Plude v. Adams et al

Filing 45

ORDER: Defendant Adams's Motion to Dismiss (Doc. No. 26 ) is hereby GRANTED. All claims against Adams are dismissed. It is so ordered. Signed by Judge Alvin W. Thompson on 3/11/13. (Sykes, J.)

United States District Court
District of Connecticut
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:
MICHAEL PLUDE,
:
:
Plaintiff,
:
:
v.
:
:
REBECCA ADAMS, DAVID L. GUAY, :
THOMAS REYNOLDS, JOHN T.
:
PETRILLO, JR., and STATE
:
BOARD OF ACCOUNTANCY,
:
:
Defendants.
:
:
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CASE NO. 3:12CV69(AWT)

RULING ON DEFENDANT ADAMS’S MOTION TO DISMISS
The plaintiff, Michael Plude (“Plude”), has brought this
action against Rebecca Adams (“Adams), David L. Guay (“Guay”),
Thomas Reynolds (“Reynolds”), John T. Petrillo, Jr. and the
State Board of Accountancy (the “SBOA”).

With respect to Adams,

Plude brings claims for malicious prosecution under 42 U.S.C. §
1983 and common law, a Fourteenth Amendment due process claim,
and a common law defamation claim.

Adams has moved to dismiss

the claims against her pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure.

For the reasons set

forth below, the motion is being granted.
I.

FACTUAL ALLEGATIONS
“The complaint, which [the court] must accept as true for

purposes of testing its sufficiency, alleges the following
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circumstances.”

Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.

1997).
The SBOA, a regulatory agency established by the State of
Connecticut, issues Connecticut Certified Public Accountant
(“CPA”) certificates and investigates and reviews complaints of
violations of state law or regulations related to persons
registered or certified by the SBOA.
20-280(c), (e).

See Conn. Gen. Stat. §§

Pursuant to its investigatory powers, the SBOA

may conduct hearings, issue subpoenas to compel the attendance
of witnesses and the production of documents, invoke the aid of
any court in the enforcement of its subpoenas and take testimony
and receive evidence under oath.

See Conn. Gen. Stat. §§ 20-

280(b), (f).
The SBOA is comprised of nine volunteer members appointed
by the Governor, and it can employ an executive director and
other personnel necessary to perform the board’s statutory
duties.

See Conn. Gen. Stat. §§ 20-280(a), (e).

Defendant

Reynolds was the SBOA Chairman and Defendant Guay was the
Executive Director during the period relevant to the Complaint.
The SBOA employed Adams as its staff attorney and general
counsel during the period relevant to the Complaint.

One of her

responsibilities was to investigate complaints lodged against
accountants in the State of Connecticut, to compile and present
evidence to the SBOA in support of any charges against the
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accountant in question and to recommend charges and/or
disciplinary action with respect to licensed and/or registered
CPAs.
On August 2008, two complainants associated with Pioneer
Gas & Appliance Corporation filed a complaint regarding Plude
with the SBOA.

The complainants alleged that the plaintiff had

engaged in the following acts of misconduct:
a) he had placed himself on the payroll and health
insurance plan of Pioneer Gas & Appliance Corporation
without the knowledge, permission or consent of the
owners and management of the company;
b) he had donated company assets to third parties without
the authorization or approval of the owners or
management of Pioneer Gas & Appliance Corporation;
c) he had failed to file a tax return on behalf of Pioneer
Gas & Appliance Corporation in 2008.
Compl. ¶ 18.
Adams investigated the allegations made by the
complainants, presented the results of her investigation to the
SBOA, and informed the SBOA that the information she discovered
in the course of her investigation warranted that Plude be
charged with violations of the code of professional ethics for
CPAs.

On January 5, 2010, Adams requested that the SBOA

summarily suspend Plude’s license to practice as a CPA.
SBOA voted to table the question of immediate suspension.

The
In

July 2010, the SBOA filed formal charges against Plude, and the
sanctions sought by the board included revocation of Plude’s
license as a CPA.

On August 19, 2011, the SBOA dismissed the
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charges against Plude.

The plaintiff alleges that the SBOA also

voted to amend the January 5, 2010 public minutes to remove the
information harmful to the reputation and professional standing
of the plaintiff.

The plaintiff further alleges that the

minutes have not been removed or updated.
Plude alleges that Adams misled the SBOA as to the scope
and content of her investigation and ignored facts that
undermined Adams’s conclusion that the plaintiff had committed
violations of the code of professional ethics.

The plaintiff

also alleges that Adams made false statements to the SBOA
regarding investigation of the plaintiff by the Internal Revenue
Service and the Federal Bureau of Investigation, and regarding
improprieties and conflicts of interests on the part of the
plaintiff in his capacity as a board member of the Naugatuck
Savings Bank.

In addition, Plude alleges that Adams delayed her

investigation to cause him harm.
Furthermore, Plude alleges that Adams made defamatory
statements to the Shelton Police Department, withheld
exculpatory evidence and repeatedly contacted an Assistant
United States Attorney in an attempt to have Plude prosecuted
and convicted on felony charges.

Plude alleges these actions

were motivated by malice arising out of his involvement in the
federal investigation of Mark Lauretti, the Mayor of Shelton and
a personal friend of Adams.
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II. LEGAL STANDARD
A claim is properly dismissed for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) when the court lacks
the statutory or constitutional power to adjudicate the claim.
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182 (2d Cir.
1996).

On a Rule 12(b)(1) motion to dismiss, the party

asserting subject matter jurisdiction “bears the burden of
proving subject matter jurisdiction by a preponderance of the
evidence.” Aurechione v. Schoolman Transp. Sys., Inc., 426 F.3d
635, 638 (2d Cir. 2005).

When reviewing a motion to dismiss for

lack of subject matter jurisdiction, the court may consider
evidence outside the pleadings.

See Makarova v. United States,

201 F.3d 110, 113 (2d Cir. 2000).
When deciding a motion to dismiss under Rule 12(b)(6), the
court must accept as true all factual allegations in the
complaint and must draw inferences in a light most favorable to
the plaintiff.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Although a complaint “does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Bell Atlantic Corp. v. Twombly,

550 U.S. 550, 555 (2007), citing Papasan v. Allain, 478 U.S.
265, 286 (1986)(on a motion to dismiss, courts “are not bound to
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accept as true a legal conclusion couched as a factual
allegation”).

“Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
557 (internal quotation marks omitted)).

“Factual allegations

must be enough to raise a right to relief above the speculative
level, on the assumption that all allegations in the complaint
are true (even if doubtful in fact).”
(citations omitted).

Twombly, 550 U.S. at 555

However, the plaintiff must plead “only

enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

“The function of a motion to dismiss is

‘merely to assess the legal feasibility of the complaint, not to
assay the weight of the evidence which might be offered in
support thereof.’”

Mytych v. May Dept. Store Co., 34 F. Supp.

2d 130, 131 (D. Conn. 1999), quoting Ryder Energy Distribution
v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.
1984).

“The issue on a motion to dismiss is not whether the

plaintiff will prevail, but whether the plaintiff is entitled to
offer evidence to support his claims.”

United States v. Yale

New Haven Hosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citing
Scheuer, 416 U.S. at 232).
In its review of a motion to dismiss for failure to state a
claim, the court may consider “only the facts alleged in the
pleadings, documents attached as exhibits or incorporated by
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reference in the pleadings and matters of which judicial notice
may be taken.”

Samuels v. Air Transport Local 504, 992 F.2d 12,

15 (2d Cir. 1993).
III. DISCUSSION
A. Section 1983 and Common Law Malicious Prosecution Claims
“In order to prevail on a § 1983 claim against a state
actor for malicious prosecution, a plaintiff must show a
violation of his rights under the Fourth Amendment and establish
the elements of a malicious prosecution claim under state law.”
Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (internal
citations ommitted); Christman v. Kick, 342 F. Supp. 2d 82, 91
n.9 (D. Conn. 2004).

“The Fourth Amendment right implicated in

a malicious prosecution action is the right to be free of
unreasonable seizure of the person—i.e., the right to be free of
unreasonable or unwarranted restraints on personal liberty.”
Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995).

To show a violation of his Fourth Amendment rights, a

Section 1983 plaintiff asserting a malicious prosecution claim
“must…show some deprivation of liberty consistent with the
concept of ‘seizure.’”

Id.; see also Rohman v. N.Y. City

Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (requiring “a
sufficient post-arraignment liberty restraint to implicate the
plaintiff’s Fourth Amendment rights”).

“This requirement is

necessary to ensure that the § 1983 plaintiff has suffered a
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harm of constitutional proportions—i.e., a harm cognizable under
§ 1983.”

Singer, 63 F.3d at 116.

“To prevail upon a malicious prosecution claim under
Connecticut law, a plaintiff must prove the following elements:
(1) the defendant initiated or procured the institution of
criminal proceedings against the plaintiff; (2) the criminal
proceedings terminated in favor of the plaintiff; (3) the
defendant acted without probable cause; and (4) the defendant
acted with malice, primarily for a purpose other than that of
bringing an offender to justice.”

QSP, Inc. v. Aetna Casualty &

Surety Co., 256 Conn. 343, 360 n. 16 (2001).

To have initiated

or procured a criminal proceeding a person must be “the
determining factor in the officer’s decision to commence the
prosecution.”

Zenik v. O’Brien, 137 Conn. 592, 596 (1951).

As to the § 1983 claim, there is no allegation that the
plaintiff ever suffered a deprivation of liberty consistent with
a seizure.

Nothing in the Complaint could support a conclusion

that Plude was seized either by the Shelton Police Department or
federal law enforcement officials.
The plaintiff also fails to plead facts that could
establish the elements of a malicious prosecution claim under
state law.

Plude alleges that Adams inserted herself in the

Shelton Police Department’s criminal investigation of Plude by
making defamatory statements with the purpose of assuring that
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Plude was prosecuted and convicted.

Plude also alleges that

Adams caused Plude to be investigated by the Department of
Justice by making repeated contact with an Assistant United
States Attorney who was conducting a grand jury investigation of
Mayor Mark Lauretti and others in the Town of Shelton.1
However, as to the Shelton Police Department investigation,
the plaintiff fails to plead facts that could show that Adams
was the determining factor in the officer’s decision to commence
the prosecution of Plude for health insurance fraud.

Also, as

to the contact with a federal prosecutor, the Department of
Justice never brought charges against Plude, and the grand jury
did not indict him.

Rather, the Complaint merely alleges that

the Department of Justice investigated the plaintiff.

Thus, the

plaintiff fails to allege facts that could establish the first
element of a malicious prosecution claim under state law.
Therefore, both the federal and state malicious prosecution
claims should be dismissed.
B.

Fourteenth Amendment Due Process Claim

For the plaintiff “to establish a procedural due process
violation, [he] must: (1) identify a property right, (2)
establish that governmental action with respect to that property

1

The charges initiated by Adams before the SBOA could not
support a claim for malicious prosecution because Plude was
subject only to civil, not criminal, liability.
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right amounted to a deprivation, and (3) demonstrate that the
deprivation occurred without due process.”
889 F.2d 435, 438 (2d Cir. 1989).

Rosa R. v. Connelly,

“In this context, it is well-

settled that the court should examine procedural due process
questions in two steps: the first asks whether there exists a
liberty or property interest which has been interfered with by
the State; the second examines whether the procedures attendant
upon the deprivation were constitutionally sufficient.”

Parsons

v. Pond, 126 F. Supp. 2d 205, 214–15 (D. Conn. 2000) (quoting
Vlamonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994)) (internal
quotation marks omitted).
Plude does not identify any protected property or liberty
interest and does not allege that the SBOA ever interfered with
a protected liberty or property interest as the result of
Adams’s actions.
license.

The SBOA neither revoked nor suspended his CPA

In fact, the SBOA dropped all charges against Plude in

August 2011.
In opposition to a motion to dismiss filed by other
defendants in this case, Plude argues that he is alleging with
respect to the SBOA a violation of his due process liberty
interest and asserting a “stigma plus” claim.

See Velez v.

Levy, 401 F.3d 75, 87 (2d Cir. 2005) (“A § 1983 liberty interest
claim…[is] commonly referred to as a ‘stigma plus’ claim.).
However, he makes no such argument as to Adams.
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Therefore, the Fourteenth Amendment due process claim
should be dismissed.
C.

Defamation

Plude also brings a common law claim of defamation against
Adams.

Adams argues that the claim is time-barred because the

latest date the Complaint alleges Adams made any type of
statement to the SBOA is January 5, 2010.
dispute this point.

Plude does not

Also, the Complaint alleges that Adams made

defamatory statements to the Shelton Police Department.
Complaint does not provide a date for the statements.

The
However,

the plaintiff alleges that they led to his arrest, and the
arrest warrant for the plaintiff was issued on January 16, 2009.
Under Conn. Gen. Stat. § 52-597, “[n]o action for libel or
slander shall be brought within two years from the date of the
act complained of.”

The Complaint was filed on January 13,

2012, well past two years after any statements were made to the
Shelton Police Department, and at least eight days after the
statute of limitations ran with respect to any statements to the
SBOA.

Therefore, any common law defamation claim against Adams

is time-barred and should be dismissed.
IV.

CONCLUSION

Accordingly, for the reasons set forth above, Defendant
Adams’s Motion to Dismiss (Doc. No. 26) is hereby GRANTED.
claims against Adams are dismissed.
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All

It is so ordered.
Signed this 11th day of March, 2013 at Hartford,
Connecticut.
____________/s/_____________
Alvin W. Thompson
United States District Judge

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