Opinion
HHDCV116027112S
04-10-2017
Luke Weinstein v. University of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO, JUDGE
Following the remand of this matter from the United States District Court and the court's January 10, 2017 decision (#241) [63 Conn.L.Rptr. 724, ], in which the court determined that the original complaint, dated November 8, 2011, is the operative complaint, the court heard argument at short calendar on January 31, 2017 concerning the defendants' motion to dismiss (#137). After considering the parties' arguments, the court issues this memorandum of decision.
I
Background
The return date in this matter was December 20, 2011. In the plaintiff's complaint, dated November 8, 2011, four counts are set forth: Count One, violation of General Statutes § 31-51q; Count Two, violation of General Statutes § 31-51m; Count Three, violation of the First Amendment pursuant to 42 U.S.C. § 1983; and Count Four, intentional interference with advantageous business relationship. By notice of removal dated December 9, 2011, the defendants removed this matter to the United States District Court (#102).
In the federal court, the defendants, University of Connecticut and Dean Christopher Earley filed a motion for summary judgment which was granted in part and denied in part. See Weinstein v. University of Connecticut, 136 F.Supp.3d 221, 226-27 (D.Conn. January 22, 2016), affirmed in part, vacated in part by the United States Court of Appeals for the Second Circuit, 2017 WL 253614 (January 20, 2017). Therein, the District Court declined to exercise supplemental jurisdiction over the plaintiff's remaining state law claims, which were dismissed without prejudice. See id., 235. In addition, the state law claims were remanded to this court. Additional references to the plaintiff's allegations are set forth below.
II
Standard of Review
" Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). The Supreme Court has termed this " fundamental principle" the " 'jurisdiction first' rule. Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 816, 12 A.3d 852 (2011).
" [T]rial courts addressing motions to dismiss for lack of subject matter jurisdiction . . . may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed. When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347-48, 977 A.2d 636 (2009).
Here, the defendants presented no evidence in support of their motion to dismiss. The plaintiff filed an affidavit in opposition. No evidentiary hearing was requested or required.
" A motion to strike . . . rather than a motion to dismiss, is the proper vehicle to attack the legal sufficiency of a complaint." Caruso v. Bridgeport, 285 Conn. 618, 629-30, 941 A.2d 266 (2008). " [A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike . . . the practical difference being that if a motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result." (Citation omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). " [T]he primary difference between the granting of a motion to dismiss for lack of subject matter jurisdiction and the granting of a motion to strike is that only in the latter case does the plaintiff have the opportunity to amend its complaint. See Practice Book § [10-44]." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501, 815 A.2d 1188 (2003).
" The motion to dismiss is governed by Practice Book § § 10-30 through 10-34. Properly granted on jurisdictional grounds, it essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court." (Internal quotation marks omitted.) Mulcahy v. Mossa, 89 Conn.App. 115, 128, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005). " By contrast, the motion to strike attacks the sufficiency of the pleadings. Practice Book § 10-39 . . . There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).
In this case, the motion submitted by the defendants is titled " motion to dismiss" and parts of its contents address jurisdictional questions presented by the plaintiff's complaint. In his memorandum in opposition, the plaintiff addresses the fact that a motion to dismiss is not the proper procedural vehicle to address legal sufficiency arguments. As a result, the plaintiff does not brief the legal sufficiency issues raised by the defendant as to the General Statutes § § 31-51q and 31-51m claims. The plaintiff does, however, address the timeliness issue raised by the defendants which implicates the statute of limitations provision within § 31-51m, and therefore the court's jurisdiction. Given the different procedural consequences between a motion to dismiss and a motion to strike, and considering that the practical effect of addressing the legal sufficiency claims would likely prejudice the plaintiff, the court addresses below the jurisdictional issues presented by the motion to dismiss. The defendants may file a motion to strike to raise their legal sufficiency arguments.
III
Discussion
The court discusses the remaining counts of the complaint in the order presented by the movants.
A
Count Four
Count Four of the plaintiff's complaint alleges Dean Earley's intentional interference with the plaintiff's business relationship with the University. Specifically, the plaintiff alleges that Dean Earley retaliated against the plaintiff for, inter alia, exposing potential violations of state and federal law. The plaintiff further alleges that Dean Earley engaged in nepotism by appointing his own wife as the Executive Director of SCOPE and that, after the plaintiff complained to the University, Dean Earley unilaterally changed the procedure for the appointment of directors, which the plaintiff alleges was an effort to silence the plaintiff's criticism. After the plaintiff reapplied for his position, the University did not renew his contract. The plaintiff alleges that Dean Earley purposely interfered with his employment relationship with the University for his own financial gain by simultaneously silencing the plaintiff and disguising the nepotism.
In their motion to dismiss, the defendants argue that the state is the real party in interest because Dean Earley was acting in his official capacity, within the scope of his employment, as agent on behalf of the principal. Further, they argue that because Dean Earley was acting in his official capacity, the doctrine of sovereign immunity applies, and the action is subsequently barred. The plaintiff, in his objection to the defendant's motion to dismiss, argues that this count is against Dean Earley in his individual capacity, and not his official capacity.
" When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts: (1) with respect to sovereign immunity, to support a conclusion that the defendant acted in excess of his statutory authority; and (2) with respect to personal immunity under § 4-165, to support a conclusion that the defendant was acting outside the scope of his employment or wilfully or maliciously." (Citations omitted; internal quotation marks omitted.) Antinerella v. Rioux, 229 Conn. 479, 489, 642 A.2d 699 (1994) overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003).
" Section 4-165, however, is implicated only after it has been determined that the state may rightfully be sued . . . Because we have concluded that the defendant is not shielded by the sovereign immunity doctrine, we must determine what, if any, protection § 4-165 affords the defendant in his individual capacity. The umbrella of personal immunity provided by § 4-165 applies only to a state officer or employee who causes injury or damage while acting 'within the scope of his [or her] employment." (Citation omitted.) Id., 229 Conn. 498.
" Our precedents establish that, where a state official is sued in both her official and individual capacities, if sovereign immunity does not apply to the claim against her in her official capacity, the statutory immunity may then apply to the claim against her in her individual capacity. Thus, before determining whether and to what extent the defendants are shielded by the statutory immunity provided by § 4-165, it is appropriate to determine whether the claims against them are barred by the common-law doctrine of sovereign immunity." Shay v. Rossi, 253 Conn. 134, 162-63, 749 A.2d 1147 (2000) overruled in part on other grounds, Miller v. Egan, supra, 265 Conn. 301.
The Spring v. Constantino Test
" Sovereign immunity relates to a court's subject matter jurisdiction over a case . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law." (Citations omitted.) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 257-58, 932 A.2d 1053 (2007).
" [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Miller v. Egan, supra, 265 Conn. 313. " [W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Citation omitted; internal quotation marks omitted.) Id., 313. " Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011).
" [A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity; . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted.) Miller v. Egan, supra, 265 Conn. 314.
The exception to sovereign immunity applicable to state officers acting in excess of authority is reserved for actions seeking injunctive or declaratory relief and does not apply to claims against the state for money damages. See id., 314-15. " When, however, the state employee acts solely to further his or her own illegal scheme and not to carry out government policy, there is no reason to provide immunity from suit." Id., 322.
" State employees do not . . . have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." Id., 319.
" The determination of whether the plaintiff's complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975) . . . [T]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding . . . [The Supreme Court] set forth four criteria to determine whether an action is in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 308. " If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred." Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010), cert. denied, 299 Conn. 929, 12 A.3d 569 (2011).
The court applies the Spring v. Constantino test in order to determine whether the allegations of the complaint support the plaintiff's assertion that Dean Earley is being sued in his individual capacity, and that the state is not the real party in interest. See Cimmino v. Marcoccia, 149 Conn.App. 350, 357-58, 89 A.3d 384 (2014). Actions brought against a state officer in his personal capacity do not conclusively establish that the state is not the real party in interest. See Spring v. Constantino, supra, 168 Conn. 567-68; Cimmino v. Marcoccia, supra, 149 Conn.App. 358.
Here, the first criterion is met since Earley is alleged to have been a state official. See id. The second criterion is met since the plaintiff alleges that the actions of the defendant related to duties he performed as a state employee. See id.
As to the third criterion, the complaint alleges that the conduct occurred in connection with the plaintiff's having to reapply for his position as Director of the Innovation Accelerator program at the University. It also alleges that Earley unilaterally changed procedure, was motivated by covering up nepotism and personal financial gain, and terminated plaintiff to silence complaints. The complaint alleges unilateral actions taken by Earley, false claims that such measures were instituted by Provost's office, retaliation, and abuse of authority.
Under these circumstances, the third criterion is not met since the plaintiff alleges that Earley acted to further his own illegal scheme and not to carry out government policy. Accordingly, " there is no reason to provide immunity from suit." Miller v. Egan, supra, 265 Conn. 322.
Similarly, as to the fourth criterion, under these circumstances, a judgment against the former official would not operate to control the activities of the state or subject it to liability. The court is unpersuaded that such a judgment will create a chilling effect on the hiring, firing, and promoting of personnel by the State.
Claims that State Officer, in Individual Capacity, Acted in Excess of Authority
Since the court determines, as to Count Four, that state is not the real party in interest, and that sovereign immunity does not bar the action, the court next proceeds to consider whether Dean Earley is afforded statutory immunity pursuant to General Statutes § 4-165. See Shay v. Rossi, supra, 253 Conn. 162-63 (where sovereign immunity does not apply to the official capacity claim then statutory immunity may apply to the individual capacity claim).
General Statutes § 4-165(a) provides in relevant part: " No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment . . ." " [W]hen asserting a claim that a state officer acted in excess of his statutory authority, 'the plaintiffs must do more than allege that the defendant['s] conduct was in excess of [his] statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations." Tuchman v. State, 89 Conn.App. 745, 760-61, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). See also Shay v. Rossi, supra, 253 Conn. 180-83.
The Meaning of Wanton, Reckless or Malicious
" We have never definitively determined the meaning of 'wanton, reckless or malicious' as used in § 4-165. In the common-law context, however, we have stated: In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Shay v. Rossi, supra, 253 Conn. 181-82.
" The plaintiff's omission of the word 'reckless' and use of the word . . .'intentional' . . . do[es] not render these elements absent. These specific allegations of 'intentional' malfeasance . . . meet the terms of the exception to statutory immunity under § 4-165. The exception delineates conscious disregard for the rights and safety of others as a minimum requisite element and level of egregiousness, which is present in intentional acts such as the plaintiff has alleged, where the actor intends both the causative act and the resulting harm. While legal distinctions exist within these depths of the human psyche, our legislature was not required to chart them to exhaustion. It was sufficient for the legislature to express the policy that if a state employee acts wantonly, recklessly or maliciously, the state will not immunize him from legal action arising from that conduct. Our Supreme Court's general definition of 'wanton, reckless and malicious conduct' in Shay did not specifically state that 'intentional' misconduct was included. Nonetheless, we conclude that as a necessary implication of that definition, it is also meant to include the more culpable state of mind characterizing intentional conduct of the kind the plaintiff alleges in his complaint." (Internal quotation marks omitted.) Witczak v. Gerald, 69 Conn.App. 106, 114-15, 793 A.2d 1193 (2002).
" Our Supreme Court defines 'willful misconduct' as 'intentional conduct' with 'the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional . . . As elaborated previously, the plaintiff alleged deliberate misconduct: that the defendants intended not only to do the acts in question, but also intended to cause the resulting injury of interference with his contractual rights." (Citation omitted; internal quotation marks omitted.) Id., 116.
Defendant Earley argues that he was acting within the scope of his employment. " [T]he defendant's [alleged] misuse of his authority was personal to him and was not 'primarily employer rooted' or 'reasonably incidental to the performance of employment duties' . . . The defendant's alleged conduct was not designed to advance any interest of his employer, the state, and did not serve any legitimate state interest. Rather, the defendant's alleged actions were motivated by purely personal considerations entirely extraneous to his employer's interest. Therefore, we conclude that § 4-165, by its own explicit and unambiguous terms, provides the defendant with no protection from suit." (Citation omitted; footnote omitted; internal quotation marks omitted.) Antinerella v. Rioux, supra, 229 Conn. 499-500.
Thus, Count Four is not barred by sovereign immunity or statutory immunity. The plaintiff was not required to seek permission to sue from the Claims Commissioner. See General Statutes § 4-142.
B
Count One
In Count One, the plaintiff bases his claim on General Statutes § 31-51q, which provides that an employer shall be liable for damages where an employee is disciplined or discharged on account of the exercise of certain constitutional rights. The defendants argue that the plaintiff has failed to state a claim on which relief can be granted. The movants assert that courts have granted motions to strike such claims. See defendant's memorandum (#138), p. 23.
The defendants' contentions as to Count One's legal insufficiency should be raised by a motion to strike, not by a motion to dismiss. See Caruso v. Bridgeport, supra, 285 Conn. 629-30. The court declines to consider them in the context of a motion to dismiss.
C
Count Two
Similarly, as to Count Two, which is premised on General Statutes § 31-51m, concerning the protection of employees who disclose an employer's illegal activities or unethical practices, the defendants challenge its legal sufficiency. As explained above, such a challenge properly may be raised in the context of a motion to strike, not a motion to dismiss.
The defendants also assert that the plaintiff did not file a claim for violation of § 31-51m within the ninety-day limitations period required by General Statutes § 31-51m(c). They argue that it is undisputed that he was informed that he would not be provided with another contract on July 28, 2010, but did not file his complaint until November 23, 2011.
" [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense . . ." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344, n.12, 890 A.2d 1269 (2006). " An exception to this general rule exists, however, when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right--it is a limitation of the liability itself as created, and not of the remedy alone . . ." (Citation omitted; internal quotation marks omitted.) Id., 345, n.12. See State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012) (" the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time . . . and may not be waived." (Internal quotation marks omitted.)).
Accordingly, since § 31-51m gives a right of action which did not exist at common law, the exception to the general rule that the statute of limitations must be pleaded as a special defense is applicable here. See Greco v. United Technologies Corp., supra, 277 Conn. 345 n.12.
The plaintiff alleges that he was retaliated against by the failure to reappoint him to the position of Innovation Accelerator on July 28, 2010 and in the termination of his employment on August 22, 2011. See complaint, Count Two, ¶ ¶ 27, plaintiff's affidavit (#234), ¶ 2. In his affidavit he avers that he filed grievances concerning these decisions and the final decision thereon was rendered on August 18, 2011. See affidavit, ¶ 4. The return in this matter states that service of process occurred on November 14, 2011, thereby commencing this action.
The running of the 90-day limitation may be tolled by the pendency of an administrative proceeding if the administrative remedy sought would provide for meaningful relief. See Campbell v. Town of Plymouth, 74 Conn.App. 67, 82, 811 A.2d 243 (2002).
The plaintiff's presentation is sufficient raise a factual dispute as to jurisdictional facts. See Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 347-48. The defendants' reply (#243) did not address this issue. On this record, the defendants have not shown that dismissal of Count Two is warranted.
CONCLUSION
1. For the reasons stated above, the defendants' motion to dismiss is denied.
2. By April 28, 2017, the parties are directed to confer and propose a scheduling order for approval by the court.