Jane Doe v. Michael Spence (2012)

Ruling on Motion to Dismiss

The defendant, Michael Spence, moves to dismiss this suit, which alleges sexual assault in Connecticut and Massachusetts, based on the doctrine of forum non conveniens.   He contends essentially that the parties, witnesses, and evidence all come from or are found in Massachusetts.   For the following reasons, the court agrees and grants the motion to dismiss.

I

In ruling on a motion to dismiss, the 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.”   (Internal quotation marks omitted.)  DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007).   The plaintiff, using a pseudonym, alleges in her complaint that both she and the defendant are residents of Massachusetts and, at all relevant times, employed as police officers by the Boston Police Department.   According to the complaint, she and the defendant were attending the 2009 Connecticut SWAT Challenge when, on August 25 and 26, 2009, the defendant, in three separate incidents, raped, threatened, and choked her in a room they shared with one other police officer at the Farmington Inn in Farmington.   The plaintiff then alleges that, on August 29, and September 8, 2009 respectively, the defendant raped and threatened her at his residence in Dorchester, Massachusetts and in his truck in Milton, Massachusetts.

As a result of the alleged sexual assaults, the plaintiff became pregnant, had to have an abortion, and has suffered extreme emotional disturbance, psychological trauma, and pain and suffering.   These consequences have required hospital treatment, psychiatric care, and counseling.   Based on these facts, the plaintiff seeks recovery in separate counts for sexual assault, battery, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The motion to dismiss on forum non conveniens grounds does not directly challenge the court's jurisdiction.   Rather, “[t]he common law principle of forum non conveniens provides that a court may resist imposition upon its jurisdiction even when it has jurisdiction.”  (Emphasis in original;  internal quotation marks omitted.)  Union Carbide Corp. v. Aetna Casualty & Surety Co., 212 Conn. 311, 314, 562 A.2d 15 (1989).   Although the plaintiff is a nonresident, Connecticut has a responsibility to her if she has properly invoked the jurisdiction of this forum.  Id. A defendant challenging the propriety of the plaintiff's choice bears the burden to demonstrate why the presumption in favor of this choice, weakened though it may be in the case of a nonresident plaintiff, should be disturbed.  Id.

Our Supreme Court employs a four-step test for analyzing claims of forum non conveniens.  “First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case ․ Second, the court should consider all relevant private interest factors with a strong presumption in favor of—or, in the present case [in which the plaintiff was nonresident], a weakened presumption against disturbing—the [plaintiff's] initial choice of forum ․ Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum ․ Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must ․ ensure that [the] plaintiff can reinstate [her] [action] in the alternative forum without undue inconvenience or prejudice.”  (Citations omitted;  internal quotation marks omitted.)  Durkin v. Intevac, Inc., 258 Conn. 454, 466, 782 A.2d 103 (2001).

II

A

Turning to the first factor in the applicable test, there is no dispute that an adequate forum exists for the plaintiff in Massachusetts.   Indeed, as the defendant points out, the plaintiff has already availed herself of that forum by filing suit against the defendant and the City of Boston based on some of the same incidents.   In that suit, the plaintiff alleges that her employer, the City of Boston Police Department, allowed her to be sexually harassed and retaliated against her protests of that harassment.¹  The plaintiff also alleges that “[b]eginning in late August 2009 and continuing through September 2009, defendant Spence began a course of conduct whereby he continually subjected plaintiff to sexual harassment.   Such course of conduct included repeated sexual assaults, threats to kill plaintiff if she reported his actions, and the creation of a hostile working environment resulting from the harassment.”  (Complaint, para.8.) The plaintiff concludes that “[t]he actions of Spence as described above constituted common law assaults and batteries and violated the Civil Rights Act ․” (Complaint, para.15.)   Given that the “repeated sexual assaults” in late August and in September 2009 that the plaintiff alleges in her Massachusetts suit are unquestionably the same incidents that form the basis of the present suit, it is apparent that the plaintiff herself has found Massachusetts to be an adequate forum for the presentation of her sexual assault claims.

B

The next factor is the mix of private interests.   The plaintiff's choice of a Connecticut forum is important, though the fact that she is not a Connecticut resident weakens the presumption in her favor.   See Union Carbide Corp. v. Aetna Casualty & Surety Co., supra, 212 Conn. 314.   There are, however, almost no other private interests that favor a Connecticut forum.   Several of the sexual assaults allegedly took place in Connecticut, but the defendant's affidavit establishes that the Farmington police filed no criminal charges against the defendant.²  The plaintiff, who apparently did not immediately report the Connecticut incidents to the Farmington police, does not identify any physical evidence in Connecticut that she would seek to present at trial.   Moreover, several of the alleged sexual assaults took place in Massachusetts, thus making Massachusetts at least an equally important jurisdiction as the situs of physical evidence.

Of critical importance is the fact that the plaintiff does not identify even one witness from Connecticut who would provide any significant testimony.   According to the defendant, all of the potential witnesses with information about the alleged sexual assaults in Connecticut are police officers or sales representatives from Massachusetts or New York who were attending the convention or related social events.  (Def. Ex. B (Def.affidavit.))   The defendant alleges that other Massachusetts witnesses would provide information about the plaintiff's interaction with the defendant in Massachusetts at about this time.  (Id.) Other witnesses include members of the Boston and Milton, Massachusetts police departments, with whom the plaintiff filed complaints.   (Id.) Based on the affidavit of defendant's attorney, all of the medical and psychological witnesses related to the plaintiff's treatment come from Massachusetts as well.  (Ex. A.)

There is no dispute that neither the defendant nor a Connecticut court can compel these Massachusetts witnesses to testify in Connecticut.   While the plaintiff asserts that these witnesses are “friendly,” there is no clear indication that that friendship, if any, means that some or all of these witnesses will voluntarily travel from Massachusetts to Hartford for trial.   The plaintiff also suggests that the defendant can videotape their testimony and present the videotape in court.   While this proposal is technically feasible, there is no reason why the defendant (or the plaintiff) should have to present much if not all of his (or her) case on videotape in Connecticut when an available forum exists in Massachusetts where witnesses can testify in person.   Thus, on balance, the private interests weigh heavily in favor of trial of this case in Massachusetts.

C

The third factor to consider is the public interest.   Connecticut undoubtedly has an interest in seeing its common-law prohibitions on assault, battery, and infliction of emotional distress enforced in its own courts.   But Massachusetts has an equal interest in the enforcement of its laws addressing the sexual assaults that the plaintiff alleges in this lawsuit occurred in Massachusetts.   Since the alleged events in this case took place to a roughly equal degree in Connecticut and Massachusetts, it is not possible to say that the public interest weighs heavily in favor of a Connecticut forum.

Tipping the balance is the fact that the plaintiff has concurrently filed a lawsuit concerning the same events in the Massachusetts.   Continuation of the present suit in Connecticut would mean that two courts in two different jurisdictions would have to hear virtually the same allegations at the same time, with all the attendant unnecessary costs to the court system and the public.   Such a prospect is clearly contrary to notions of judicial economy.   Consolidation of the two suits in one jurisdiction would much better serve the public interest.

Furthermore, the net effect of the plaintiff's filing suit in Connecticut while simultaneously maintaining the same allegations in Massachusetts is that the defendant has to defend the same allegations in two jurisdictions at the same time.   While that burden is partly a private one that falls on the defendant—a point that should in itself weigh in the balance—the plaintiff's attempt to bifurcate her allegations into two lawsuits in two jurisdictions suggests that the plaintiff is shopping for a favorable forum.   Such forum shopping is an ongoing concern of the courts that affects the public interest.   See Durkin v. Intevac, Inc., supra, 258 Conn. 464.

D

Finally, given that the public interest factors tip the balance in favor of trying the case in Massachusetts, the court must ensure that the plaintiff can reinstate her action there without undue inconvenience or prejudice.   There should be no great inconvenience to the plaintiff in filing this action in Massachusetts because she lives there and she already has filed suit there arising from the same subject matter.   Further, the defendant represented at oral argument that he would waive any statute of limitations or other jurisdictional arguments to the plaintiff's refiling of this case in Massachusetts.   If the defendant does not keep his promise in Massachusetts, the court will deem the defendant to have waived any objections to the plaintiff's refiling the case in Connecticut.

III

The court grants the motion to dismiss.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. In the complaint that the defendant supplies, the plaintiff's name is blacked out, apparently to protect her identity in the lawsuit here.   By substituting the pseudonym Jane Doe for the plaintiff there, the caption of the case is Jane Doe v. City of Boston and Michael Spence, Superior Court, Suffolk County, Docket No. 12–3149B..  FN1. In the complaint that the defendant supplies, the plaintiff's name is blacked out, apparently to protect her identity in the lawsuit here.   By substituting the pseudonym Jane Doe for the plaintiff there, the caption of the case is Jane Doe v. City of Boston and Michael Spence, Superior Court, Suffolk County, Docket No. 12–3149B.

FN2. The court relies on the affidavits to the extent that they are undisputed, as the court is permitted to do on a motion to dismiss.   See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007)..  FN2. The court relies on the affidavits to the extent that they are undisputed, as the court is permitted to do on a motion to dismiss.   See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

Schuman, Carl J., J.