Sylvester Traylor v. State of Connecticut et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS NO. 122

On August 26, 2013, defendant Wyatt Kopp moved to dismiss the plaintiff's second amended complaint arguing that the court lacks subject matter jurisdiction and that the plaintiff failed to provide the required recognizance.   On October 23, 2013, the plaintiff filed an objection to the motion and a supplemental objection two days later on October 25.   The matter was argued at short calendar on October 28.

BACKGROUND

On July 17, 2013, the plaintiff (Sylvester Traylor) filed an eleven-count complaint against the state of Connecticut, Tammy Bartelli Sharples, Wyatt Kopp, Karen Florin, Timothy Dwyer, and the Day Publishing Company.   The plaintiff has twice amended the complaint, the most recent amended complaint was filed on July 31, 2013 and contains twelve counts.   These counts include:  systematic discriminatory practices, defamation, and negligent infliction of emotional distress.   The operative complaint alleges the following facts with respect to the moving party, Wyatt Kopp. Kopp has been an avid supporter of Public Act 13–310, giving trial judges discretion to deny fee waivers to indigent litigants with a history of frivolous litigation.¹  Kopp was referenced in a January 27, 2013 report published in the New London Day newspaper discussing the plaintiff's litigation history.   On April 15, 2013, Kopp testified before the Connecticut General Assembly and cited the plaintiff as one litigant who has “abuse[d] the judicial process.”   Kopp's personal interactions with the plaintiff began in November of 2009 when Kopp (who was, at one point, an employee of the Connecticut judicial branch) allegedly told the plaintiff that “he could use his power through his girlfriend who is a secretary for Judge Handy to influence the judge's decisions.”   Finally, the amended complaint alleges that Kopp has contacted the plaintiff both in person and via a social media website to discuss the plaintiff's lawsuits.

LAW RE MOTION TO DISMISS

“[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.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

APPLICABLE LAW

The defendant moves to dismiss counts one, two, three, four, five, six, seven, and twelve for lack of subject matter jurisdiction.   Given that only counts four and six are directed at defendant Kopp, the court need only consider Kopp's subject matter jurisdiction arguments as to those counts.²  The defendant also moves to dismiss all counts in light of the plaintiff's failure to file a recognizance pursuant to Practice Book §§ 8–4, 8–5.   The plaintiff's supplemental objection argues that the defendant's motion to dismiss was untimely and that his subject matter jurisdiction arguments have been waived.   The defendant filed his motion to dismiss on August 26, exactly thirty days from the date that he filed his appearance on July 26 and was, therefore, in compliance with Practice Book § 10–30.³  Furthermore, regardless of timing, a challenge to the court's subject matter jurisdiction cannot be waived.  Castro v. Viera, 201 Conn. 420, 427, 541 A.2d 1216 (1988);  Practice Book § 10–33.

I. Count Four.

Count four of the amended complaint alleges “retaliation, intimidation, and provocation practice” against all defendants.   The factual allegations supporting the count state that Kopp “ignored judicial bullying” while serving as an employee of the judicial branch and threatened to exert influence over judges to the detriment of the plaintiff's pending lawsuits.   The plaintiff also alleges that Kopp sent the plaintiff threatening emails and confronted the plaintiff in various public places.   The defendant's motion argues that the plaintiff has no standing to sue under 18 U.S.C. § 241, § 242, or §§ 1961–1963 because these are federal penal statutes which do not provide for any private right of action.⁴  While the plaintiff certainly cites those federal penal statutes in count four, it is not entirely clear what statutory or common law right the plaintiff seeks to vindicate and a motion to dismiss is not the proper procedural vehicle for such an inquiry.   See Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991).   The issue would be most appropriately raised on a request to revise seeking clarification of the complaint, see Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 809, 915 A.2d 293 (2007), or a motion to strike challenging the legal sufficiency of the count.  Caruso v. City of Bridgeport, 285 Conn. 618, 629–30, 941 A.2d 266 (2008).   The defendant's motion to dismiss count four is denied.

Count Six.

Count six alleges “systematic discriminatory practice” against all defendants and states that Kopp was trained to and did engage in a judicial branch conspiracy to deprive the plaintiff of “his right to freely speak, write and publish his sentiments.”   The defendant's motion contends that the plaintiff is without standing to assert claims under General Statutes §§ 46a–58(a)(1), 46a–60(a)(4), 46a–60(a)(5), and 46a–64(a)(1).   However, count six makes no specific mention of any of these statutes.   Certainly, the plaintiff cites these statutes in paragraph 1.1.12 of his prayer for relief and, to the extent that he seeks recovery under those statutes, those claims have been dismissed for failure to exhaust administrative remedies (# 118).   As in count four, it is not clear what common law or statutory rights that the plaintiff seeks to vindicate in count six.   However, as stated above, that concern is more properly addressed on a request to revise or a motion to strike.   The defendant's motion to dismiss count six is denied.

III. Recognizance.

Finally, the defendant has moved to dismiss the amended complaint for insufficient service of process and lack of personal jurisdiction given the plaintiff's failure to provide recognizance pursuant to Practice Book §§ 8–3, 8–4.  Practice Book § 8–3(a) provides, in relevant part, that “if the plaintiff in any civil action is not an inhabitant of this state, or if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against the plaintiff, he or she shall, before such process is signed, enter into a recognizance to the adverse party with some substantial inhabitant of this state as surety, or some substantial inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute the action to effect, and answer all damages in case the plaintiff does not make his or her plea good ․” Moreover, “[p]laintiffs who are indigent or who are inmates are not exempt from filing a recognizance.” ⁵  Lowery v. Shea, Superior Court, judicial district of New Haven, Docket No. CV–09–4037443–S (January 4, 2010, Keegan, J.) [49 Conn. L. Rptr. 132];  see also Steinkamp v. Jacque, 36 Conn.Sup. 37, 40–41 410 A.2d 489 (1979).

The plaintiff here has clearly failed to file a recognizance.   While some courts have immediately dismissed complaints for such failure, Lowery v. Shea, supra, Docket No. CV09–4037443–S, many others have granted the plaintiff two weeks to file recognizance before dismissal.   Cutler v. Valentine, Superior Court, judicial district of New Haven, Docket No. CV–13–5034531–S (August 12, 2013, Wilson, J.) [56 Conn. L. Rptr. 607];  Thompson v. Esserman, Superior Court, judicial district of New Haven, Docket No. CV–12–5034209–S (October 12, 2012, Gold, J.) [54 Conn. L. Rptr. 774];  Mazzone v. Carranza, Superior Court, judicial district of New Britain, Docket No. CV–07–5004401–S (October 19, 2007, Shapiro, J.) [44 Conn. L. Rptr. 546].   The latter approach seems more faithful to the Practice Book. Section 8–5(b) states that:  “If the judicial authority, upon the hearing of the motion to dismiss, directs the plaintiff to file a bond to prosecute in an amount deemed sufficient by the judicial authority, the action shall be dismissed unless the plaintiff complies with the order of the judicial authority within two weeks of such order.”   Accordingly, the plaintiff is hereby directed to file the statutorily mandated $250 recognizance within two weeks of this order and, if recognizance is not filed by that time, the matter shall be dismissed for insufficiency of process and lack of personal jurisdiction.⁶

ORDER

The defendant's motion to dismiss counts four and six (# 122) is denied.   Counts four, six, eight, nine, ten, and eleven remain against Kopp. The plaintiff is directed to comply with the court's order, stated above, regarding the filing of a $250.00 recognizance, on or before January 24, 2014.   Failure to file said recognizance results in a dismissal of this action.

Devine, J.

FOOTNOTES

FN1. More specifically, the law amends General Statutes § 52–259b and permits the court to deny “an application for the waiver of the payment of a fee or fees of the cost of service of process when the court finds that (A) the applicant has repeatedly filed actions with respect to the same or similar matters, (B) such filings establish an extended pattern of frivolous filings that have been without merit, (C) the application sought is in connection with an action before the court that is consistent with the applicant's previous pattern of frivolous filings, and (D) the granting of such application would constitute a flagrant misuse of Judicial Branch resources.”   Public Acts 2013, No. 13–310, § 1..  FN1. More specifically, the law amends General Statutes § 52–259b and permits the court to deny “an application for the waiver of the payment of a fee or fees of the cost of service of process when the court finds that (A) the applicant has repeatedly filed actions with respect to the same or similar matters, (B) such filings establish an extended pattern of frivolous filings that have been without merit, (C) the application sought is in connection with an action before the court that is consistent with the applicant's previous pattern of frivolous filings, and (D) the granting of such application would constitute a flagrant misuse of Judicial Branch resources.”   Public Acts 2013, No. 13–310, § 1.

FN2. Count one has been dismissed for lack of standing pursuant to this court's memorandum of decision ruling on the state of Connecticut's motion to dismiss (# 116).   Counts two, three, four, five, six, and seven have also been dismissed as directed against the state for money damages under the doctrine of sovereign immunity as discussed in that memorandum of decision.   Count twelve alleging a CUTPA violation has also been dismissed pursuant to this court's memorandum of decision ruling on the motion filed by the Day Publishing Company, Timothy Dwyer, and Karen Florin (# 118)..  FN2. Count one has been dismissed for lack of standing pursuant to this court's memorandum of decision ruling on the state of Connecticut's motion to dismiss (# 116).   Counts two, three, four, five, six, and seven have also been dismissed as directed against the state for money damages under the doctrine of sovereign immunity as discussed in that memorandum of decision.   Count twelve alleging a CUTPA violation has also been dismissed pursuant to this court's memorandum of decision ruling on the motion filed by the Day Publishing Company, Timothy Dwyer, and Karen Florin (# 118).

FN3. The defendant was a day late in filing his appearance on July 26 as the return date on the summons was July 23.  Practice Book § 3–2 states that appearances should be filed within two days of the return date;  however late appearances will be accepted unless there has been an entry of nonsuit or judgment after default.   Neither occurred in this case..  FN3. The defendant was a day late in filing his appearance on July 26 as the return date on the summons was July 23.  Practice Book § 3–2 states that appearances should be filed within two days of the return date;  however late appearances will be accepted unless there has been an entry of nonsuit or judgment after default.   Neither occurred in this case.

FN4. The Racketeering Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961–1968) does, in fact, provide for a private right of action.  18 U.S.C. § 1964(c) states that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorneys fees ․” However, even assuming that count four is predicated on this section, the complaint has not alleged an injury to the plaintiff's business or property and, therefore, the plaintiff would be without standing to enforce this provision..  FN4. The Racketeering Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961–1968) does, in fact, provide for a private right of action.  18 U.S.C. § 1964(c) states that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorneys fees ․” However, even assuming that count four is predicated on this section, the complaint has not alleged an injury to the plaintiff's business or property and, therefore, the plaintiff would be without standing to enforce this provision.

FN5. Practice Book § 8–4(b) does exempt pro se litigants from the recognizance requirement in summary process actions;  however that exemption does not apply here..  FN5. Practice Book § 8–4(b) does exempt pro se litigants from the recognizance requirement in summary process actions;  however that exemption does not apply here.

FN6. Despite the three separate memoranda of decision, the plaintiff need only file one recognizance in the amount of $250..  FN6. Despite the three separate memoranda of decision, the plaintiff need only file one recognizance in the amount of $250.

Devine, James J., J.