Opinion
X08FSTCV145015414S
09-02-2016
Sylvester Traylor v. Cathy Gambrell et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT OF THE DEFENDANTS GAMBRELL AND CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY (#369), THE TOWN OF WATERFORD (#374) AND THE DEFENDANTS RYAN RYAN & DELUCA AND THE DEFENDANT PIATKOWKI (#376)
Robert L. Genuario, J.
I. Background
The plaintiff, who is self-represented, brings this action in two counts. The first count of the amended complaint (Docket #221 dated November 2, 2015) is entitled " Intentional Spoliation of Evidence" and is directed against all defendants. The second count entitled " Violation of Connecticut Unfair Trade Practices Act" is directed only against two defendants, the defendant Connecticut Interlocal Risk Management Agencies (CIRMA) and the defendant law firm Ryan Ryan & Deluca (RRD). The second count has previously been stricken by the court insofar as it is addressed against RRD. See Memorandum of Decision dated December 14, 2015 (#232, Dooley, J.). All defendants have moved for summary judgment. While all defendants assert the doctrine of res judicata as grounds for summary judgment each of the defendants assert alternative grounds as well.
This is the third case brought by the plaintiff arising out of, at least in part, his allegations that " on and about March 15, 2004, during his wife's funeral service the Town of Waterford police broke into his home and removed some of his and his wife's property . . . [T]he defendants destroyed Mr. Traylor's original documents without providing him the opportunity to inspect them." See amended complaint (Docket #221 paragraph 9). The particular items that the plaintiff alleges were taken from his home on or about March 15, 2004 were a " trust document" and " attorney-client correspondence." (Collectively referred to as the trust document.) The plaintiff alleges that the trust document was taken from his home in 2004 and that the defendants conspired to destroy the original trust document depriving him of essential evidence that he needed to prosecute certain lawsuits. The plaintiff in this action seeks either replevin of the original trust document or damages for spoliation of evidence, specifically the trust document. All of the defendants have moved for summary judgment and have filed memorandum of law in support thereof. The plaintiff has filed an objection and memorandum of law in opposition thereto and the defendants have filed reply briefs. Oral argument was held on August 23, 2016.
II. Summary Judgment Standards
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proofs submitted show that there is no genuine issue as to any material fact and the moving parties are entitled to judgment as a matter of law . . ." Ugrin v. Cheshire, 307 Conn. 364, 389, 54 A.3d 532 (2012). " Summary judgment is a method of resolving litigation when pleadings, affidavits and any proof submitted show that there is not a 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).
Although the Connecticut Supreme Court has recognized " that, in complex cases, it may be more difficult to determine in advance of trial whether there exists any disputes regarding material facts, the opinions do not stand for the proposition that summary judgment is inappropriate in complex cases where the absence of a dispute regarding material facts can be established. Succinctly stated, as a matter of law, no case is too complex for summary judgment." Gould v. Mellick & Sexton, 263 Conn. 140, 141, 819 A.2d 216 (2003). (Citations and internal quotation marks omitted.) " Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiffs' claim and involves no triable issues of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . 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 failed 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 . . . 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 genuine issues of material fact and, therefore, cannot refute evidence properly presented to the court under [the Connecticut] Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
" Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitations grounds when the " material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). Moreover, " summary judgment is an appropriate vehicle for raising a claim of res judicata . . ." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441 (1996). " Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
III. Discussion
A. The Motion for Summary Judgment of the Defendants Gambrell and CIRMA
The defendants Gambrell and CIRMA move for summary judgment on three grounds: (1) that the plaintiff's claim is barred by the statute of limitations; (2) that the plaintiff's claim is barred by the doctrine of res judicata; and (3) that there is no genuine issue of material fact that the plaintiff cannot make out a case against these defendants for spoliation of evidence or under the Connecticut Unfair Trade Practices Act (CUTPA). The court concludes that there is no genuine issue of material fact that the plaintiff cannot prove the essential elements of a claim for spoliation of evidence or a claim under CUTPA against the defendants Gambrell and CIRMA.
In Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006) the Connecticut Supreme Court stated that " the tort of intentional spoliation of evidence consists of the following essential elements: (1) the defendants' knowledge of a pending or impending civil action involving the plaintiff; (2) the defendants' destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiffs' inability to establish a prima facie case without the spoliated evidence; and (5) damages." Rizzuto at 244-45. Thus, to support his claim, the plaintiff must prove that Gambrell and/or other agents of CIRMA participated in the destruction of the trust document and that they did so in bad faith.
In support of their motion for summary judgment the defendants submit the affidavit of the defendant Gambrell who asserts that she was a claims manager for the defendant CIRMA and is familiar with the business practices of CIRMA. The affidavit clarifies that CIRMA began insuring the defendant Town of Waterford (Waterford) in 2006. Notably the plaintiff alleges that the trust document was taken from his house in March 2004, some two years before CIRMA even began insuring and providing counsel to Waterford. The affidavit proceeds to state that neither Gambrell or other CIRMA personnel have ever seen or handled the original trust document or materials which the plaintiff claims were stolen from his home by the Waterford police, that neither she nor any other CIRMA have ever suggested, encouraged, aided or abetted the taking, retention or destruction of any of the plaintiff's documents nor does she or CIRMA have any knowledge whatsoever of the whereabouts of the plaintiff's trust document. The plaintiff has not even alleged, let alone provided affidavits or other evidence which would provide a basis for claiming that the original trust document was transmitted to CIRMA or Gambrell. In the face of the Gambrell affidavit and particularly the affirmation that the defendant CIRMA didn't even insure Waterford at the time that the documents were allegedly taken, the plaintiff must provide the court with some basis to support his otherwise conclusory allegation that the defendant Gambrell and CIRMA conspired to destroy the document. Not only has the plaintiff not provided any basis or substantiation for his claim that the defendant Gambrell and/or CIRMA participated and/or conspired to destroy the trust document but in his deposition he acknowledges that he has no such evidence. At one point in his deposition the plaintiff was asked the following question " So you had a conversation with [the defendant] Piatkowki [sic] but you don't have any evidence to support that CIRMA or Cathy Gambrell had any role to play in the destruction in the trust document; is that correct you don't have any evidence of that; do you? Answer--That's correct." The plaintiff in further questioning provides his legal theory and general conclusory comments about conversations but provides no substantive evidence that the defendant Gambrell or CIRMA in any way participated in the alleged destruction of the document.
It seems that the plaintiff, believing that Waterford and the defendants RRD and Piatkowski participated in the wrongful destruction of the document, in this third suit simply added the defendant Gambrell and CIRMA having found out that the defendant CIRMA began insuring the town in 2006 and the defendant Gambrell participated in the handling of the file for CIRMA. That without more is simply insufficient to sustain a cause of action for spoliation of evidence against either CIRMA or Gambrell.
Moreover there is absolutely no evidence or indication, whatsoever, that either CIRMA or Gambrell have wrongfully detained the missing original trust document. It is an essential element of an action for replevin that the defendant has wrongfully detained the document which the plaintiff is seeking. C.G.S. Section 52-515; Rock Landscaping v. Georgetti, 2009 WL 3416218 (Sheldon, J.) There is no genuine issue of material fact that neither Gambrell nor CIRMA have possession of that document. Having filed an affidavit indicating the same, coupled with the fact that they weren't even involved in insuring Waterford at the time the documents were claimed to have been taken, it was incumbent upon the plaintiff to provide some basis for the essential element that they have possession of the document. The plaintiff has failed to do so.
Similarly, the plaintiff has provided no evidence of any wrongful conduct on the part of Gambrell or CIRMA that would give rise to a claim under CUTPA. It is insufficient to rely on general allegations regarding an insurer's duty. In light of Gambrell's affidavit it was incumbent upon the plaintiff to offer some evidentiary support for his claim that these defendants in some way not only had a duty but breached that duty in a manner that would give rise to a CUTPA claim. Again, the plaintiff has failed to do so.
Additionally, there is no genuine issue of material fact that the plaintiff's action against Gambrell and CIRMA is barred by the statute of limitations. Connecticut General Statutes § 52-577 states that " no action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Rizzuto establishes that a claim for a spoliation of evidence is a claim founded upon a tort. Rizzuto at 244.
The plaintiff alleges that the documents were wrongfully taken from his home in 2004. He alleges that he knew or had reason to believe of the wrongful taking in 2008. This action was not brought until 2014, ten years after the alleged wrongful taking of the document and, six years after the plaintiff had reason to believe that there had been a wrongful taking of the document.
Even if the court assumes, without deciding, that the statute of limitations was tolled until 2008 when the plaintiff contends that he had reason to believe that an alleged wrongful taking had occurred, the time for bringing this action against the defendant Gambrell and CIRMA would have expired in 2011 three years before the action was actually begun. Similarly an action under CUTPA " may not be brought more than three years after the occurrence of a violation . . ." C.G.S. § 42-110g(f).
The plaintiff argues that the action is saved by Connecticut's Accidental Failure of Suit statute. Connecticut General Statute § 52-592. In that regard the plaintiff points out that he brought an action in 2010 which was transferred to the Federal District Court for the District of Connecticut (Traylor 1 ) and also brought an action in 2013 which was similarly transferred to Federal District Court for the District of Connecticut ( Traylor 2 ) and that both of these actions were dismissed. The plaintiff notes that this action was brought within one year of the dismissal of Traylor 2 . The obvious and fatal flaw in the plaintiff's reliance on C.G.S. § 52-592 is that the plaintiff did not bring either Traylor 1 or Traylor 2 against the defendants Gambrell or CIRMA. Thus the dismissal of those actions in Federal Court cannot provide the basis for extending the statute of limitations against these defendants against whom the plaintiff never previously brought or even attempted to bring an action.
Even if the court were to extend the plaintiff's argument to consider the provisions of Connecticut General Statutes § 52-593 which provides for an extended period of time to bring an action when an action has been brought against the wrong defendant, the defendants' claim for extending the statute of limitations must fail as the plaintiff did not fail to obtain a judgment by reason of the failure to name the right person as a defendant in Traylor 1 or Traylor 2 . Those actions failed for other reasons. See Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 882 A.2d 597 (2005). Accordingly the plaintiff cannot obtain the benefit of either § 52-592 or § 52-593 as against these defendants who the plaintiff simply chose not to proceed against in his earlier actions.
" [I]t is the established policy of the Connecticut Courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the self-represented party . . ." Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn.App. 725, 734, 137 A.3d 97 (2016).
Because the court has determined that Gambrell and CIRMA are entitled to summary judgment because there is no genuine issue of material fact that the plaintiff cannot establish the essential elements of a claim for spoliation of evidence, replevin or violation of CUTPA against these two defendants and because the claims against these two defendants are barred by the applicable statutes of limitations, there is no reason for the court to discuss the third ground for summary judgment as against these defendants, that of res judicata.
B. The Motion for Summary Judgment of Waterford
Waterford moves for summary judgment on the grounds that (1) the plaintiff's claims are barred by the doctrine of res judicata or collateral estoppel; (2) that the plaintiff's claims are barred by the statute of limitations; (3) that the plaintiff's claims are barred by a broad release executed by the plaintiff in favor of the town and its agents in 2005.
The court has already ruled in response to Waterford's motion to strike that the plaintiff cannot maintain an action against the town of Waterford for intentional spoliation of evidence. See Memorandum of Decision dated April 26, 2016 (Docket #330.01). The court's Memorandum of Decision was based in large part on the decision of the Connecticut Appellate Court in Avoletta v. City of Torrington, 133 Conn.App. 215, 34 A.3d 445 (2012).
The court however did not strike the first count of the complaint because the court found the first count to be broad enough to include an action for replevin against Waterford and Waterford had not moved to strike the claim of replevin. The town of Waterford now moves for summary judgment on the grounds listed above.
Waterford has pleaded as special defenses that the doctrines of res judicata and the doctrines of collateral estoppel bar this action. As previously stated, the plaintiff brought an action against Waterford and others in the superior as docket number CV10-5013979. That action was removed to federal court and proceeded in federal court as docket number 3:10CV639. ( Traylor 1 ). The amended complaint in Traylor 1 included a variety of allegations and claims some of which were based on a violation of the plaintiff's United States constitutional rights and claims under several federal statutes including 42 U.S.C. section 1983. It also asserted various claims based in State of Connecticut common law and a violation of the Connecticut Trade Practices Act. Specifically in count eleven of the amended complaint entitled " Illegal Search and Seizure" the plaintiff alleged " that the defendant Waterford police department must have obtained the original trust agreement and that such a document could only have been removed from the plaintiff's home by an employee of the town of Waterford without his authorization." On September 26, 2011 the Federal District Court for the District of Connecticut granted several motions to dismiss of several defendants including one by Waterford. In granting the motion to dismiss of Waterford the Federal Court in its decision stated
Finally, Traylor does not sufficiently plead a violation of his fourth amendment rights due to an illegal search and seizure. While he explains that he received his family trust document in a package from an employee of the town of Waterford after his wife's death, he concludes without more that this document must have been taken from him by the town of Waterford.Traylor v. Steward et al., United States District Court for the District of Connecticut docket number 3:10CV639, ruling on motions to dismiss dated September 26, 2011 (Droney, J.) (Subsequent references to this ruling will be cited by the court simply as Traylor 1 ). The federal court dismissed the plaintiff's claims pursuant to 42 U.S.C. section 1981 and section 1983 and then wrote " however since all of Traylor's federal claims have been dismissed against these defendants, this court declines to exercise supplemental jurisdiction over these state law claims."
Judgment entered in favor of the defendant Waterford therein. The federal court did not remand the remaining state law claims back to state court.
The plaintiff in 2013 brought an action in the superior court for the State of Connecticut, docket number CV13-5014559, and similarly that case was removed to federal court and assigned federal court docket number 3:13CV00507 (Traylor 2 ). The only defendants in Traylor 2 were the Waterford and its first selectman Daniel Steward. In Traylor 2 the plaintiff alleged counts seeking replevin of the trust document and spoliation of evidence relating to destruction of the trust document as well as allegations involving discriminatory and retaliatory practices. In Traylor 2 the defendants move to dismiss the plaintiff's complaint. In moving to dismiss the claims in Traylor 2 the defendants therein argued that the plaintiff's claim were barred by the doctrine of res judicata. The federal district court wrote at length in analyzing the application of the defense of res judicata to bar the plaintiff's claims in Traylor 2 based upon the decisions rendered in Traylor 1 . See Traylor v. The Town of Waterford et al., United States District Court for the District of Connecticut, docket number 3:13CV00507, Ruling on Defendants' Motion to Dismiss, February 28, 2014 (Thompson, J.) (Subsequent references to this Ruling will be cited by the court simply as Traylor 2 ).
The motion to dismiss asserted pursuant to Federal Rule of Civil Procedure 12(b)(6) is similar to a motion to strike under Connecticut Civil Procedure. Thus, when the federal court grants such a motion it rules on the merits of the claim and not on jurisdictional grounds.
The previous actions, Traylor 1 and Traylor 2, involve the same plaintiff as this action and the same defendant, Waterford. Moreover, the cause of action that is brought in this action stems from the alleged illegal search and seizure of the plaintiff's home, the alleged taking of the trust document and the alleged failure to return the same. These are the same collection of facts which gave rise to the claims brought in Traylor 1 and Traylor 2 . Regardless of whether or not there were different legal theories upon which those actions were based they arose out of the same central facts and allegations. Specifically, the plaintiff alleges in all three actions that Waterford police or other representatives of the town of Waterford wrongfully invaded the plaintiff's home and removed the trust document from his home. The issue is whether or not the decisions in Traylor 1 and Traylor 2 constitute an adjudication on the merits. The plaintiff argues that in Traylor 1 the federal court dismissed his federal claims but declined to exercise jurisdiction over his state law claims. The decision in Traylor 2 expressly addressed the difference between a judgment based upon a motion to dismiss filed pursuant to the Federal Rule of Civil Procedures section 12(b)(6) which would constitute a judgment on the merits and a court's exercise of its discretion not to exercise supplemental jurisdiction over state law claims which would not constitute a judgment on the merits. However, in Traylor 2 the court expressly addressed counts one and two therein seeking replevin and damages for spoliation of evidence relating to the illegal search of his home and the removal and possible destruction of the trust document. The Traylor 2 court determined that those claims were barred by the doctrine of res judicata because the court dismissed count eleven in Traylor 1 which had alleged illegal search and seizure. The Traylor 2 court noted that the Traylor 1 court had held that " Traylor [did] not sufficiently plead a violation of his fourth amendment rights due to an illegal search and seizure." The court in Traylor 2 thus concluded that although the plaintiff's claims were brought pursuant to different legal theories than those in Traylor 1, that " because there was a ruling on the merits on count eleven in Traylor 1 and Traylor is the sole plaintiff in both Traylor 1 and the present case, Traylor's claims in counts one [replevin] count two [spoliation] and count seven [declaratory and injunctive relief] are barred by res judicata." Traylor 2, at *17.
Thus in Traylor 2 the court held that even though the court in Traylor 1 decided not to exercise jurisdiction over the state law claims, the court in Traylor 1 did enter a ruling on the merits on the plaintiff's illegal search and seizure claim thus barring state law claims that arose out of the same set of facts. While an argument can be made that in Traylor 1, the court (Droney, J.) did not issue a ruling on the merits of the plaintiff's state law claims, the decision in Traylor 2 by Judge Thompson, in which he dismissed the claims for spoliation and replevin consistent with Federal Rule of Civil Procedure 12(b)(6), was a decision on the merits. The plaintiff disagreed with the decision in Traylor 2 and took an appeal to the Second Circuit of Court of Appeals which appeal was dismissed. Thus even if the court was incorrect in Traylor 2, and this court has no right or authority to suggest that it was, the plaintiff's sole remedy was an appeal of that decision to the Second Circuit, which the plaintiff pursued unsuccessfully.
The decision in Traylor 2 was a decision on the merits of the plaintiff's ability to proceed with a claim for spoliation of evidence and replevin; not a decision of the federal district court to decline to exercise jurisdiction over those claims. The only claim which the federal district court declined to exercise jurisdiction over was the plaintiff's claim in count six of his complaint therein for negligent infliction of emotional distress. All other claims were decided on the merits and therefore bar the plaintiff's claims in this case against Waterford.
Because the court has decided that the plaintiff's claim is barred by the doctrine of res judicata the court need not decide whether or not the town of Waterford's defense of the statute of limitation or the town of Waterford's defense of a release executed by the plaintiff would additionally bar the plaintiff's claims. The court does observe however that because Traylor 2 constitutes a ruling on the merits, the accidental failure of suit statute, C.G.S. § 52-592 would not be available to the plaintiff.
C. The Motion for Summary Judgment of the Law Firm of Ryan Ryan & Deluca and Attorney Piatkowki
RRD and the defendant Piatkowski (Piatkowski) move for summary judgment on the grounds that the plaintiff's claims (1) are barred by the doctrine of res judicata; (2) that the plaintiff can't establish the essential elements of spoliation of evidence; and (3) the plaintiff's claims are barred by a release executed in favor of Waterford and its agents in 2005.
The court deals first with the assertion that the plaintiff's claims are barred by the doctrine of res judicata. Piatkowki is a lawyer who is an employee of RRD. Piatkowski and RRD represented Waterford during periods of time and regarding the subject of some of the plaintiff's claims against Waterford. In Traylor 1 the plaintiff's lawsuit included a claim against RRD. Specifically in Traylor 1 the plaintiff alleged that " the law offices of Ryan Ryan & Deluca, LLP was acting within the scope of their employment and with the knowledge; permission and authority of the other defendants to aided and abetted in the . . . illegal search and seize the plaintiff's property." (sic) Traylor 1, Amended Complaint filed May 21, 2010. In Traylor 1, specifically in count eleven entitled " Illegal Search and Seizure" the plaintiff alleged " the defendant town of Waterford and its employees . . . and Ryan Ryan & Deluca intended, knew and/or recklessly disregarded the plaintiff's rights under the Connecticut Constitution Article 1st, section 7 and his fourth amendment rights to the United States Constitution, by illegally obtaining the plaintiffs' family trust documents." The allegations in Traylor 1 continue that when the plaintiff discovered among a package of documents received from Waterford a copy of his trust agreement " it became apparent to the plaintiff that the defendant Waterford police department must have obtained the original trust agreement and that such a document could only have been removed from the plaintiff's home by an employee of the town of Waterford without his authorization."
Thus in Traylor 1, the plaintiff's claims against the various defendants, including Waterford and RRD, included allegations that the Waterford police illegally obtained the plaintiff's family trust document. The plaintiff also alleged, in Traylor 1, that RRD aided and abetted this illegal search and seizure of the trust document.
In Traylor 2 RRD were not defendants. The only defendants in Traylor 2 were Waterford and its first selectman. However in counts 1 and 2 of Traylor 2 the plaintiff sought replevin of the trust document and damages for spoliation of evidence against Waterford, specifically alleging that the Waterford police conducted an illegal search of his home, that they removed the original Traylor trust document and that Waterford has refused to return the original Traylor trust document to him. In the present case the plaintiff alleges that on or about March 15, 2004, during his wife's funeral service, the town of Waterford police broke into his home and removed some of his and his wife's property, specifically the trust document. The present case also includes allegations that Piatkowski and RRD aided and abetted Waterford in spoliating evidence and conspired to conceal the plaintiff's trust document and associated attorney/client correspondence. Piatkowki and RRD assert that, given these similar allegations in all three cases as well as the decisions of the federal courts in Traylor 1 and Traylor 2, the present case is barred by the doctrine of res judicata.
The Connecticut Supreme Court, in a different factual setting, has recently had occasion to discuss the doctrine of res judicata and its application. In Wheeler v. Beachcroft, LLC, 320 Conn. 146, 129 A.3d 677 (2016) set forth the basic principles of res judicata.
Res judicata, or claim preclusion, express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided it comes to rest. Generally for res judicata to apply, four elements must be met: (1) the judgment must have rendered on the merits by a court of competent jurisdiction; (2) the parties to the prior and subsequent actions must be the same or in privity; (3) there must have been an adequate opportunity to litigate the matter fully; and (4) the same underlying claim must be at issue.
Wheeler at 156-57 (internal citations and quotations omitted). The court further noted that " [p]ublic policy supports the principle that a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate." Id. at 157. The court recognized that " the application of the doctrine can yield harsh results, especially in the context of claims that were not actually litigated and parties that were not actually involved in the prior action." Id. at 158. For the doctrine to apply each of the four elements listed by the Supreme court must be present. The first element necessary to apply the doctrine of res judicata is the one which the plaintiff contests most vigorously. Was judgment rendered " on the merits by a court of competent jurisdiction." As the court noted in Traylor 2 a ruling by a federal court pursuant to Federal Rule of Civil Procedure section 12(b)(6) is a judgment on the merits and thus has res judicata effects. See Berrios v. New York City Housing Authority, 564 F.3d 130, 134 (2nd Cir. 2009). However, when a court declines to exercise supplemental jurisdiction over state law claims, the court does not pass judgment on the merits of the state law claims for res judicata purposes. See Sullivan v. Highland, 647 F.Supp.2d 143, 161 (D.Conn. 2009). The plaintiff maintains, with some basis, that the decision in Traylor 1 was a decision on the merits only as to his federal claims under 42 U.S.C. section 1981 and section 1983 and that the court in Traylor 1 did not enter a judgment on the merits with regard to his state law claims. Indeed the Traylor 1 court ended its discussion stating " [h]owever, since all of Traylor's federal claims have been dismissed against these defendants, this Court declines to exercise supplemental jurisdiction over the state law claims . . . The plaintiff argues sincerely that the court's decision not to exercise supplemental jurisdiction over the state law claims is not a judgment on the merits with regard to the plaintiff's state law claims contained in his Traylor 1 complaint.
However, in Traylor 2 the court while agreeing that " there was only an adjudication on the merits of Traylor's federal law claims in Traylor 1 " wrote that in Traylor 1 the plaintiff 'did not directly assert claims for replevin [and] spoliation . . ." Rather in Traylor 1 the plaintiff's count eleven claimed relief under the federal law which prohibits illegal search and seizure. The Traylor 2 court then noted that within that count the plaintiff alleged " the Waterford Police Department conducted an illegal search of [his] home, that an employee of the town of Waterford removed the original Traylor Trust document from his home, and that the Town of Waterford had not returned the original Traylor Trust document to him." The Traylor 2 court noted that the Traylor 1 court analyzed this claim on the merits and held that " Traylor [did] not sufficiently plead a violation of his fourth amendment rights due to an illegal search and seizure." Thus, the Traylor 2 court concluded that " although Traylor's claims in the present case are brought pursuant to different legal theories than in Traylor 1, Traylor had previously brought a lawsuit involving the same cause of action for purposes of res judicata. Because there was a ruling on the merits on Count Eleven in Traylor 1 and Traylor is the sole plaintiff in both Traylor 1 and the present case, Traylor's claims [for replevin and spoliation of evidence] are barred by res judicata." Traylor 2 at 15. The Traylor 2 court disposed of the plaintiff's replevin and spoliation of evidence claims involving the plaintiff's trust document on the merits when it dismissed those claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Indeed, the Traylor 2 court distinguished between the state law claims of replevin and spoliation and a final state law claim for negligent infliction of emotional distress over which it declined to exercise supplemental jurisdiction. As previously indicated the plaintiff took an appeal to the 2nd Circuit Court of Appeals from the ruling in Traylor 2 but that appeal was unsuccessful. This court concludes that the federal court in Traylor 2 disposed of the plaintiff's claim for spoliation of evidence and replevin of the trust documents against Waterford and its first selectman on the merits thus satisfying the first element of a res judicata defense.
The second element of the res judicata defenses requires the parties to the prior and subsequent actions be the same or in privity. With regard to the plaintiff this is readily apparent since the plaintiff is the same in Traylor 1, Traylor 2 and in the case at bar; in Traylor 1 RRD was a defendant and Piatkowki one of the attorneys for RRD assigned to handle the matters that were the subject of the claims would certainly have privity of interest with RRD. The more significant question is whether RRD and Piatkowki are in privity with Waterford for purposes of asserting a res judicata defense. RRD and Piatkowki were not defendants in Traylor 2 . To determine whether or not they were in privity with Waterford sufficient to allow them to raise the res judicata defense Wheeler instructs that the " privity requirement exists to ensure that the interest of the party against whom [res judicata] is being asserted have been adequately represented." Wheeler at 166.
In determining whether privity exists we employ an analysis that focuses on the functional relationship of the parties. Privity is not established by the mere fact that persons may be interested in the same question or improving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principal that [res judicata] should be applied only where there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.Wheeler at 166 quoting Mazziotti v. Allstate Insurance Co., 240 Conn. 799, 814, 695 A.2d 1010 (1997). In the case at bar the plaintiff seeks to assert a claim that he asserted in both Traylors 1 and 2, that his home was illegally invaded, that trust documents were illegally taken and that they have not been returned. These assertions were made in Traylor 1, these assertions were made in Traylor 2 and these assertions are made in the case at bar. Moreover there is no allegation that RRD or Piatkowki personally invaded Mr. Traylor's home or personally obtained possession of the trust document. The plaintiff has alleged that the Waterford police invaded his home illegally and seized the trust documents. The claim against the defendants RRD and Piatkowski is that they aided and abetted that alleged wrongdoing of Waterford. Thus the claims against RRD and Piatkowki are inexorably linked to the claims against Waterford. In other words the plaintiff cannot establish that these defendants aided and abetted Waterford without establishing the illegal search and seizure (or the withholding or destruction of the trust document) by Waterford. The court therefore finds that the second element necessary to apply the doctrine of res judicata is present in this case.
In Wheeler the Supreme Court held that certain parties were in privity with others for res judicata purposes when their claims were not factually distinct but were not in privity when their claims were factually distinct. In the present case the plaintiff cannot prevail against RRD and Piatkowski for " aiding and abetting" Waterford without proving the underlying facts upon which its claims against Waterford rest. Accordingly the claims are not factually distinct and the element of privity is satisfied.
The third element is that the plaintiff had an adequate opportunity to litigate the matter fully. And the court finds that the plaintiff had that opportunity in Traylor 2 . The fact that his claims including his state law claims for spoliation of evidence and replevin were dismissed pursuant to federal rule of civil procedure 12(b)(6) does not mean that he did not have the opportunity to fully litigate the claim. The plaintiff brought the action, had the opportunity to argue the action in federal court but the federal court ruled against him and he took an appeal to the 2nd Circuit of Appeals which also ruled against him.
Finally for all the reasons discussed it is clear that the fourth element necessary to apply the doctrine of res judicata is present. The claim brought against RRD and Piatkowki is the same claim that was brought against the town of Waterford. The essential allegations are virtually identical that the Waterford police broke into the plaintiff's home, stole the plaintiff's trust documents and refused to return them. The plaintiff in the instant case adds that the defendants RRD and Piatkowski aided and abetted that identical transaction.
Nor can the plaintiff proceed on a claim that RRD and Piatkowki conspired with Gambrell. Since there is no evidence that Gambrell or CIRMA participated in any such wrongful conduct, the plaintiff cannot prove the essential elements of such a claim.
Accordingly the court concludes that the plaintiff's action against the defendants RRD and Piatkowski are barred by the doctrine of res judicata.
Since the court finds that this action is barred by the doctrine of res judicata it need not determine whether there are genuine issues of material fact as to whether or not the plaintiff could establish the elements of spoliation of evidence or whether or not the 2005 release executed by the plaintiff in favor of Waterford and its agents would bar an action against RRD and Piatkowski.
IV. Conclusion
The Plaintiff alleges that in 2004 the Waterford Police illegally invaded his home, illegally seized certain documents and have either destroyed them or refused to return them. This is his third attempt to sue various parties as a result. The plaintiff has the right to bring an action to obtain the relief he believes is justified. But having failed to prevail in his legal quest, not once but twice, he simply cannot revive his unsuccessful claims by adding new parties or different legal theories of relief which rely on the same basic allegations.
For all the reasons stated herein the court grants the motions for summary judgment of all the remaining defendants.