Opinion
No. CV 054012307
April 21, 2009
MEMORANDUM OF DECISION
The plaintiff, Lawrence Sidney, commenced this action by service of process on the defendants, Elizabeth Spader, Dana Hauck, Marty Liseviek and the Westport board of education (board), on May 17, 2005. The action was removed from the judicial district of Hartford to the United States District Court for the District of Connecticut on June 6, 2005. On October 1, 2007, the District Court, Chatigny, J, granted the motion for summary judgment filed by the defendants Lisevick and the Westport board of education, and on April 1, 2008, the District Court granted the plaintiff's motion to remand the remaining claims to the state court for the judicial district of Hartford.
The defendant Elizabeth Spader is incorrectly referenced in the caption and on the summons as Elizabeth Sprader.
In his three-count complaint, the plaintiff alleges that in 2004, he was employed as a girls' outdoor track and cross country coach at Staples High School in Westport, Connecticut, under an annual contract that he expected to be renewed each year. The plaintiff alleges that in February 2004, the defendants Spader and Hauck "tortiously interfered with the plaintiff's aforesaid contracts and expectations by falsely and maliciously accusing the plaintiff of improper behavior in his said coaching positions." The plaintiff claims that these accusations caused Lisevick, who was the director of athletics at Staples High School, and the Westport board of education to refuse to renew his contract. Counts one and two of the complaint allege that Spader and Hauck, respectively, are liable to the plaintiff under a theory of tortious interference with contract.
Count three of the complaint alleges that the defendants Lisevick and the Westport board of education violated the plaintiff's procedural due process rights.
On October 13, 2006, the defendants Spader and Hauck filed motions for summary judgment and a joint supporting memorandum of law. The plaintiff filed a memorandum in opposition on November 8, 2006, and the defendants filed a reply brief on December 1, 2006.
The parties were heard at short calendar on February 2, 2009.
Discussion CT Page 7135
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). See also Practice Book § 17-49. "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In support of their motion for summary judgment, the defendants invoke the Noerr-Pennington doctrine, asserting that citizens who exercise their first amendment right to petition their local government officials are shielded from liability from tort claims. Alternately, the defendants argue that undisputed facts on the record demonstrate that the plaintiff cannot establish the essential elements of his claims of tortious interference, and that they are therefore entitled to judgment as a matter of law.
Because the court grants the defendants' motion for summary judgment on first amendment grounds, the court does not reach the defendants' alternative argument.
In response, the plaintiff argues that there are issues of fact concerning whether the defendants' allegedly tortious conduct was protected speech under the "sham litigation" exception to the Noerr-Pennington doctrine, and that therefore the court should deny the defendants' motion for summary judgment.
In Zeller v. Consolini, 59 Conn.App. 545, 554, 758 A.2d 376 (2000), our Appellate Court adopted the Noerr-Pennington doctrine. In that decision, the Court observed that "[t]he Noerr-Pennington doctrine has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress. [A]lthough the Noerr-Pennington defense is most often asserted against antitrust claims, it is equally applicable to many types of claims which [seek] to assign liability on the basis of the defendant's exercise of its first amendment rights." (Internal quotation marks omitted.) Id., 551. As such, the doctrine applies to "state law claims of tortious interference with business relations." Id.
The United States Supreme Court developed the Noerr-Pennington doctrine through a trilogy of decisions: 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); and, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, reh. denied, 365 U.S. 875, 81 S.Ct. 899, 5 L.Ed.2d 864 (1961). See Zeller v. Consolini, 59 Conn.App. 545, 550, 758 A.2d 376 (2000).
The Appellate Court further explained the public policy underlying the doctrine:
"[F]ailure to apply the Noerr-Pennington doctrine aggressively may create a `chilling effect' on the first amendment right to petition in zoning and other matters Indeed, such a chilling effect can be a virtual deep freeze when individual citizens not versed in the legal system and without financial resources do not exercise potentially meritorious legal challenges for fear of costly and protracted, retributive litigation from opponents." (Citation omitted.) Id., 553-54.
The Appellate Court cautioned, however, that "[a]lthough the Noerr-Pennington doctrine provides broad coverage to petitioning individuals or groups, its protection is not limitless. [T]he 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.' . . . 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." (Citations omitted.) Id., 551-52.
The parties have not identified, and the court has not found, any controlling decisions following Zeller v. Consolini, supra, 59 Conn.App. 545, that deal with the application of the CT Page 7137 Noerr-Pennington doctrine in the school context. The defendants, however, cite three decisions from the Sixth and Seventh Circuit Courts of Appeals holding that individuals who express dissatisfaction to school officials regarding the conduct of teachers and principals are shielded from liability under the Noerr-Pennington doctrine as long as the petition is not a sham.
In Eaton v. Board of Education, 975 F.2d 292, 298 (6th Cir. 1992), cert. denied, 508 U.S. 957, 113 S.Ct. 2459, 124 L.d.2d 674 (1993), the court held that an education association and its representative, who lobbied for the termination of a principal based on the principal's use of a racial epithet, were immunized from suit based on a claim of outrageous conduct on first amendment grounds. The court found that this petition was not a sham because "[t]he petitioning and speaking clearly intended to accomplish the ostensible object, the removal of [the principal]." Id.
The Eaton court relied on the Sixth Circuit Court of Appeals' decision in Stachura v. Truszkowski, 763 F.2d 211, 213 (6th Cir. 1985), rev'd on other grounds, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). In Stachura, a private citizen, who transmitted complaints about a teacher's methods to a school board and initiated "vehement and continuing protests, based on unfounded rumors, leading directly to [a teacher's] removal," was immunized from suit on first amendment grounds. Id.
Likewise, in Stevens v. Tillman, 855 F.2d 394, 395 (7th Cir. 1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809 (1989), the court held that a parent-teacher association, which conducted a campaign against a principal, occupied the principal's office for three days, distributed hand bills, picketed the school, led a boycott, and "delivered tirades" against the principal at a board of education meeting, was immune from a defamation suit on first amendment grounds. The court reasoned that "[a] campaign to influence the Board of Education is classic political speech; it is direct involvement in governance, and only the most extraordinary showing would permit an award of damages on its account." Id., 403.
In light of the foregoing authority, it is clear that the activity of the defendants is presumptively shielded from liability under the Noerr-Pennington doctrine. It is undisputed that the defendants filed complaints with public school officials expressing concerns about the plaintiff, who had coached their daughters. As such, the issue before the court is whether the defendants' complaints and conduct constitute a "sham" and thus not cloaked with the immunity under Noerr-Pennington.
Following decisions of the United States Supreme Court, the Zeller Court adopted the following two-prong test to define sham litigation: "First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits . . . Second, the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor . . . through the use [of] the governmental process — as opposed to the outcome of that process — as an anticompetitive weapon. Essentially, then, a sham involves a defendant whose activities are not genuinely aimed at procuring favorable governmental action in any form." (Citations omitted; internal quotation marks omitted.) Zeller v. Consolini, supra, 59 Conn.App. 552. The court may only examine the litigant's subjective motivation — that is, the second prong of this test — if the challenged litigation is objectively meritless. Id., 563 n. 8.
The defendants argue that their petition was not a "sham" because their efforts to influence government action were successful, leading the board to suspend the plaintiff from coaching the girls' track teams for one full year. This court agrees. While the plaintiff vigorously disputes the basis for the complaints and the findings by the school that led to his suspension, he fails to present evidence to establish that the defendants' complaints are objectively baseless such that no reasonable person could realistically expect success on the merits. As such, the plaintiff's focus on whether the accusations themselves were false and malicious is misplaced; indeed, this court finds that these issues of fact are not material for purposes of the motion for summary judgment before this court. As previously noted, "[a] material fact [is] . . . simply . . ., a fact which will make a difference in the result of the case." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 556.
What is material and undisputed is that the plaintiff was, in fact, suspended based on the complaints filed by the defendants. As the United States Supreme Court has explicitly observed, "a successful effort to influence governmental action . . . certainly cannot be characterized as a sham." (Internal quotation marks omitted.) Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 58, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993).
Since the challenged activity of the defendants was not objectively baseless, the court need not inquire into the second prong of the Noerr Pennington doctrine. Id., 60. See also Zeller v. Consolini, supra, 59 Conn.App. 563 n. 8. Finding that the defendants are entitled to invoke the immunity from liability under the Noerr Pennington doctrine, this court grants the defendants' motion for summary judgment.