Rebaudo v. AT&T Svc Inc
MEMORANDUM OF DECISION AND ORDER denying 22 Motion to Dismiss, Signed by Judge Dominic J. Squatrito on 8/9/11. (Blue, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
AT&T SERVICES, INC.,
No. 3:09-CV-00437 (DJS)
MEMORANDUM OF DECISION AND ORDER
The plaintiff, Robert Rebaudo, brings this action against
the defendant, AT&T Services, Inc. (“AT&T”), alleging that AT&T
retaliated against him for having filed a complaint of unlawful
employment discrimination with the Connecticut Commission on
Human Rights and Opportunities (“CHRO”) in violation of the
Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.
Stat. § 46a-60 et seq.
U.S.C. § 1332.
Jurisdiction is invoked pursuant to 28
Now at bar is AT&T’s Motion to Dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
the following reasons, AT&T’s motion (dkt. # 22) is DENIED.
Rebaudo is an individual residing in West Haven,
AT&T is a Delaware corporation with its principal
place of business in Dallas, Texas.
From 1980 until 2006,
Unless otherwise noted, the following is drawn from filings related to
the motion at bar.
Rebaudo worked as a Building Mechanic for AT&T in New Haven,
On June 8, 2005, AT&T notified Rebaudo that another
employee had brought undisclosed charges against him.
summoned Rebaudo to a meeting in order to discuss these charges.
Rebaudo sought permission to bring an attorney and tape recorder
to the meeting, but AT&T refused.
Rebaudo did not attend the
In response, AT&T placed him on probation for one
On August 14, 2005, Rebaudo filed a complaint with the
CHRO, alleging that AT&T’s actions in his regard constituted
In December 2005, AT&T accused Rebaudo of having falsified
The accusation was subsequently disproven.
On February 28, 2006, less than three weeks from his
retirement, AT&T terminated Rebaudo’s employment.
On April 11, 2006, Rebaudo amended his CHRO complaint to
add allegations that AT&T had falsely accused him of altering
his timesheets and had wrongfully terminated his employment in
retaliation for his initial complaint to the CHRO.
5, 2007, the CHRO issued a right-to-sue letter allowing Rebaudo
to initiate legal action against AT&T.
On February 20, 2007, Rebaudo filed his initial Complaint
with the Connecticut Superior Court (the “2007 Complaint”).
2007 Complaint alleged eight state law claims against AT&T,
including a claim that AT&T had violated CFEPA by retaliating
against him for his complaint to the CHRO.
On March 14, 2007, AT&T removed Rebaudo’s case to this
Court invoking federal question jurisdiction pursuant to 28
U.S.C. § 1331.
Specifically, AT&T explained that the 2007
Complaint, although only alleging violations of state law,
actually raised questions governed exclusively by the Labor
Management Relations Act (“LMRA”), 29 U.S.C. §§ 141 et seq.
After removing the 2007 Complaint to this Court, AT&T moved
for its dismissal.
Specifically, AT&T explained that the 2007
Complaint only alleged violations of state law.
argued that all claims asserted in this manner should be deemed
preempted by the LMRA and by the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq.
On June 12, 2008, the Court ruled that Rebaudo’s state law
claims, as alleged in the 2007 Complaint, were indeed preempted
by federal law.
Rebaudo v. AT&T, 562 F. Supp. 2d 345, 351 (D.
Specifically, the Court ruled that six of the 2007
Complaint’s eight counts were preempted by the LMRA because
their resolution depended on the terms of Rebaudo’s Union’s
collective bargaining agreement.2
See id. at 350-51.
The six claims deemed preempted by the LMRA were: (1) wrongful
discharge; (2) breach of implied contract; (3) breach of the implied covenant
In addition, the Court ruled that all of the claims in the
2007 Complaint, including Rebaudo’s CFEPA retaliation claim,
were preempted by ERISA.
Specifically, the Court found that
each claim in the 2007 Complaint explicitly “incorporate[d] the
allegation that AT&T terminated Rebaudo in order to save money
on an employee benefit plan,” and thus “implicate[d] ERISA”
which “supersedes any and all state laws insofar as they may now
or hereafter relate to any [covered] employee benefit plan.”
Rebaudo, 562 F. Supp. 2d at 350 (citations omitted).
The Court, however, did not enter judgment in AT&T’s favor
solely on the basis of federal preemption.
Id. at 351.
Specifically, the Court explained as follows:
actually alleges federal claims, yet now is asking the
court to dismiss those claims because the state law
claims specified in the complaint are preempted by
federal statutes, which were not specified in the
complaint. AT&T cannot have it both ways.
Instead, the Court interpreted Rebaudo’s state law claims
as alleging violations of the relevant federal statutes —
namely, ERISA and the LMRA.
Id. at 352-53.
The Court then
dismissed the LMRA claims as untimely, and ordered Rebaudo to
file an amended complaint properly repleading his remaining
claims under ERISA.
On July 23, 2008, Rebaudo filed an amended complaint
of good faith and fair dealing; (4) negligent investigation; (5) negligent
infliction of emotional distress; and (6) defamation.
alleging that AT&T had violated ERISA.
Subsequently, the Court
ruled that ERISA did not authorize the relief Rebaudo sought,
but allowed further amendment to the complaint in order to
rectify this new defect.
Rebaudo v. AT&T, 582 F. Supp. 2d 250,
252-54 (D. Conn. 2008).
On February 4, 2009, Rebaudo filed a further amended
This amended complaint, however, no longer alleged
any ERISA violations at all, but instead only alleged unlawful
retaliation in violation of CFEPA and Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.
On February 10, 2009, the Court dismissed Rebaudo’s Title
VII retaliation claim.
The Court explained that this claim was
time-barred because it was never previously asserted and far
more than ninety days had already elapsed since the relevant
right-to-sue letters had been issued.
Rebaudo v. AT&T, No.
3.07-CV-00396, 2009 WL 507042, at *2 (D. Conn. Feb. 10, 2009).
In contrast, the Court found that Rebaudo’s CFEPA
retaliation claim was timely because it had originally been
asserted as part of the 2007 Complaint.
Id. at *3.
Nonetheless, the Court also dismissed Rebaudo’s CFEPA
retaliation claim, explaining as follows:
[I]n light of the fact that Rebaudo is barred from
bringing a Title VII claim, it would be futile to
allow him to amend his complaint to allege only a
CFEPA retaliation claim. CFEPA is a Connecticut
statute, not a federal law. The Court does not have
original jurisdiction over CFEPA claims.
Id. (citing 28 U.S.C. § 1331).
Seven days later, on February 17, 2009, Rebaudo filed a new
Complaint with the Connecticut Superior Court (the “2009
The 2009 Complaint reasserts his CFEPA retaliation
claim against AT&T, and invokes jurisdiction to do so pursuant
to Connecticut’s Accidental Failure of Suit Statute, Conn. Gen.
Stat. § 52-592.3
On March 20, 2009, AT&T again removed the case to this
Court, but this time, invoking diversity jurisdiction pursuant
to 28 U.S.C. § 1332.
AT&T now moves to dismiss the 2009
Complaint on the ground that it fails to state a claim upon
which relief can be granted.
Conn. Gen. Stat. § 52-592, in relevant part, provides:
(a) If any action, commenced within the time limited by law, has
failed one or more times to be tried on its merits because of
insufficient service or return of the writ due to unavoidable
accident or the default or neglect of the officer to whom it was
committed, or because the action has been dismissed for want of
jurisdiction, or the action has been otherwise avoided or
defeated by the death of a party or for any matter of form[,] . .
. the plaintiff . . . may commence a new action . . . for the
same cause at any time within one year after the determination of
the original action . . . .
(d) The provisions of this section shall apply . . . to any
action brought to the United States circuit or district court for
the district of Connecticut which has been dismissed without
trial upon its merits or because of lack of jurisdiction in such
court. . . .
Rule 8 of the Federal Rules of Civil Procedure provides
that “[a] pleading that states a claim for relief must contain .
. . a short and plain statement of the claim showing that the
pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
Correspondingly, a claim is subject to dismissal to the extent
that it “fail[s] to state a claim upon which relief can be
Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss made pursuant to Rule
12(b)(6), a claimant must have alleged “‘enough facts to state a
claim to relief that is plausible on its face.’”
Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1322 n.12
(2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)); Litwin v. Blackstone Group, L.P., 634 F.3d 706, 715
(2d Cir. 2011).
A claim is plausible on its face when the
claimant “pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009); Litwin, 634 F.3d at 715.
In determining a claim’s
plausibility, the court may draw facts from the complaint
itself, from documents attached to it as exhibits, and from
documents it incorporates by reference.
DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (quotation marks and
Facts may also be drawn from other documents
that are not incorporated by reference, but only if the
complaint “relies heavily upon [the] terms and effect” of such
documents, “thereby rendering [them] integral to the complaint,”
and the record clearly shows that the parties do not materially
dispute their authenticity, accuracy, and relevance.
The ultimate inquiry, however, is not whether the claimant
will prevail, but rather, is whether he “is entitled to offer
evidence to support [his] claims.”
Matson v. Board of Educ. of
City School Dist. of New York, 631 F.3d 57, 72 (2d Cir. 2011)
(quotation marks and citation omitted).
Thus, “a complaint
attacked on a motion to dismiss pursuant to Rule 12(b)(6) will
survive so long as the factual allegations — viewed in a light
most favorable to the plaintiff and drawing all reasonable
inferences in his favor — are sufficient to ‘raise a right to
relief above the speculative level.’”
Matson v. Board of Educ.
of City School Dist. of New York, 631 F.3d 57, 72 (2d Cir. 2011)
(quoting Twombly, 550 U.S. at 555).
Here, AT&T argues that the 2009 Complaint fails to state a
claim upon which relief can be granted because Rebaudo’s CFEPA
retaliation claim, which was previously dismissed, cannot be
reasserted pursuant to Connecticut’s Accidental Failure of Suit
Statute, Conn. Gen. Stat. § 52-592.
Specifically, AT&T argues
that § 52-592 does not apply because Rebaudo’s claim was: (1)
dismissed on the merits; and (2) abandoned.
(Dkt. # 22, pp. 9-
It should initially be noted that AT&T’s two arguments seem
inconsistent with one another:
Had Rebaudo’s claim been
dismissed on the merits, there would be nothing left for him to
Conversely, had he abandoned his claim, there would be
nothing left to decide on its merits.
forecloses the other.
Each argument, if true,
Thus, Rebaudo’s claim cannot both have
been dismissed on the merits and abandoned.
Setting this inconsistency aside, AT&T rests its argument
that Rebaudo abandoned his CFEPA claim on an observation to that
effect in footnote two of this Court’s February 10, 2009,
(See dkt. # 22, p. 12.)
That footnote underscores the
significance of Rebaudo’s failure to challenge the Court’s prior
conclusion with respect to ERISA preemption.
See Rebaudo, 2009
WL 507042, at *3 n.2 (“Rebaudo did not file a motion asking the
Court to reconsider its finding that ERISA preempted his CFEPA
claim. Such a motion would be grossly untimely now.
Court considers the CFEPA claim to be abandoned.”).
Ultimately, however, Rebaudo’s CFEPA claim was not
dismissed for that reason, nor was it decided on its merits.
Rather, it was unambiguously dismissed for lack of jurisdiction.
Specifically, the Court declined to continue to exercise
supplemental jurisdiction solely over Rebaudo’s CFEPA claim — a
state-law claim — after having dismissed his Title VII claim —
his only remaining federal-law claim.
Rebaudo, 2009 WL 507042,
See 28 U.S.C. § 1367(c)(3) (“The district courts may
decline to exercise supplemental jurisdiction over a claim . . .
if . . . the district court has dismissed all claims over which
it has original jurisdiction[.]”).
General Statutes § 52-592 allows a plaintiff to commence a
new action in state court in lieu of “any action brought to the
United States . . . district court for the district of
Connecticut which has been dismissed without trial upon its
merits or because of lack of jurisdiction in such court.”
Gen. Stat. § 52-592(d).
The Appellate Court of Connecticut has
specifically explained that this provision applies to state law
claims over which a federal court has declined to exercise
supplemental jurisdiction, observing that the claimant in such
circumstances is deprived of an “adequate opportunity to
litigate” the dismissed state claims.
Daoust v. McWilliams, 49
Conn. App. 715, 722-30, 716 A.2d 922, 927-30 (1998) (quoting
Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694
A.2d 1246 (1997)).
Here, the Court declined to exercise supplemental
jurisdiction over Rebaudo’s CFEPA retaliation claim in the prior
action, and Rebaudo has not otherwise received an “adequate
opportunity to litigate” that claim.
Rebaudo therefore properly
relies on § 52-592 to reassert his CFEPA retaliation claim in
the 2009 Complaint.
Accordingly, AT&T’s motion to dismiss must
For the foregoing reasons, AT&T’s Motion to Dismiss (dkt.#
22) is DENIED.
SO ORDERED this 9th day of August, 2011.
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE
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