Heusser v. Hale

Decision Date15 April 2011
Docket NumberNo. 3:07–CV–1660 (CSH).,3:07–CV–1660 (CSH).
Citation777 F.Supp.2d 366
PartiesFrank HEUSSER, Sr., et al., Plaintiffs,v.Kevin J. HALE, et al., Defendants.
CourtU.S. District Court — District of Connecticut


John R. Williams, New Haven, CT, Robert A. Serafinowicz, Bojka Law Offices, Waterbury, CT, for Plaintiffs.Brian Joseph Palmeri, Dove A.E. Burns, Luigi Spadafora, Winget Spadafora & Schwartzberg, Stamford, CT, for Defendants.


HAIGHT, Senior District Judge:

Plaintiffs Franklyn Heusser, Sr., Franklyn Heusser, Jr., and Frank's LLC (collectively herein Plaintiffs) have brought the present action against defendants Kevin J. Hale (Hale) and the City of Ansonia (“the City” or “Ansonia”) (collectively herein Defendants) for the unlawful removal of Frank's Service Station from the City of Ansonia's Rotational Towing List (“RTL”), discriminatory refusal to reinstate that business to the list, and failure to accept the application of Frank's LLC to be placed on the list. Plaintiffs assert federal claims under the Constitution, and state law claims on the basis of pendent jurisdiction.

Pending before the Court is Defendants' motion to dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Doc. # 74. With respect to Plaintiffs' federal claims, Defendants first argue that Counts One and Two fail to set forth legally cognizable claims for First Amendment retaliation because the speech at issue is not related to a “matter of public concern.” Moreover, Defendants contend that Plaintiffs' Equal Protection claims, set forth in Counts Three, Four, and Nine, should be dismissed because they they set forth “class-of-one” claims, which are barred in the government employment context. Alternatively, Defendants maintain that these three counts set forth “selective prosecution Equal Protection claims that are derivative of Plaintiffs' fatally flawed First Amendment claims. Defendants thus assert that the Equal Protection claims coalesce with the deficient First Amendment claims and should thus be dismissed. Defendants further move for dismissal of Count Nine in particular because that count fails to establish that there were other “similarly situated” individuals to plaintiff Frank's LLC.

Addressing Plaintiffs' state law claims, Defendants seek dismissal of Counts Five, Six, and Ten, alleging tortious interference with a business expectancy, on the ground that those counts fail to allege the existence of a business relationship with a third party. Lastly, Defendants argue that Plaintiffs have failed to set forth valid claims for negligent and intentional infliction of emotional distress in Counts Seven and Eight because Defendants' conduct, as alleged therein, is not sufficiently “outrageous” to sustain such claims.

Initially, the Court will examine whether Plaintiffs' federal claims survive Defendants' motion under Rule 12(b)(6) to dismiss them. If Defendants' motion succeeds as to Plaintiffs' federal claims, the Court will then consider whether or not to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a).

I. FACTSA. Frank's Service Station

Plaintiff Franklyn Heusser, Sr. is the owner and operator of the service station known as “Frank's Service Station,” located at 142 Wakelee Avenue in Ansonia, Connecticut. Doc. # 65, p. 1 (¶ 1); p. 3 (¶¶ 7–8). He has operated this business for the past forty years. Id., p. 3 (¶ 7). Plaintiff Franklyn Heusser, Jr. is the son of Heusser, Sr., and has worked for his father at Frank's Service Station for the past ten years. Id., p. 3 (¶ 8). As part of its business, Frank's Service Station sells gasoline, provides automobile maintenance, and offers towing services for inoperable automobiles and/or operators of vehicles who are unable to drive. Id., p. 1 (¶ 1); p. 3 (¶ 9).

Defendant Kevin Hale is the Chief of Police of the City of Ansonia. Id., p. 2 (¶ 4). As part of his position, Hale oversees Ansonia's Rotational Tow List (“RTL”), which is “a list of businesses engaged in the towing of [abandoned and inoperable] automobiles, with those on the list taking turns or alternating in towing vehicles” at Ansonia's request.1 Id., p. 3 (¶ 10). Hale allegedly has the “sole discretion and authority” to determine which businesses are allowed to be part of Ansonia's RTL. Id., p. 2 (¶ 5).

For many years, Frank's Service Station appeared on the RTL, which generated a large portion of the station's business by enabling Plaintiffs to tow vehicles at the request of the Ansonia Police Department. Id., p. 3 (¶ 9). Plaintiffs maintain that they relied on the RTL as a guaranteed source of revenue for Frank's Service Station. Id., p. 3 (¶ 10).

On September 20, 2007, Frank's Service Station was removed from the RTL based on the arrests of Plaintiffs Heusser, Sr. and Jr. Id., p. 4 (¶ 12), and p. 5 (¶ ¶ 15–16); see also Doc. # 74–1, p. 3, para. 1.2 Plaintiffs contend that Hale personally directed that they be arrested and prosecuted as the result of a dispute they had with a rival towing service, Sardo's Automotive (“Sardo's”), arising out of Sardo's overcharging one of Plaintiffs' regular customers for towing services.3 Doc. # 65, p. 4 (¶ 12). Hale allegedly directed Plaintiffs' arrest despite the statement of a Mr. Sardo, the owner and operator of Sardo's, that he “did not want any action taken against the [P]laintiffs as this was a business dispute that did not rise past the level of spoken words.” Id. Plaintiffs further maintain that Hale ordered warrants to be issued for their arrest for the purpose of humiliating them and interfering with their business and hence their livelihood. Id., p. 4 (¶ 13). Plaintiffs were forced to expend time and money defending themselves against the criminal charges. Id., p. 4 (¶ 14).

Plaintiffs Heusser, Sr. and Jr., maintain that Hale focused on their arrest on misdemeanor charges to “unilaterally and arbitrarily suspend Frank's Service Station from the ‘RTL.’ 4 Id., p. 5 (¶ 15). Furthermore, they allege that Hale ordered this suspension without providing Plaintiffs with any advance notice or warning or hearing or other opportunity to be heard.” Id.

Plaintiff Heusser, Jr. asserts that he has repeatedly requested that Frank's Service Station be reinstated on the RTL to tow abandoned vehicles on Ansonia's behalf. Id., p. 3–4 (¶ 11). He claims that Hale has repeatedly and unlawfully denied that request. Id. Plaintiffs also allege that Hale has allowed Sardo's, an “out-of-town business,” to perform that work while using dealer plates, which they contend is a violation of Connecticut law. Id., p. 4 (¶ 11). Surprisingly, Plaintiffs thereafter acknowledge that, as a result of Sardo's alleged unlawful practice, “representatives of Srado's [sic] Automotive were arrested, and the business itself suspended from the ‘RTL.’ Id.

On November 13, 2007, Plaintiffs Heusser, Sr. and Jr., commenced the present litigation against Hale in this Court. Heusser, et al. v. Hale, 3:10–CV–1660 (CSH) (“the 2007 Action”). The Complaint originally set forth one count against defendant Hale, alleging violation of Plaintiffs' due process rights under the Fourteenth Amendment through the removal of Frank's Service Station from the RTL. Doc. # 1. Thereafter, Plaintiffs amended their complaint, incorporating additional counts, and adding Frank's LLC as a plaintiff and the City of Ansonia as a defendant.5 See Doc. # 15 (filed 3/8/08) and Doc. # 65 (filed 10/23/09).

During the pendency of the present action, Plaintiffs' misdemeanor charges were reduced to non-criminal infractions. Doc. # 65, p. 5 (¶ 18). Plaintiffs aver that they informed Hale of the reduction in charges, but he refused to restore Frank's Service Station to the RTL, allegedly in retaliation for their lawsuit against him. Id. Plaintiffs further contend that Hale has a “personal hatred vendetta” against them, evidenced by his alleged demand that Ansonia police officers not associate with them.6 Id., p. 5 (¶ 19).

Plaintiffs informed the Ansonia Board of Aldermen of Hale's refusal to reinstate Frank's Service Station onto the RTL and Hale's demands that his officers not associate with Plaintiffs. Id., p. 6 (¶ 20). On March 11, 2008, the President of the Board of Alderman informed Plaintiffs that Frank's Service Station would not be returned to the RTL because of their pending litigation against Hale. Id., p. 6 (¶¶ 20–22). Plaintiffs argue that the exclusion of Frank's Service Station is discriminatory, in that Sardo's remained on the RTL while it pursued a lawsuit against the City of Ansonia. Id., p. 6 (¶ 24).

B. Frank's LLC

The third plaintiff in this action is Frank's LLC, a limited liability corporation in the State of Connecticut, which is owned and operated by Plaintiff Franklyn Heusser, Jr. Id., p. 1 (¶ 3). Frank's LLC is a business engaged in providing towing services. Id., p. 6 (¶ 25). It is a new business that recently began operating; and is a separate entity from Frank's Service Station. Id., p. 6 (¶ 26). Frank's LLC submitted an application to be placed on the RTL, but the application was rejected. Id., p. 6 (¶ 27). Hale and Ansonia's Corporation Counsel, Kevin Blake, refused to provide an explanation for the rejection. Id.

Plaintiffs claim that all of the Defendants' alleged actions were taken “in a manner which was outrageously arbitrary,” “irrational,” and “shocking to the conscience.” Id., p. 6 (¶ 28). Such behavior has allegedly caused Plaintiffs to suffer emotional distress. Id., p. 6 (¶ 29).


Plaintiffs assert that this Court has “federal question” subject matter jurisdiction over their claims pursuant to 28 U.S.C. §§ 1331 7 and 1343(a)(3) 8 and 42 U.S. §§ 1983 and 1988. Specifically, Plaintiffs contend that their claims arise as violations of their constitutional rights under the First Amendment (Counts One and Two) and the Equal Protection Clause of...

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