Morneau v. State, MMXCV125008157S.
| Decision Date | 21 December 2012 |
| Docket Number | MMXCV125008157S. |
| Court | Connecticut Superior Court |
| Parties | Ricky MORNEAU v. STATE of Connecticut. |
UNPUBLISHED OPINION
The defendants have moved to dismiss the plaintiff's six-count complaint on the grounds that 1) the court lacks subject matter jurisdiction over the action pursuant to the doctrines of sovereign immunity and absolute immunity and 2) the plaintiff lacks standing. For the reasons stated herein the motion is granted in its entirety.
This action arises out of the plaintiff's allegation that two state marshals overbilled him for serving process on the parties that the plaintiff named in a foreclosure action and a lawsuit that he filed in federal court. On July 10, 2012 the plaintiff filed a six-count amended complaint against the following fourteen defendants: State of Connecticut; attorney general George Jepsen; assistant attorney general Philip Miller; James Neil, who is former director of the state marshal commission (the marshal commission); Dennis F Kerrigan, Marie Knudsen, William Cote, William Cremins Joseph Ubaldi, who are the former members of the marshal commission; the chief state attorney Kevin Kane; the assistant state attorney Scott Murphy; and state marshals Timothy Bennett and Albenle Gagnon.[1] The operative complaint alleges the following relevant facts. On November 21, 2006 and August 24, 2007, Bennet charged the plaintiff twice for serving a notice of lis pendens and writ of foreclosure by charging double fees. Between August 24, 2007 and September 14, 2007, Gagnon received illegal fees through installment payments for serving process on the parties that the plaintiff names as defendants in a federal lawsuit. Gagnon falsified page counts, endorsements and mileage. The attorney general failed to perform his legal duties by refusing to institute civil proceedings against Bennet and Gagnon. The assistant attorney general violated 18 U.S.C. § 1509 by improperly filing a motion to dismiss in a previous action that the plaintiff filed in the Superior Court. The chief state's attorney improperly refused to prosecute Bennet and Gagnon for larceny and false statement. The marshal commission violated the plaintiff's rights by dismissing his complaint against Bennet and Gagnon with malice. The commission improperly denied the plaintiff's request for public documents on May 30, 2008. In the amended complaint, the plaintiff alleges the following causes of action: In count one, that all of the defendants, acting in their official capacities, violated the plaintiffs state and federal constitutional rights to due process and equal protection, the latter of which constitutes a violation of 42 U.S.C. § 1983; in count two, that the conduct of the offices of attorney general, the offices of the state's attorney, the marshal commission, Gagnon and Bennett constitute negligent infliction of emotional distress; in count three, that the conduct of Gagnon and Bennett violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and the state Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53-395; in count four, that the conduct of Gagnon and Bennett violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; and in count five, that the conduct of the office of attorney general, the state's attorney and the marshal commission constituted vexatious litigation in violation of General Statutes § 52-568. The plaintiff seek various forms of monetary damages as to these counts. In count six, the plaintiff seeks injunctive relief in the form of orders instituting changes to correct the numerous problems he has identified in the manner in which the state marshals conduct their operations.
The procedural history of the case is as follows. The plaintiff had filed a lawsuit in federal court on May 23, 2007.[2] The defendants moved to dismiss the action. The federal court granted the defendants' motion to dismiss the plaintiff's federal claims on July 7, 2008 and declined to exercise its supplemental jurisdiction over his state law claims.[3]
On August 24, 2009, the plaintiff commenced an action by service of a three-count complaint and summons in the Superior Court for the district of New Britain against the state, the marshal commission and Gagnon. That complaint is premised on Gagnon's alleged overbilling of services for the plaintiff and making false statements, the marshal commission's denial of the plaintiff's freedom of information (FOI) request, and the state's violation of an order regarding motion deadlines. The plaintiff subsequently amended the complaint to add Bennett as a defendant and add additional counts. The state moved to dismiss the claims against it and the marshal commission on the grounds that the claims against them were barred by sovereign immunity, because the plaintiff had not received permission to sue the state from the office of the claims commissioner (claims commissioner).[4] On November 23, 2011, Pittman, J., the court granted the state's motion to dismiss. The suit as to both marshals remains pending.
On September 8, 2009, the plaintiff filed a claim with the claims commissioner seeking permission to sue the state. The claim alleged that Gagnon and Bennett overbilled the plaintiff, they committed mail fraud and violated RICO, and the state violated the plaintiff's rights under the due process and equal protection clauses when: 1) the marshal commission dismissed the plaintiff's complaints against Aresco and Corneroli; 2) the marshal commission failed to provide the plaintiff with certain documents pursuant to a FOI request; 3) various state's attorneys refused the plaintiff's demand that they prosecute the marshals for billing theft; and 4) the state continued to use Gagnon's services. The state moved to dismiss the claims pursuant to General Statutes § 4-148(a), on the ground that they were untimely because they were filed more than one year after the claims accrued. The plaintiff objected and filed a " chronology of events, " in which he sets forth the following as to the dates of accrual: 1) On October 5, 2006, the marshal commission dismissed his complaints against Aresco and Corneroli; 2) on August 23, 2007, Gagnon charged the plaintiff excess fees; 3) in May 2008, the plaintiff read the state ethics commission statement of income for marshals that stated " state marshals had massive incomes, and that some had generated [additional] income by illegal overbilling, or by claiming they performed the service which would have been impossible considering the size of income claimed"; 4) in May of 2008, the plaintiff found that Gagnon " never claimed the $1, 329.20 in fees he billed ... on his 2007 statement of income"; and 5) on June 4, 2008, the plaintiff filed a FOI complaint against the state marshals commission for its refusal to release certain documents. The claims commission concluded that the plaintiff's claims were untimely because the marshals committed their alleged improprieties outside of the one-year limitations period set forth in § 4-148, and dismissed the claim.
The plaintiff subsequently filed a request for review by the General Assembly pursuant to General Statutes §§ 4-148(b) and 4-159. The General Assembly vacated the decision of the claims commissioner and authorized the plaintiff to bring suit against the state. The plaintiff's present suit followed. The defendants now move to dismiss the complaint in its entirety based on the grounds that the court lacks subject matter jurisdiction pursuant to the doctrines of sovereign immunity and absolute quasi-judicial immunity, and the plaintiff's lack of standing. The defendants submitted numerous documents in support of their motion.[5] In response, the plaintiff filed an objection, [6] a memorandum of law and submitted numerous documents on September 4, 2012.[7] The defendant filed a reply on September 24, 2012, and then the plaintiff filed a surreply on September 25, 2012.
" 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.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). " The grounds which may be asserted in [a motion to dismiss] include ... lack of jurisdiction over the subject matter ..." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985) citing Practice Book § 143, which is now § 10-31. " Pursuant to Practice Book § 10-31(a), a motion to dismiss ... ‘ shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.’ " Conboy v. State, 292 Conn. 642, 647 n. 7, 974 A.2d 669 (2010).
(Internal quotation marks omitted.) Burton v Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). " If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter...
To continue reading
Request your trial