Jessica Rosenbeck et al. v. Sportsmen's Outpost, Inc. et al.

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Superior Court of Connecticut.

Jessica Rosenbeck et al. v. Sportsmen's Outpost, Inc. et al.

X03CV126031602

Decided: July 30, 2013

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

This is the second action brought by the plaintiffs, Jessica Rosenbeck (Rosenbeck), David Magnano (Magnano), Richard Gilland, Jr. in his capacity as administrator of the estate of Jennifer Magnano (Gilland) and Steven Dembo in his capacity as guardian for Emily Magnano (n/k/a Emily Thibeault [Thibeault] ) (Dembo), against the defendants, Sportsmen's Outpost, Inc. (Sportsmen's Outpost) and Michael Cortigiano, Jr. (Cortigiano).  Judge Shapiro dismissed the first action on May 26, 2011, on the ground that the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 et seq.   (PLCAA), barred the entire action, and none of the exceptions to the PLCAA applied.   Gilland v. Sportsmen's Outpost, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 09–5032765 (May 26, 2011).   The plaintiffs subsequently commenced the present action on May 3, 2012.

Rosenbeck, Magnano and Thibeault are the children of Jennifer Magnano, who was shot to death by her estranged husband, Scott Magnano, on August 23, 2007.   Mr. Magnano allegedly abused his wife and Rosenbeck for years before they fled with the other children to California in April 2007 and obtained a restraining order against him.   They obtained an additional restraining order from a Connecticut court on July 12, 2007.

The gun which Scott Magnano used to kill his wife was a Glock 21 automatic pistol which he obtained from defendant Sportsmen's Outpost, Inc., a gun dealer located in Wolcott, Connecticut.   Co-defendant Michael Cortigiano, Jr., is the president of Sportsmen's Outlet, Inc.

On July 13, 2007, the decedent's husband visited Sportsmen's Outpost, asked to see new Glock handguns and left without making a purchase.   He returned to Sportsmen's Outpost on July 15, 2007, again asked to see new Glock handguns and left with a Glock semiautomatic pistol (the Glock), ammunition and a high-capacity ammunition magazine.   The defendants did not conduct a background check, check for a Connecticut handgun eligibility certificate or permit or complete the paperwork required by federal law for firearms sales before the decedent's husband left the premises.   On August 23, 2007, the decedent's husband struck the decedent on the head with the Glock, abducted her at gunpoint in front of her then minor children Magnano and Thibeault and shot her several times before fleeing in her car and shooting himself.

In their first lawsuit, the plaintiffs alleged that “[William] Christman [a Sportsmen's Outpost employee] left [Scott Magnano], who was the only customer in the store, unattended and alone with the firearms and ammunition.   As a result, [Magnano] removed from Sportsmen's Outpost the unattended and unsecured Glock 21 handgun and a corresponding 14 bullet magazine ․ [I]mmediately thereafter, Christman informed Cortigiano that the Glock and ammunition had been stolen, and despite this knowledge, the defendants failed to notify the police about the theft for approximately three days.”  Id.

In granting the defendants' motion to dismiss the first action, the court held that the first action was a “qualified civil liability action” barred by the PLCAA:  “The PLCAA prohibits the commencement of a ‘qualified civil liability action’ in any state or federal court ․ Where the PLCAA bars the action, dismissal is required ․ A ‘qualified civil liability action’ is defined as ‘a civil action ․ brought by any person against a manufacturer or seller of a [firearm or ammunition that has been shipped or transported in interstate or foreign commerce] ․ for damages ․ or other relief resulting from the criminal or unlawful misuse of [the firearm] by the person or a third party ․’ “ (Citations omitted.)  Id.

The court also held that none of the exceptions to the PLCAA applied:  “The PLCAA provides for six exceptions to the definition of a ‘qualified civil liability action’ ․ Most relevant to this case, a qualified civil liability action shall not include ․ an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”  (Citations omitted;  internal quotation marks omitted.)  Id. “[T]he plaintiffs allege[d] that Sportsmen's Outpost knowingly violated ․ [certain federal and state] statutes pertain [ing] to the sale, delivery, or transfer of firearms ․ The plaintiffs [however] do not allege a sale, delivery, or transfer in violation thereof.”   (Citations omitted.)  Id.

The plaintiffs now allege that Scott Magnano did not steal the gun from the defendants:  “Defendants' conduct in unlawfully transferring, delivering, entrusting or selling a gun to Scott Magnano and then claiming that it was stolen, but failing to report it as such in violation of federal law, indicates that they engaged in an illegal, off-the-books sale of the gun to Scott Magnano.”   Complaint ¶ 58.   They allege that Connecticut's Accidental Failure of Suit statute 1 allows them to bring this action.  “Plaintiffs originally filed suit against Defendants on September 8, 2009 ․ Plaintiffs' original suit failed to be tried on its merits because the action was dismissed for want of jurisdiction ․ Pursuant to [General Statutes] § 52–592(a), Plaintiffs have commenced this new action for the same cause within one year after the determination of the original action.”   Complaint ¶¶ 64–66.

The complaint contains twelve counts.   Counts one and two are brought by all of the plaintiffs against Sportsmen's Outpost and Cortigiano and sound in negligence and/or recklessness.   Counts three and four are brought by Gilland against Sportsmen's Outpost and Cortigiano and sound in wrongful death under General Statutes § 52–555.   Counts five and six are brought by Gilland against Sportsmen's Outpost and Cortigiano and sound in negligence and/or recklessness.   Counts seven and eight are brought by Dembo, Magnano and Rosenbeck against Sportsmen's Outpost and Cortigiano and sound in negligent infliction of emotional distress.   Counts nine and ten are brought by Dembo and Magnano against Sportsmen's Outpost and Cortigiano and sound in bystander emotional distress.   Finally, counts eleven and twelve are brought by all of the plaintiffs against Sportsmen's Outpost and Cortigiano and sound in negligent entrustment.

The defendants argue that they are entitled to a judgment as a matter of law for two reasons.   First, the doctrine of res judicata bars the present action because the dismissal of the first action, due to the preclusive effect of the PLCAA, constitutes a final judgment upon the merits that prevents the plaintiffs from relitigating claims that they already have had the opportunity to litigate, namely, claims based upon allegations of “Scott Magnano obtaining the Glock pistol and ammunition from Sportsmen's Outpost on July 15, 2007 and using them to murder Jennifer Magnano on August 23, 2007.”   Def.'s Memorandum in Support of Motion for Summary Judgment 15.   The second reason is that the statutes of limitations provided by General Statutes §§ 52–584 and 52–555 have run, and the accidental failure of suit statute, § 52–592, does not apply because the plaintiffs seek to bring a new cause of action, not the “same cause” specified by the statute.

The plaintiffs oppose the motion by making the following arguments.   First, the doctrine of res judicata is inapplicable to the present action, because a dismissal for lack of subject matter jurisdiction is not a final judgment on the merits.   Second, § 52–592, which the court must construe liberally, applies because the prior action was timely commenced and dismissed for want of jurisdiction, and the present action, filed within one year of the prior action's dismissal, brings the “same cause” before the court.   The “same cause” is before the court because the underlying factual predicate remains the illegal procurement of the Glock by the decedent's husband from Sportsmen's Outpost.   The defendants acknowledge as much by moving for summary judgment on the ground of res judicata.   Furthermore, “because [the] plaintiffs are correcting jurisdictional defects in the original action, facts relating to jurisdiction must necessarily be different in order to correct the defect.”   Pl.'s Memorandum in Support of Opposition to Motion for Summary Judgment 11.

The applicable statutes of limitations for the plaintiffs' various tort claims, Section 52–555 and Section 52–584, is two years.   Unless plaintiffs are entitled to bring this action under Section 52–592(a), their suit is time barred.

Section 52–592(a) provides in relevant part:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because ․ the action has been dismissed for want of jurisdiction ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․ The statute “is remedial and is to be liberally interpreted.”  (Internal quotation marks omitted.)  Henriquez v. Allegre, 68 Conn.App. 238, 244 (2002).  “[T]he [plaintiff] must satisfy all of the criteria in § 52–592 in order to prevail” on an argument that the statute saves an otherwise untimely action.   Davis v. Family Dollar Store, 78 Conn.App. 235, 242, cert. granted, 266 Conn. 912 (2003), appeal dismissed, 271 Conn. 655 (2004).

At issue is what constitutes “the same cause” under the statute.   This issue may be resolved on summary judgment because the parties do not dispute material facts in arguing for and against the present motion, and “[s]tatutory interpretation is a matter of law.”  Wallingford v. Dept. of Public Health, 262 Conn. 758, 773 (2003).

In support of their position, the defendants cite Gallo v. G. Fox & Co., 148 Conn. 327 (1961).   The plaintiff in Gallo brought an action against the defendant department store for the negligent operation of its escalator, which caused the plaintiff to slip and fall.   After the closing of the pleadings and the parties' representation that there would be no further amendment to the pleadings, the plaintiff, with new counsel, requested permission to file a substitute complaint, which alleged that she slipped because of an unclean floor.   The court denied plaintiff's request and then entered a judgment of nonsuit for failure of the plaintiff to proceed with the trial of her case.   (Internal quotation marks omitted.)  Id., 331.

The plaintiff then filed a second action, with a complaint which was identical to the proposed substitute complaint in the first action.   Plaintiff relied on § 52–592 to bring her otherwise untimely second action.   The Supreme Court held that § 52–592 was inapplicable to the second action because “[a]n entirely different set of facts is now claimed to have brought about [the plaintiff's] injuries.   A new cause of action has been stated.   The action is not for the same cause as was alleged by her in the first case.  Section 52–592, under which she is now attempting to proceed, authorizes a new action only ‘for the same cause.’  “ Id., 332.

In contrast, the court in Daoust v. McWilliams, 49 Conn.App. 715 (1998), allowed the plaintiff to bring a second action against the defendants under § 52–592, even though the complaint for the second action contained new claims.   The plaintiff in Daoust sued the town of Middletown and certain of its police officers in the United States District Court for the District of Connecticut, alleging a mix of state law claims and violations of his federal constitutional rights based upon an incident in which the named defendant shot the plaintiff's dog.   The federal court granted the defendants' motion to dismiss certain of the plaintiffs' federal law claims and the defendants' subsequent motion for summary judgment on the remaining federal law claims.   It declined to exercise supplemental jurisdiction over the remaining state law claims.   The plaintiff then filed suit in Superior Court, alleging violations of his state constitutional rights, assault and battery, intentional infliction of emotional distress, wanton injury to his dog, malicious prosecution, vexatious suit, abuse of process and conspiracy, intentional spoliation of evidence, invasion of privacy, and negligence.   The trial court granted the defendants' motion for summary judgment on res judicata and statute of limitations grounds.   In pertinent part, it held that “the counts alleging assault and battery, abuse of process, intentional spoliation of evidence, and invasion of privacy were barred by the statute of limitations.”  Id., 718.   The plaintiff had not brought any of these claims in the prior action.

The Appellate Court reversed this part of the decision:  “Section 52–592 uses the words ‘action’ and ‘cause of action,’ and not ‘claim,’ to refer to what is allowed to be brought under its provisions.  Section 52–592(a) provides that ‘the plaintiff ․ may commence a new action ․ for the same cause ․’ (Emphasis added.)  Section 52–592(d) provides that the above language ‘app[lies] to ․ any action brought to the United States ․ district court for the district of Connecticut ․’ (Emphasis added.)   It is well settled that [a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ․ A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant.   The facts which establish the existence of that right and that delict constitute the cause of action ․ Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action ․

“When we apply this interpretation to the facts of the present case, it is evident that both the initial suit filed in federal court and the subsequent suit filed in the Superior Court constitute the same cause of action, although they may involve different claims for relief.   Both state that the actions giving rise to the lawsuit took place on the same date and describe the same event.   The trial court's memorandum of decision describes both the federal and state law claims as arising from the same incident, which occurred on July 7, 1992.   Because the plaintiff's claims of assault and battery, spoliation of evidence, invasion of privacy, and abuse of process are part of ‘a new action ․ for the same cause’ brought ‘within one year after the determination of the original action,’ as required by § 52–592(a), they are not barred by the three year statute of limitations.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 721–22.

The most recent appellate case on the issue is White v. Dept. of Children and Families, 136 Conn.App. 759, cert. denied, 307 Conn. 905 (2012).   In White, the plaintiff, a former employee of DCF, brought claims of “(1) race discrimination in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a–51 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and (2) retaliation in violation of General Statutes § 31–290a [the Workers' Compensation Act]” in Superior Court.  Id., 761.   The defendant removed the case to the United States District Court of the District of Connecticut.   The plaintiff filed a motion for leave to amend her complaint to add “fair employment act claims of retaliation and discrimination on the basis of disability.”  Id., 762.   The District Court denied the motion and subsequently granted the defendant's motion for summary judgment on the entirety of the action.

The plaintiff then filed a second action in Superior Court in which she brought the fair employment act claims of retaliation and discrimination on the basis of disability that she could not add to her previous complaint.   The trial court granted the defendant's motion to dismiss, holding in part that the action was untimely and not saved by § 52–592.   The Appellate Court affirmed the decision:  “We reject the plaintiff's argument under § 52–592 because we conclude that her disability discrimination and retaliation claims in the present case arose from a separate and distinct cause of action that she did not bring within the time allowed by the statute of limitations.”  Id., 764.

“Furthermore, we are not persuaded that these claims arise from the same cause of action as the claims that properly were before the District Court, namely, the claims of race discrimination and retaliation under the Workers' Compensation Act. Unlike in Daoust, the two sets of claims here do not involve the same conduct and do not arise from the same cause of action.   The conduct that the plaintiff would be required to demonstrate for her disability discrimination claims would be completely distinct from the conduct she would be required to demonstrate for her race discrimination claims.”  Id., 765–66.

The court further stated that “[s]pecifically, the plaintiff would be required to establish a different discriminatory intent on the part of the defendant to maintain each set of claims ․ For example, evidence that the defendant provided more opportunities for light duty work to similarly situated employees of a different racial background than the plaintiff, although potentially relevant to her race discrimination claims, would not assist her in making her disability discrimination claims.   Each set of claims would require demonstrating different facts that could be construed as evidence of the two distinct discriminatory motives.   See Sherman v. Ronco, 294 Conn. 548, 563 (2010) (‘[i]f ․ the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back’) ․” White v. Dept. of Children and Families, supra, 136 Conn.App. 766 n.4.

The present situation is more similar to Gallo and White than to Daoust.  “[T]he two sets of claims here do not involve the same conduct and do not arise from the same cause of action.”  Id. The plaintiffs now seek to hold the defendants liable for conduct that they did not allege in their first action, i.e., the “illegal, off-the-books sale” of the Glock which allowed the decedent's husband ‘to freely take’ the gun off the premises, even though they knew or should have known that he would consequently pose an unreasonable risk of physical harm to himself and others.   Complaint ¶¶ 53–58, 136, 149.   It is important to note that Judge Shapiro, in dismissing the first action, stated that the allegations of the complaints filed therein could not be read so as to include any claim of an “off the books” sale to Magnano:  “Also unavailing to the plaintiffs is their argument that a jury could reasonably find that Sportsmen's Outpost engaged in an illegal, ‘off-the-books' sale to Scott Magnano ․ This theory is not pleaded ․ The ‘off-the-books' sale theory is not alleged, nor is it necessarily implied.”  [Citations omitted.]  Gilland v. Sportsmen's Outpost, Inc., supra, Superior Court, Docket No. X04 CV 09 5032765.

The allegations that the defendants engaged in an illegal, off-the-books sale to the decedent's husband were not part of “that single group of facts which [was] claimed to have brought about an unlawful injury to the plaintiff[s] and which entitle[d] the plaintiff[s] to relief”;  Daoust v. McWilliams, supra, 49 Conn.App. 721;  and therefore not part of “the action [that was] dismissed for want of jurisdiction,” per the statute.   See White v. Dept. of Children and Families, supra, 136 Conn.App. 766.   Accordingly, the present action does not qualify as a “new action ․ for the same cause” that the plaintiffs may bring under § 52–592.

The plaintiffs' argument that “both the new and original action allege the same injury caused by negligence occurring at the same location by the same parties with the same gun” is unavailing.   The complaints of the two actions “involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability.   The fact that the same defendant is accused of negligence in each complaint and the same injury resulted ․ does not make any and all bases of liability relate back to an original claim of negligence.”  Sharp v. Mitchell, 209 Conn. 59, 73 (1988).   The similarities between the complaints in the first action and the present action do not make § 52–592 applicable, where the plaintiffs have changed the “actionable occurrence” from a failure to prevent and then report a theft to an illegal, off-the-books sale.

“[D]espite its remedial nature, § 52–592(a) should not be read so broadly or interpreted so expansively that the plain language of the statute, or [our Appellate Courts'] relatively recent construction of that language, should be ignored ․ [Section] 52–592(a) does not guarantee that all cases will receive adjudication on their merits.   Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action virtually meaningless.”  (Citation omitted;  internal quotation marks omitted.)  Gillum v. Yale University, 62 Conn.App. 775, 786, cert. denied, 256 Conn. 929 (2001).

The plaintiffs rely upon the allegations of the defendants' illegal, off-the-books sale in all twelve counts of the complaint.   The statute of limitations for all twelve counts ran on August 23, 2009.   The plaintiffs commenced the present action on May 3, 2012.   The present action is thus untimely and not saved by § 52–592.

Because the statute of limitations issue is dispositive, the court need not address the parties' arguments regarding the applicability of res judicata.2  The defendants are entitled to a judgment as a matter of law, for the foregoing reasons, and the court accordingly grants their motion for summary judgment.

Miller, J.

FOOTNOTES

FN1. Conn. Gen.Stat. § 52–592(a)..  FN1. Conn. Gen.Stat. § 52–592(a).

FN2. The court notes, however, that if it found that the complaint in this action was based on “the same cause” as the Gilland action, the defendants would have a compelling argument that this action was barred by res judicata.   While this court does not now rule on this issue, our Supreme Court has held that res judicata precludes any claims relating to a cause of action which could have been alleged in the prior action.  Weiss v. Weiss, 297 Conn. 446, 459–60 (2010)..  FN2. The court notes, however, that if it found that the complaint in this action was based on “the same cause” as the Gilland action, the defendants would have a compelling argument that this action was barred by res judicata.   While this court does not now rule on this issue, our Supreme Court has held that res judicata precludes any claims relating to a cause of action which could have been alleged in the prior action.  Weiss v. Weiss, 297 Conn. 446, 459–60 (2010).

Miller, Grant H., J.

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