Lenox v. North Branford et al

Filing 113

RULING AND ORDER ON MOTION FOR RECONSIDERATION - granting in part and denying in part 91 Motion for Reconsideration re 77 MOTION for Summary Judgment filed by Francis Merola, Town of North Branford; granting as to Count 13 of the Amended Complaint re 77 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 5/16/13. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN LENOX,
Plaintiff
v.
TOWN OF NORTH BRANFORD, FRANCIS
MEROLA, MARK BARRETT, BRYAN
AUGUR, and DAVID NEUBIG,
Defendants

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CIVIL ACTION NO.
3:08cv01448 (DJS)

RULING AND ORDER ON MOTION FOR RECONSIDERATION
The plaintiff, John Lenox, brought this action against various defendants, including the
Town of North Branford ("the Town") and Francis Merola ("Merola"), raising various federal
and state claims arising out of his former employment within the Town's Department of Public
Works ("DPW"). On December 7, 2012, the Court granted summary judgment in favor of the
defendants as to all claims except the plaintiff's claims of intentional infliction of emotional
distress against the Town and Merola. These intentional infliction of emotional distress claims,
as elucidated by the plaintiff in response to the defendants' motions for summary judgment, are
based on the plaintiff's contention that after the police had investigated a complaint of a possible
theft by the plaintiff and had determined that the matter was "over and done with," the defendants
persisted in their efforts to have the plaintiff arrested and prosecuted. On December 17, 2012,
the Town and Merola filed a Motion for Reconsideration requesting that the Court reconsider its
decision as to whether the Town and Merola are entitled to summary judgment on plaintiff's
intentional infliction of emotional distress claims. For the reasons stated below, the defendants'
Motion for Reconsideration (doc. # 91) is GRANTED in part and DENIED in part.

A. RECONSIDERATION STANDARD
Rule 7(c) of the Local Civil Rules of the United States District Court for the District of
Connecticut allows for the filing of motions “for reconsideration.” D. Conn. L. Civ. R. 7(c). The
Second Circuit has held that “[m]otions for reconsideration under [the District of Connecticut’s
Local Civil Rules] . . . are as a practical matter the same thing as motions for amendment of
judgment under Fed. R. Civ. P. 59(e) - - each seeks to reopen a district court’s decision on the
theory that the court made mistaken findings in the first instance.” City of Hartford v. Chase,
942 F.2d 130, 133 (2d Cir. 1991). In general, the three grounds justifying reconsideration are “an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks omitted).
“A motion for reconsideration is committed to the sound discretion of the court.” Kregos
v. Latest Line, Inc., 951 F. Supp. 24, 26 (D. Conn. 1996). “The standard for granting [a motion
for reconsideration] is strict, and reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court overlooked-matters, in other words,
that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX
Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995).

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B. APPLICATION OF THE MOTION FOR RECONSIDERATION STANDARD TO THE
DEFENDANTS' MOTION FOR RECONSIDERATION
1.

Merola

The defendants contend that the plaintiff's intentional infliction of emotional distress
claim against Merola, when considered in light of the understanding of that claim expressed by
the Court in its December 7, 2012 decision, is not supported by any facts that have been brought
forward by the plaintiff. In essence, the defendants suggest that the absence of any factual support
for that claim is a "matter[] . . . which . . . the Court overlooked in the initial decision or order."
L. Civ. R. 7(c). Having carefully reexamined the record before it with a view toward identifying
facts concerning Merola that could support the plaintiff's intentional infliction of emotional
distress claim against him, the Court agrees with the defendants' contention.
In the December 7, 2012 ruling on the motions for summary judgment, the Court noted
its belief that the defendants misapprehended the plaintiff's intentional infliction of emotional
distress claims. Since the plaintiff's Amended Complaint is not particularly specific as to the
intentional infliction of emotional distress claims, such misapprehension is perhaps
understandable. The Court stated its understanding of those claims as follows:
The Court understands the Plaintiff's intentional infliction
of emotional distress claims against the Town and Merola to be
that after Detective McNamara had responded to the initial
complaint and determined that the can of spray lubricant in the
Plaintiff's personal vehicle did not match those in the Town garage,
these Defendants, knowing that the matter was 'over and done with,'
persisted in their efforts to have the Plaintiff arrested and prosecuted."
Lenox v. Town of North Branford, No. 3:08cv01448 (DJS), 2012 U.S. Dist. LEXIS 174419, at
*56-57 (D. Conn. Dec. 7, 2012).

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"When the burden of proof at trial would fall on the nonmoving party, it ordinarily is
sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential
element of the nonmovant's claim." Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d
Cir. 2009). "In that event, the nonmoving party must come forward with admissible evidence
sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Id. The
Court finds that the plaintiff has not "come forward with admissible evidence sufficient to raise a
genuine issue of fact" with regard to his intentional infliction of emotional distress claim against
Merola, as distinguished from his claim against the Town. The evidence brought forward by the
plaintiff does not support a finding that any of the actions taken on behalf of the Town that could
constitute "persist[ing] in their efforts to have the Plaintiff arrested and prosecuted" were taken
by Merola.
The plaintiff's evidence supports a finding that Merola, based on information that had
been provided to him by other DPW employees, reported a possible theft by the plaintiff at the
DPW garage to the North Branford Police Department. It was after Merola's report to the police
that Detective McNamara, according to the plaintiff, investigated the matter and told the plaintiff
that "it's over and done with." Despite the plaintiff's assertion that "the defendant municipality
(acting through its Town Manager) and the plaintiff's supervisor [Merola] had done all within
their power to get him convicted despite his innocence," (doc. # 85, at 18), the only evidence
produced by the plaintiff of actions taken to further such a purpose relates to an individual other
than Merola.
Viewed in the light most favorable to the plaintiff, the facts demonstrate that at a point
subsequent to the time when Detective McNamara told the plaintiff the matter was "over and
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done with," Merola told the plaintiff that "you have to go over to the police station." (Doc. # 833, at 9, lines 14-15). When the plaintiff went to the police station, he was placed under arrest by
Detective McNamara.1 According to the plaintiff, Detective McNamara told him that "the Town
Manager was insisting that we prosecute. . . . My hands are tied." (Id., lines 23-25). When the
plaintiff returned to the DPW garage from the police station, Merola handed him a letter stating
that the plaintiff's employment had been terminated.
The plaintiff further alleges that he went to court four times in connection with the
larceny charge that had been brought against him. On one of those occasions, he was shown a
document on which was written, "Call from Town Manager, prosecute this case to the fullest.
And it was circled." (Id. at 11, lines 11-13). The criminal case against the plaintiff ultimately was
dismissed.
Although Merola may be considered a representative of the Town for certain purposes,
the intentional infliction of emotional distress claim against him is separate and distinct from the
intentional infliction of emotional distress claim against the Town. While actions taken by
Merola may, under certain circumstances, be attributable to the Town, actions taken on behalf of
the Town by someone else are not attributable to Merola as an individual defendant. The Court
concludes that this important distinction is a matter overlooked by the Court in its December 7,
2012 decision, in that the Court's ruling did not distinguish between the Town, and others acting
on behalf of the Town, and the individual defendant Merola for purposes of the intentional
infliction of emotional distress claims.

1

The plaintiff was arrested pursuant to an arrest warrant applied for by Detective McNamara.
(Doc. # 75-28).
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The plaintiff's evidence supports a finding that two actions were taken by Merola
subsequent to Detective McNamara's initial investigation at the DPW garage: (1) several days
after the investigation, Merola told the plaintiff that he needed to go to the police station, where
he was arrested by Detective McNamara; and (2) when the plaintiff returned to the DPW garage
from the police station, Merola handed him a letter stating that as a result of the plaintiff's arrest
"effective immediately, you are hereby placed on administrative leave (with pay) and shall
remain in that status until further notice." (Doc. # 75-29). That letter was signed by the Town
Manager. (Id.). These facts do not support a finding that the defendant Merola "caused the
plaintiff to be prosecuted for a crime [he] knew [the plaintiff] had not committed and pressured
the prosecutor to pursue that prosecution despite its obvious lack of merit." (Doc. # 85, at 17-18).
The Court concludes that on the basis of the evidence produced by the plaintiff, a jury could not
reasonably find for the plaintiff as to his intentional infliction of emotional distress claim against
Merola. For that reason, the Court hereby vacates its previous order denying summary judgment
as to Count 13 of the Amended Complaint. The motion for summary judgment filed by the
Defendants Town of North Branford and Merola (doc. # 77) is GRANTED as to Count 13 of
the Amended Complaint.
2. Town of North Branford
The Town contends that the Court should reconsider its decision denying the defendants'
motion for summary judgment as to the claim of intentional infliction of emotional distress
against the Town on the basis that a municipality may not be held liable for intentional infliction
of emotional distress. The defendants did not raise this issue in their prior submissions to the

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Court relating to their motion for summary judgment. Instead, they argued that the "Plaintiff
cannot establish any evidence of outrageous conduct by . . . the Town . . . ." (Doc. # 77-1, at 33).
The Town argues that it is entitled to governmental immunity as to a claim of an
intentional tort committed by a Town employee on the basis of Conn. Gen. Stat. § 52-557n,
which provides in part that "[e]xcept as otherwise provided by law, a political subdivision of the
state shall not be liable for damages to person or property caused by . . . [a]cts or omissions of
any employee, officer or agent which constitute . . . actual malice or wilful misconduct . . . ."
Conn. Gen. Stat. § 52-557n(a)(2)(A). "Under Connecticut law, the term 'willfulness is
synonymous with 'intentional.'" Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 194 (D. Conn.
2000).
As a general rule, "governmental immunity must be raised as a special defense in the
defendant's pleadings . . . . Governmental immunity is essentially a defense of confession and
avoidance similar to other defenses required to be affirmatively pleaded . . . ." Violano v.
Fernandez, 280 Conn. 310, 321 (2006) (internal quotation marks omitted). "The purpose of
requiring affirmative pleading is to apprise the court and the opposing party of the issues to be
tried and to prevent concealment of the issues until the trial is underway." Id. (internal quotation
marks omitted). However, "[w]here it is apparent from the face of the complaint that the
municipality was engaging in a governmental function while performing the acts and omissions
complained of by the plaintiff, the defendant is not required to plead governmental immunity as a
special defense and may attack the legal sufficiency of the complaint through a motion to strike."
Id. (internal quotation marks omitted).

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Here the defendants neither plead governmental immunity as a special defense nor filed a
motion attacking the legal sufficiency of the complaint on the basis of governmental immunity.
Rather, the defendants addressed the merits of the intentional infliction of emotional distress
claim in their summary judgment motion and subsequently raised the immunity issue in their
motion for reconsideration. The Court acknowledges that "a complaint fails to state a legally
sufficient cause of action against a municipal defendant when [acts which constitute wilful
misconduct] are alleged unless its immunity has been abrogated by statute." Avoletta v. City of
Torrington, 133 Conn. App. 215, 221 (2012). At the same time, the Court does not believe the
defendants have raised this issue at a time and in a manner that furthers the purpose of
"appris[ing] the court and the opposing party of the issues to be tried . . . ." Violano, 280 Conn.
at 321.
Given these somewhat unusual circumstances, the Court has decided to deny without
prejudice the defendants' motion for reconsideration as to the claim of intentional infliction of
emotional distress against the Town. The defendants will be permitted to file a motion to amend
their answer requesting approval from the Court to raise governmental immunity as a special
defense to the claim of intentional infliction of emotional distress. The plaintiff will, of course,
have the opportunity to respond to any such motion to amend.
CONCLUSION
For the foregoing reasons, the defendants' Motion for Reconsideration (doc. # 91) is
GRANTED in part and DENIED in part.
The Court grants the defendants' motion for reconsideration as to the defendant Merola.
The Court hereby vacates its previous order denying summary judgment as to Count 13 of the
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Amended Complaint (intentional infliction of emotional distress claim against the defendant
Merola). The motion for summary judgment filed by the Defendants Town of North Branford
and Merola (doc. # 77) is GRANTED as to Count 13 of the Amended Complaint.
The Court denies without prejudice the defendants' motion for reconsideration as to the
defendant Town. The defendant Town will be permitted to file a motion to amend its answer to
the Amended Complaint for the purpose of pleading governmental immunity as a special
defense. Any such motion to amend shall be filed on or before June 6, 2013. The plaintiff
respond to any such motion to amend on or before June 27, 2013.

SO ORDERED, this 16th day of May, 2013

__________/s/ DJS______________________________________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE

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