Anthony Piland v. Frank Esposito (2010)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY AND BACKGROUND

The parties in this action are the plaintiff, Anthony Piland and the defendant, Frank Esposito.   On July 20, 2010, the plaintiff commenced this action by filing a four-count complaint against the defendant alleging claims of defamation, false light invasion of privacy, negligent infliction of emotional distress, and intentional infliction of emotional distress.

On September 16, 2010, the defendant moved to dismiss the plaintiff's complaint in its entirety on the grounds that it was barred by the prior pending action doctrine, the principles of res judicata and collateral estoppel, and as to Counts One and Three of the complaint by applicable statutes of limitation.   The plaintiff submitted a memorandum in opposition to the Motion to Dismiss.   The defendant Esposito also filed a reply memorandum.   Oral argument was scheduled on the motions and was heard by this court on December 13, 2010.

FACTUAL BACKGROUND

For purposes of this motion to dismiss, the court accepts as true the facts alleged in the complaint.   In May 2008, the plaintiff was a resident of the town of Watertown.   On the evening of May 15, 2008, the plaintiff's doorbell rang, but there was no one at the door.   Shortly thereafter, one of the plaintiff's neighbors telephoned to say that she had observed someone looking in her windows and heard the doorbell ring.   The plaintiff, concerned that this activity was preparation for a home invasion, called the police.   He then left his house to check on his neighbor, armed with two kitchen knives.   Seeing a person run out of the nearby woods, the plaintiff detained that person, a juvenile, until the police arrived.

The defendant Esposito was the officer who arrived in response to the plaintiff's call.   The defendant did not arrest either the plaintiff or the juvenile the plaintiff had detained that night, he did place the plaintiff in handcuffs and put him in a police cruiser.   Two weeks later the defendant swore out an affidavit for an arrest warrant charging the plaintiff with risk of injury to the minor, assault in the third degree, carrying a dangerous weapon, unlawful restraint in the second degree, and breach of peace in the second degree.   The plaintiff was arrested and appeared in court on the criminal charges and entered into the Accelerated Rehabilitation diversionary program pursuant to General Statutes § 54-56e.

The plaintiff also alleged that soon after this event the defendant Esposito began a campaign to humiliate, defame and portray the plaintiff in a false light to injure his reputation within the community he resided and was employed.   The plaintiff also alleged that the defendant Esposito failed to take photographs of the injuries supposedly inflicted upon the juvenile by the plaintiff, released small portions of information to the media in attempts to make the plaintiff look even worse.   The plaintiff further alleged that the actions of the defendant Esposito in making a false and malicious statement about what occurred was damaging to the plaintiff's position as a physician's assistant.

II

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether on the face of the record the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).

The defendant first moves to dismiss the plaintiff's complaint on res judicata grounds.  “Res judicata does not provide the basis for a judgment of dismissal;  it is a special defense that is considered after any jurisdictional thresholds are passed.”  Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994).   Accordingly, the defendant's Motion to Dismiss the plaintiff's complaint on res judicata grounds is denied.

The defendant next moves to dismiss the First and Third Counts of plaintiff's complaint, which set forth common-law claims of defamation and negligent infliction of emotional distress, on statute of limitations grounds.  “A statute of limitations defense must be specially pleaded and cannot be raised by a [motion to dismiss].”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972).   Accordingly, the defendant's Motion to Dismiss on statute of limitations grounds is denied.

The defendant next moves to dismiss the plaintiff's complaint on the grounds that the prior pending action doctrine requires the abatement of this action.   “[A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction.”  (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009).  “[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court.   The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement.”  (Internal quotation marks omitted.)  Id., 395.  “It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious.   This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.”  (Internal quotation marks omitted.)  Id., 395-96 citing Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998).

“The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already overcrowded court dockets.”  (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., supra, 292 Conn. 396;  see also Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).  “The rule, however, is not one of unbending rigor, nor of universal application, nor a principle of absolute law ․” (Internal quotation marks omitted.)  Id. “The existence of claims that are virtually alike does not, in every case, require dismissal of the complaint.”  Id. See also Gaudio v. Gaudio, 23 Conn.App. 287, 297, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).

The Supreme Court in Bayer looked to the language in Hatch v. Spofford, 22 Conn. 485, 494 (1853), in which the Supreme Court stated the prior pending action doctrine “is not a rule of unbending rigor, nor of universal application, nor a principal of absolute law,-it is rather a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.  Bayer v. Showmotion, Inc., supra, 292 Conn. 397.   In Hatch, the Supreme Court further recognized that “a second suit is not, of course to be abated and dismissed as vexatious, but all the attending circumstances are to be first carefully considered, and the true question will be, what is the aim of the plaintiff?”  Id.

In determining whether an action must be abated under the prior pending action doctrine, the court must determine “in the first instance whether the two actions are:  (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction;  (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies;  or (3) insufficiently similar to warrant the doctrine's application.”  Bayer v. Showmotion, Inc., supra, 292 Conn. 397.

In order to determine whether (1) the actions are pending in the same jurisdiction and (2) whether the actions are exactly alike, virtually alike or insufficiently similar to warrant the doctrine's application, the pleadings must be examined.   In this case, the court has reviewed the complaint filed in the prior pending federal action in the United States District Court for the District of Connecticut and the complaint filed in this action.   In the federal action, the plaintiff filed suit against Frank Esposito and the town of Watertown.   In this action, the plaintiff filed suit only against Frank Esposito.   In the federal action brought in the District of Connecticut, the plaintiff invoked the federal court's jurisdiction under the provisions of 28 U.S.C. §§ 1331, 1343(3), and 1367(a) and 42 U.S.C. § 1983.   The plaintiff invoked the federal court's jurisdiction under 28 U.S.C. § 1367(a) with respect to plaintiff's pendant state claims.   By invoking jurisdiction under § 1367(a), a party filing a legal action in federal court is also entitled to include state law claims under the theory of supplemental jurisdiction.   This court also has jurisdiction over the plaintiff's state claims asserted in this action.   Plaintiff's argument that there is no basis for finding that this action and his prior pending action in federal court are pending in the same jurisdiction is without merit and is contrary to the claims made in plaintiff's federal court complaint.   Accordingly, the court finds that the pendency of both actions in the same jurisdiction is met.

The court next reviews the allegations and claims made in the complaints in the prior pending federal action and this action.   It is clear upon review that the prior pending federal action and this action are not exactly alike nor are they lacking sufficient similarities.   The plaintiff in his federal action complaint asserts claims against Frank Esposito and the town of Watertown alleging violations of the Due Process Clause and the Fourth Amendment to the United States Constitution.   The plaintiff in this action asserts claims only against Frank Esposito for defamation, negligent infliction of emotional distress, intentional infliction of emotional distress and false light invasion of privacy.   While the sixty-paragraph complaint filed in this action encompasses many of the same allegations contained in the twenty-eight-paragraph federal complaint filed by plaintiff, it also contains additional facts that supplement and support the above referenced state claims asserted by plaintiff.   For example, the plaintiff alleges specific facts in this action relating to his profession and loss of reputation as to his profession, allegations not specifically made in the federal action.   The remedy sought in this action and the prior pending federal actions are virtually identical-compensatory damages, punitive damages, attorneys fees and cost.   The remedy is virtually identical as the plaintiff seeks attorneys fees pursuant to 42 U.S.C. § 1988 in the prior pending federal action.   The court finds that a fair interpretation of the two actions is that they are virtually, but not exactly alike.

“The existence of claims that are virtually alike does not, in every case, require dismissal of the complaint.”  Bayer v. Showmotion, Inc., supra, 292 Conn. 396.  “Where the actions are virtually, but not exactly alike ․ the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.”  Id., 398.  “The applicability of the prior pending action doctrine does not turn on whether the two actions seek the same remedy, but ․ whether they are brought to adjudicate the same underlying rights.”  (Citation omitted;  internal quotation marks omitted.)   Id., 399.   An examination of the pleadings, while having a virtually common factual nucleus, in both the present and prior pending federal action reveals that the two actions were brought to adjudicate different underlying rights.   The federal action was brought to adjudicate whether the defendants Esposito and the town of Watertown violated the Due Process Clause and the Fourth Amendment of the Constitution.   This action was brought to adjudicate whether the defendant Esposito defamed the plaintiff or cast him in a false light, not only at the time of arrest, but thereafter and for an adjudication of plaintiff's negligent infliction of emotional distress and intentional infliction of emotional distress claims arising out of plaintiff's arrest and subsequent prosecution.   The court does not find that the underlying rights being adjudicated in this action and the prior pending federal action are virtually the same so as to require an abatement of this action.

Based on the foregoing, the defendant's Motion to Dismiss the plaintiff's complaint on prior pending action doctrine grounds is denied.

III

CONCLUSION

Based on the foregoing, the defendant's Motion to Dismiss the plaintiff's complaint on the prior pending action grounds, res judicata grounds and statute of limitations grounds is denied.

The court will, however, entertain a motion to stay this proceeding pending the outcome of the prior pending federal action as there is no compelling reason to litigate these issues in two forums at the same time with added financial cost to both parties.

BY THE COURT

Ozalis, J.

Ozalis, Sheila A., J.