaintiff states in her memorandum even if it was her intention to name the defendant Garcia in her official capacity, the complaint must be dismissed because she is protected by the doctrine of sovereign immunity. Additionally, the Appellate Court has confirmed the application of sovereign immunity in an instance such as this where the claim against the state is ADEA. Marasco v. Connecticut Regional Vocational Technical School System, 153 Conn.App. 146, 100 A.3d 930 (2014), cert. denied, 316 Conn. 901, 111 A.3d 469 (2015). The plaintiff argues that the doctrine of sovereign immunity does not apply because this an action pursuant to C.G.S. § 46a-60 et seq. However, the plaintiff has not filed a claim pursuant to this statute and the pleadings are clear that the cause of action in both the federal action and this complaint is an Age Discrimination in Employment Act issue. Thus, this argument fails because the claim is clearly based upon ADEA, 29 U.S.C. § § 621 et seq. The State of Connecticut Department of Labor is immune from suit for the cause of action under ADEA and thus the motion to dismiss is granted.
IV. CONCLUSION
Based upon the above the defendant, State of Connecticut Department of Labor, has sovereign immunity and the motion to dismiss is granted on this basis.