Ricky Morneau v. State of Connecticut (removed), State Marshal Commission (removed), Albiene (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE SPECIAL DEFENSES

The plaintiff has filed a Motion to Strike directed at a number of the Special Defenses interposed by the defendants to the Amended Complaint of the plaintiff (# 178), dated July 14, 2011.¹  Having heard the parties at oral argument, and having considered the Motion and Objection and supporting papers of each, the court rules as follows:

1. The First Special Defense is as to all counts and alleges that the complaint fails to state a claim upon which relief can be granted.   Although such a claim is more properly addressed by way of a Motion to Strike, the court declines to strike the assertion as a Special Defense.

The Motion to Strike the First Special Defense is denied.

2. The Second Special Defense is as to all counts and alleges that the plaintiff's claims are barred by the doctrine of sovereign immunity.

The Motion to Strike the Second Special Defense is denied.

3. The Third Special Defense is as to all counts and alleges that the plaintiff's claims are barred by the provisions of Conn. Gen.Stat. § 6–38a(b).  That statute provides:

(b) Any state marshal, shall, in the performance of execution or service of process functions, have the right of entry on private property and no such person shall be personally liable for damage or injury, not wanton, reckless or malicious caused by the discharge of such functions.

A fair reading of the complaint discloses that the plaintiff has made no allegation that the offending conduct of the defendants had anything to do with their entry onto private property, only with their billing practices.   The statute cannot be read to apply to the conduct alleged by the plaintiff, and the defendants in their Special Defense have alleged no additional specific facts that would make this statute applicable.

The Motion to Strike the Third Special Defense is granted.

4. The Fourth Special Defense is as to all counts and alleges that the plaintiff cannot maintain any private right of action under the Hobbs Act, 18 U.S.C. § 1951.   In earlier iterations of the plaintiff's complaint the plaintiff asserted such a cause of action, but this court struck those counts.   At oral argument, counsel for the defendants argued that since the plaintiff nonetheless referred to the Act in other counts or referred to conduct which might constitute a violation of the Hobbs Act in other counts, the defendants felt the need to assert this Special Defense from an abundance of caution.

The court repeats—there is no private right of action under the Hobbs Act, and no submission to the trier of fact will be made asking for damages for any such violation.   Therefore the assertion of a Special Defense based upon putative counts of the complaint that have already been stricken is superfluous and confusing.

The Motion to Strike the Fourth Special Defense is granted.

5. The Fifth Special Defense, alleging the bar of the Statute of Limitations, has been withdrawn by the defendants.   See Defendants' Memorandum of Law (# 190), page 12.

6. The Sixth Special Defense is as to the Eighth through the Fourteenth Counts, alleging that the claims of the plaintiff are barred by the doctrine of res judicata.   The defendants argue that their fees were incurred for performance of duties in a civil case over which the Superior Court had jurisdiction to approve or disapprove their fees, so that the issue was decided in another case.   This is a proper assertion of such a defense.

The Motion to Strike the Sixth Special Defense is denied.

7. The Seventh Special Defense is as to the Eighth through the Fourteenth Counts, alleging that the claims of the plaintiff are barred by the doctrine of collateral estoppel.   This is a variation of the Sixth Special Defense.

The Motion to Strike the Seventh Special Defense is denied.

8. The Eighth Special Defense is as to the Third and Tenth Counts, alleging that the plaintiff's claims of unfair trade practices against the defendants are barred because the conduct of the defendants was pursuant to “transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or the United States ․” Conn. Gen.Stat. § 42–110c(a)(1).   To the extent that the defendants can prove that this section may apply to their conduct, this is a proper Special Defense.

The Motion to Strike the Eighth Special Defense is denied.

9. The Ninth Special Defense is as to the Fifth, Twelfth, and Thirteenth Counts, alleging that the claims of the plaintiffs do not establish the necessary nexus between their conduct and interstate commerce so as to prove a RICO violation (Racketeer Influence and Corrupt Practices Act), 18 U.S.C. § 1961.   If establishing a nexus between the offending conduct and interstate commerce is an element of a civil RICO violation, as it appears to be, it is unclear why the defendants, through the assertion of a Special Defense, would risk assuming the burden of proof as to the absence of this element.   But whatever the strategy of the defendants in this regard, they are entitled to try to prove this missing element in defense of these counts.

The Motion to Strike the Ninth Special Defense is denied.

10. The Tenth Special Defense as to the Seventh and Fourteenth Counts alleges that the defendants are entitled to qualified immunity, in that they were acting as state officials in the performance of a discretionary duty.   This is a proper assertion of this defense.

The Motion to Strike the Tenth Special Defense is denied.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. There are two other docket entries entitled Amended Complaint after July 2011:  # 181, dated August 10, 2011, which seeks to correct wording on page 19 of the complaint, and # 185, dated September 9, 2011, which revises Counts Four and Eleven to conform to an earlier ruling on the defendants' Motion to Strike.   The serial amendments and revisions, in which only portions of the complaint are set forth, make it difficult to assure that the court is properly reading the Special Defenses as they address the operative complaint.   For purposes of this Motion to Strike, the court treats # 178 as the operative Amended Complaint..  FN1. There are two other docket entries entitled Amended Complaint after July 2011:  # 181, dated August 10, 2011, which seeks to correct wording on page 19 of the complaint, and # 185, dated September 9, 2011, which revises Counts Four and Eleven to conform to an earlier ruling on the defendants' Motion to Strike.   The serial amendments and revisions, in which only portions of the complaint are set forth, make it difficult to assure that the court is properly reading the Special Defenses as they address the operative complaint.   For purposes of this Motion to Strike, the court treats # 178 as the operative Amended Complaint.

Pittman, Patty Jenkins, J.