Lynch v. Ackley et al
ORDER. For the reasons stated herein, Defendants' 81 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Signed by Judge Michael P. Shea on 12/19/2013. (Best, Z)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:12cv537 (MPS)
ACKLEY, et al.,
ORDER ON MOTION TO DISMISS
Defendants’ Motion to Dismiss Counts One, Two and Three is procedurally improper
because it targets specific factual allegations rather than an entire legal claim. Count Four,
however, is legally flawed because it fails to plead an essential element. Thus, Defendants’
Motion to Dismiss [Doc. # 81] is GRANTED IN PART and DENIED IN PART.
The City of New London and Margaret Ackley (collectively “Defendants”) have moved
to dismiss, in part, Plaintiff’s Second Amended Complaint. According to Defendants’ Motion:
Defendants seek dismissal in whole or in part of: Count One, which is brought
pursuant to Conn. Gen. Stat. § 31-51q against the City; Counts Two and Three,
which are brought pursuant to 42 U.S.C. § 1983 against Ackley and the City,
respectively; and Count Four1 which claims libel per se against Ackley.
(Defs.’ Mot. to Dismiss [Doc. # 81] at 1.) In particular, Defendants argue that “[t]he new Free
Speech claims are barred by Garcetti,” that Plaintiff has not sufficiently pled a libel per se claim
in Count Four, and that, to the extent Count Four was intended to assert an intentional infliction
of emotional distress claim, the conduct alleged does not rise to the level of “extreme and
outrageous,” and the Complaint fails to plead severe emotional distress and thus does not state an
As Defendants note, there are two counts that are labeled “Count Five” in the Second
Amended Complaint. The Court, like Defendants, will assume that this was a scrivener’s error
and refer to the first Count Five as Count Four.
intentional infliction of emotional distress claim. (Id.)
Before turning to Defendants’ argument in favor of dismissal, it will be helpful first to
explain some of the pertinent procedural background. This is not Defendants’ first motion to
dismiss. Defendants moved to dismiss Plaintiff’s Amended Complaint on August 13, 2012 on
the basis that Plaintiff’s allegedly protected speech was not actually protected under the First
Amendment, under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006).
(Defs.’ Mot. to Dismiss [Doc. # 33].) In a decision dated December 14, 2012, this Court
(Arterton, J.) denied Defendants’ Motion because, although some of Plaintiff’s alleged speech
was not protected under Garcetti, there was a great deal of it that was (at least when reading the
Complaint in a light most favorable to the Plaintiff), including: (1) Plaintiff’s August 2010
request for a grievance; (2) Plaintiff’s September 2010 request that the union consider a vote of
no confidence in Chief Ackley; (3) Plaintiff’s attendance at meetings where he opposed
Defendant Ackley’s proposal to have civilian complaints read openly to the public; (4) Plaintiff’s
involvement as vice president of the union in its June 2011 mayoral endorsement of Councilman
Buscetto; (5) Plaintiff’s September 2011 open letter in the local newspaper; and (6) Plaintiff’s
request that Chief Ackley be investigated and placed on administrative leave.
Denying Mot. to Dismiss [Doc. # 48] at 10.)
Several months later, on July 19, 2013, Plaintiff filed a Motion for Leave to Supplement
the Complaint. (Pl.’s Mot. for Leave [Doc. # 74].) The Motion expressly stated that “Plaintiff
does not seek to add any additional new parties or new claims to this lawsuit.” (Id. at 2)
(emphasis added). Instead, Plaintiff requested that the Court “grant him leave to supplement his
Amended Complaint to include events and circumstances which have occurred since the time of
filing . . . .” (Id.) Thus, aside from appearing to add an intentional infliction of emotional
distress claim in Count Four (see Proposed First Supp. Compl. [doc. # 74-1] at ¶ 36), the
proposed amended complaint contained only new factual allegations, not entirely new legal
claims. In an order dated July 31, 2013, the Court granted Plaintiff’s Motion in part, and
directed Plaintiff to file a single operative complaint that would incorporate both the Amended
Complaint and the new factual allegations set forth in the Proposed Supplemental Complaint.
(July 31, 2013 Order [Doc. # 76].) Plaintiff thereafter filed his Second Amended Complaint on
August 14, 2013 [Doc. # 77], prompting Defendants to file the instant Motion to Dismiss on
September 9, 2013 [Doc. # 81].
A. Counts One, Two, and Three
With respect to Plaintiff’s free speech claims, Defendants’ Motion to Dismiss is
somewhat ambiguous on its face in that it asks the Court to dismiss “in whole or in part” Counts
One, Two and Three. (Defs.’ Mot. to Dismiss [doc. # 81] at 1.) In reading the Motion as a
whole, however, it is clear that Defendants do not in fact ask the Court to dismiss Counts One,
Two and Three in their entirety, nor could they, given the Court’s December 14, 2012 Order
denying Defendants’ first motion to dismiss those counts. Instead, Defendants’ Motion as to
Counts One, Two and Three appears to target the new factual material in Plaintiff’s Second
Amended Complaint, requesting dismissal of the first three counts on the grounds that Plaintiff’s
“new Free Speech claims are barred by Garcetti.” (Id.) (emphasis added).
As noted above, Plaintiff’s Second Amended Complaint does not add any new free
speech claims; it simply adds factual allegations as additional support for the claims in Counts
One through Three. In effect, then, Defendants’ Motion asks the Court to dismiss particular
factual allegations—as opposed to claims—in the Second Amended Complaint. Defendants’
memorandum in support of the motion to dismiss acknowledges this by stating that “paragraphs
fifty-three through eighty of Counts One, Two and Three should be dismissed” and “Plaintiff’s
allegations regarding the June 17, 2013 grievance should be dismissed.” (Defs.’ Mem. [Doc. #
81-1] at 11-12.)
Defendants’ Motion is procedurally improper. Federal Rule of Civil Procedure 12(b)(6),
the rule upon which Defendants base their motion, provides for dismissal for failure to state a
“claim.” Fed. R. Civ. P. 12(b)(6). Thus, Rule 12(b)(6) is the appropriate procedural mechanism
by which to dismiss “an entire claim or complaint.” See, e.g., In re Westinghouse Sec. Litig., No.
91-cv-354, 1998 U.S. Dist. LEXIS 3033, *9-10 (W.D. Pa. Mar. 12, 1998) (citing Day v.
Moscow, 955 F.2d 807, 811 (2d Cir. 1992)). It does not provide for the dismissal of particular
allegations in support of a claim. Id. Defendants’ motion as to Counts One, Two, and Three is
B. Count Four
Count Four is entitled “Libel Per Se as to Defendant Ackley,” but in substance it alleges a
claim of intentional infliction of emotional distress by invoking the term of art “extreme and
outrageous.” (See Pl.’s Second Am. Compl. [Doc. # 77] at 24.) Defendants argue that Count
Four should be dismissed for failure to state a claim, whether it is intended as a libel per se claim
or an intentional infliction of emotional distress claim. Plaintiff discusses only the latter in his
memorandum in opposition to the Motion to Dismiss. The Court will therefore interpret Count
Four as asserting a claim of intentional infliction of emotional distress only.
For an intentional infliction of emotional distress (“IIED”) claim to survive a motion to
dismiss, the plaintiff must plead facts that plausibly support four elements: (1) the defendant
intended to inflict emotional distress or that she knew or should have known that emotional
distress was the likely result of her conduct; (2) the conduct was extreme and outrageous; (3) the
defendant’s conduct was the cause of the plaintiff’s distress; and (4) the emotional distress
sustained by the plaintiff was severe. Craig v. Yale Univ. Sch. of Med., 838 F. Supp. 2d 4, 9 (D.
Conn. 2011). Defendants argue that Count Four should be dismissed for failure to state a claim
for two reasons: first, Plaintiff has not pleaded “extreme and outrageous” conduct, and second,
Plaintiff has not pleaded any facts that could plausibly support that he has suffered severe
emotional distress. Although the briefs focus primarily on extreme and outrageous conduct, it is
Plaintiff’s failure to sufficiently plead severe emotional distress that persuades the Court to
dismiss Count Four.
To withstand a motion to dismiss, a complaint must contain factual allegations sufficient
“to raise a right to relief above the speculative level” and plausibly state a claim for relief. Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Although the Court must assume the truth of all
factual allegations in the complaint, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are not entitled to the assumption of truth and are
insufficient to withstand a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Here,
the Complaint states that Plaintiff suffered “emotional distress.” (Pl.’s Second Am. Compl.
[Doc. # 77] at 24.) However, this conclusory statement is not supported by any other factual
allegations, and appears to be nothing more than a threadbare recital of the fourth element of an
IIED claim. Further, more than just “emotional distress” is required. In Connecticut, to support
an IIED claim, the emotional distress must be “severe”; in fact, it must be “so severe that no
reasonable person could be expected to endure it.” Craig, 838 F. Supp. 2d at 12. The Complaint
fails to allege that the emotional distress was severe; nor does it plead any facts that would
support such an allegation. Compare with Craig, 838 F. Supp. 2d at 12-13 (holding that the
following factual allegations were sufficient to withstand a motion to dismiss: trauma;
sleeplessness; loss of appetite; substantial loss of employment income; overly burdensome
financial hardships; damage to his relationship with his family and friends; and damage to his
self-esteem and sense of self-worth).
Because the Complaint does not plead sufficient factual material plausibly to support that
Plaintiff suffered severe emotional distress, the intentional infliction of emotional distress
claim—the claim asserted in Count Four—is dismissed. Having dismissed Count Four on these
grounds, I need not consider Defendants’ argument that the alleged conduct was not extreme and
IT IS SO ORDERED.
Michael P. Shea, U.S.D.J.
December 19, 2013
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