CASHMAN v. KING (2025)

MEMORANDUM & ORDER

Plaintiffs, Patricia and Jeffrey Cashman, brought this case against Defendants, Kathleen King, the Town of Clinton, and the Planning and Zoning Commission of the Town of Clinton (the “municipal defendants”), as well as their neighbor Veronica Lopez (collectively “Defendants”). Plaintiffs allege that over the past two decades, Defendants have conspired to deprive Plaintiffs of the full use of their land for the purposes of their commercial farming and landscaping operations. Specifically, Plaintiffs filed suit for a writ of audita querela, fraud on the court, deprivation of rights pursuant to 42 U.S.C. § 1983, intentional infliction of emotional distress, negligent infliction of emotional distress, and civil violation of RICO, 18 U.S.C. § 1962(b). Defendants now move for summary judgment on all counts. For the foregoing reasons, Defendants’ motion is granted.

I. BACKGROUND

A. Factual Background

The following facts are undisputed and are based on the record, including the parties’ pleadings and Local Rule 56(a) statements.¹ ,²

The Town of Clinton is a municipality in the State of Connecticut.³ Plaintiffs are the owners of real property located at 66 River Road in Clinton, Connecticut (the “Property”), which they purchased on August 3, 1987.⁴ The Property is situated in an R-80 Residential Zoning District.⁵

Prior to their acquisition of the Property, Plaintiffs operated a sole proprietorship known as “Jeff's General Trucking,” which performed landscaping and general labor services, including cement work, snow removal, and similar activities.⁶ Following their purchase of the Property, Plaintiffs established a nursery business, which they later named “Sprucey Hill Nursery.”⁷

On April 16, 2012, Clinton Zoning Enforcement Officer (“ZEO”) Thomas Lane issued an Order to Discontinue against Plaintiffs, citing violations of several provisions of the Clinton Zoning Regulations related to the construction of a corral fence within a required setback.⁸ The April 2012 Order advised Plaintiffs of their right to appeal to the Zoning Board of Appeals within fifteen days, but Plaintiffs did not file an appeal.⁹

Thereafter, on September 12, 2012, ZEO Lane commenced a statutory enforcement action in Connecticut Superior Court pursuant to Conn. Gen. Stat. § 8-12, Knapp v. Cashman, No. 12-CV-6008324 (Conn. Super. Ct.) (the “enforcement action”).¹⁰ Plaintiffs filed an answer asserting that their use of the Property constituted a preexisting legal nonconforming farming use.¹¹

Despite that pending action, on November 15, 2012, Lane issued a second Order to Discontinue citing additional violations, including the retail and wholesale sale of mulch and firewood, the importation of organic material, and the parking and storage of commercial equipment, which are all prohibited within an R-80 Residential District.¹² As with the April order, the November Order provided notice of a fifteen-day appeal period, which Plaintiffs again did not exercise.¹³

On November 18, 2012, Plaintiff Jeffrey Cashman reported to the Clinton Police Department that he had discovered documents in his zoning “Street File” that he believed had been fraudulently and maliciously inserted by Lane.¹⁴ However, the documents in question had previously been provided by Plaintiffs to the ZEO earlier that year.¹⁵ At his deposition, Plaintiff confirmed that the documents referenced in the police report were the same documents identified in the instant Complaint.¹⁶ A police investigation ensued, including review of a letter Plaintiffs claimed was fraudulent, but officers were unable to determine whether the letter had ever been sent and no criminal charges were filed.¹⁷

On May 15, 2013, the trial court in the enforcement action granted a motion to strike Plaintiffs’ special defenses for failure to exhaust administrative remedies.¹⁸ Plaintiffs then withdrew their remaining defenses, which had asserted a nonconforming use.¹⁹ The court subsequently struck Plaintiffs’ final special defense on the same grounds.²⁰ Subsequently, on July 30, 2015, the court issued a decision finding that Plaintiffs had “blatantly and defiantly violated multiple Zoning Regulations.”²¹ Plaintiffs appealed that decision.²² On January 30, 2018, the Connecticut Appellate Court affirmed the trial court's decision, emphasizing Plaintiffs’ failure to exhaust administrative remedies and their continued violations of the zoning regulations.²³

In July 2018, Plaintiffs filed an application for a Special Exception Permit seeking to legalize certain agricultural uses, including livestock and the sale of mulch and manure.²⁴ On December 10, 2018, Plaintiffs’ application was denied and the zoning board did not issue a collective statement of the reasons for the denial.²⁵ Plaintiffs appealed to the superior court, Cashman v. Clinton Plan. & Zoning Comm'n, No. 19-CV-6023630 (Conn. Super. Ct.) (the “special exception action”), alleging that their application met the applicable zoning criteria and that the denial was improperly influenced by conflicts of interest.²⁶ On November 25, 2020, the court dismissed the appeal and sustained the Planning and Zoning Commission's denial, finding that substantial evidence in the record supported the Commission's decision.²⁷ The court observed that the adverse impacts of Plaintiffs’ operations—such as odors, insect infestation, truck traffic, and drainage issues—were not speculative but ongoing and observable.²⁸ The court also rejected Plaintiffs’ recusal claims, finding they had failed to establish a substantial financial conflict or evidence of bias on the part of any commissioner.²⁹

B. Procedural History

Plaintiff filed this suit in the Connecticut Superior Court in the Judicial District of Middlesex on January 11, 2023.³⁰ The following month, on February 10, 2023, Defendants removed the case to the District Court for the District of Connecticut pursuant to federal question jurisdiction.³¹ Following a lengthy discovery process and a series of settlement negotiations, Plaintiffs’ counsel, Pat Labbadia III, moved to withdraw as attorney, citing a breakdown in the attorney-client relationship.³² On January 23, 2025, the Court granted Attorney Labbadia's motion, and Plaintiffs filed appearances on the docket.³³ On February 27, 2025, Defendants filed a motion for summary judgment.³⁴ Plaintiffs, now pro se, filed a response on March 20, 2025,³⁵ and Defendants filed their reply on April 3, 2025.³⁶ On June 20, 2025, Plaintiffs filed a motion to file excess pages, which the Court granted.³⁷

II. LEGAL STANDARD

The Court must grant a motion for summary judgment if the pleadings, discovery materials before the Court, and any affidavits show there is no genuine issue as to any material fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when it “might affect the outcome of the suit under the governing law․ Factual disputes that are irrelevant or unnecessary” are not material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disagreements concerning immaterial or minor facts thus cannot preclude summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990). A dispute about a material fact is genuine if there is sufficient evidence upon which a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The court's role, therefore, is “not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022). Summary judgment is appropriate when a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The initial burden rests on the moving party to establish the absence of any genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). Once the movant brings forth an absence of such issues, “the nonmovant must come forward with specific facts showing that there is a genuine issue for trial.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). To survive a motion for summary judgment, the nonmovant, “must do more than simply show that there is some metaphysical doubt as to the material facts [or] rely on conclusory allegations or unsubstantiated speculation.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). The mere existence of “a scintilla of evidence” in support of the nonmovant's position is insufficient; there must be enough evidence on which the jury reasonably could rule for it. Stapleton v. Barrett Crane Design & Eng'g, 725 F. App'x 28, 30 (2d Cir. 2018).

III. DISCUSSION

A. Writ of Audita Querela

Plaintiffs first seek a writ of audita querela to correct actions taken in two previous matters, the enforcement action and the special exception action. Plaintiffs allege that these dispositions were issued without knowledge that Defendants had illegally removed official town documents or replaced them with forgeries.³⁸ Further, Plaintiffs allege, Defendants exploited their failure to timely appeal to the Zoning Board to prevail in their civil cases and prevent Plaintiffs from being heard.³⁹ According to Plaintiffs, Defendants did so to conceal their own criminal or fraudulent actions.⁴⁰ Defendants assert that Plaintiffs’ claims fail as a matter of law.⁴¹

The writ of audita querela, an ancient equitable remedy, affords relief to a party against whom judgment has been rendered. Under common law, it may be issued when the defeated party has a new defense arising for the first time after the judgment. See Ames v. Sears, Roebuck & Co., 206 Conn. 16, 536 A.2d 563, 565 (1988); CHRO ex rel. Cortes v. Valentin, 213 Conn.App. 635, 278 A.3d 607, 622–23 (2022). “Because the writ impairs the finality of judgments, the common law precluded its use in cases in which the judgment debtor sought to rely on a defense ․ that he had the opportunity to raise before the entry of judgment against him.” Ames, 536 A.2d at 565 (citation modified); see also Oakland Heights Mobile Park, Inc. v. Simon, 40 Conn.App. 30, 668 A.2d 737, 739 (1995); Valentin, 278 A.3d at 622–23. Put differently, a party is not entitled to a writ of audita querela if the only bases for such a writ were known of prior to the disposition on the prior case, and it is not a mechanism for a party to revive a poorly litigated claim.

As a preliminary matter, Plaintiff's petition for a writ of audita querela fails as a matter of law because the adoption of Federal Rule of Civil Procedure 60 abolished the writ with respect to civil cases. See Fed. R. Civ. P. 60(e) (“The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.”). Indeed, the Second Circuit Court of Appeals has limited the writ to extremely limited circumstances involving criminal convictions, which are not present here See United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (finding the writ of audita querela to be available in criminal cases where there “is a legal, as contrasted with an equitable, objection to a conviction that has arisen subsequent to the conviction and that is not redressable pursuant to another post-conviction remedy.”). Even if this writ remains available, as explained below, summary judgment must be granted in Defendants’ favor.

Although Plaintiffs assert that these cases have only “selectively” been brought before the Court,⁴² they point to no information unknown to them at the time of their previous cases. To the contrary, in his deposition, Plaintiff Jeffrey Cashman testified that he knew of the allegedly forged and displaced documents as early as 2012.⁴³ He twice complained to the Clinton Police Department, alleging that ZEO Lane “maliciously and fraudulently” placed documents at-issue in a his street file, first on November 18, 2012, and then on December 15, 2014.⁴⁴ Further, not only did Plaintiffs have the opportunity to raise the forged and displaced documents, they did. The record reflects that they raised the missing documents when presenting a special defense before the superior court in the 2014 zoning enforcement case. See Lane v. Cashman, 179 Conn.App. 394, 180 A.3d 13, 19 (2018).

Accordingly, Plaintiffs have been aware of the fraudulent and missing documents for well over a decade, and they had ample knowledge and opportunity to raise them and their fraudulent concealment before the courts in either of the previous matters. Therefore, Defendants’ motion for summary judgment as to count one is granted, and Plaintiffs’ petition for a writ for audita querela is denied.

B. Fraud on the Court

Plaintiffs next allege fraud on the court. Specifically, Plaintiffs complain that their two prior proceedings were entered without knowledge that the defendants had criminally removed official documents or replaced them with illegally forged replacements.⁴⁵ Defendants, however, indicate that Plaintiffs’ claim is barred because they were aware of any allegedly fraudulent or stolen documents as early as 2012.⁴⁶ For the following reasons, the Court agrees with Defendants.

A claim of fraud on the court requires consideration of whether “a judgment that is fair on its face should be examined in its underpinnings concerning the very matters it purports to resolve.” Varley v. Varley, 180 Conn. 1, 428 A.2d 317, 318 (1980), abrogated on other grounds by Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991), holding modified by Duart v. Dept. of Correction, 303 Conn. 479, 34 A.3d 343 (2012). Relief will be granted for such a claim, only if the party is not barred by the following restrictions: “(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud.” Id. See also Duart, 34 A.3d at 350. Fourth, there must be a “reasonable probability” that the result of the new trial will be different. Duart, 34 A.3d at 355 (modifying the fourth Varley factor.).

In the present case, it is not necessary for the Court to reach a conclusion concerning the strength of Plaintiffs’ proof that Defendants committed fraud. This is because, regardless of whether or not any fraud occurred, Plaintiffs are unable to satisfy both the first and second prongs of the Varley test.

First, Plaintiffs unreasonably delayed taking action after they learned of the fraud to bring it to the courts’ attention. As previously discussed, Plaintiff knew of the alleged fraud as early as 2012, but failed to sufficiently present it to the courts. This undue delay, itself, is dispositive as to whether Plaintiffs’ claim is precluded. See Turner v. Comm'r. of Corr., 163 Conn.App. 556, 134 A.3d 1253, 1259 (2016) (denying petition based solely on the petitioner's unreasonable delay where the pertinent facts were known to petitioner at the time of the initial litigation); Town of S. Windsor v. Lanata, No. 17-CV-6083374, 2023 WL 3071252, at *4 (Conn. Super. Ct. Apr. 19, 2023) (concluding there was an unreasonable delay where the parties knew of the fraud, but did not raise it in any post-trial briefing).

Turning to the second prong, that the aggrieved parties must have been diligent in the original action, the Court concludes that Plaintiffs did not exercise reasonable diligence in the original actions, “that is, diligence in trying to discover and expose the fraud.” City of Stamford v. Rahman, 188 Conn.App. 1, 204 A.3d 27, 36 (2019). Plaintiffs fully litigated this case not once, but twice. In both cases, they had ample opportunity to raise any fraudulent activity throughout their multiple filings and failed to do so. Plaintiffs, thus, failed to act with reasonable diligence to raise the information with the courts. Lewis v. D'Onofrio, No. 05-CV-5000322S, 2010 WL 3960792, at *3 (Conn. Super. Ct. Sept. 8, 2010) (finding no diligence in trying to uncover fraud where a defendant had opportunity to cross-examine the plaintiff on details related to alleged fraud but failed do so); Hawari v. Imam, No. 16-CV-4069704, 2017 WL 3469761, at *3 (Conn. Super. Ct. July 7, 2017), aff'd sub nom. Tala E. H. v. Syed I., 183 Conn.App. 224, 192 A.3d 494 (2018) (finding that the plaintiff was able to allege fraud before the final disposition and, therefore, it was not newly discovered evidence for purpose of a motion to open).

Accordingly, because Plaintiffs failed to bring these claims diligently and in a reasonable time frame, the Court grants Defendants’ motion for summary judgment.

C. Due Process Claims

Plaintiffs next claim deprivation of their rights pursuant to the Equal Protection and Substantive Due Process Clauses of the Fourteenth Amendment under 42 U.S.C. § 1983.⁴⁷ Specifically, Plaintiffs allege that Defendants knew or should have known that Plaintiffs’ use of their property as a farm was legal.⁴⁸ Therefore, Defendants’ attempts to restrict Plaintiffs’ use of their property amounts to the deprivation of their vested property rights, as well as income from their businesses.⁴⁹ Plaintiffs further allege that Defendants’ actions were targeted directly toward the Plaintiffs, treating Plaintiffs differently from their similarly situated neighbors.⁵⁰ Defendants counter that Plaintiffs have no constitutionally protected property interest in the use of their property as a farm and, regardless, Plaintiffs have failed to exhaust their administrative remedies.⁵¹ Although the Court believes that the doctrine of collateral estoppel is more appropriately applied to the present case, for the following reasons, the Court dismisses Plaintiffs’ claims.

Under the doctrine of collateral estoppel, “once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.” United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984); see also Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006).

“When determining the preclusive effect of a state court judgment, a court must apply the preclusive law of the rendering state.” Faraday v. Blanchette, 596 F. Supp. 2d 508, 514 (D. Conn. 2009). Under Connecticut law, “[c]ollateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit․ Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment.” Cumberland Farms, Inc. v. Town of Groton, 262 Conn. 45, 808 A.2d 1107, 1116 (2002).

To be subject to collateral estoppel, an issue must have been (1) “fully and fairly litigated,” (2) “actually decided,” (3) “necessary to the judgment” in the first action, and (4) “identical” to the issue to be decided in the second action. See Faraday, 596 F. Supp. 2d at 515; see also Cerilli v. Quiros, 768 F. Supp. 3d 363, 367 (D. Conn. 2025). “As the Supreme Court observed, relitigation will be barred where ‘the issues presented by this litigation are in substance the same as those resolved’ in the prior case.” Guo Zhong Wu v. Qiao, 576 B.R. 32, 59 (Bankr. E.D.N.Y 2017) (quoting Montana v. United States, 440 U.S. 147, 155, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)).

In the present case, the fundamental issue underlying Plaintiffs’ claim—whether they have a right to use their property as a farm—has been fully litigated by earlier courts. First, in the initial enforcement action, Plaintiffs brought a special defense, alleging that they were entitled to use property as a farm because it was a legal nonconforming use. Lane, 180 A.3d at 16. Following a motion to dismiss, the Court heard full arguments on the merits and struck Plaintiffs’ counterclaim, concluding that it was barred by Plaintiffs’ failure to exhaust their administrative remedies. Id. at 17. Plaintiffs’ assertion that they had a valid nonconforming use has, thus, has already been fully adjudicated on the merits. See Tirozzi v. Shelby Ins. Co., 50 Conn.App. 680, 719 A.2d 62, 65 (1998) (concluding that a ruling on a motion to strike is considered full adjudication on the merits where “[t]he motion to strike required the trial court to decide the merits of the plaintiff's claim [and] the parties had the opportunity to fully litigate the matter”).

Moreover, to the extent that they argue that they were entitled to a special exception to the zoning regulations, this, too, has long been settled by the courts. Plaintiffs brought this very claim following the zoning board's rejection of their special exception request. Following their timely appeal, the court affirmed the zoning board's decision denying a special exception, concluding that the zoning board “carefully assessed the impacts on neighboring property of this proposed use, properly construed its regulations and determined that this property and its use did not meet the requirements of the Clinton zoning regulations.” Cashman v. Clinton Plan. and Zoning Comm'n, No. 19-CV-6023630S, 2020 WL 8130203, at *7 (Conn. Super. Ct. Nov. 25, 2020). Thus, both whether Plaintiffs are entitled to utilize their property as a farm, either as a prior non-conforming use or through a special exception, has long been fully litigated.

Moreover, this fully adjudicated issue is core to Plaintiffs’ claims. The first inquiry a Court must make in determining whether a fourteenth amendment violation has occurred is “is whether a property interest exists.” Youngs v. Fusaro, 179 F. Supp. 3d 198, 206 (D. Conn. 2016). This requires two considerations: (1) “whether some source of law other than the Constitution, such as a state or federal statute, confers a property right on the plaintiff” and (2) “[o]nce such a property right is found, [the question becomes] whether that property right constitutes a property interest for purposes of the Fourteenth Amendment.” O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005).

In defining a property interest, the Supreme Court has noted that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “[I]f state law makes the pertinent official action discretionary, one's interest in a favorable decision does not rise to the level of a property right entitled to due process protection.” RR Village Ass'n, Inc. v. Denver Sewer Corp., 826 F.2d 1197, 1201 (2d Cir. 1987). Thus, whether Plaintiffs are legally entitled to the use of their property as a farm through any source of law is central to their claims before this Court. As Plaintiffs have failed to establish any such right before two previous courts, they are precluded from raising it anew. Accordingly, Plaintiffs’ due process claims are dismissed.

D. Intentional Infliction of Emotional Distress

Plaintiffs next allege intentional infliction of emotional distress.⁵² Specifically, Plaintiffs allege that Defendants’ wanton or reckless conduct caused them to suffer serious and substantial injuries, including physical injury. The municipal defendants counter there is no evidence to support an allegation of extreme and outrageous conduct.⁵³ For the following reasons, the Court agrees.

To prevail on a claim for intentional infliction of emotional distress, a plaintiff must establish: “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119, 126 (2003). Conduct is extreme and outrageous if it “go[es] beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community.” Id. “Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine.” Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 757 A.2d 1059, 1062 (2000). Indeed, the conduct must be of a “nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 746 A.2d 184, 192 (2000).

Courts in Connecticut have been reluctant to allow a claim for intentional infliction of emotional distress. See, e.g., Dollard v. Bd. of Educ. of Town of Orange, 63 Conn.App. 550, 777 A.2d 714, 717 (2001) (concluding that plaintiff's claim of concerted plan to force plaintiff to resign or become so distraught as to have reason to terminate her does not rise to an intentional infliction of emotional distress claim); Appleton, 757 A.2d at 1061–63 (finding allegations that school officials made derogatory comments, in front of other employees, concerning plaintiff's work performance and her ability to read, contacted plaintiff's daughter to recommend that plaintiff take some time off because she was acting erratically, and arranged to have her escorted by police off of school property were insufficiently extreme or outrageous to state a cause of action); Rock v. Mott Metallurgical Corp., No. 99-CV-0492215S, 2001 WL 100307 at *5–8 (Conn. Super. Ct. Jan. 10, 2001) (granting defendant's motion for summary judgment where plaintiff alleged that she was ordered to lift and carry heavy objects beyond her ability, was required to work without being supplied the necessary resources, was transferred to a work station without a chair or desk, was called names, and was falsely accused of not finishing her work, because in totality the acts were “less than ‘extreme’ and ‘outrageous’ in nature”); Emanuele v. Boccaccio & Susanin, Inc. No. 90-CV-0379367S, 1992 WL 79823 at *2 (Conn. Super. Ct. Apr. 10, 1992) (holding conduct not extreme and outrageous where an employee alleged her employer made false accusations regarding her work performance, all for the purpose of depriving her of benefits and compensation).

In the present case, Plaintiffs allegations allege that Defendants engaged in “extreme and outrageous” conduct, without specifying what that conduct is.⁵⁴ Indeed, a thorough review of the record in this case provides examples only of a routine enforcement action of municipal zoning rules and regulations. Plaintiffs have pointed to no examples of extreme and outrageous conduct except that they “maliciously and intentionally used the lack of a timely appeal to the Town of Clinton Zoning Board of Appeals to preclude the Cashmans from raising the issue of their existing legal non-conforming use of their property as a farm which operated to cover up their criminal and/or fraudulent actions.”⁵⁵ However, Plaintiffs provide no support for this claim, and, regardless, utilizing a valid, nonfrivolous legal strategy does not rise to the wanton conduct required for a claim of intentional infliction of emotional distress. Accordingly, the undisputed facts fail to state a claim for intentional infliction of emotional distress. Plaintiffs’ claims against Defendants Kathleen King,⁵⁶ the Town of Clinton, and the Planning and Zoning Commission of the Town of Clinton are dismissed. Plaintiffs may, however, proceed with their claim against Veronica Lopez, as the facts as alleged in the Complaint may establish such a claim.

E. Negligent Infliction of Emotional Distress

Plaintiffs next allege negligent infliction of emotional distress.⁵⁷ Specifically, Plaintiffs allege that Defendants’ conduct caused them to suffer reasonably foreseeable distress.⁵⁸ The municipal defendants counter that they are entitled to governmental immunity concerning these charges.⁵⁹ For the following reasons, the Court agrees.

Defendants are entitled to statutory governmental immunity as to this claim. Per Connecticut law, Conn. Gen. Stat. § 52-577n, “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” Conn. Gen. Stat. § 52-577n(a)(2) (citation modified).

“The issue of governmental immunity is simply a question of the existence of a duty of care, and [the Connecticut Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law.” Doe v. Petersen, 279 Conn. 607, 903 A.2d 191, 196 (2006) “The [common-law] doctrines that determine the tort liability of municipal employees are well established․ Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature․ The hallmark of a discretionary act is that it requires the exercise of judgment․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188, 1193–94 (2006).

Zoning enforcement regulation activity has been recognized as discretionary and therefore entitled to discretionary act governmental immunity. See Greenfield v. Reynolds, 122 Conn.App. 465, 1 A.3d 125, 129 (2010) (“[I]t is clear that the power to enforce zoning regulations conferred ․ on town officials is discretionary.”). “Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.” Petersen, 903 A.2d at 197. It is inherent in zoning enforcement actions that some harm will occur to the individual or entity who is subject to the zoning enforcement restrictions, such as the actions. Accordingly, Plaintiffs claims of negligent infliction of emotional distress against Defendants Kathleen King, the Town of Clinton, and the Planning and Zoning Commission of the Town of Clinton are dismissed. Plaintiffs may, however, proceed with their claim against Veronica Lopez, as the facts as alleged in the Complaint may establish such a claim.

F. Civil Violation of RICO

Plaintiffs’ final claim is for a civil violation of the RICO Act, causing them to suffer substantial and serious damages.⁶⁰ Defendants counter that the Plaintiffs’ claim is barred by virtue of Defendants’ status as a municipality.⁶¹ For the following reasons the Court agrees.

The RICO statute grants standing to “[a]ny person injured in his business or property by reason of a violation of section 1962 ․” 18 U.S.C. § 1964(c). To demonstrate standing, a plaintiff must plead, at a minimum, “(1) the defendant's violation of § 1962, (2) an injury to the plaintiff's business or property, and (3) causation of the injury by the defendant's violation.” Com. Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 380 (2d Cir. 2001).

Municipal corporations are not subject to civil liability under the RICO based on alleged pattern of racketeering activity and underlying predicate acts allegedly committed by its agents or employees; though a municipal corporation is a “person” within meaning of RICO, it is incapable of forming the criminal intent necessary to support the alleged predicate offenses. Nu-Life Const. Corp. v. Bd. of Educ. of City of New York, 779 F. Supp. 248, 251 (E.D.N.Y. 1991). Accordingly, Plaintiffs’ civil RICO claim fails.⁶²

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ claims against Defendants Kathleen King, the Town of Clinton, and the Planning and Zoning Commission of the Town of Clinton are dismissed. Plaintiffs’ claims against Defendant Lopez are also dismissed with the exception of their claims for intentional and negligent infliction of emotional distress. Because no federal claims remain, the Court remands this case to the superior court for the purposes of judicial economy. See United Rentals, Inc. v. Wilper, 626 F. Supp. 3d 546, 553 (D. Conn. 2022).

SO ORDERED.

FOOTNOTES

1.   The parties’ Local Rule 56(a) statements include: Defendants’ Local Rule 56(a)1 Statement of Undisputed Material Facts (“Defs. 56(a),” ECF No. 80-1) and Plaintiffs’ Local Rule 56(a)2 Statement of Facts in Opposition to Summary Judgment (“Pls. 56(a),” ECF No. 88).

2.   Defendants indicate, correctly, that Plaintiffs’ Local Rule 56(a)2 Statement fails to comply with the local rules. (Defs. Reply, ECF No. 89, at 1.) Indeed, Local Rule 56(a)3 provides that “each denial in an opponent's Local 56(a)2 Statement[ ] must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial, or (2) other evidence that would be admissible at trial.”Although Plaintiffs’ Local Rule 56(a)2 Statement notes objections to several facts, it does not explain the bases for the objections nor provide citations to the record. Plaintiffs elaborate upon their objections in their response to the motion for summary judgment. However, these objections generally do not dispute the factual record but set forth quasi-legal arguments.Local Rule 56(a)1 provides: “Each material fact set forth in the Local Rule 56(a)1 Statement and supported by the evidence will be deemed admitted (solely for purposes of the motion) unless such fact is controverted by the Local Rule 56(a)2 Statement required to be filed and served by the opposing party in accordance with this Local Rule, or the Court sustains an objection to the fact.” Further, to the extent that a party's Local Rule 56(a)2 Statement does not comply with Local Rule 56, a court may consider a Local Rule 56(a)1 statement of fact to be admitted if supported by evidence. See Small v. Clements, No. 18-cv-1731, 2019 WL 5727388, at *1, n.1 (D. Conn. Nov. 5, 2019).Accordingly, the Court will treat Plaintiffs’ objections as legal objections, rather than objections to the underlying facts.

3.   Defs. Local Rule 56(a)(1) ¶ 1.

4.   Id. ¶¶ 2–3.

5.   Id. ¶ 4.

6.   Id. ¶ 5.

7.   Id. ¶¶ 7–8.

8.   Id. ¶ 8.

9.   Id. ¶¶ 9-10.

10.   Id. ¶ 11.

11.   Id. ¶ 12.

12.   Id. ¶ 13.

13.   Id. ¶¶ 14–15.

14.   Id. ¶¶ 16–17.

15.   Id. ¶ 18.

16.   Id. ¶ 19.

17.   Id. ¶ 20.

18.   Id. ¶ 21.

19.   Id. ¶ 22.

20.   Id. ¶ 23.

21.   Id. ¶ 25.

22.   Id. ¶ 26.

23.   Id. ¶ 28–30.

24.   Id. ¶ 31.

25.   Id. ¶ 33.

26.   Id. ¶ 34.

27.   Id. ¶ 35.

28.   Id. ¶ 36.

29.   Id. ¶ 37.

30.   Compl., ECF No. 1-1.

31.   ECF No. 1 at 1.

32.   ECF No. 65.

33.   ECF Nos. 67, 73, 74.

34.   ECF No. 80.

35.   The Court notes that Plaintiffs titled their response “Local Rule 56(a)(2) Disputed Issues of Material Fact.” Although Defendants assert that Plaintiffs have failed to file an objection to the motion for summary judgment, see Defs. Reply, ECF No. 89 at 3, the Court will consider Plaintiffs’ filing as an objection.

36.   ECF No. 89.

37.   ECF Nos. 97, 101.

38.   Compl. ¶ 87.

39.   Id. ¶ 89.

40.   Id. ¶ 90.

41.   Defs. Mem., ECF No. 80-1 at 3.

42.   Pls. Mem., ECF No. 87 at 1.

43.   Defs. Local Rule 56(a)(1) ¶ 19; Defs. Ex. C, ECF No. 80-5 at 92–93.

44.   ECF No. 87-16 at 2, 9.

45.   Compl. ¶ 96.

46.   Defs. Mem. at 8–9.

47.   Compl. ¶¶ 129, 130.

48.   Id. ¶ 101.

49.   Id. ¶¶ 102, 124.

50.   Id. ¶¶ 112, 129.

51.   Defs. Mem. at 14.

52.   Compl. ¶¶ 131–136.

53.   Defs. Mem. at 36.

54.   Compl. ¶ 133.

55.   Id. ¶ 89.

56.   Although Plaintiffs do not specify, the Court assumes Plaintiffs bring these claims against Defendant King in her official capacity only, as they have made no allegations in their complaint or throughout the record that King, herself, took any specific action in this case. “[S]uit against a [government official] in his or her official capacity however is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the [government] itself.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citation modified). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity, it is not a suit against the official personally, for the real party in interest is the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citation modified).

57.   Compl. ¶¶ 137–140.

58.   Id.

59.   Defs. Mem. at 35.

60.   Compl. ¶ 142.

61.   Defs. Mem. at 39.

62.   To the extent Plaintiffs allege Defendant Veronica Lopez violated the RICO statute, the Court can find no such basis for this allegation. Indeed, a violation of RICO requires “an agreement between two or more persons to commit a crime.” As Defendant has alleged only that Lopez conspired with the municipal defendants, who are unable to form the requisite intent, Plaintiffs’ claim against her is dismissed.

VERNON D. OLIVER, United States District Judge: