Angela McAllister v. Charles Valentino, Sr. (2012)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT

This action arises out of two prior civil actions filed by the pro se plaintiff, Angela McAllister, against the Commission on Human Rights and Opportunities (CHRO) and Smith Barney/Citigroup Global Markets, Inc. (Citigroup) for reinstatement of her case before the CHRO. On April 29, 2010, the plaintiff filed her first complaint,¹ and on May 27, 2010, Citigroup filed a motion to dismiss the case on the grounds that no justiciable controversy existed as to Citigroup and that Citigroup was not properly served with process.   Judge Levin granted the motion on June 15, 2010.   The plaintiff re-filed her case against the CHRO and Citigroup on July 13, 2010,² and Citigroup again filed a motion to dismiss the case on the grounds that no justiciable controversy existed as to Citigroup, that the plaintiff failed to serve and to return timely process and that Citigroup was not properly served with process.   Judge Levin granted the motion on September 20, 2010.

On January 11, 2011, the plaintiff initiated the present civil action against the defendant, Charles Valentino, and alleges the following facts in her one-count complaint.   The defendant is a state marshal with whom the plaintiff provided a summons and complaint to serve Citigroup in her first lawsuit.   The defendant served Citigroup through Attorney Ira Rosenstein of Orrick, Herrington, Sutcliffe, LLP. The plaintiff further utilized the services of the defendant to serve Citigroup in her second action.   Instead of serving John Cannovino, who is a representative of Cummings & Lockwood, LLC, which was counsel for Citigroup, the defendant served Donald Canvino, who is not employed by Cummings & Lockwood, LLC. The plaintiff further alleges that because of the defendant's actions, both of her cases were dismissed, thereby ending her chances of recovering damages from Citigroup.   The plaintiff also alleges that a complaint was filed with the state of Connecticut state marshal commission in August 2010, which found probable cause against the defendant on September 29, 2010.   The oversight committee of the marshal commission then commenced a hearing and suggested that the plaintiff file a lawsuit in order to recover damages against the defendant.   The plaintiff seeks damages against the defendant pursuant to General Statutes § 6–32.

The defendant filed an answer and five special defenses on June 30, 2011, and he makes the following allegations.   The plaintiff provided the defendant with a summons and complaint, listing as the defendants in the action “Attorney Charles Krich, Commission on Human Rights and Opportunities,” and “Attorney Ira Rosenstein, Smith Barney/Citigroup Global Markets, Inc., Orrick, Herrington, & Sutcliffe, LLP ․” The defendant made service of the first complaint on Attorney Charles Krich by leaving a copy of the summons and complaint in the hands of Perry Zinn–Rowthorn.   The defendant further made service of the first complaint on Attorney Ira Rosenstein by mailing a copy of the summons and complaint via U.S. certified mail, return receipt requested, to Attorney Ira Rosenstein, Smith Barney/Citigroup Global Markets, Inc., Orrick, Herrington & Sutcliffe, LLP. The receipt was returned, executed by Attorney Ira Rosenstein.   The plaintiff then provided the defendant with a summons and complaint for her second action, listing as the defendants the CHRO, with Attorney Charles Krich as its agent, and Citigroup, with Cummings & Lockwood as its agent.   The defendant made service of the second complaint on Citigroup by leaving a copy of summons and complaint in the hands of Attorney John Cannavino of Cummings & Lockwood, LLC. The defendant mistakenly listed Donald Canavino rather than John Cannovino in the Return of Service.   The plaintiff failed to provide the defendant with the name and address of Citigroup's Registered Agent for Service, CT Corporation System.   The plaintiff's second complaint was dismissed for failure to make proper service on Citigroup.   The defendant denies the remainder of the allegations in the plaintiff's complaint.   In his special defenses, the defendant asserts that he is immune from suit under the doctrine of sovereign immunity and that to the extent that the plaintiff has suffered any alleged damages, any such damages were caused by her own conduct or negligence, and she has failed to mitigate such damages.

On October 18, 2011, the plaintiff filed a motion for summary judgment on the ground that there is no genuine issue of material fact and that the plaintiff is entitled to judgment as a matter of law, to which the defendant filed a memorandum of law in opposition.   The defendant also filed a cross motion for summary judgment on December 8, 2011, supported by a memorandum of law, on the grounds that the plaintiff cannot prove that the defendant's alleged conduct was the proximate cause of her claimed injury, and that no material facts exist showing that the plaintiff suffered damages.   The defendant submits the following evidence in support of his cross motion:  (1) the plaintiff's deposition testimony;  (2) an unauthenticated, uncertified copy of the proposed final decision of the oversight committee;  and (3) an unauthenticated, uncertified copy of the final decision of the marshal commission.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  Viola v. O'Dell, 108 Conn.App. 760, 763–64, 950 A.2d 539 (2008).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “The test is whether a party would be entitled to a directed verdict on the same facts ․ A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”  (Emphasis in original;  internal quotation marks omitted.)  Byrne v. Burke, 112 Conn.App. 262, 268, 962 A.2d 825 (2009).

The plaintiff makes the following claims in support of her motion.   She argues that the defendant failed to serve properly the defendants or their agents in her two underlying civil actions and that, consequently, those cases were dismissed.   Moreover, she has lost $8,400,000 in damages.   In July 2010, she filed a complaint with the marshal commission against the defendant, and the marshal commission issued a final decision of reprimand against the defendant.   The plaintiff concludes that her motion should be granted as there remain no material facts to be resolved other than the discussion on damages.

In support of his cross motion, the defendant makes the following arguments.   First, the plaintiff agreed at her deposition that Citigroup's motion to dismiss in her second action was based upon three grounds and that it is unclear whether that case was dismissed for negligent service.   The defendant also points to the plaintiff's deposition testimony that she did not know who was the agent for service of Citigroup when she addressed the writ on the second complaint.   Moreover, the marshal commission would not commit itself to finding that the defendant's conduct was the proximate cause of the dismissal of the plaintiff's second case.   The marshal commission found that the complaint was improperly served because the plaintiff provided the wrong entity as the agent for service of process on Citigroup.   Accordingly, in the absence of a rationale from the court for dismissing the plaintiff's second case, no evidence exists to prove that the defendant's alleged negligence was the reason why the plaintiff's case was dismissed.   Finally, the marshal commission exonerated the defendant of any statutory violation pursuant to his service in her first dismissed lawsuit.   On the issue of damages, the defendant argues that the plaintiff repeatedly testified at her deposition that she could have re-filed her dismissed state court civil action at any point subsequent to its dismissal.   Moreover, the plaintiff's recovery is not yet precluded, even if she does not or cannot re-file her initial complaint, as she has filed two federal actions that have since been consolidated and are now pending.   If she prevails in these consolidated actions, she could recover the purported prospective damages against Citigroup.   If the plaintiff's claims in these consolidated actions are defeated, then the underlying second dismissed action against Citigroup had no merit, barring recovery in this case, because any claim for damages in a professional malpractice case must be based upon the merit and value of the underlying claim.   Finally, the plaintiff's alleged damages of over $8 million caused by the inconvenience of re-filing and the uncertainty of not initially knowing that the alleged improper service was the cause of her case dismissals are frivolous.

Before the court can address the merits of the parties' motions, the court must have subject matter jurisdiction over the matter.   Although the parties do not raise the question of whether this court has subject matter jurisdiction in their motions, the court may raise it sua sponte.  “[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ․ The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.”  (Citations omitted;  internal quotation marks omitted.)  Peters v. Department of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).  “Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4–165, implicate the court's subject matter jurisdiction.”   (Internal quotation marks omitted.)  Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009).  “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).

In this case, the issue arises as to whether the defendant is protected by sovereign immunity, thereby depriving the court of subject matter jurisdiction over the dispute.   The courts have addressed the question of whether state marshals are entitled to sovereign immunity for acts committed in their official capacity.   In Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003), the court rejected the position, argued by the plaintiff in that case and previously held by the Superior Court,³ that by necessary implication the legislature, through General Statutes § 6–30a, waived the sovereign immunity of state marshals for acts committed in their official capacity.   Specifically, the argument was that by requiring state marshals to carry personal liability insurance, the legislature implied that those officers are subject to liability for conduct committed in performance of their official duties.⁴  Declining to adopt this position, the Miller court held:  “We fail to see how a requirement that sheriffs and deputy sheriffs purchase personal liability insurance necessarily implies that the legislature intended to waive the state's sovereign immunity, either from suit or liability, under § 6–30a.   In fact, the opposite inference makes more sense, namely, that the legislature intended the individual sheriffs and deputy sheriffs, rather than the state, to bear liability for the conduct covered by the statute.   This conclusion is bolstered by the statute's definition of ‘tortious acts' as ‘negligent acts,’ errors or omissions for which such sheriff or deputy sheriff may become legally obligated ․” (Emphasis in original.)  Miller v. Egan, supra, 265 Conn. 329–30.  “Therefore, we conclude, based on the statutory language and the legislative history, that the legislature did not intend § 6–30a to constitute such a waiver.”  Id., 331.   Although the legislature replaced references to sheriff and deputy sheriff with state marshal in § 6–30a(a) in December 1, 2000;  see Public Acts 2000, No. 00–99;  the court's rationale still applies to the amended statute.

The Superior Court has followed the approach of Miller and has held that state marshals do enjoy sovereign immunity for acts committed in the performance of their official duties, notwithstanding the language of § 6–30a.   For instance, in International Motorcars, LLC v. Sullivan, Superior Court, judicial district of New Britain, Docket No. CV 05 4005168 (June 20, 2006, Shaban, J.) (41 Conn. L. Rptr. 559), the plaintiff filed a one-count complaint alleging negligence against a state marshal for property damage to the plaintiff's Ferrari that occurred when the state marshal seized the vehicle in connection with a pending matter.   The state marshal filed a motion to dismiss on the ground that the plaintiff's action is barred by the doctrine of sovereign immunity.   In analyzing whether the state marshal was being sued in his individual or official capacity, the court applied the four-prong test of Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975).   Having found that the state marshal was being sued in his official capacity, the court concluded that the plaintiff's suit was barred by the doctrine of sovereign immunity.  International Motorcars, LLC v. Sullivan, supra, 41 Conn. L. Rptr. 559, 562.   Similarly, in Mason v. Barbieri, Superior Court, judicial district of Waterbury, Docket No. CV 08 5011263 (April 14, 2010, Sheedy, J.), the plaintiffs brought suit against state marshals and civilian non-marshals, all of whom participated in capias arrest sweeps against the plaintiffs arising out of delinquent support enforcement orders.   The plaintiffs alleged that all the defendants violated their constitutional right to be free from unauthorized arrest and unreasonable search and seizure, fraudulent misrepresentation and violation of General Statutes § 6–32 regarding service of process.   The state marshals moved to dismiss, claiming governmental immunity.   Also applying the Spring test, the court concluded that the state marshals were state officials entitled to sovereign immunity.  Id.

In line with International Motorcars and Mason, this court's task is to determine whether the plaintiff's “suit is, in effect, one against the state and cannot be maintained without its consent ․” (Internal quotation marks omitted.)  Spring v. Constantino, supra, 168 Conn. 568.   In doing so, the court must analyze whether:  “(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.”  Id.

In analyzing the first element, the Spring court offered factors for courts to use in determining whether the defendant works in a “public office.”  “The essential characteristics of a ‘public office’ are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government ․ A key element of this test is that the ‘officer’ is carrying out a sovereign function.”  (Citations omitted.)  Id., 568–69.   In Sullivan, the court applied those factors and found that “the defendant as a state marshal is a public official under the Spring test ․” International Motorcars, LLC v. Sullivan, supra, 41 Conn. L. Rptr. 559, 561.   Similarly, in this case, the defendant, as a state marshal, is a public official for purposes of determining whether the plaintiff is, in effect, suing the state.

The court next must determine whether the suit concerns a matter in which the defendant represents the state.  “[T]he state marshal commission oversees and regulates the activities of state marshals.   State marshals are statutorily vested with certain responsibilities and privileges when performing service of process and executions.   See General Statutes §§ 6–32 and 6–38a(b).”  Id. Moreover, the plaintiff's complaint refers to the defendant as “State Marshal Charles M. Valentino” or “Marshal Valentino.”   The plaintiff's allegations concern the defendant's conduct in serving other entities with a summons and complaint, and the plaintiff even notes that a complaint was filed with the marshal commission against the defendant.   Based on these allegations, the court finds that the defendant was working as a representative of the state when he served the entities in the plaintiff's two underlying civil actions.

Next, the court must determine whether the state is the real party against whom relief is sought.   As discussed above, the plaintiff's complaint consistently refers to the defendant as “State Marshal Charles M. Valentino” or “Marshal Valentino,” and there are no allegations within the plaintiff's complaint that indicate that the defendant is being sued in his individual capacity.   Accordingly, the court finds that the plaintiff's suit is against the defendant in his official capacity and, therefore, the state is the real party against whom relief is sought.

Finally, the court must answer whether a judgment will operate to control the activities of the state or subject it to liability.   In support of its motion, the defendant submits an unauthenticated, uncertified copy of the proposed final decision of the oversight committee of the marshal commission.⁵  The marshal commission is a state agency protected by the doctrine of sovereign immunity.  Page v. State Marshal Commission, 108 Conn.App. 668, 950 A.2d 529, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).   The marshal commission conducted an investigation and found probable cause against the defendant, and then the oversight committee conducted a hearing and recommended that the marshal commission issue a reprimand against the defendant.   The marshal commission adopted the committee's findings of fact and law as well as its disposition.

Contrary to the plaintiff's allegation, there is no evidence that the oversight committee suggested that she file a lawsuit against the defendant to recover damages.   By subjecting the defendant to liability in this action, the court would undermine the actions of the marshal commission and their recommendation of reprimand.   Accordingly, the court finds that the present lawsuit, if allowed to proceed, would operate to control the activities of the state.

Based on the foregoing, the four prongs of the Spring test are satisfied.   Therefore, the plaintiff's suit is barred by the doctrine of sovereign immunity.

As the court lacks subject matter jurisdiction over the action, it must treat the defendant's cross motion for summary judgment as a motion to dismiss.   See Cadle Company v. D'Addario, 268 Conn. 441, 445, n.5, 844 A.2d 836 (2004);  see also Lewis v. Chelsea G.C.A. Realty Partnership, L.P., 86 Conn.App. 596, 607, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005).

Accordingly, the plaintiff's cause of action is dismissed for lack of subject matter jurisdiction.

GILARDI, J.

FOOTNOTES

FN1. See McAllister v. Krich, Superior Court, judicial district of Fairfield, Docket No. FBT CV 10 5029210..  FN1. See McAllister v. Krich, Superior Court, judicial district of Fairfield, Docket No. FBT CV 10 5029210.

FN2. See McAllister v. Commission on Humans Rights and Opportunities, Superior Court, judicial district of Fairfield, Docket No. FBT CV 10 5029272..  FN2. See McAllister v. Commission on Humans Rights and Opportunities, Superior Court, judicial district of Fairfield, Docket No. FBT CV 10 5029272.

FN3. See, e.g., National Loan Investors v. McGuire, Superior Court, judicial district of New London, Docket No. 549085 (August 4, 1999, Martin, J.) (25 Conn. L. Rptr. 204, 206)..  FN3. See, e.g., National Loan Investors v. McGuire, Superior Court, judicial district of New London, Docket No. 549085 (August 4, 1999, Martin, J.) (25 Conn. L. Rptr. 204, 206).

FN4. Section 6–30a(a) provides in relevant part:  “[E]ach state marshal shall carry personal liability insurance for damages caused by reason of such state marshal's tortious acts ․ For the purpose of this subsection, “tortious act” means negligent acts, errors or omissions for which a state marshal may become legally obligated to any damages for false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, violation of property rights or assault and battery if committed while making or attempting to make an arrest or against a person under arrest, but does not include any such act unless committed in the performance of the official duties of such state marshal.”.  FN4. Section 6–30a(a) provides in relevant part:  “[E]ach state marshal shall carry personal liability insurance for damages caused by reason of such state marshal's tortious acts ․ For the purpose of this subsection, “tortious act” means negligent acts, errors or omissions for which a state marshal may become legally obligated to any damages for false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, violation of property rights or assault and battery if committed while making or attempting to make an arrest or against a person under arrest, but does not include any such act unless committed in the performance of the official duties of such state marshal.”

FN5. “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what the proponent claims it to be.”  (Internal quotation marks omitted.)   New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In this case, the plaintiff has not raised any objection to the defendant's unauthenticated, uncertified exhibits.   Accordingly, the court may consider the proposed final decision of the oversight committee and the final decision of the marshal commission in deciding the parties' motions for summary judgment..  FN5. “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what the proponent claims it to be.”  (Internal quotation marks omitted.)   New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In this case, the plaintiff has not raised any objection to the defendant's unauthenticated, uncertified exhibits.   Accordingly, the court may consider the proposed final decision of the oversight committee and the final decision of the marshal commission in deciding the parties' motions for summary judgment.

Gilardi, Richard P., J.T.R.