Opinion
FBTCV165031388
05-03-2018
Procurement, LLC v. Nicholas Ahuja, Executor of the Estate of Gurpreet Ahuja et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Ecker, Steven D., J.
MEMORANDUM OF DECISION RE #178.00
Steven D. Ecker, Judge
Procurement, LLC (" Procurement" ) and Ahuja Holdings, LLC (" Holdings" ) are competing real estate developers. Procurement alleges in this lawsuit that Holdings and an individual named Gurpreet Ahuja (" Ahuja" ) engaged in a protracted course of groundless legal proceedings and related wrongful acts intended to cripple plaintiff’s ability to proceed with a development project involving the construction of a large child-care center and approximately twenty residential units on High Ridge Road in Stamford, Connecticut (" the Project" ). Efforts by Procurement to obtain the necessary zoning approvals from the relevant municipal zoning authorities began almost a decade ago. According to Procurement, those efforts were opposed every step of the way by Ahuja, now deceased, who owned neighboring property. Procurement claims that Ahuja was in fact a " straw" objector acting at the behest of Holdings, an entity controlled by Ahuja’s son, Nicholas Ahuja, and her former husband, Ajay Ahuja. This lawsuit alleges that Ahuja’s groundless legal obstructionism was motivated by her desire to further her family’s business interests rather than any legitimate concerns about zoning or land use.
Ahuja passed away on December 28, 2016. Her estate has been substituted as a defendant.
Presently before the court is defendants’ motion for summary judgment based on the Noerr-Pennington doctrine. For the reasons set forth in this memorandum, the motion is granted in defendants’ favor on the First through Sixth Counts of the operative complaint. The Noerr-Pennington doctrine immunizes defendants from liability for acts undertaken by them in connection with the underlying administrative and judicial zoning-related proceedings, which are the subject of the first six counts. Summary judgment is denied on the Seventh Count of the complaint, however, because that claim relates to defendants’ non-petitioning activity directed at Procurement’s lenders and tenants, conduct that is not protected under Noerr-Pennington .
Background Facts and Proceedings
The current litigation arises out of a series of interrelated administrative and judicial proceedings over the past seven-plus years involving Procurement’s High Ridge Road Project. For ease of reference, the court will describe the allegedly wrongful activity at issue using two basic categories. The first includes three distinct, though related, administrative and judicial proceedings, each involving defendants’ opposition to a particular zoning application made by plaintiff in connection with its High Ridge Road Project. The second category of alleged wrongdoing involves what Procurement calls defendants’ " non-petitioning activity," which relates to defendants’ interactions with non-governmental participants in the Project- neighbors, lenders, and actual or prospective tenants. Each of these activities is summarized below.
The " First Application"
The initial round of administrative and judicial proceedings arose out of a set of applications submitted by Procurement to the Stamford Zoning Board (Board) in April 2010. These included an application for special exception approval, and an application for approval of site and architectural plans, each of which related to Procurement’s intention to develop a two-story building consisting of a day-care center and nine residential units on the subject property (" First Application" ). The Board held hearings on the First Application in December 2010, and voted on January 10, 2011 to deny the application for a special exception. Procurement timely appealed the denial to the superior court.
Ahuja’s formal involvement in the First Application did not come until over a year later, on February 22, 2012, when she filed a motion to intervene in the appeal pending in the superior court. The motion described her status as a statutorily aggrieved landowner pursuant to General Statutes § 8-8, based on the fact that she owned property within 100 feet of the subject property. Ahuja alleged that her participation as an intervenor had become necessary because there was no longer true adversity between plaintiff (Procurement) and defendant (the Board) due to the Board’s recent action on a second, modified zoning application made by Procurement, which the Board had approved while the appeal of the decision in the First Application was pending. (The " Second Application" is described in greater detail below.) Ahuja argued that Procurement and the Board were now essentially on the same side, and would settle the appeal unless the court permitted her to intervene in support of the Board’s denial of the special exception sought in the First Application.
The parties have not explained precisely why the Board’s approval of the Second Application, which occurred on December 12, 2011, did not render moot the ongoing judicial proceedings relating to the First Application. Whatever the reason, it is clear from the record that a live dispute remained with respect to certain aspects of the First Application even after approval of the Second Application.
Ahuja’s motion to intervene was denied by the court (Adams, J.), on May 30, 2012. See Procurement, LLC v. City of Stamford Zoning Board, No. FST-CV- 11-6008292, " Memorandum of Decision Re: Motion to Intervene" (Entry #122.00, " Intervention MOD" ) . The Intervention MOD weighed the various factors relevant to permissive intervention and determined that a majority of those considerations counseled denial of Ahuja’s motion to intervene. The existence of Ahuja’s then-pending appeal from the Board’s approval of the Second Application (see below at pp. 5-6) gave Judge Adams pause, because it was possible that intervention might not lead to more efficient proceedings in light of that appeal, see Intervention MOD at 5, but Judge Adams ultimately chose to exercise his discretion to deny intervention. To ensure that Ahuja’s interests would be protected, Judge Adams ordered the parties to provide three weeks’ notice to Ahuja in the event of a settlement, which would allow her to participate in any hearing for judicial approval of the settlement under General Statutes § 8-8(n). There is no suggestion anywhere in the Intervention MOD, express or implied, that Ahuja’s motion to intervene was frivolous, vexatious or otherwise objectively unreasonable.
Ahuja sought appellate review of Judge Adams’ intervention order by filing a timely petition for certification pursuant to General Statutes § 8-8(o) and Practice Book § 81-1. Certification was granted by the Appellate Court on October 24, 2012. A game of litigation chess followed. Procurement (which had opposed Ahuja’s motion to intervene) filed a motion in the superior court case to implead Ahuja as a party defendant on May 25, 2013. Ahuja (who had sought to intervene) initially objected to Procurement’s motion to implead The Board also objected. Judge Berger granted the motion to implead on August 23, 2013. Ahuja withdrew its appeal in the Appellate Court on October 4, 2013, and the superior court case proceeded on the merits. Ahuja’s trial brief, filed on October 15, 2013, adopted the Board’s trial brief in its entirety and added less than two pages of additional argument. Judge Berger held a merits hearing on December 6, 2013, and issued a decision on February 14, 2014. See Procurement, LLC v. City of Stamford Zoning Board, No. LND-HHD-CV-116035946, Memorandum of Decision 2/14/14 (" Berger MOD 2/14/14" ) . Judge Berger found that the Board’s decision denying a special exception was not supported by substantial evidence, and therefore sustained Procurement’s appeal in connection with the First Application.
The Second Application
In late July 2011, after the Board’s denial of the First Application and while the appeal of that denial was pending in the superior court, Procurement filed a second application for a special permit with the Board. The Second Application sought to develop a day-care center and twenty-two residential units at the subject property, an increase from the nine units proposed in the First Application. A series of five public hearings on the Second Application were held by the Board in the latter part of 2011 (September 26, 2011; October 6, 2011; October 11, 2011; October 26, 2011; and November 10, 2011). The Board voted to approve the Second Application on December 12, 2011.
Ahuja appealed the Board’s decision. See Gurpreet Ahuja v. Zoning Board of the City of Stamford and Procurement, LLC. The matter was fully briefed and argued in the superior court. On January 4, 2013, Judge Berger issued a memorandum of decision denying the appeal (" Berger MOD 1/4/13" ). Ahuja filed a petition for certification from that decision, which was denied by the Appellate Court on July 24, 2013.
The appeal was filed in the Judicial District of Stamford, where it was assigned docket number FST-CV12-6012665. It was later transferred to the Land Use Docket, where it was assigned Docket No. LND-HHD-CV12-6035945. The appeal in the First Application, discussed above, also had been transferred to the Land Use Docket. Judge Marshall K. Berger, Jr. presided over both appeals, and coordinated their management. By agreement of the parties, the appeal in connection with the Second Application was heard before the appeal of the administrative decision in the First Application. See Berger MOD 2/14/14, at 2-3 (describing procedure).
The Third Application
On September 17, 2014, Procurement filed another zoning application, which requested modification of certain conditions imposed by the Board in its approval of the Second Application. More particularly, Procurement sought to increase the number of residential units from seventeen to nineteen units; increase the amount of available parking by three additional spaces; open an entrance exit on Bradley Place without the obligation to install a traffic signal; and change the form of residential ownership from condominiums to apartments. After public hearings, the Board approved the Third Application on November 17, 2014. Ahuja appealed the Board’s decision to the superior court on or about December 2, 2014. Procurement moved to dismiss the appeal on the ground that it was not returned to court within the time required by General Statutes § 52-46a. The motion to dismiss was granted on July 6, 2015. No appeal was taken.
The " Non-Petitioning" Activity
Procurement also alleges that defendants engaged in wrongful conduct outside of the immediate context of the legal proceedings described above. These allegations relate to false or otherwise tortious communications that Procurement claims were made by defendants to various non-governmental individuals or entities with some role in the overall fate of the Project. See Pl. Br. at 13-15. According to Procurement, defendants (1) spread false information about the development plans to neighbors, in an effort to mobilize opposition to the Project, Pl. Br. at 17; (2) contact Procurement’s " lending institutions with the goal of controlling the debt that secured Procurement’s property," id. at 14; and (3) contact or interfere with Procurement’s current or prospective tenant relationships, id. See Affidavit of Nagi Osta dated January 13, 2017, at ¶¶7-9, 19.
The Pending Lawsuit
This lawsuit was commenced by Procurement in 2016. The operative complaint contains seven counts, all of which relate in some way to defendants’ alleged campaign to impede Procurement’s Project by wrongful means. See Substituted First Amended Complaint dated February 8, 2017 (" complaint" ). Four counts of the complaint are brought solely against Ahuja personally- the First Count, for common-law vexatious litigation; the Second Count, for vexatious litigation under General Statutes § 52-568, the Third Count, for abuse of process, and the Fourth Count, which alleges that the conduct underlying the first three counts violates the Connecticut Unfair Trade Practices Act, C.G.S. § 42a-110g (CUTPA). Two other counts are directed solely at defendant Holdings (the Fifth Count, for aiding and abetting Ahuja’s wrongful conduct as alleged in the first four counts; and the Sixth Count, for a violation of CUTPA). The Seventh Count alleges tortious interference with contractual and business relations against both defendants.
Defendants have moved for summary judgment on all counts. The sole basis for their motion is the Noerr-Pennington doctrine, which, as explained below, confers immunity from civil liability for " petitioning activity" protected by the first amendment. Broadly speaking, Noerr-Pennington immunizes activity undertaken by persons who use the official channels of governmental agencies and courts to advocate their cause, even if that cause consists of nothing more than seeking an outcome adverse to a business competitor and/or favorable to the petitioner’s own economic interests. Plaintiff has filed an objection to the motion for summary judgment, and each party has submitted extensive written memoranda and supporting materials. Oral argument was heard on November 27, 2017. In mid-March 2018, at plaintiff’s initiative and over defendants’ objection, the court allowed the parties to submit supplemental briefs. Argument on the supplemental submissions was heard on March 29, 2018.
Discussion
A. The Noerr-Pennington Doctrine and the Sham Exception
The Noerr-Pennington doctrine originally developed as a judge-made limitation on the reach of federal statutory antitrust liability. Its origins are described in Zeller v. Consolini, 59 Conn.App. 545 (2000), the first appellate court decision in Connecticut to apply the doctrine:
[The doctrine traces its origins] to a trio of federal antitrust cases, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); and their progeny, collectively referred to as the Noerr-Pennington doctrine. In short, the Noerr-Pennington doctrine " shields from the Sherman Act [15 U.S.C. § 1 et seq.] a concerted effort to influence public officials regardless of intent or purpose." United Mine Workers v. Pennington, supra, at 670, 85 S.Ct. 1585. The United States Supreme Court has reasoned that " it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors." California Motor Transport Co. v. Trucking Unlimited, supra, at 510-11, 92 S.Ct. 609.
Zeller observed that not all anti-competitive conduct automatically qualifies for protection under Noerr-Pennington. The principal exception to Noerr-Pennington immunity has been carved out for so-called " sham" petitioning activity:
Although the Noerr-Pennington doctrine provides broad coverage to petitioning individuals or groups, its protection is not limitless. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., supra, 365 U.S. at 144, 81 S.Ct. 523, the United States Supreme Court, albeit in dictum, established a " sham exception" to the general rule, stating: " There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified." Id. In short, petitioning activity is not protected if such activity is a mere sham or pretense to interfere with no reasonable expectation of obtaining a favorable ruling.Zeller, supra, 59 Conn.App. at 550-52.
Zeller itself was a suit for tortious interference with a business relationship and vexatious litigation, not for antitrust violations, and it illustrates that the Noerr-Pennington doctrine (including the " sham" exception) long ago outgrew the confines of its original domain in federal antitrust law. Over the past fifty years, the doctrine has gained widespread acceptance in a broad range of contexts involving " petitioning activity" (both legislative and adjudicative) far outside of the domain of antitrust. See, e.g., New W., L.P. v. City of Joliet, 491 F.3d 717, 722 (7th Cir. 2007) (" Noerr-Pennington has been extended beyond the antitrust laws, where it originated, and is today understood as an application of the first amendment’s speech and petitioning clauses" ); Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 101-03 (2d Cir. 1983) (observing that Noerr-Pennington doctrine safeguards first amendment rights, and predicting that Connecticut courts would apply the doctrine to CUTPA and common-law causes of action); Steven Bieszczat, First Amendment Protection for Unfair Labor Practices? : Reexamining the Noerr-Pennington Doctrine, 2017 U.III.L.Rev. 1579, 1595-96 (2017) (" [N]umerous state and federal courts have extended Noerr-Pennington immunity to protect petitioning activity from liability under a variety of statutes and common-law claims ... including suits for defamation, tortious interference with contract and business relations, civil rights violations, and intentional infliction of emotional distress, among others" ) (footnotes omitted); Aaron R. Gary, First Amendment Petition Clause Immunity from Tort Suits: In Search of A Consistent Doctrinal Framework, 33 Idaho L.Rev. 67, 95-97 (1996) (" Innumerable federal and state courts have concluded that the Noerr-Pennington doctrine is rooted in the First Amendment right to petition and therefore must be applied to all claims implicating that right, not just to antitrust claims. Accordingly, the doctrine has been applied to claims for tortious interference with contract and with business relations/economic advantage, defamation, violation of civil rights, abuse of process, and intentional infliction of emotional distress" ) (footnotes omitted).
The Zeller case, quoted above, reflects Connecticut’s participation in this doctrinal expansion. See Zeller, supra, 59 Conn.App. at 554 (" The Noerr-Pennington doctrine is a well-established body of law applicable to a wide variety of situations involving petitioning activity, including local zoning and other municipality matters. Seventeen years [after the Suburban Restoration Co. v. ACMAT Corp. decision, supra ] we fulfill the Second Circuit’s prophecy and adopt the Noerr-Pennington doctrine and its accompanying sham exception as the applicable analysis for cases such as this one" ) (footnote omitted). Although the Connecticut Supreme Court still has not yet had occasion to embrace the doctrine officially, the Appellate Court recently confirmed its commitment to Noerr-Pennington in another case involving state tort claims, Diamond 67, LLC v. Oatis, 167 Conn.App. 659, 686-88 (2016) (applying Noerr-Pennington to various tort claims arising out of zoning litigation). In addition, numerous Connecticut trial court decisions (before and after Zeller ) have applied Noerr-Pennington in a wide array of cases arising under Connecticut statutory and common law. See, e.g., D i a m o n d 6 7, L L C v . O a t i s, N o . X03HHDCV126030610S, 2017 WL 5056255, at *19-*22 (Conn.Super.Ct., Sept. 18, 2017) (finding that Noerr-Pennington defense shielded defendants from liability for statutory vexatious litigation in connection with underlying zoning litigation); Ventres v. Goodspeed Airport, LLC, No. X 07CV01402085S, 2008 WL 2426790, at *19 (Conn.Super.Ct., May 27, 2008) (granting summary judgment in defendant’s favor, on Noerr-Pennington grounds, in connection with claims of malicious prosecution and abuse of process), aff’d, 301 Conn. 194, 21 A.3d 709 (2011); Roncari Dev. Co. v. GMG Enterprises, Inc., 45 Conn.Supp. 408, 414 (Super.Ct., 1997) .
The Connecticut Supreme Court discussed Noerr-Pennington as an accepted antitrust doctrine in Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 219-23 (2011). The discussion was probably dicta, but it is reliable dicta .
B. The Parties’ Disagreement Regarding the Sham Exception
The issue in the present case is not whether the Noerr-Pennington doctrine applies at all to defendants’ activity- both sides agree, at least with respect to defendants’ core litigation-related activities in the underlying administrative and judicial proceedings, that defendants were engaged in " petitioning activity" subject to Noerr-Pennington analysis. The principal dispute on summary judgment is over the proper application of the sham exception under the circumstances of this case. Defendants contend that the sham exception does not apply, as a matter of law, because their litigation activity was objectively reasonable in each of the three proceedings described earlier in this memorandum. Their position is that because all three legal proceedings were objectively reasonable, the analysis stops there, and they must prevail as a matter of law under Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993), the leading United States Supreme Court case on the sham exception.
As noted, plaintiff argues that a portion of defendants’ allegedly wrongful conduct involved non-petitioning activity, which is not protected by Noerr-Pennington . This argument is addressed separately at pp. 53-57 below.
Procurement disagrees, and contends that defendants’ motivations and intentions must be considered as part of any Noerr-Pennington analysis. Its argument is based largely on a line of cases interpreting United States Supreme Court precedent to limit the scope of Professional Real Estate Investors to circumstances not present here. Procurement relies on the Supreme Court decision in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), a case decided more than twenty years before Professional Real Estate Investors, but understood by some federal courts to provide an alternative " sham" analysis in cases involving " multiple" acts of petitioning activity- which includes the present case, according to Procurement. Procurement insists that because the sham exception described in California Motor Transport requires inquiry into defendants’ subjective motivations and intentions, this case cannot be resolved by summary judgment.
One would think that the proper analysis under the sham exception to Noerr-Pennington would be firmly established and crystal clear by now, after five decades of active adjudication in the federal courts. That does not seem to be the situation. This state of affairs is particularly ironic because the United States Supreme Court unquestionably believed that it was settling the issue thirty years ago, once and for all, in Professional Real Estate Investors, supra. The Professional Real Estate Investors decision began its discussion of the sham exception by noting the then-existing confusion wrought by " inconsistent and contradictory" definitions of the sham exception by various federal appeals courts around the country. 508 U.S. at 55. Professional Real Estate Investors expressly set out to eliminate that confusion by establishing a simple two-part test for determining whether the sham exception applies in any particular case:
First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals " an attempt to interfere directly with the business relationships of a competitor," Noerr, supra, 365 U.S., at 144 81 S.Ct., at 533 (emphasis added), through the " use [of] the governmental process - as opposed to the outcome of that process- as an anticompetitive weapon," Omni, 499 U.S., at 380, 111 S.Ct., at 135 (emphasis in original).Id. at 60-61.
The two-part test set forth in Professional Real Estate Investors exhibits all of the signs of a definitive, fully articulated statement of the sham exception to the Noerr-Pennington doctrine, for all occasions. The Court even sought to provide the doctrine with a stable historical pedigree firmly rooted in the common law of torts, which imposed liability for the initiation of wrongful civil proceedings under comparable circumstances:
The existence of probable cause to institute legal proceedings precludes a finding that an antitrust defendant has engaged in sham litigation. The notion of probable cause, as understood and applied in the common-law tort of wrongful civil proceedings, requires the plaintiff to prove that the defendant lacked probable cause to institute an unsuccessful civil lawsuit and that the defendant pressed the action for an improper, malicious purpose. [Footnote and citations omitted.] Probable cause to institute civil proceedings requires no more than a " reasonabl[e] belie[f] that there is a chance that [a] claim may be held valid upon adjudication" (internal quotation marks omitted). Hubbard v. Beatty & Hyde, Inc., 343 Mass. 258, 262, 178 N.E.2d 485, 488 (1961); Restatement (Second) of Torts § 675, Comment e, pp. 454-55 (1977). Because the absence of probable cause is an essential element of the tort, the existence of probable cause is an absolute defense ... Just as evidence of anticompetitive intent cannot affect the objective prong of Noerr ’s sham exception, a showing of malice alone will neither entitle the wrongful civil proceedings plaintiff to prevail nor permit the factfinder to infer the absence of probable cause. Stewart, supra, 98 U.S., at 194; Wheeler, supra, 24 How., at 551; 2 C. Addison, Law of Torts § 1, ¶853, pp. 67-68 (1876); T. Cooley, supra, at *184. When a court has found that an antitrust defendant claiming Noerr immunity had probable cause to sue, that finding compels the conclusion that a reasonable litigant in the defendant’s position could realistically expect success on the merits of the challenged lawsuit. Under our decision today, therefore, a proper probable cause determination irrefutably demonstrates that an antitrust plaintiff has not proved the objective prong of the sham exception and that the defendant is accordingly entitled to Noerr immunity.
This common-law framework is immediately recognizable to anyone in Connecticut familiar with the law of vexatious litigation. " For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of ... Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94-95 (2007) (citations omitted); see DeLaurentis v. New Haven, 220 Conn. 225, 256 (1991); Vandersluis v. Weil, 176 Conn. 353, 356 (1978); Ives v. Bartholomew, 9 Conn. 309, 312 (1832); Sterling v. Adams, 3 Day 411 (1809) (discussing statutory claim for vexatious suit under precursor to General Statutes § 52-568).
Professional Real Estate Investors appears to settle any doubt about the correct analysis used to determine whether the Noerr-Pennington " sham" exception applies in any given case. More particularly, the case clearly establishes the proper relationship between the objective and subjective prongs of the two-part analysis, by holding in unequivocal terms that a defendant’s wrongful, anticompetitive motivations are irrelevant to the first stage of the test, which asks only " [i]f an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome ..." Id. at 60. Under Professional Real Estate Investors, if probable cause existed, then " the [conduct] is immunized under Noerr ..." Id. This basic point reflects defendants’ position here: a finding of probable cause based on the first (" objective" ) step of the analysis means that the NoemPennington " sham" analysis is over, and a defendant must prevail, regardless of subjective intent.
Plaintiff disagrees, and contends that Professional Real Estate Investors is not the last word on the subject. It points to a line of federal circuit court cases, decided after Professional Real Estate Investors, which have limited the applicability of its two-part " sham" exception analysis. See Pl. Br. at 15-16, citing Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, (3d Cir. 2015); Waugh Chapel S., LLC v. United Food & Commercial Workers Union Local 27, 728 F.3d 354, 363-64 (4th Cir. 2013); Primetime 24 Joint Venture v. Nat’l Broad. Co., 219 F.3d 92, 101 (2d Cir. 2000); and USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800, 810-11 (9th Cir. 1994). Plaintiff argues that these cases hold that the Professional Real Estate Investors two-part test applies only in cases where the underlying petitioning activity involved a single proceeding; where the defendant’s petitioning activity involves " a whole series of legal proceedings" or a " pattern of baseless, repetitive claims," then, plaintiff argues, a different " sham" test applies. The " sham" analysis used for petitioning activity involving multiple underlying proceedings, according to plaintiff, is derived from California Motor Transport Co. v. Trucking Unlimited, supra .
The California Motor Transport analysis advanced by plaintiff applies a more " holistic" inquiry than the two-part test applicable under Professional Real Estate Investors to petitioning activity involving single underlying proceedings. In plaintiff’s words:
The California Motor [Transport ] pattern test requires the Court to look at whether " the legal filings were made, not out of a genuine interest in redressing grievances, but as part of a pattern or practice of successive filings undertaken essentially for the purposes of harassment." Primetime 24 Joint Venture v. National Broadcasting Co., supra, 219 F.3d at 101. Further, the focus is not whether some of the claims have merit, but whether the legal challenges " are brought pursuant to a policy of starting legal proceedings without regard to the merits and for the purpose of injuring a market rival." Id. " A court should perform a holistic review that may include looking at the defendant’s filing success- i.e., win-loss percentage- as circumstantial evidence of the defendant’s subjective motivations." Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., supra, 806 F.3d at 180. " Courts should also consider other evidence of bad faith as well as the magnitude and nature of the collateral harm imposed by plaintiffs by defendants’ petitioning activity (e.g., abuses of the discovery process and interference with access to governmental agencies)." Id. at 181.
Pl. Br. at 15-16.
The court has considered these competing arguments carefully, and rejects plaintiff’s position. The court will apply the two-part analysis articulated in Professional Real Estate Investors to determine whether defendants are entitled to summary judgment under Noerr-Pennington . Two basic reasons underlie this legal conclusion.
First, assuming that there are in fact two different " sham" exception tests under federal law, plaintiff misapprehends the circumstances that will trigger application of the " holistic" analysis under California Motor Transport rather than the two-part Professional Real Estate Investors test. Plaintiff argues that Professional Real Estate Investors applies only where a " single " underlying lawsuit is involved, while California Motor Transport applies to petitioning activity involving multiple proceedings. Pl. Br. at 16 (emphasis in plaintiff’s brief); id., at 17 (relying on a string-cite to the aforementioned line of cases from the Second, Third, Fourth and Ninth circuits to support contention that " California Motor [applies] to a series of sham petitions and Professional Real Estate [applies] to a single sham petition" ). But this is not an accurate statement of the holding of the cases addressing this issue. To the contrary, there is a very substantial body of case law holding that the Professional Real Estate Investors two-part test applies well beyond the " single" case scenario defined by plaintiff. See, e.g., ERBE Elektromedizin GMBH v. Canady Technology, LLC, 629 F.3d 1278, 1291 (Fed.Cir. 2010) (" [T]he three relevant lawsuits ERBE filed to which Canady Technology directs our attention ... do not implicate a test for ‘a whole series of legal proceedings’ " ) (citations omitted); Amarel v. Connell, 102 F.3d 1494, 1519-20 (9th Cir. 1997) (holding that two lawsuits is not a " series" or " pattern" sufficient to trigger the California Motor Transport analysis); Polaris Industries, Inc. v. Arctic Cat, Inc., Civil No. 15-4475 (JRT/FLN), 2017 WL 1180426, at *5-*7 (D.Minn. 2017) (" Thus, the Court finds that the three relevant [patent] cases that Polaris filed against Arctic Cat do not involve a ‘whole series of legal proceedings’ necessitating application of the California Motor [Transport ] ... standard" ); In re Flonase Antitrust Litigation, 795 F.Supp.2d 300, 309-10 n.10 (E.D.Pa. 2011) (" In order to qualify as a " pattern or practice" of successive filings, however, the number of petitions must be voluminous. Here, GSK’s conduct consists of, at most, five " petitions" ... No court has applied the [California Motor Transport ] test to a " series" of five petitions; indeed, courts have expressly declined to apply the test in cases involving up to nine petitions" ) (citations omitted); In re Fresh Del Monte Pineapple, No. 04MD1628(RMB)(MHD), 2007 WL 64189, at *17 (S.D.N.Y. Jan. 4, 2007), subsequently aff’d sub nom., Am. Banana Co. v. J. Bonafede Co., 407 Fed.Appx. 520 (2d Cir. 2010).
Unfortunately, neither party took advantage of multiple opportunities to brief the specific issue presented here (i.e., whether plaintiff’s " holistic" version of the California Motor Transport test applies to a case, like the present one, involving more than one but fewer than many underlying proceedings). In other words, neither party brought to the court’s attention any of the cases cited in the text immediately following this footnote. This appears to have been a strategic choice, at least on plaintiff’s part. The court suggests no impropriety whatsoever- lawyers make comparable strategic decisions all the time. They must, however, live with the consequences when the sleeping dog awakens; at least in this court’s view, plaintiff has waived the right to mount a post hoc challenge to the court’s holding as it relates to the extensive body of case law that plaintiff chose not to brief before the court issued its decision.
In re Flonase was issued three years before the decision in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., supra, in which the Third Circuit applied the California Motor Transport test in a case involving four underlying legal proceedings.
The court in
The court has not located even a single case from any jurisdiction holding that three underlying proceedings- the number involved in the present matter- is enough to trigger California Motor Transport. More to the point, the present case does not involve anything like the high-volume petitioning activity involved in California Motor Transport, the case that generated the " holistic" analysis which plaintiff urges the court to apply here. The California Motor Transport litigation arose due to threats by a consortium of trucking companies to undertake massive, concerted action to institute state and federal proceedings to resist and defeat applications by respondents, a competitor group, to acquire operating rights or to transfer or register those rights. 404 U.S. at 509. A policy or pattern of massive petitioning activity, in other words, was integral to the anti-competitive conduct at issue, and it would have been entirely impractical (and unnecessary) for a court to consider the merits of each particular petition under those circumstances. Likewise, the Ninth Circuit case relied on by plaintiff, USS-POSCO, supra, involved high-volume, coordinated union activities which included twenty-nine lawsuits, 31 F.3d at 811, as well as computer-generated automatic petitioning contesting all permits issued to non-union contractors, 31 F.3d at 810-11. The Second Circuit’s Primetime case, similarly, involved petitioning activity taking the form of " huge volumes of simultaneous [statutorily-authorized " signal strength" ] challenges" churned out automatically, without regard to merit, for the specific purpose of imposing overwhelming testing costs on satellite operators. 219 F.3d at 100-01.
In sum, the federal cases that rely on the California Motor Transport analysis involve underlying circumstances nothing like the present lawsuit. The present case involves a small number of underlying proceedings, and the objective reasonableness of each respective proceeding can be analyzed with ease, as both parties have demonstrated in their briefs.
The court has seen only a single decision, from anywhere in the country, that even remotely lends support to plaintiff’s position regarding
This court does not suggest that California Motor Transport has been overruled, or that its less methodical, more " holistic" analysis has been or should be superseded, in every imaginable context, by the two-step test set forth in Professional Real Estate Investors. There appear to be certain circumstances that have arisen, particularly in federal litigation, in which the underlying proceedings involve very high-volume filings (especially administrative petitions that can be automatically or mechanically filed in large numbers), leading the reviewing court to conclude that the flexible, multi-factored, more subjective standard described in California Motor Transport offers the best means to decide if the petitioning activity is a sham. But not in cases like this one.
One federal court recently questioned whether California Motor Transport should play any role in the Noerr-Pennington " sham" exception analysis, in light of Professional Real Estate Investors. See
There is a second, conceptually-based reason to refuse plaintiff’s invitation in this case to apply the " holistic" California Motor Transport test rather than the Professional Real Estate Investors two-part test. It should be recalled that this litigation involves purely state law causes of action. The Noerr-Pennington analysis was developed to safeguard first amendment concerns, and it operates to ensure that the antitrust statutes, and comparable statutory and common-law liability rules prohibiting unfair methods of competition, are not enforced in a manner that would infringe on constitutionally-protected petitioning activity. But no court ever has suggested that the precise contours of the sham exception as articulated by the United States Supreme Court are constitutionally mandated. In other words, there is no reason to believe that any concerns of a constitutional magnitude are implicated in choosing between the " sham" exception as articulated in California Motor Transport as opposed to Professional Real Estate Investors. One approach may be better than the other in the service of substantive antitrust doctrine, but the court is not aware of any first amendment values that would be protected by one but not the other of the two " sham exception" tests under consideration. Nor has plaintiff argued otherwise. This means that Connecticut is free to adopt the " sham" exception from either case, or even devise an exception of its own making, in any case involving a state cause of action, so long as the Connecticut rule does not tread on a defendant’s constitutional rights.
It follows that even if plaintiff were correct (contrary to the court’s holding above) that the California Motor Transport analysis would be used to decide the present case in a lawsuit asserting a federal cause of action, there is no requirement that Connecticut blindly follow the federal analysis in a case brought only under state law. To put the same point in different terms, the task here is not to predict what the United States Supreme Court would do if it were deciding the present case under the federal antitrust laws. (Pages 13-21 above represent the court’s best effort to apply federal precedent to this case and decide the issue under existing Noerr-Pennington doctrine.) The question, rather, is what " sham exception" test the Connecticut Supreme Court would employ to safeguard first amendment values in connection with plaintiff’s state law claims under the circumstances of this case. This court believes that our high court would apply the two-part " sham exception" analysis articulated in Professional Real Estate Investors .
The most compelling reason to believe that our appellate courts would apply the two-part test of Professional Real Estate Investors is that it safeguards constitutional concerns using a simple, easy-to-administer legal framework similar to Connecticut common-law doctrine governing wrongful litigation torts of vexatious litigation and malicious prosecution. The first step in the Professional Real Estate Investors analysis is similar (though not identical) to the " probable cause" element of the common-law tort doctrine, while the second step bears similarity to the common-law " malice" inquiry. See, e.g., Bhatia v. Debek, 287 Conn. 397, 405-07, 410-11 (2008); Vandersluis v. Weil, supra, 176 Conn. at 356; McGann v. Allen, 105 Conn. 177, 186 (1926).
In light of this point, it is fair to ask why
The similarity between the federal immunity doctrine under Professional Real Estate Investors and state wrongful-litigation doctrine is evident in one additional respect. Under both doctrines, a finding in favor of the defendant at the probable-cause stage of the analysis requires a judgment in defendant’s favor regardless of defendant’s subjective intent . See Professional Real Estate Investors, supra, 508 U.S. at 57 (" We left unresolved [in California Motor Transport ] the question presented by this case- whether litigation may be sham merely because a subjective expectation of success does not motivate the litigant. We now answer this question in the negative and hold that an objectively reasonable effort to litigate cannot be sham regardless of subjective intent" ); id. at 60 (" Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation" ); McGann v. Allen, supra, 105 Conn. at 187 (in malicious prosecution claim under Connecticut law: " If probable cause exists, it is an absolute protection against an action for malicious prosecution, even when malice is proved" ); Vandersluis v. Weil, supra, 176 Conn. at 356 (same in vexation litigation suit); cf. Restatement (Second (Torts) § 669A (1977) (" Improper Purpose Not Evidence of Lack of Probable Cause" ).
It is significant in this regard that the leading Connecticut case adopting Noerr-Pennington concluded its analysis by holding that summary judgment was properly granted in that case based solely on the trial court’s finding that the defendants had probable cause to pursue the underlying litigation. See Zeller v. Consolini, supra, 59 Conn.App. at 386. It also is significant that Zeller quoted Professional Real Estate Investors itself in support of this holding:
Because we find that the petitioning was not objectively baseless, we need not consider the second prong of the Noerr-Pennington sham exception, namely, whether the defendants’ actions constituted an attempt to interfere with the plaintiffs through abuse of the petitioning process. " Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation." Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., supra, 508 U.S. at 60.Zeller v. Consolini, supra, 59 Conn.App. at 386 n.8.
The
The Zeller case, at the very least, lends compelling support to the court’s decision to apply the Professional Real Estate Investors two-part test in the present case. As noted, Zeller applies that test to determine the viability of the Noerr-Pennington " sham" exception in a case involving multiple underlying proceedings. Plaintiff points out that Zeller also quotes the discussion of the sham exception from California Motor Transport, see 59 Conn.App. at 380-81, but the dual citation only confirms that California Motor Transport and Professional Real Estate Investors are not disharmonious. As explained above, the Supreme Court in Professional Real Estate Investors believed that it was simply refining California Motor Transport by answering a question left open there. 508 U.S. at 57. Zeller uses California Motor Transport to explain the basic idea behind the sham exception, and gives examples of misconduct that may fall under the " sham" exception. The actual doctrinal analysis deployed in Zeller, however, is the two-step test of Professional Real Estate Investors. We know this with certainty because the court’s analysis never gets beyond the first step (probable cause) of the Professional Real Estate Investors test, and finds it unnecessary to consider any question of defendants’ subjective motivation.
The same point applies to Diamond 67, LLC v. Oatis, 167 App. 659, a case also involving a multiplicity of underlying administrative and judicial proceedings. Once again, the Appellate Court apparently was not confronted with an argument that it must " choose" between the two Supreme Court cases, California Motor Transport and Professional Real Estate Investors . (Diamond 67, in fact, does not even cite to California Motor Transport .) Diamond 67 briefly explains the general principle underlying the sham exception using language taken by Zeller from California Motor Transport, 167 Conn.App. at 688. But, as in Zeller, the Appellate Court in Diamond 67 makes it very clear that the actual doctrinal test used " to define the sham exception" is the two-part test of Professional Real Estate Investors. Id. at 687. This understanding is corroborated by the fact that the trial judge who tried the case on remand scrupulously applied the Professional Real Estate Investors two-part test. See Diamond 67, LLC v. Oatis, No. X03HHD-CV-126030610, 2017 WL 5056255, at *20-*22 (Super.Ct., Sept. 18, 2017) (finding that plaintiff satisfied the first prong but not the second prong of the " sham" exception, and therefore failed to overcome the Noerr-Pennington defense).
It warrants mention that
One final legal point requires discussion before turning to the particular circumstances of this case. In its determined effort to find a place to inject subjective (intent-based) considerations into the analysis, plaintiff insists, especially in its supplemental briefing, that it is inaccurate to characterize as entirely objective the probable-cause determination that functions as the first step of the Noerr-Pennington " sham" test. Plaintiff contends that probable cause in this context also has a subjective component, because, in addition to the requirement that the claims asserted by the defendant be objectively reasonable, Connecticut law also requires that defendant’s allegations must be made in " good faith," which, plaintiff observes, plainly includes consideration of a party’s subjective state of mind. See Pl. Amended Supp. Br. at 2 (arguing that as part of the probable cause analysis, " the Court must decipher whether defendants had a bona fide belief in the existence of facts essential under the law to establish that probable cause existed for their actions" ). Plaintiff relies on numerous Connecticut cases and other authorities stating, in one way or another, that there is a " good faith" or " actual belief" element to the probable cause inquiry. See, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 256 (1991) (emphasis added). (" For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted" ) (citations and internal quotation marks omitted; emphasis added).
More than three months after argument on the pending motion, plaintiff filed a motion for permission to file supplemental briefing (as amended, Doc. Entry #205.00, dated March 19, 2018). The supplemental brief contends that plaintiff’s opposition to summary judgment has been strengthened by the deposition testimony of Nicholas Ahuja taken on March 9, 2018. See Doc. Entry #206.00 (brief and exhibits). This court granted plaintiff leave to file its supplemental brief, over objection.
Defendants’ position is that the probable-cause inquiry is purely objective in nature, under both the first prong of the Noerr-Pennington " sham" exception and Connecticut’s law of vexatious litigation. With respect to Noerr-Pennington, defendants cite the explicit holdings of the leading cases previously discussed in this memorandum, including Real Estate Investors Professionals and Zeller, each of which speaks unequivocally on the issue: " Only if challenged litigation is [found to be] objectively meritless [in the first stage of the analysis] may a court examine the litigant’s subjective motivation [in the second stage of the analysis]." Professional Real Estate Investors, supra, 508 U.S. at 60; Zeller v. Consoli, supra, 59 Conn.App. at 563 n.9 (quoting the foregoing holding from Professional Real Estate Investors, and affirming summary judgment for defendant based on the objective reasonableness of claims, without reaching issue of defendants’ subjective intentions). As for the probable-cause analysis undertaken in the vexatious litigation context under Connecticut law, defendants’ position finds direct support in a leading Supreme Court case expressly holding that " [t]he probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one." Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 98 (" [T]he probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one" ); see also Rockwell v. Rockwell, 178 Conn.App. 373, 390 (2017) (same); Hebrew Home & Hosp., Inc. v. Brewer, 92 Conn.App. 762, 768 (2005).
See also
The confusion is understandable, but the conflict is a false one. It dissolves once we make two important distinctions. The first distinction, under Connecticut vexatious litigation law, is between a probable-cause inquiry focused on the factual allegations in the underlying proceedings and a probable-cause inquiry focused on the legal basis for the underlying claims. A subjective inquiry is required as part of the probable-cause inquiry in vexatious litigation cases to the extent that a plaintiff contends that the defendant falsified or misrepresented the factual basis for claims in the underlying proceedings. But plaintiff is incorrect when it seeks to characterize this as a " subjective" inquiry into a defendant’s intentions or motivations per se, because it is not that. The inquiry is not concerned with questions of intent or motivation; it examines the state of defendant’s knowledge, that is, it asks what facts defendant knew, or should defendant have known, at the time the allegations were made. The objective inquiry then examines whether a reasonable person would conclude that those facts establish probable cause under applicable law. See generally Kenneth Rosenthal, Vexatious Litigation in Connecticut: Malicious Prosecution of Civil Actions, Probable Cause, and Lawyer Liability, 84 Conn. B.J. 255, 262-66 (2010) (explaining distinction between " factual tenability" of underlying claim, which involves subjective inquiry into what defendant knew or should have known when allegations were made, versus " legal tenability" of underlying claim, which is an objective inquiry). See also 3 Restatement (Second) Torts § 675, comment d (1977) (for purposes of the probable cause analysis applicable to wrongful civil proceedings, stating that a person " cannot have a reasonable belief in the existence of facts on which proceedings are based if he knows that the alleged facts are not true and his claim is based on false testimony ..." )
The Rosenthal article very ably untangles the two strands of the probable cause doctrine using extensive citation to Connecticut Supreme Court precedent to illustrate the point. Even the
Each of the two aspects of the probable cause inquiry- the requirement of legal tenability and factual tenability- are part of the standard formulation of the Connecticut doctrine: " The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it."
The second distinction overlooked by plaintiff is the difference between the specific probable cause inquiry conducted under the first step of the Noerr-Pennington " sham" test, on the one hand, and the probable cause inquiry under state vexatious litigation doctrine. As discussed in the preceding paragraph, plaintiff’s argument that the court must consider the " subjective" component of the probable-cause inquiry is based on plaintiff’s understanding of Connecticut law defining probable cause in the context of vexatious litigation cases. Although the Noerr-Pennington cases sometimes describe the probable cause test under federal and state law as " equivalents," Diamond 67, LLC v. Oatis, supra, No. X03HHD-CV-126030610, 2017 WL 5056255, at *21 (citing cases), this description is only accurate, strictly speaking, with reference to the objective prong of the vexatious litigation analysis, because the first (probable cause) step of the Noerr-Pennington sham exception has no " subjective" component. This is not to say that Noerr-Pennington immunity is available to parties whose petitioning activity includes making knowingly false misrepresentations of material fact in the underlying proceedings. See n.14 above. But that particular type of misconduct does not disqualify the petitioner from Noerr-Pennington immunity under the " probable cause" component of the sham exception. Instead, the Noerr-Pennington cases have established a separate " fraud exception" analysis for cases involving claims of factual misrepresentation. See above n.14, and below at pp. 39-40. It is a mistake to conflate the analysis under the Noerr-Pennington fraud exception with the " probable cause" analysis under Connecticut law. Plaintiff’s analysis is flawed by this mistake.
C. Application of Noerr-Pennington to the Circumstances of this Case
For purposes of the present motion, the question on summary judgment is whether a reasonable juror could conclude, on this record, that the sham exception to the Noerr-Pennington doctrine applies to defendants’ conduct. The summary judgment standard itself is well-settled. See Practice Book § 17-49; see, e.g., Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35 (2012); Windsor Financial Savings & Loan Ass’n v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017). A slight nuance is added to the summary judgment analysis with respect to the first part of the sham exception (the so-called " objective" prong), because this probable cause determination ultimately presents a question of law. A recent Appellate Court decision summarizes the relevant case law:
Defendants, as the moving parties, bear the burden to demonstrate that they are entitled to judgment as a matter of law. See
[There is an] ample body of Connecticut precedent holding that the existence of probable cause is a question of law to be decided by the court. See, e.g., Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94 (2007) (" the existence of probable cause is an absolute protection ... and what facts, and whether particular facts, constitute probable cause is always a question of law" [internal quotation marks omitted] ); Brodrib v. Doberstein, 107 Conn. 294, 296 (1928) (existence of probable cause " is always a question of law" ); Giannamore v. Shevchuk, 108 Conn.App. 303, 312 (2008) (" [t]he issue of probable cause ... ultimately presents a question of law that must be determined by the court" ). For that reason, the appellate courts of this state have upheld judgments rendered in favor of defendants in vexatious litigation actions in which the court rendered summary judgment as a matter of law; see Lichai v. Sconyers, 163 Conn.App. 419, 428-29 (2016); Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 773 (2005); as well as cases in which the court bifurcated the issue of probable cause, conducted an evidentiary hearing, and then concluded that probable cause existed. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, at 90-92.Rockwell v. Rockwell, 178 Conn.App. 373, 388-89 (2017); see also Rieffel v. Johnston-Foote, 165 Conn.App. 391, 396-97 (2016); Charlotte Hungerford Hosp. v. Creed, 144 Conn.App. 100, 116, 72 A.3d 1175, 1185 (2013) (" Whether there is probable cause in a given case is a question of law, upon which our scope of review is plenary" ); Byrne v. Burke, 112 Conn.App. 262, 275 (2009).
The reason for the rule has been explained in various ways. See
Although the existence of probable cause presents a question of law, the issue can be decided on summary judgment only if there is no disputed issue with respect to any of the underlying facts material to the probable cause determination. See, e.g., DeLaurentis v. City of New Haven, supra, 220 Conn. at 252-53 (" Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law. Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980); see 3 Restatement (Second), Torts § 681B [1977]" ).
The court’s probable cause analysis under the " sham" exception to Noerr-Pennington will proceed in two parts. First, the court will examine the issue as it relates to each of the underlying legal proceedings involving plaintiff’s three zoning applications. See above at pp. 3-6 (describing the administrative and judicial components of the three underlying zoning applications). Second, because plaintiff has argued that some of the alleged misconduct occurred outside the framework of actual proceedings (what plaintiff calls " non-petitioning conduct" ), the court will analyze that contention separately.
1. Petitioning Activity The First Application
The challenged conduct in connection with the First Application involves Ahuja’s motion to intervene in the appeal filed by plaintiff after its initial application was denied by the Board. Ahuja moved to intervene in the superior court; the motion was denied; she sought certification to appeal the denial with the Appellate Court; certification was granted; after first opposing intervention, Procurement changed course and moved to join Ahuja as a party; after first opposing the motion, Ahuja withdrew her appeal in the Appellate Court and participated in the superior court proceedings; the trial court then reversed the Board’s decision (i.e., ruled against the Board and Ahuja).
It bears emphasis that Procurement was the losing party at the administrative level in the first proceeding, and Ahuja sought to intervene in the superior court appeal on behalf of the prevailing party, the Board. It follows that the merits of Ahuja’s position opposing Procurement’s appeal, which essentially mirrored the Board’s own litigation position, could hardly be considered objectively unreasonable under these circumstances- Ahuja was supporting the prevailing party at the time. Perhaps for this reason, Procurement’s probable cause argument does not challenge Ahuja’s legal claims regarding the underlying merits, but instead focuses on her activity in connection with the intervention itself. Plaintiff primarily argues that the petition to intervene contains numerous false allegations of fact regarding the Board’s intention to settle the zoning dispute with Procurement. See Pl. Br. at 9, 17-18, 20; Pl. Supplemental Br. at 4, 6.
Applying the first prong of the Noerr-Pennington " sham" analysis, the court finds that Ahuja’s petitioning activity in connection with the First Application was objectively reasonable as a matter of law. Intervention was sought primarily based on the fact that Procurement and the Board might enter into a global settlement of their zoning dispute. See Motion to Intervene at ¶11; Intervention MOD, at 2 (" In support of her motion to intervene Ahuja contends that unless she is made a party to this [action], she will be vulnerable to a settlement reached between Procurement and the Zoning Board ..." ). In opposing intervention, Procurement evidently did not challenge Ahuja’s standing. See Intervention MOD, at 2. It also acknowledged that it was, in fact, engaged in serious settlement discussions with the Board. Id. at 2. Its opposition to intervention was based on the contention that the Board itself adequately represented Ahuja’s interests, and to allow intervention would allow her to have veto power over the proposed settlement. The trial court considered the factors weighing for and against intervention, and concluded that the motion should be denied. Judge Adams observed that if Procurement and the Board ultimately were able to settle the matter, Ahuja would have an opportunity to object at the hearing mandated under General Statutes § 8-8(n). Id. at 5.
General Statutes § 8-8(n) provides that no settlement of a zoning appeal is effective unless and until a hearing is held and the settlement is approved by the court.
Procurement does not appear to contend that Ahuja’s motion to intervene was legally untenable. Nor could such an argument credibly be maintained. Certainly nothing in the Intervention MOD suggests that Judge Adams considered the motion to be frivolous in any respect. To the contrary, it appears that Judge Adams viewed Ahuja’s position as reasonable, though ultimately unpersuasive, and he exercised his discretion to deny intervention only after due consideration of the relevant legal factors under Horton v. Meskill, 187 Conn. 187, 197 (1982). See Intervention MOD, at 2-4. The trial court understood that individual objectors will sometimes seek to intervene as parties in zoning appeals when it appears that the municipal zoning authority and developer, once at odds, had reached a settlement. See id. at 3-4 (citing other superior court cases). Such efforts usually are unsuccessful- but not always. See, e.g., Walker v. Branford Planning & Zoning Comm’n, No. CV- 10-6009763S, 2010 WL 4276686, at *5 (Conn.Super.Ct. Sept. 28, 2010) (granting intervention in zoning appeal after considering possibility of settlement between principal parties); One Hundred Nine N., LLC v. New Milford Planning Comm’n, No. DBD-CV- 06-4006246S, 2008 WL 2168994, at *4 (Conn.Super.Ct. May 6, 2008) (permitting intervention in zoning appeal despite prospect of settlement between principal parties).
A further indication of the potential legal viability of Ahuja’s position is found in the fact that the Appellate Court granted certification to review Judge Adams’ ruling. This action necessarily means that at least two members of the Appellate Court found Ahuja’s argument worthy of appellate consideration. See General Statutes § 8-8(o). Frivolous claims ordinarily do not earn certification. The Appellate Court’s interest in this matter substantiates the conclusion that Ahuja’s petition to intervene was not doomed to fail from the outset. In point of fact, plaintiff has not cited any appellate authority demonstrating, or even hinting, that a reasonable person under the circumstances would have believed that Ahuja’s motion to intervene had no realistic chance of success.
Procurement’s fact-based claims fare no better. It argues that Ahuja’s petition to intervene contained various factual misrepresentations that would remove any basis for probable cause. Procurement claims that a reasonable factfinder could conclude, on this record, that Ahuja herself was not even aware at the time of filing that her lawyer had filed the petition to intervene (filed on February 22, 2012), and, more particularly, that she was not aware personally of certain factual representations made in the motion until months after the motion was filed. It contends that a factfinder could reasonably conclude that Ahuja lacked probable cause because she had no personal knowledge of the facts alleged in the motion to intervene filed under her name. Procurement does not contend that the material factual allegations in Ahuja’s petition to intervene were themselves false. To the contrary, it is undisputed that Procurement was in settlement negotiations with the Board at the time. See Intervention MOD at 2. Plaintiff’s argument is that Ahuja herself was ignorant of the underlying facts; the petition was prepared and submitted by her lawyer in collaboration with Ahuja’s son and/or ex-husband, who were acting on behalf of defendant Holdings, which was the " real" party in interest. Plaintiff contends that Ahuja was a " straw" intervenor, used by her son and ex-husband to establish statutory aggrievement based on her ownership of property within 100 feet of the High Ridge Road Project. See General Statutes § 8-8(a)(1).
Procurement focuses primarily on the allegations in the intervention motion about the potential settlement of the zoning dispute by the Board and Procurement, and the potential legal effects of such a settlement. See Pl. Br. at 8-9.
Plaintiff’s theory regarding Ahuja’s factual ignorance does not provide a legal basis for defeating Noerr-Pennington immunity. It is true that the immunity is lost if a petitioner intentionally makes material misrepresentations of fact to the government. See n.14 above (discussing " fraud" exception). But under that doctrine, it is not enough that the factual allegations are made by a petitioning party who speaks without knowing whether or not the allegations are true; to lose Noerr-Pennington immunity under the so-called fraud exception, there must have been a deliberate and material misrepresentation of fact. See Mercatus Group, LLC v. Lake Forest Hospital, 641 F.3d 834, 842-43 (7th Cir. 2011) (" a misrepresentation renders an adjudicative proceeding a sham only if the misrepresentation (1) was intentionally made, with knowledge of its falsity; and (2) was material, in the sense that it actually altered the outcome of the proceeding" ); United States v. Philip Morris USA, Inc., supra, 566 F.3d at 1123 (" Defendants’ attempt to invoke Noerr-Pennington as protection fails because the doctrine does not protect deliberately false or misleading statements" ); Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1060 (9th Cir. 1998) (" litigation can be deemed a sham if a party’s knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of its legitimacy" ) (inner quotation marks and citation omitted); Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) (" [N]either the Noerr-Pennington doctrine nor the First Amendment more generally protects petitions predicated on fraud or deliberate misrepresentation" ) (emphasis added; describing the holding in Whelan v. Abell, 48 F.3d 1247 (D.C. Cir. 1995)); Potters Medical Center v. City Hosp. Ass’n, 800 F.2d 568, 580-81 (6th Cir. 1986); St. Joseph’s Hospital, Inc. v. Hospital Corp. of America, 795 F.2d 948, 955 (11th Cir. 1986); Ottensmeyer v. Chesapeake & Potomac Tel. Co. of Md., 756 F.2d 986, 994 (4th Cir. 1985); Bath Petroleum Storage, Inc. v. Mkt. Hub Partners, L.P., 129 F.Supp.2d 578, 593 (W.D.N.Y.), aff’d 229 F.3d 1135 (2d Cir. 2000).
As a matter of law, plaintiff cannot prevail under Noerr-Pennington on its theory regarding Ahuja’s alleged ignorance of the facts contained in her petition to intervene, because no reasonable factfinder could conclude, on this record, that Ahuja deliberately made any false representation of material fact to the court in connection with her efforts to intervene in the First Application.
The court need not decide whether plaintiff’s " ignorance" theory would be sufficient to establish that Ahuja lacked probable cause for purposes of satisfying the
Procurement’s claim that Ahuja acted as a " straw" for her son and ex-husband is also unavailing. Procurement’s evidence at most would support the view that Ahuja’s opposition to the project primarily was motivated by family loyalty rather than any particularized knowledge of the facts or deep conviction regarding the merits. Her activity is immunized because the claims contained in her motion were supported by probable cause under the Noerr-Pennington " sham" exception; the fact that her son and/or husband were pursuing their own interests by petitioning through her does not deprive any of the defendants of Noerr-Pennington immunity. See Baltimore Scrap Corp. v. David J. Joseph Co., 237 F.3d 394, 400-01 (4th Cir. 2001) (Noerr-Pennington protects even non-parties whose petitioning activity is carried out through " straw petitioners); Liberty Lake Investments, Inc. v. Magnuson, 12 F.3d 155, 157-59 (9th Cir. 1993); Opdyke Inv. Co. v. City of Detroit, 883 F.2d 1265, 1273 (6th Cir. 1989).
The Second Application
On December 12, 2011, while the first appeal was pending, plaintiff’s second application for a special permit and architectural/site plan approval was approved by the Board. See above at pp. 5-6. Ahuja appealed to the superior court pursuant to General Statutes § 8-8. The principal ground for her appeal was that the Board lacked subject matter jurisdiction to act because Procurement failed to comply with the notice requirements for public hearings as required under the Stamford City Charter (" Charter" ). The notice argument was based on the fact that the Board did not publish notice regarding two of the four public hearings held in connection with the second application. The undisputed facts were described by the trial court:
The parties appear to agree that the notice requirements for zoning matters in Stamford are governed by the Charter. See Berger MOD 1/4/13, at 3 (" Unlike most zoning commissions ... planning and zoning in Stamford are governed by 26 Spec. Laws 1228, No. 619, hereinafter referred to as the Stanford Charter (1953, rather than by the General Statutes" ).
The Board published notice in the Stamford Advocate on September 14, 2011 and September 21, 2011 for a public hearing to be held on September 26, 2011. The Board was unable to complete the hearing on that date and continued the hearing to October 6, 2011. Due to the large number of citizens who still wished to speak that evening, the Board continued the hearing to October 24, 2011; yet on that evening, the hearing was abruptly closed to overcrowding. The Board [then] ... caused notice to be published notice in the Stamford Advocate on October 28, 2011 and November 4, 2011 for a public hearing on November 10, 2011.
Ahuja contended on appeal primarily that the failure to publish public notice with regard to two of the " continuation" hearings (October 6, 2011 and October 24, 2011) violated the relevant provisions of the Stanford Charter, § C6-40-11 and § C6-40-12. Section C6-40-11, entitled " Notice of Public Hearings," provides in pertinent part as follows:
Ahuja also attacked the sufficiency of the notices on the ground that Procurement amended its application shortly before the last hearing date, which, according to Ahuja, rendered the prior notices " misleading" and obligated the Board to publish a new notice reflecting the change. The court has reviewed the parties’ respective briefs submitted to the trial court on these subsidiary issues, reviewed the key cases, and has read Judge Berger’s decision as it relates to these issues. In this court’s view, although Ahuja’s subsidiary legal claims on this point did not prevail, the arguments unquestionably were supported by probable cause as a matter of law.
Notice of each public hearing held with respect to amendments of the Zoning Regulations and Map or applications for approval of site and architectural plans and/or requested uses shall be given by publishing in an official newspaper the time, place and purpose of such hearing ... Said notice shall be published at least twice, the first not more than fifteen nor less than ten days before such hearing, the last not less than two days before such hearing ...
Section § C6-40-12, entitled " Hearings," states:
If more than one public hearing is considered by the Zoning Board to be necessary or advisable, additional hearings may be held upon due notice, as herein above set forth, provided no more than ninety days shall elapse between the first and last hearing on any one petition, unless the petitioner agrees in writing to an extension of such period.
The " notice" issue was fully briefed in the trial court, and Judge Berger issued a written decision resolving the issue in favor of the Board. See Berger MOD 1/4/13, at 3-7. Judge Berger’s MOD is thoughtful, and his conclusions are supported by another superior court in a different case involving the same charter provisions. Id. at 5-6 (citing Judge Adams’ decision in Carberry v. Zoning Board of Appeals ). Judge Berger’s reasoning regarding the notice issue distinguished between new hearings and the " continuation" hearings occurring on October 6, 2011 and October 24, 2011, and concluded that a separate notice is not required in the latter context. The court mostly emphasized the impracticality of Ahuja’s position, and suggested that adopting Ahuja’s construction of the governing charter provisions might make it impossible for the Board to comply with the statutory timing requirements set forth in General Statutes § 8-7d(a). See Berger MOD 1/4/13, at 7 & n.4.
Procurement also argues that Ahuja’s notice argument was meritless because she had actual notice of the hearings at issue and her son appeared at the hearings on her behalf, thereby waiving any right to claim defective notice. See Pl. Br. at 7-8. Judge Berger noted this point in a footnote to his decision, see Berger MOD 1/4/13, at 8 n.7, but did not rest his decision on a finding of waiver. Moreover, " failure to give newspaper notice [to the general public] is a subject matter jurisdictional defect," and cannot be waived.
*18 This court finds that Ahuja’s legal claims regarding notice were supported by probable cause. The argument lost, and perhaps it should have lost, but it was by no means groundless. To the contrary, the text of the relevant charter provisions provided Ahuja with a solid foundation to contend that a new notice was required for every public hearing, " continuation" or otherwise. Section C6-40-11 of the Charter contains the basic requirement that the Board give notice of a public hearing to be held on certain types of zoning applications. Section C6-40-12 goes on to provide specifically for the situation where a matter before the Board requires more than one hearing: " If more than one public hearing is considered by the Zoning Board to be necessary or advisable, additional hearings may be held upon due notice, as herein above set forth ..." (emphasis added). Ahuja’s argument- that the literal text of § C6-40-12 requires notice of any and all " additional hearing[s]" held in connection with an application- posits a very plausible construction of the charter provision. The text of § C6-40-12 does not limit its application to " new" or " separate" hearings, or otherwise create a category of " continuation" hearings exempt from the notice requirement. The provision’s literal terms would seem to include any " additional" hearing, and its context would appear to contemplate precisely the situation confronted in connection with the Second Application, when the first public hearing was insufficient to complete the Board’s full consideration of the zoning matter at issue.
Judge Berger’s decision rests on his unstated but clearly discernible view that it would be unworkable to read the charter provision literally to require a newly published notice every time a zoning hearing is continued. See Berger MOD 1/4/13, at 7 & n.4. The court’s construction to avoid such a result is proper, of course, see Town of Wallingford v. Werbiski, 274 Conn. 483, 491-92 (2005); State v. Brown, 242 Conn. 389, 402-04 (1997)- at the end of the day, practical considerations may require the literal terms of a statute or ordinance to yield to practical necessity. But under our rules of construction, which accord strong preference to the literal meaning of the text, no one fairly can say that Ahuja’s literal reading of the text was unreasonable. At worst, Ahuja’s argument proved unworkable for logistical reasons. Again it should be pointed out that the trial court’s MOD never suggested that Ahuja’s argument was frivolous or unreasonable.
The Third Application
The Third Application was submitted by Procurement to modify certain conditions that the Board had placed on the development project in its previous decisions. These modifications, among other things, sought to increase the number of units approved to nineteen units; increase the amount of available parking by three additional spaces; open an entrance exit on Bradley Place without the obligation to install a traffic signal; and change the form of ownership from condominiums to apartments. It is clear from the record of the underlying administrative proceeding, which this court has reviewed, that there was some amount of neighborhood opposition to the Third Application. The thrust of this opposition was that the conditions attached by the Board to its prior approval of the Project in December 2011 (as part of the Second Application) was based on a compromise reached by Procurement with opponents of the Project; the neighbors claimed that Procurement’s Third Application reneged on important components of that prior agreement by seeking modifications that would, among other things, increase the number of residential units from seventeen to nineteen and change the form of residential ownership from condominium to rental units. See Board Meeting Minutes 11/10/14, at pp. 4-5.
See
In a 4-1 split decision, the Board voted to approve the Third Application on November 17, 2014, effective November 21, 2014. It appears from the court’s review of the Return of Record that the majority failed to provide any reasons for its approval. See Board Meeting Minutes 11/17/14, at 9. The record reveals only that during the Board’s brief deliberations, Stamford’s Associate Planner read aloud to the Board from the text of Condition #2 to the Board’s prior approval of the special exception (Second Application) dated 12/12/11. Id. Condition 2 stated that the Project’s " residential development shall be limited to a total of seventeen units to be in condominium form of ownership." The meeting minutes reflect that the Board members were polled, and the majority indicated that they " were okay with adding the two additional units." Id. The Board did not explain why the modification was " okay."
Ahuja appealed the Board’s decision to the superior court by complaint dated December 2, 2014, with a return date January 6, 2015. The appeal claimed, among other things, that there was not " substantial evidence" in the record to support the Board’s approval of the special exception under § 19-3.2 of the Stamford Zoning Regulations. Procurement moved to dismiss the appeal on the ground that it was not returned to court within the time required by General Statutes § 52-46a. The motion to dismiss was granted on July 6, 2015. No appeal was taken from that disposition.
The complaint was not returned to court until January 4, 2015.
The court finds that Ahuja had probable cause to appeal from the Third Application, because her legal claims in that appeal were objectively reasonable as a matter of law under the first step of the Professional Real Estate Investors/Zeller analysis. Any appeal of this nature faces an uphill battle under the " substantial evidence" standard. But appeals of this type, many with far less substance, are standard fare in Connecticut courts, and it is this court’s considered view is that Ahuja’s appeal, although probably not a winner, showed above-average merit. A reasonable litigant in Ahuja’s position realistically may have expected success on the merits of her appeal from the Third Application.
Procurement’s application sought modifications to the conditions that had been attached to the earlier approval of the proposal to develop the subject property. The Project, as modified, consisted of two buildings housing nineteen residential units, eighty-five parking spaces, and construction and operation of a large day-care center. The issue before the Board was whether the application met the standards set forth in § 19-3.2 of the Stamford Zoning Regulations. Plaintiff argues, without any elaboration or specificity, that summary judgment cannot be granted in Ahuja’s favor because there was " substantial evidence" to support the Board’s decision to grant the special exception. See Pl. Br. at 10, 19. The issue is not so simple. While the " substantial evidence" rule certainly weighs in favor of upholding the Board’s decision, and prohibits a court from substituting its judgment for that of the Board, the standard of review is not toothless. See Martland v. Zoning Comm’n, 114 Conn.App. 655, 663 (2009) (" The evidence supporting the decision of a zoning board must be substantial ... The corollary to this rule is that absent substantial evidence in the record, a court may not affirm the decision of the board" ). Indeed, as Procurement itself learned when it prevailed in its own appeal from the Board’s denial of the First Application, the " substantial evidence" standard hardly spells automatic defeat for the plaintiff in zoning appeals. See Berger MOD 2/14/14. To be sure, it is probably more difficult to obtain reversal of the approval of a special exception than to successfully challenge the denial of a special exception. Ultimately each case will rise or fall on its own merits. See generally 9A Robert A. Fuller, Connecticut Land Use Law and Practice § 33.4 (Special Permits and Special Exceptions) (4th ed. 2015). But this court’s extensive review of cases in this area leads it to conclude that Ahuja had probable cause to appeal from the Board’s approval of the Third Application.
We do not know what a reviewing court would have done on this particular appeal because the case was dismissed on procedural grounds. But this court’s review of the underlying record leads to the firm conviction that a court considering the merits reasonably might have concluded that substantial evidence did not support the Board’s decision to grant the special exception sought in the Third Application. It is unlikely, but a reversal might have been obtained based upon a court’s view of the evidence in light of the five relevant categories to be taken into account under § 19-3.2 of the Stamford Zoning Regulations. More likely is the possibility that a superior court would have been particularly concerned that the Board originally saw fit, in December 2011, to place express conditions on its approval of the special exception by allowing a maximum of seventeen residential units, but then, in 2014, changed that limitation to permit the developer to increase the number of units to nineteen without justifying the modification, and without explaining what circumstance leading to the original limitation had changed.
No claim is made that Ahuja’s procedural default, which resulted from her late return of process to court, itself established a lack of probable cause.
It is not clear what evidence in 2014 suddenly made the Board majority " okay" with a 10% increase in a maximum set just a few years before. There may be an answer to this question, of course, but the Board did not identify it, and plaintiff’s brief to this court does not identify it.
A reviewing court’s concern in this regard might have been magnified by the suggestion in the record, voiced by more than a few neighbors, that Procurement’s Third Application sought modifications to conditions that previously had been agreed upon as part of a compromise deal. Whatever the ultimate legal significance of this allegation, at the very least it provides the appeal with sufficient equitable traction to get a court’s attention. In any event, the issue here is not who ultimately would have prevailed on appeal; it is whether an objective litigant would consider the appeal to have had any realistic chance of success. The answer is yes.
Procurement also argues that summary judgment cannot be granted because Ahuja has failed to submit an affidavit or other evidence rebutting allegations of wrongdoing contained in paragraphs 10, 29, and 30 of the complaint. Procurement focuses in particular on paragraph 29, which alleges in pertinent part that " counsel representing the Defendants indicated that his clients were aware that they could only succeed at delaying the Project and did not have any chance for succeeding on the merits of the underlying appeals ..." See Pl. Br. at 5-6, 14; Pl. Supplemental Br. at 6. Procurement’s argument relies for legal support on a fragmentary quotation from a Supreme Court case stating that " the nonmoving party may rest on mere allegations or denials contained in [its] pleadings" to defeat summary judgment when a moving party fails to show that there are no genuine issues of material fact. Pl. Br. at 14 (quoting Romprey v. Safeco Ins. Co., 310 Conn. 320-21 (2013)).
This argument misapprehends governing summary judgment doctrine. The general rule is the opposite of that promoted by Procurement: the nonmoving party may not rely on the mere allegations contained in its pleadings to defeat summary judgment:
We have repeatedly held that " (i)n order to oppose successfully a motion for summary judgment, the opposing party must recite facts in accordance with Practice Book § 300 (now § 381) which contradict those offered by the moving party." Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 229 (1968); McColl v. Pataky, 160 Conn. 457, 460 (1971); Dowling v. Kielak, 160 Conn. 14, 17 (1970); Loubet v. Loubet, 155 Conn. 695, 696 (1967); see also James & Hazard, Civil Procedure (2d Ed. 1977) pp. 149-50. A party seeking to resist summary judgment may not rely on underlying pleadings containing only general denials, or upon the pleadings of someone not a party to the motion for summary judgment to establish the existence of a " genuine issue" as to a material fact. Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 490 (1971); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79 (1969); see also Boyce v. Merchants Fire Insurance Co., 204 F.Supp. 311, 314 (D.Conn. 1962), aff’d, per curiam, 308 F.2d 806 (2d Cir. 1962).Citizens Nat. Bank v. Hubney, 182 Conn. 310, 312-13 (1980); accord Squeo v. Norwalk Hosp. Ass’n, 316 Conn. 558, 597-98 (2015) (" Accordingly, they could not continue to rely on their pleadings to defeat the defendants’ motion for summary judgment but, instead, were obliged to submit affidavits or other documentary evidence in support of their claims. See Practice Book § 17-45. This they failed to do" ).
It appears that Procurement intends to invoke the exception to this general rule, which applies in circumstances where the moving party has failed to meet its threshold burden to negate each claim set forth in the complaint- or, in a motion seeking summary judgment on the moving party’s special defense, as here, to establish an evidentiary basis supporting the defense. The exception is usually explained as follows:
An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint ... It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.Rockwell v. Quintner, 96 Conn.App. 221, 227-30 (citations and internal quotation marks omitted), cert. denied, 280 Conn. 917 (2006); see Squeo, supra, 316 Conn. at 594-96.
Procurement’s argument fails to distinguish between claims in a pleading and evidentiary allegations contained in that pleading. A party seeking summary judgment is not required to submit affidavits or other materials disputing each and every evidentiary allegation contained in the non-moving party’s pleadings. The summary judgment submissions, rather, must establish a basis to find in the movant’s favor on each and every essential element of the claim or defense upon which summary judgment is sought. See, e.g., Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626-27 (2012) (defendant failed to establish lack of notice of premises defect). Here, defendants have submitted summary judgment materials which, if left unrebutted by Procurement, establish grounds for their Noerr-Pennington defense as a matter of law. More specifically, defendants have established that they were engaged in petitioning activity that an objective litigant could conclude was reasonably calculated to elicit a favorable outcome. On the basis of these summary judgment materials, and in the absence of evidence submitted by plaintiff giving rise to a disputed issue of material fact regarding an element of the defense, the court has determined that defendants are entitled to summary judgment as a matter of law under the Noerr-Pennington doctrine. If Procurement wanted to defeat summary judgment based on any particular facts alleged in its complaint- for example, the allegation that defendants made an admission, through counsel, that would give rise to a triable question as to whether their petitioning activity was supported by probable cause- then Procurement was obligated to submit an affidavit or other evidentiary material providing an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See, e.g., Doe v. Town of West Hartford, 328 Conn. 172, 191-97 (2018). That was not done here.
The foregoing findings and conclusions bear upon all counts of the complaint in which plaintiff seeks to impose liability based on defendants’ petitioning activity in connection with the First, Second or Third Application. This is so because Noerr-Pennington, as it has been developed by the courts, is not limited in application to some causes of action but not others. Its application is not determined by the legal claim being asserted, but by the nature of the underlying activity giving rise to that claim- if the activity is protected by the first amendment’s Petition Clause, then the Noerr-Pennington doctrine applies. As discussed, the doctrine has been applied beyond the antitrust context to claims of vexatious litigation, abuse of process, interference with contractual relations, abuse of process, and CUTPA violations, among others. In other words, Noerr-Pennington is a defense to each of plaintiff’s claims aimed at petitioning activity.
Based on the foregoing analysis, the court grants summary judgment in defendants’ favor on the First, Second, Third, Fourth, Fifth, and Sixth Counts, which are the counts seeking damages arising from the defendants’ participation in one or more of the three underlying administrative and/or judicial proceedings described herein. It appears to the court that this ruling covers the entirety of these six counts. Defendants’ petitioning activity is protected under Noerr-Pennington, and the sham exception is inapplicable here as a matter of law. No common-law or statutory liability may be imposed on defendants for that activity under the circumstances.
There are limited allegations incorporated in the first six counts regarding what plaintiff labels " non-petitioning activity," see below at pp. 53-57, but the court is under the impression that those allegations are intended to establish defendants’ motive and intentions underlying the petitioning activity. Only the Seventh Count seeks damages allegedly caused by the non-petitioning activity.
2. Non-Petitioning Activity
This leaves what Procurement labels as " non-petitioning activity," which it contends is not entitled to Noerr-Pennington immunity. Procurement contends that such conduct was not directed at influencing governmental action, but instead involved false or otherwise tortious communications made by defendants to non-governmental actors- neighbors living near the Project, Procurement’s lenders, and Procurement’s actual or prospective tenants. See Pl. Br. at 13-15. Plaintiff’s briefs do not describe the non-petitioning activity at great length, but it evidently included efforts by defendants to (1) spread false information about the project to neighbors, in an effort to mobilize opposition to the project, Pl. Br. at 17; (2) contact Procurement’s " lending institutions with the goal of controlling the debt that secured Procurement’s property," id. at 14; and (3) contact or interfere with Procurement’s current or prospective tenant relationships, id. See Affidavit of Nagi Osta dated January 13, 2017, at ¶¶7-9, 19.
To the court’s knowledge, neither party has addressed whether the allegations of non-petitioning activity, taken alone, would establish the basis for a viable claim under any of the first six counts of the complaint. See n.31 above. It appears to the court that only the Seventh Count (relating to defendants’ activities directed at Procurement’s tenants and lenders) purports to state a claim independent of defendants’ petitioning activity. Id. In the interest of completeness, the following discussion will address all of the non-petitioning activity contained in plaintiff’s allegations.
Procurement is incorrect to label as " non-petitioning activity" the efforts by defendants to foment public opposition to the Project among neighbors. The case law makes it clear that Noerr-Pennington protection extends beyond a petitioners’ direct communications with the government. " A publicity campaign directed at the general public, seeking legislation or executive action, enjoys antitrust immunity [under Noerr-Pennington ] ..." Mercatus Group, LLC v. Lake Forest Hospital, supra, 641 F.3d at 844, citing Allied Tube and Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500 (1988)); see, e.g., Sosa v. DIRECTV, Inc., 437 F.3d 923, 934 (9th Cir. 2006) (recognizing that " not only petitions sent directly to the court in the course of litigation, but also ‘conduct incidental to the prosecution of the suit’ is protected by the Noerr-Pennington doctrine" ) (citation omitted); Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 160 (3d Cir. 1988) (" Thus, we hold that as a matter of law, defendants’ actions in calling Brownsville’s violations to the attention of state and federal authorities and eliciting public interest [in public informational campaign] cannot serve as the basis of tort liability" ); Rubloff Dev. Grp., Inc. v. SuperValu, Inc., 863 F.Supp.2d 732, 741-42 (N.D.Ill. 2012).
It should not be surprising that efforts to mobilize public opinion in support of petitioning activity warrant first amendment protection. With this point in mind, it becomes clear that Noerr-Pennington immunity is not avoided or overcome by allegations that defendants " commenced a campaign to delay, thwart and prevent the Project from ever opening," Nagi Affidavit at ¶7, or " distribut[ed] notices to residents in the surrounding area regarding the second [zoning] application with the hope they would attend the public hearings and oppose the application," id. at ¶9(a), or " generated a website to oppose the Project, and to distribute fliers to oppose the Project [sic]," id. at ¶9(c).
There is one aspect of defendants’ alleged publicity campaign that possibly could come within the " fraud" exception to Noerr-Pennington . See n.14 and pp. 39-40 above. Procurement alleges that defendants attempted to create neighborhood opposition to the Project in part by initiating and spreading the false rumor " that the Project would involve low-income and section 8 housing ..." Id. at ¶¶8, 9(b). Procurement submitted an exhibit to its summary judgment opposition demonstrating that this alleged falsehood ultimately made its way into the administrative record before the Board, in the form of email communications from neighbors (not defendants themselves) to Norman Cole, Stamford’s Director of Planning and Zoning. See Exhibits 2 and 3 to Pl. Brief. These emails, not exceeding two in number, expressed opposition to the Project based on their respective author’s concerns about " low-income housing." Defendants did not submit any rebuttal evidence relating to these emails.
It is uncertain whether these allegations give rise to a triable issue here. The fraud exception to Noerr-Pennington requires evidence that defendants intentionally made false statements of material fact to the government. See n.14 and pp. 39-40 above. On the existing record, it is not clear to the court that a jury reasonably could infer that defendants were responsible for promulgating the information about " low-income housing" that filtered into the administrative record. Nor is it clear that the statement about " low-income housing," even if attributable to defendants, is a statement of " fact" that could support a finding of fraud. Although the phrase " low-income housing" may be a term of art with an objective meaning in certain circles, to many members of the public it is a subjective and relative term, which can mean different things to different people. Neither party has briefed the meaning or accuracy of the term as used here. The court is doubtful that defendant’s use of that term to describe the Project, even if established, could trigger the Noerr-Pennington fraud exception.
Use of the term " Section 8" to describe plaintiff’s housing is different, because it is a statement of fact describing housing subsidized pursuant to Section 8 of the Housing Act of 1937, as amended, 42 U.S.C. § 1437f. One email included in the record, from a neighbor opposing the Project, mentions " section eight housing." Even here, it is questionable if the reference is sufficient to trigger the fraud exception, because it is unclear whether the reference is specific to the Project itself, or, rather, part of the author’s broader lament about what he seems to consider the downward trajectory of the City of Stamford more generally: " When is this going to stop! I see the affordable/ section 8 housing going on everywhere in Stamford. We are becoming Bridgeport!"
It also is uncertain whether this particular aspect of defendants’ activities caused any harm to Procurement. Neither party has briefed the issue, presumably because defendants did not seek summary judgment on that ground.
As noted, there are numerous obstacles that plaintiff would need to surmount before proceeding to trial on the basis of their alleged activities involving neighbors. Uncertainties include whether the " low-income" statement is a statement of fact capable of triggering the fraud exception, whether the Section 8 statement made part of the administrative record referred to the Project or was a broader criticism of Stamford, whether either of those statements were " material" within the meaning of the Noerr-Pennington fraud exception, and whether the defendants are legally responsible for either of these statements making their way into the administrative record. These issues need not be resolved, however, because plaintiff does not appear to rely on the neighbor-related activity as an independent basis of liability. In other words, no claim has been made that the First through Sixth Counts present triable issues based solely on defendants’ alleged statements to neighbors.
Turning to defendants’ alleged communications with Procurement’s lenders and tenants, actual or prospective, this conduct cannot fairly be considered petitioning activity at all, because the activity was not aimed directly or indirectly at influencing governmental action. The claim is that defendants attempted to purchase plaintiff’s secured debt, presumably to cause plaintiff some kind of commercial difficulty after becoming its mortgagee, and also attempted to lure away actual or prospective tenants. This conduct does not come within the scope of the Noerr-Pennington doctrine. See Weldon v. MTAG Servs., LLC, No. 3:16-CV-783 (JCH), 2017 WL 776648, at *16 (D.Conn. Feb. 28, 2017) (finding that certain allegation were not covered by Noerr-Pennington because they relate " not to defendants’ actual institution of lawsuits, but to their allegedly unlawful purchase of liens" ).
Whether or not these particular activities were tortious, or otherwise actionable, and whether or not they caused any damages to Procurement, are not issues raised in the pending motion for summary judgment, and the court expresses no opinion on those questions. ---------
Conclusion
Defendants’ motion for summary judgment is granted on the First through Sixth Counts. The motion is denied on the Seventh Count.
It is so ordered.
In re Fresh Del Monte Pineapple explained its holding this way: Although plaintiffs on this motion target two separate lawsuits [as constituting sham litigation], they do not explicitly invoke this alternative [California Motor Transport ] test, and with good reason, since it does not seem to apply absent a large volume of repeated, consistently baseless litigation. See, e.g., Marchon Eyewear, Inc. v. Tura LP, 2002 WL 31253199, at *8 (E.D.N.Y. Sept. 30, 2002) (counterclaim for sham litigation alleged only two prior lawsuits and the current one, thus distinguishing Primetime ). See also Applera Corp. v. M.J. Research, Inc., 303 F.Supp.2d 130, 133-34 (D.Conn. 2004) (explaining context of Primetime, as involving " ‘huge volumes’ of legal challenges," referred to as " automatic petitioning" ) (quoting Primetime, [supra,] 219 F.3d at 95-96 , 101)."
California Motor Transport . See Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., supra. That case provides the slenderest of reeds upon which to base its argument, and collapses quickly upon review. In a 2-1 decision, the Hanover 3201 Realty, LLC majority concluded that the " sham" exception to Noerr-Pennington should be analyzed under California Motor Transport rather than Professional Real Estate Investors, despite the fact that the underlying petitioning activity involved only four legal proceedings (consisting of one lawsuit and three administrative challenges). The majority’s entire analysis of the point under discussion consists of three sentences:
Defendants argue as a threshold matter that the four actions they filed against Hanover Realty are too few to even qualify as a pattern or series. We are not convinced. In so concluding, we do not set a minimum number requirement for the applicability of California Motor or find that four sham petitions will always support the use of California Motor. It is sufficient for our purposes that four petitions were filed against Hanover Realty and it alleges that Defendants filed these sham proceedings at every opportunity to obstruct Hanover Realty from " obtaining all necessary government approvals."Hanover 3201 Realty, supra, 806 F.3d at 181. Suffice it to say that the dissenting opinion is far more persuasive. Id. at 196-201 (Greenberg, J., dissenting). Among other things, the dissenting judge notes that " no court of which I am aware has applied [California Motor Transport ] in circumstances comparable to those here ..." Id. at 196.
Puerto Rico Telephone Co., Inc. v. San Juan Cable, LLC, 874 F.3d 767, 771-72 (1st Cir. 2017), petition for cent. docketed, No. 17-1215 (March 1, 2018). In a plurality decision, the opinion containing the judgment of the court expresses the view that the holding in Professional Real Estate Investors is intended to state a categorical rule for the " sham" exception in all Noerr-Pennington cases. " We find ourselves quite skeptical of the notion that a defendant’s willingness to file frivolous cases may render it liable for filing a series of only objectively reasonable cases ... Nor is there any pragmatic reason to presume that [Professional Real Estate Investors’] protections for nonfrivolous petitioning activity disappear merely because the defendant exercises its right to engage in such activity on multiple occasions." Id. A concurring opinion (which is the controlling opinion on this issue for precedential purposes within the First Circuit) agrees that the California Motor Transport " holistic" approach is inapplicable on the facts presented, but argues that California Motor Transport retains a role to play in the appropriate case, at least in the antitrust context. Id. at 774-77 (Torruella, J., concurring). The Puerto Rico Telephone Co. case is noted here solely to show that the relationship between California Motor Transport and Professional Real Estate Investors has not yet been resolved with finality at the federal level. In retrospect, it appears that the seeds of the disagreement were planted all the way back in Justice Stevens’ concurrence in Professional Real Estate Investors. See Professional Real Estate Investors, 508 U.S. at 67-76 (Stevens, J., concurring). In this respect, it bears mention that notwithstanding his disagreement with " some of the unnecessarily broad dicta in the Court’s opinion," Justice Stevens’s concurring opinion makes it clear that he joined in the Court’s " holding that an objectively reasonable effort to litigate cannot be a sham regardless of subjective intent." Id. at 67.
Noerr-Pennington is needed at all in the context of a vexatious litigation case under Connecticut law. Noerr-Pennington was developed in the field of antitrust law, to safeguard first amendment " petition clause" rights in contexts where the underlying liability standard, if given unrestrained application, may threaten those rights. But it would appear that the liability standard for vexatious litigation, unlike the liability standard for antitrust violations, already provides that same basic protection- a defendant cannot be liable for vexatious litigation unless the underlying litigation activity was undertaken without probable cause and with malice. Because the liability standard covers the same basic ground as the immunity doctrine, it is not immediately apparent what specific purpose is served by the immunity doctrine in this context. The question is not an idle one because the immunity injects an additional layer of complexity into these cases, as the present proceedings illustrate. Nor is it enough to say that under Zeller v. Consoli, the Noerr-Pennington doctrine applies to lawsuits for common-law vexatious litigation, and this court has no business wondering why. The problem is that a trial court must determine at a doctrinal level precisely what (if anything) Noerr-Pennington adds to existing vexatious litigation doctrine in order to adjudicate dispositive motions, requests to charge, and countless other matters that require a very particularized understanding of the interrelationship between the immunity doctrine and the liability standard. We have clues but no definitive answer regarding the precise relationship between the liability standard and the immunity defense. Zeller v. Consoli noted that " the Noerr-Pennington doctrine is similar to existing law in Connecticut governing the torts of interference with business relations and vexatious litigation," 59 Conn.App. at 554 n.5, but did not have occasion to delineate the precise nature of that similarity. One other superior court judge has addressed one aspect of this issue, and concluded that the liability standard for vexatious litigation does not cover precisely the same ground as the sham exception under Noerr-Pennington . See Diamond 67, LLC v. Oatis, No. X03HHD-CV-126030610, 2017 WL 5056255, at *20-*22 (Super.Ct., Sept. 18, 2017) (Moll, J.). Plaintiff in Diamond 67 argued that a finding in plaintiff’s favor on its vexatious litigation claim necessarily defeated any Noerr-Pennington defense, on the theory that the doctrinal elements of the tort and the immunity are essentially two sides of the same coin. Id., 2017 WL at *22. Judge Moll disagreed, stating that the argument " ignores entirely the second prong of the Noerr-Pennington [sham exception], namely, that the vexatious proceedings concealed an attempt to interfere directly with the business relationship of a competitor." This point is correct in that the second prong of the " sham" exception is formulated in specific terms focusing on competitor injury, while the malice element in vexatious litigation doctrine is phrased in more general terms, asking if the defendant pursued the underlying proceedings " for a purpose other than that of securing the proper adjudication of the claim on which they are based." Restatement (Second) Torts § 676 (1977); accord Connecticut Jury Instructions (Civil), Instruction 3.13-6A. (" A person acts with malice when (he/she) acts primarily for an improper purpose- that is, for a purpose other than that of securing the proper adjudication of the claim on which the (action/proceeding) is based." ) But it seems plausible that the second prong of the sham exception is nothing more than a specialized application of the common-law malice standard, for use in the antitrust context- the " competitor injury" formulation is taken from Professional Real Estate Investors, a Sherman Act case. See 508 U.S. at 60-61. If that is right, then the precise " competitor injury" formulation applicable in the antitrust context is not itself constitutionally compelled, and the common-law malice standard can be substituted for it without impairing its function. This returns us to the original question: in a vexatious litigation case, what does Noerr-Pennington add that is not already covered by the liability standard itself? The issue has not been briefed in the present case, and it does not require resolution here. The beginning of the answer no doubt lies in the fact that the liability standard for vexatious litigation and the immunity standard under Noerr-Pennington serve two somewhat different functions; the former protects the societal interest in encouraging citizens to seek redress uninhibited by the fear of retaliatory litigation, whereas the latter protects first amendment " right to petition" values. Whether both of these interests can be protected by a single doctrinal safeguard (rather than the double-layered protection of a strict liability standard plus an immunity defense) is a question for another day.
Zeller decision also quotes with approval the following statement of the trial court, which the trial judge made after finding that defendants had probable cause to pursue the underlying litigation: " [Defendants’] motives behind these actions are irrelevant to the finding of probable cause." Id. at 386.
Diamond 67 involved allegations that defendants made misrepresentations of fact to the administrative and judicial tribunals hearing the underlying proceedings. 167 Conn.App. at 688-89 (reviewing allegations that defendants had told the relevant tribunals, falsely, that the project threatened to pollute a source of public drinking water). The ultimate precedential value of the Noerr-Pennington discussion in Diamond 67 may be clouded due to the fact that the Appellate Court does not address whether vexatious litigation claims rooted in allegations of fraud or misrepresentation are subject to a specialized version of the " sham" exception used in cases involving fraud. See Scott Filmore, Defining the Misrepresentation Exception to the Noerr-Pennington Doctrine, 49 U. Kan. L.Rev. 423 (2001) (discussing federal cases " examining whether misrepresentations to the government are protected by the Noerr-Pennington Doctrine or whether such conduct falls into a variant of the sham exception known as the ‘misrepresentation exception’ " ); United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1123 (D.C. Cir. 2009) (" Defendants’ attempt to invoke Noerr-Pennington as protection fails because the doctrine does not protect deliberately false or misleading statements" ). A similar doctrine, known as the Walker Process exception, holds that Noerr-Pennington immunity is unavailable to a party who has made intentional misrepresentations to the United States Patent and Trademark Office in the procurement of a patent. See, e.g., S3 Graphics Co. v. ATI Techs. ULC, No. CV 11-1298-LPS, 2014 WL 573358, at *3 (D.Del. Feb. 11, 2014) (explaining rule derived from Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). The " fraud" exception to Noerr-Pennington, a " sham" exception sub-doctrine, is further discussed below at pp. 39-40.
Professional Real Estate Investors, supra, 508 U.S. at 57. (" We ... hold that an objectively reasonable effort to litigate cannot be sham regardless of subjective intent." )
Falls Church decision, which emphasizes the " purely objective" nature of the probable cause inquiry in Connecticut, acknowledges the critical distinction between the state of defendant’s knowledge (i.e., the facts he or she knows when making the underlying legal claims), and the defendant’s subjective intentions or motivations . See 281 Conn. at 99. Only the latter are irrelevant to the probable cause inquiry. Id. ; cf. Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (" Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause" ) (citations omitted).
Wall v. Toomey, 52 Conn. 35, 36 (1884).
Ramirez v. Health Net of N.E., Inc., 285 Conn. 1, 10-11 (2008) (" it is the movant who has the burden of showing the nonexistence of any issue of fact" ). Plaintiff at trial bears the burden of proving that the sham exception applies to the petitioning activity at issue. Professional Real Estate Investors, supra, 508 U.S. at 61.
Armco, Inc. v. S. Rock, Inc., 778 F.2d 1134, 1137 (5th Cir. 1985) (" [W]ere probable cause left to the jury the rights of defendants might not be sufficiently safeguarded and the bringing of complaints would be discouraged ... [T]he general rule is that suits for malicious prosecution are viewed with disfavor and are to be carefully guarded against ... [M]alicious prosecution cases present situations difficult for the jury to distinguish. There is a constant interplay between the original lawsuit and the malicious prosecution suit ... This difficulty coupled with the reluctance of the courts to have potential plaintiffs feel a chilling effect from a possible counter lawsuit sheds some light upon the reason for the development of this rule" ) (citation omitted).
liability standard for vexatious litigation in Connecticut. The issue here is whether defendant is entitled to summary judgment on its Noerr-Pennington defense, and so the only question is whether, on this record, that doctrine immunizes defendants as a matter of law.
Lauer v. Zoning Commission, 220 Conn. 455, 461-62 (1991). Whether or not Procurement’s " actual notice" /waiver argument would ultimately prevail, it certainly does not render Ahuja’s appeal frivolous. Nothing in Judge Berger’s MOD suggests otherwise.
Ahuja v. Zoning Board et al., No. FST-15-6024272, Return of Record (Entries 41-#106.00-109).