Mittasch v. Reviczky et al

Filing 63

ORDER. The reasons discussed herein, the Court hereby GRANTS 19 Motion to Dismiss, GRANTS 36 Motion to Dismiss, DENIES as moot 42 Motion to Dismiss, GRANTS 44 Motion to Dismiss, DENIES 58 Motion for Extension of Time, and DENIES 62 Motion for Leave to Amend. The clerk is directed to close this case. Signed by Judge Michael P. Shea on 6/14/2013. (Shiroma, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBIN MITTASCH as Trustee, Companion Animal
Trust for the Benefit of Stella Blue and Tazzy, ex rel.
“STELLA BLUE” and “TAZZY,” dogs,

No. 3:12-cv-01200 (MPS)

Plaintiff,
v.
COMMISSIONER STEVEN K. REVICZKY,
individually and in his official capacity, ACO
SUPERVISOR RAYMOND T. CONNORS,
individually and in his official capacity, ACO
LINDA WENNER, individually and in her official
capacity,
TOWN
OF
COLCHESTER,
COLCHESTER FIRST SELECTMAN GREGG B.
SCHUSTER, individually and in his official capacity,
STATE POLICE SGT. MARC PETRUZZI,
individually and in his official capacity, AND JOHN
DOES 1-2,
Defendants.
MEMORANDUM OF DECISION
The Plaintiff in this lawsuit, Robin Mittasch, is the trustee of an “animal trust”
purportedly established under New York law for the benefit of two Rottweiler dogs owned by an
individual who is not a party to this lawsuit. The lawsuit alleges constitutional violations arising
from the seizure and detention of the two dogs by municipal and state authorities after one of the
dogs “nipped” a police officer during a confrontation at the dog owner’s home. The “animal
trust,” the property of which consists of $100 to be used for the dogs’ care, was created eight
months after the dogs were seized and ten days before this lawsuit was filed. There is no
evidence in the record that the Plaintiff has ever possessed, cared for, or laid eyes on the two
dogs. Under these circumstances, this Court would exceed a basic limit on its powers if it
reached the merits of this dispute. That limit – which springs from the language of Article III of

the Constitution extending federal judicial power to “Cases” and “Controversies” – is the
requirement that each party invoking the jurisdiction of a federal court have standing to do so.
The Plaintiff does not have standing because she has failed to establish that the seizure and
detention of the dogs has caused her to suffer any injury. The Court therefore grants the
Defendants’ Motions to Dismiss this action under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, and directs the Clerk to close this case. All other pending motions are denied as
moot.
I.

Background
The facts are taken from the complaint and other documents in the record.1
A.

Disposal Order and Appeal Hearing

Michelle Chapman-Avery, who is not a party to this action, is the owner of two
Rottweiler dogs named Stella Blue and Tazzy. (Compl. [Dkt. # 1] at Preliminary Statement, ¶
12.)

On December 19, 2011, Ms. Chapman-Avery was arrested while on her property in

Colchester, Connecticut.

(Investigation Report [Dkt. # 44-2].)

During that arrest, two

Colchester police officers arrived at her home, and one opened the screen door of the house.
(Compl. ¶ 16.) The two dogs exited the house, and one of them, Stella Blue, “nipped” one of the
officers. (Id. ¶¶ 19-20.)

Although neither dog was removed from Ms. Chapman-Avery’s

property on December 19, 2011, the Town of Colchester later issued a “Disposal Order” for
Stella Blue under Conn. Gen. Stat. § 22-358.2 (Disposal Order, Ex. D [Dkt. # 22-1].) Stella Blue
was then taken, quarantined, and held by the Town of Colchester.3 (Compl. ¶ 25.)

1

“In adjudicating a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), courts may consider evidence outside the pleadings.” Remy v. N.Y. State Dep’t of
Taxation & Fin., No. 11-1921, 2013 U.S. App. LEXIS 61, at *3 (2d Cir. Jan. 3, 2013) (internal
quotation marks omitted).
2

In January 2012, Ms. Chapman-Avery requested a hearing to appeal the Disposal Order,
as permitted by Conn. Gen. Stat. § 22-358. (Hr’g Request, In re “Stella Blue” (Conn. Dep’t of
Agric. Jan. 13, 2012), Ex. E [Dkt. # 22-1].) On June 22, 2012, the Department of Agriculture
provided notice to Ms. Chapman-Avery of a hearing scheduled for August 1, 2012, which was
then rescheduled to August 28, 2012. (Notice of Hr’g, In re “Stella Blue” (Conn. Dep’t of
Agric. June 22, 2012), Ex. H [Dkt. # 22-1]; Rescheduling of Hr’g, In re “Stella Blue” (Conn.

2

Conn. Gen. Stat. § 22-358(c) provides, in pertinent part, as follows:
The commissioner, the Chief Animal Control Officer, any animal control
officer, any municipal animal control officer or any regional animal
control officer may make any order concerning the restraint or disposal of
any biting dog, cat or other animal as the commissioner or such officer
deems necessary. … Any person aggrieved by an order of any municipal
animal control officer, the Chief Animal Control Officer, any animal
control officer or any regional animal control officer may request a
hearing before the commissioner within fourteen days of the issuance of
such order. Any order issued pursuant to this section that requires the
restraint of an animal shall be effective upon its issuance and shall remain
in effect during any appeal of such order to the commissioner. After such
hearing, the commissioner may affirm, modify or revoke such order as the
commissioner deems proper.

3

The Complaint alleges that Tazzy also was removed from Ms. Chapman-Avery under
the Disposal Order. (Compl. ¶¶ 23, 25.) It appears, however, that Ms. Chapman-Avery was
ordered by the Connecticut Superior Court to surrender Tazzy as a part of the criminal
proceedings related to her arrest, not as a result of the disposal order. (See Court Order,
Connecticut v. Avery, Dkt. No. K21N-CR11-01117140-S (Conn. Super. Ct. Jan. 4, 2012), Ex. B
to Compl. [Dkt. # 1-2]; Disposal Order.) This discrepancy does not affect the outcome here.
According to the Complaint, Tazzy was released immediately before the filing of this action; the
Complaint alleges that Tazzy’s health suffered while he was in custody. (Compl. at Preliminary
Statement.)
3

Dep’t of Agric. Aug. 6, 2012), Ex. I [Dkt. # 22-1].)4 Stella Blue remained in the custody of the
Town of Colchester pound as of the filing of this lawsuit. (Compl. ¶ 30.)
B.

Creation of the Trust

On August 7, 2012, ten days before this lawsuit was filed, Ms. Chapman-Avery
purportedly created a “Companion Animal Trust for the Benefit of Stella Blue & Tazzy” (the
“Trust”) under New York Estates, Powers, and Trusts Law (“EPTL”) § 7-8.1.5 (Trust [Dkt. # 11] at 1.) The Trust identifies Ms. Chapman-Avery as “grantor,” Plaintiff Robin Mittasch,
President of The Lexus Project, Inc., as “trustee,” and Richard Bruce Rosenthal, General Counsel
of The Lexus Project, Inc., as “trust protector.” (Id. at 1, 4.)6 Ms. Chapman-Avery, as grantor,
transferred to the Plaintiff, as trustee, only “the property set forth in Schedule A,” specifically
4

At Ms. Chapman-Avery’s request, the Department later rescheduled the hearing. (Aug.
20, 2012 Request, In re “Stella Blue” (Conn. Dep’t of Agric. Aug. 20, 2012), Ex. J [Dkt. # 221]; Rescheduling of Hr’g, In re “Stella Blue” (Conn. Dep’t of Agric. Sept. 12, 2012), Ex. K
[Dkt. # 22-1].) The hearing was ultimately held on November 2 and 21, 2012, and in a final
decision on February 28, 2013, the Department returned Stella Blue to Ms. Chapman-Avery and
required her to complete an obedience class with the dog, confine the dog in her yard, and
comply with other restrictions. (Final Decision at 5-6, In re “Stella Blue” (Conn. Dep’t of
Agric. Feb. 28, 2013)); see Hohmann v. GTECH Corp., No. 3:09-cv-00410, 2012 U.S. Dist.
LEXIS 174421, at *5 (D. Conn. Dec. 10, 2012) (“The matters of which a court may take judicial
notice include the decisions of an administrative agency.”) The Plaintiff at one point sought to
intervene in the hearing but the Department denied her request, finding that the Plaintiff lacked
an interest in the dogs. (Decision on Pet. To Intervene as Party, In re “Stella Blue” (Conn. Dep’t
of Agric. Sept. 18, 2012) [Dkt. # 15-9] at 2).) Because all of these events occurred after this
action was filed, the Court does not rely on them in determining whether the Plaintiff has
standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (1992) (“The existence of
federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.”).
5

EPTL § 7-8.1(a) provides that “[a] trust for the care of a designated domestic or pet
animal is valid. The intended use of the principal or income may be enforced by an individual
designated for that purpose in the trust instrument or, if none, by an individual appointed by a
court upon application to it by an individual, or by a trustee. Such trust shall terminate when the
living animal[,] beneficiary[,] or beneficiaries of such trust are no longer alive.”
6

“The Lexus Project, Legal Defense for All Breeds” describes itself as a § 501(c)(3)
organization devoted to the welfare of dogs.
See The Lexus Project,
http://thelexusproject.org/index.php (last visited June 5, 2013).
4

“$100 Cash.” (Id. at 1, Schedule A.) The dogs, Stella Blue and Tazzy, were not designated as
part of the Trust property, but instead are the named “Beneficiaries.” (Id.)
In addition to requiring the trustee to use the “income and principal of the Trust Estate” to
“pay for the expenses of the care of the Beneficiaries,” the Trust provides that the “trustee may
act as caretaker of the animals, or the trustee may find a caretaker for the Beneficiaries, and place
the Beneficiaries with such caretaker.” (Id. at 2.) The trustee also “has the right to name a
guardian for the Beneficiaries” or, “[i]f the trustee determines that it would be in the best
interests of the Beneficiaries to be placed with an adoptive family, the trustee has the right to
place the Beneficiaries in such home.” (Id.) Finally, the “trustee has the right to defend or
prosecute claims or causes of action on behalf of the Beneficiaries, and the trustee is to use funds
from the trust to protect and defend the dog if any lawsuits arise that would jeopardize the dog’s
life and/or freedom.” (Id.)
At the time the Trust was purportedly created, neither Ms. Chapman-Avery nor Ms.
Mittasch had possession of Stella Blue or Tazzy, which were being kept by the Town of
Colchester and a third party, respectively. (See Final Decision at 2-3, In re “Stella Blue” (Conn.
Dep’t of Agric. Feb. 28, 2012) (noting that Stella Blue “has been in the Town of Colchester
animal shelter from December 19, 2011, to present,” i.e., the time of the decision); Court Order,
Connecticut v. Avery, Dkt. No. K21N-CR11-01117140-S (Conn. Super. Ct. Aug. 6, 2012)
(noting that Tazzy was ordered to be surrendered on January 4, 2012 and was released to a third
party on August 6, 2012).) After Tazzy was released by order of the Connecticut Superior Court
on August 6, 2012, neither Ms. Chapman-Avery nor Ms. Mittasch took possession of the dog.
Instead, Tazzy was released to a third party, Joy Scott. (See Court Order, Connecticut v. Avery,
Dkt. No. K21N-CR11-01117140-S (Conn. Super. Ct. Aug. 6, 2012)).

5

C.

Commencement of this Action

On August 17, 2012, Ms. Mittasch, as trustee, commenced this action alleging
constitutional violations related to the seizure and holding of the dogs,7 as well as the hearing
procedure set forth in Conn. Gen. Stat. § 22-358.

The Plaintiff’s Complaint names as

defendants: (1) Stephen K. Reviczky, Commissioner of the Connecticut Department of
Agriculture; (2) Animal Control Supervisor Raymond T. Connors; (3) Animal Control Officer
Linda Wenner; (4) the Town of Colchester; (5) Gregg B. Schuster, First Selectman for the Town
of Colchester; (6) Mark Petruzzi, Sergeant, Municipal Animal Control, Colchester Police
Department; and (7) John Does 1-2, employees or former employees of the Municipal Animal
Control, Colchester Police Department (collectively, “Defendants”). (Compl. ¶¶ 3-8.) Ms.
Mittasch alleges that Conn. Gen. Stat. § 22-358 is “overbroad, vague, and facially and as applied
unconstitutional” because it permits the dogs to be “arbitrarily, capriciously, illegally, and
unconstitutionally deprived from the Trust.” (Id. at Preliminary Statement.) Ms. Mittasch
claims that the Defendants have violated her Fourth, Fifth, Sixth, and Fourteenth Amendment
rights, as well as “one or more State laws.” (Id.) In addition to monetary damages, the return of
Stella Blue, and a declaration that Conn. Gen. Stat. § 22-358 is unconstitutional, Ms. Mittasch
seeks to enjoin the Defendants from holding any hearings whatsoever under § 22-358.

(Id. at

Prayer for Relief.)
The Defendants have moved to dismiss this action on various grounds under Fed. R. Civ.
P. 12(b)(1) and 12(b)(6), including on the basis that the Plaintiff lacks standing. The Court need
only address standing to resolve this action.

7

The Plaintiff later filed a proposed amended complaint in which she sought to drop her
claims concerning Tazzy. (See Proposed Am. Compl. [Dkt. # 62-1].)
6

II.

Discussion
A.

Legal Standard

In considering a motion to dismiss, whether brought under Fed. R. Civ. P. 12(b)(1) or
12(b)(6), the Court must accept as true all well-pleaded facts in the Plaintiff’s complaint and
draw all reasonable inferences in favor of the Plaintiff. Conyers v. Rossides, 558 F.3d 137, 143
(2d Cir. 2009) (“[I]n reviewing the grant of a motion to dismiss under Rule 12(b)(1) we must
accept as true all material facts alleged in the complaint and draw all reasonable inferences in the
Plaintiff’s favor.”). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction, the Court may consider materials outside the complaint. See
Remy, 2013 U.S. App. LEXIS 61, at *3.
B.

The Plaintiff Lacks Standing

“Article III, Section 2 of the Constitution limits the subject matter jurisdiction of the
federal courts to the resolution of cases and controversies.” Town of Babylon v. Fed. Hous. Fin.
Agency, 699 F.3d 221, 228 (2d Cir. 2012) (internal quotation marks omitted). Indeed, “no
principle is more fundamental to the judiciary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases and controversies.” Clapper
v. Amnesty Int’l, USA, 133 S. Ct. 1138, 1146 (2013). To ensure that the case or controversy
requirement is met, “plaintiffs must establish that they have standing to sue.” Id. (internal
quotation marks omitted). Standing is critical because it “serves to prevent the judicial process
from being used to usurp the powers of the political branches.” Id. at 1146.
“To survive a defendant’s Rule 12(b)(1) motion to dismiss for lack of standing, plaintiffs
must allege facts that affirmatively and plausibly suggest that they have standing to sue.” Kiryas
Joel Alliance v. Vill. Of Kiryas Joel, 495 Fed. App’x 183, 188 (2d Cir. 2012) (internal quotation

7

marks omitted). To establish standing, a plaintiff must demonstrate: “(1) injury-in-fact, which is
a concrete and particularized harm to a legally protected interest; (2) causation in the form of a
fairly traceable connection between the asserted injury-in-fact and the alleged actions of the
defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied
by the requested relief.” W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d
100, 106-07 (2d Cir. 2008) (internal quotation marks omitted) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)); see also Clapper, 133 S. Ct. at 1147 (“To establish
Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a favorable ruling.” (internal quotation
marks omitted)).
The Defendants contend that the Plaintiff has not suffered injury-in-fact because the harm
alleged concerns the dogs, not the $100 Trust property, and because the Plaintiff lacks a property
interest in the dogs. (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss Pursuant to Rule 12(b)(1)
[Dkt. # 20] at 7-8.) The Court looks to state law to assess the adequacy of a property interest
asserted as the basis for standing. See Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 317 (2d
Cir. 2002) (“In determining whether a particular property interest rises to the level of
constitutional protection, a court must look to whether the interest involved would be protected
under state law and must weigh the importance to the holder of that right.” (internal quotation
marks omitted)). That is because “[w]hile property interests are constitutionally protected, they
are not generally constitutionally established; rather, they are created and their dimensions are
defined by existing rules or understandings that stem from an independent source such as state
law….” Brunell v. Clinton Cnty., 334 Fed. App’x 367, 369 (2d Cir. 2009) (emphasis in original).

8

1.

The Plaintiff Lacks a Property Interest in the Dogs

Assuming the Trust is valid under state law, but see infra Section II.B.2 (discussing the
validity of the Trust), the Court must consider whether the Plaintiff has standing to assert the
claims set forth in the Complaint based on the Trust terms, basic principles of trust law, and her
actions as trustee. The Court concludes that she does not.
A trust “is a fiduciary relationship with respect to property, arising from a manifestation
of intention to create that relationship and subjecting the person who holds title to the property to
duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is
not the sole trustee.” Restatement (Third) of Trusts § 2 (2003); see Mercury Bay Boating Club,
Inc. v. San Diego Yacht Club, 76 N.Y.2d 256, 289 (1990) (citing the Restatement of Trusts for
“settled principles of trust law”). The Restatement defines the components of a trust as follows:
“[t]he person who creates a trust is the settlor [or ‘grantor’],” “the property held in trust is the
trust property,” “[t]he person who holds property in trust is the trustee,” and “[a] person for
whose benefit property is held in trust is a beneficiary.” Id. § 3 & cmt. a.8 Superimposed on the
facts of this case, those definitions make Ms. Chapman-Avery the grantor, Ms. Mittasch the
trustee, $100 the trust property, and the two dogs the beneficiaries.
As trustee, the Plaintiff does not “own” the beneficiaries of the trust. Rather, she has title
– and legal title only – to the $100 and any income it generates, which is the only property the
Trust purports to convey to the trustee. The beneficiaries – the dogs – are the equitable owners
of the Trust property, an equitable interest that may, under the New York statute, be enforced by
the “trust protector,” Mr. Rosenthal. See EPTL § 7-8.1 (“The intended use of the principal or
8

EPLT § 7-8.1, the New York statute under which the trust at issue here was purportedly
created, does not interfere with these basic notions of trust law.
9

income may be enforced by an individual designated for that purpose in the trust
instrument….”).
The Plaintiff ultimately acknowledges that she does not own the dogs, but she claims that
she has a “possessory interest” or other “property interest” in the dogs. (Pl.’s Mem. of Law in
Opp’n to Defs.’ Mot. to Dismiss (hereinafter “Pl.’s Br.”) [Dkt. # 37] at 2, 13 (“The Trust is
considered an ‘owner or keeper’ of Stella Blue” and “[i]f not technical ‘ownership’ as a matter of
semantics, the Plaintiff clearly has rights to possession, use, and alienation.” (emphasis added)).)
There is no suggestion, however, in the Complaint or any of the other materials the Court might
consider on a Rule 12(b)(1) motion, that the Plaintiff has ever had possession of the dogs. When
the Trust was created, the two dogs were being held not by the Plaintiff or even by their owner,
Ms. Chapman-Avery, but by the Town and a third-party. Even after one of the dogs, Tazzy, was
released to the third party, the Plaintiff made no attempt to care for or take custody of that dog –
at least from all that appears in the materials before the Court. Because there is no evidence that
the Plaintiff has ever possessed the dogs, her argument that she is a “keeper” of the dogs under
Connecticut statutes also fails. See Conn. Gen. Stat. § 22-327(6) (defining “keeper” as “any
person, other than the owner, harboring or having in his possession any dog”).9
Further, while the Complaint includes vague – and contradictory – allegations about
whether the Trust has ever incurred any expenses related to the dogs’ care (compare Compl. ¶ 33
(alleging that the Trust and the Plaintiff “are in fact incurring expenses charged by the
Defendants for their ‘care’ of the dogs”) with id. ¶¶ 53, 57 (alleging that while dogs are detained
under Conn. Gen. Stat. § 22-358, “the owners are charged for the costs related to care of the dog

9

The Plaintiff has submitted no evidence that she has “harbored” the dogs either, i.e., no
evidence that she has “give[n] shelter to” the dogs or “provide[d them] with … temporary
quarters.” Am. Heritage Dictionary, Second College Edition (definition of “harbor”).
10

taken by the Defendants” (emphasis added))), the Plaintiff has not alleged facts indicating that
she has expended any monies of the Trust to care for the dogs, as a result of the Defendants’
actions or otherwise. And she made no effort to defend her standing on this ground in her brief
in opposition to the Defendants’ Motions to Dismiss. In any event, Connecticut law permits
municipal authorities holding a dog under the challenged statute to charge only the “owner or
keeper” of the dog for the animal’s care. Conn. Gen. Stat. § 22-333 (“The owner or keeper of
any dog, cat or other animal impounded for the purposes of quarantine, as set forth in sections
22-358 and 22-359, shall pay the amount determined by the municipality to be the full cost of
detention and care of such quarantined animal.”) The Defendants’ detention of the dogs under §
22-358 has imposed no costs on the Plaintiff or the Trust, because the Plaintiff is not the owner
or keeper of the dogs.
Nor is there any suggestion in the record that the Plaintiff has attempted to place either of
the dogs for adoption, find a caretaker for them, or name a guardian for them. Further, unlike the
dogs’ owner, Ms. Chapman-Avery, the Plaintiff did not even request a hearing before the
Commissioner of Agriculture with respect to the seizure of the dogs before the filing of this
action.10 Indeed, there is nothing in the record to suggest that the Plaintiff took any action of any
kind related to the dogs in the ten days between the creation of the Trust and the filing of this
lawsuit. From all that appears in the record, the Plaintiff has never even laid eyes on the dogs.
There is, in short, no evidence – or even an allegation – suggesting that the Plaintiff has ever
sought to exercise dominion or control over the dogs.

10

The Trust did not exist more than ten days before the filing of this action – which, as
Defendants point out (see State Defs.’ Mem. of Law in Supp. of Mot. to Dismiss [Dkt. # 43] at 9)
makes it hard to conceive how the Plaintiff could possibly have standing to challenge the actions
of the Defendants that occurred before the Trust was created, i.e., the seizure and the detention of
the dogs for the first eight months.
11

This case is thus a far cry from the cases the Plaintiff relies on for her claim of a
“possessory interest,” all of which involved plaintiffs who had exercised some dominion or
control over the property of which they were deprived. See Andrus v. Allard, 444 U.S. 51, 65
n.21 (1979) (in a challenge to a federal law restricting the sale of protected bird artifacts, holding
that the plaintiffs had standing because they possessed the bird artifacts and “the regulation they
challenge restricts their ability to dispose of their property,” and noting that there would be “no
standing to assert a takings claim by those who are merely employed in selling artifacts owned
by others”); Pangburn v. Culbertson, 200 F.3d 65, 69–70 (2d Cir. 1999) (in a forfeiture case,
holding that although the plaintiff was not the “record owner” of a car, the fact that he used and
drove the car provided him with a “significant property interest” sufficient to bring a claim under
§ 1983 for deprivation of property without due process); Murphy v. Buonato, 42 Conn. App. 239,
244 (1996) (holding that the plaintiff was a “keeper” of a dog for purposes of liability where the
plaintiff had sole possession of dog, allowed it to live at his residence, fed and sheltered the dog,
and accepted full responsibility for its care).11
The Plaintiff’s reliance on the language in the Trust concerning care of the dogs,
placement for adoption, and authority to bring suit is similarly misplaced, as none of these
powers creates a possessory interest sufficient to create standing. (See Pl.’s Br. at 15-16.) The
language concerning care of the dogs provides as follows: “The trustee may act as caretaker of
the animals, or the trustee may find a caretaker for the Beneficiaries, and place the Beneficiaries

11

The Plaintiff also suggests that she has a possessory interest because she is a bailee of
the dogs. (Pl.’s Br. at 14.) That is not so. First, the Plaintiff is not a bailee because she has
never had possession of the dogs. See Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284
Conn. 408, 420 (2007) (“In bailment, the owner or bailor has a general property interest in the
goods bailed…. The bailee, on the other hand, has mere possession of items left in its care
pursuant to the bailment.”). Second, trusts are not bailments. See Restatement (Third) of Trusts
§ 5 (2003) (“The following are not trusts: … (f) bailments and leases….”).
12

with such caretaker.” (Trust at 2.) This language makes clear that there is no expectation that
the Plaintiff herself will actually care for the dogs: she “may act as caretaker” or she may “find”
someone else to play that role – and, as noted, there is no evidence in the record she has
attempted to perform either task. Further, the Trust purportedly allows the Plaintiff, as trustee, to
appoint someone else to serve as a “guardian” for the dogs – something she also has apparently
not done. It is thus clear that the Trust itself does not make the trustee the guardian of the
animals. See also Restatement (Third) of Trusts § 5 (2003) (“The following are not trusts: … (c)
guardianships and conservatorships.”). In short, nothing in the Trust requires the Plaintiff to do
anything that would actually entail taking possession of the dogs. All the Trust requires the
Plaintiff to do is to safeguard the Trust property – $100 – and use it for the dogs’ expenses. That
duty does not create a possessory interest in the dogs themselves.
Further, the language in the Trust purporting to give the Plaintiff “the right to place” the
dogs for adoption is of questionable effect. While trustees have power over trust property – here,
the $100 – they do not have power over the trust beneficiaries themselves – here, the dogs. The
Trust provisions allowing the trustee to appoint a caretaker and guardian suggest that the grantor
intended to ensure that a caretaker/guardian would make decisions about the best interests of the
dogs themselves while the Plaintiff, as trustee, would manage the Trust property for their benefit.
Such a separation of control over the person of the ward and the property of the ward is well
recognized.

See Unif. Guardianship & Protective Proceedings Act, Summary (1998)

(distinguishing “conservators,” who “are appointed to receive, invest, manage, and disburse
property held for a minor or an incapacitated person,” are “always appointed by an appropriate
court,” and “are like trustees of a trust and are fiduciaries, who must receive, invest, manage and
disburse property in the interests of the protected person, ” from “guardians,” who “may be

13

appointed to care for unemancipated minors (children) who have lost their parents to death or
incapacitation or for whom parental authority has been legally terminated,” who “may also be
appointed to care for adults who have become incapacitated and who cannot, therefore, take care
of themselves,” and who “care for the person, who is called a ward, under the UGPPA”); see
also, e.g., Vreeland v. Marshall, 584 So.2d 809, 810 n.1 (Ala. 1991) (noting that the Alabama
Uniform Guardianship and Protective Proceedings Act “recognize[s] two fiduciary capacities—
namely, that of a ‘guardian,’ who is ‘of the person’ and analogous to a parent, and that of a
‘conservator,’ who is ‘of the property’ and more closely analogous to a trustee”). Here, the
Plaintiff is not the guardian of the dogs and is not, by virtue of her status as trustee of the trust
property, required to care for them or take custody of them. And, as noted, she has never had
possession of the dogs. It is, therefore, doubtful that the Trust vests her with a right to place the
dogs for adoption that would be enforceable against, say, a guardian (were one appointed), a
caretaker or keeper, or the owner’s heirs. Placed in context, the bare language allowing her to
place the dogs for adoption is likely a nullity and does not give her a property interest in the
dogs.
Finally, the language in the Trust purporting to confer “the right to defend or prosecute
claims or causes of action on behalf of the Beneficiaries” (Trust at 2), and the power to
“commenc[e], defend[], interven[e] in and/or maintain[] any litigation regarding Stella Blue &
Tazzy” (id. at 6), does no more to create standing than language that said, for example, that “the
trustee shall have Article III standing in any litigation concerning the dogs.” Standing is not a
matter of the parties’ intent, and it does not arise by ipse dixit. See United Capital Corp. v. 183
Lorraine St. Assocs., No. 95-5101, 1996 U.S. App. LEXIS 12335, at *2 (2d Cir. May 29, 1996)
(holding that “standing cannot be conferred by agreement of the parties” and that “[i]f a party has

14

no legally cognizable injury, the federal court lacks jurisdiction”). It is a matter of the Court’s
jurisdiction and hinges on the existence of a concrete injury. See id; see also Lujan, 504 U.S. at
560. In this case, there can be no injury absent some property interest in the dogs, and the
Plaintiff has shown none.
2.

The Trust Is Not Valid Under State Law

The Court also finds that the Plaintiff lacks standing because any property interest she
might have would arise from the Trust, and the Trust is not valid under New York law.
At common law, trusts for the care of animals were invalid because they could not be
enforced and because they violated the Rule Against Perpetuities. See In re Will of Hamilton, 57
N.Y.S.2d 359, 362-63 (N.Y. Sur. Ct. 1945). At most, such “trusts” were considered to empower,
but not to require, the trustee to provide for the care of the animals. (See Sponsor’s Mem. Bill
Jacket, L. 1996, ch. 159 (noting that prior to 1996, “New York State law does not allow a pet
owner to leave any part of his or her estate directly to benefit an animal”; rather, “a pet owner
may only leave a sum of money to a person, along with a request that the money be used for the
pet’s care.”) (emphasis added).)

The case law so holding dealt with attempts to create

testamentary trusts, i.e., to provide for the care of the owner’s pets after his or her death. See,
e.g., In re Mills’ Estate, 111 N.Y.S.2d 622, 625 (N.Y. Sur. Ct. 1952) (invalidating a pet trust
created in a will because it measured the life of the trust by the lives of animals and not human
beings, contrary to the Rule Against Perpetuities).
In 1996, New York adopted EPTL § 7-6.1, later renumbered as EPTL § 7-8.1, to address
the problem arising from this line of cases. The statute provides that, “[a] trust for the care of a
designated domestic or pet animal is valid,” “[t]he intended use of the principal or income may
be enforced by an individual designated for that purpose in the trust instrument,” and the “trust

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shall terminate when the living animal beneficiary or beneficiaries of such trust are no longer
alive.” EPTL § 7-8.1(a).
There are several provisions of the statute, however, that, taken together, provide strong
textual evidence that the legislature contemplated that such trusts would take effect only upon the
death of the pet owner. First, subsection (c) provides that “[u]pon termination [which occurs
‘when the living animal … beneficiaries of such trust are no longer alive’], the trustee shall
transfer the unexpended trust property as directed in the trust instrument or, if there are no such
directions in the trust instrument, the property shall pass to the estate of the grantor.” EPTL § 78.1(c) (emphasis added). Underlying this provision is an assumption that the grantor would be
dead upon termination of the trust. Otherwise, one would expect the drafters to have provided
that the property would pass, upon termination of the trust, either to the grantor or to his or her
estate. They could easily have done so. Compare Conn. Gen. Stat. § 45a-489a (Connecticut
statute, which expressly permits both testamentary and inter vivos trusts for the care of pets,
providing that “[t]rust property not required for its intended use, including trust property
remaining upon termination of the trust, shall be distributed … (3) [t]o the settlor, if then living;
(4) [p]ursuant to the residuary clause of the settlor’s or testator’s will; or (5) [t]o the settlor’s or
testator’s heirs ….”). Because the purpose of the New York statute is to carry out the grantor’s
wishes by creating a lawful trust to serve as the receptacle for funds or other property to be used
to care for a cherished animal, it would be strange for the drafters to fail to make any provision
for the return of the funds or other property to the grantor upon the animal’s death if the drafters’
intent was that the trust would be effective during the grantor’s lifetime. Such an omission might
operate to deny a living grantor the return of property placed in a trust after the purposes of the
trust had expired – which would be in derogation of the common law. See EPTL § 7-2.2 (“When

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the purpose for which an express trust is created ceases, the estate of the trustee also ceases.”);
Restatement (Third) of Trusts § 8 (2003) (“Where the owner of property makes a donative
transfer and manifests an intention that the transferee is to hold the property in trust but the
intended trust fails in whole or in part, or the trust is or will be fully performed without
exhausting or fully utilizing the trust estate, the transferee holds the trust estate or the appropriate
portion or interest therein on resulting trust for the transferor….”) (emphasis added). It is well
established that “the courts will not construe a statute as abolishing a common-law right in the
absence of a clear intent on the part of the Legislature.” Ellington Constr. Corp. v. Zoning Bd. of
Appeals, 77 N.Y.2d 114, 123 (1990).
Further textual evidence of the legislature’s intent that trusts under the statute take effect
only after the death of the grantor appears in subsection (e), which provides that “[i]f no trustee
is designated or no designated trustee is willing or able to serve, a court shall appoint a trustee
and may make such other orders and determinations as are advisable to carry out the intent of the
transferor and the purpose of this section.” EPTL § 7-8.1(e). This provision, which functions
much like common law doctrines requiring a court to carry out a testator’s intent after his or her
death, see Restatement (Third) of Trusts § 34(2) (“If the appointment of a trustee is not provided
for or made pursuant to the terms of the trust, the trustee will be appointed by a proper court.”),
would presumably be unnecessary if the grantor was alive to appoint a trustee or a replacement
trustee, or to make known his or her intent to the court.
Nonetheless, the text of the statute does not definitively preclude the possibility of an
inter vivos trust, and thus the Court examines the statute’s legislative history for further evidence
of the underlying legislative intent. See Oklahoma v. New Mexico, 501 U.S. 221, 234 n.5 (1991)
(“[W]e repeatedly have looked to legislative history and other extrinsic material when required

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to interpret a statute which is ambiguous”); People v. Ballman, 15 N.Y.3d 68, 72 (2010)
(“[W]here the language [of a statute] is ambiguous, we may examine the statute’s legislative
history” (internal quotation marks omitted)). The available legislative history provides further
evidence that the statute was enacted to permit pet owners to create trusts for the care of their
pets only after the owners’ deaths. For instance, the Sponsor’s Memorandum attached to the bill
that later became EPTL § 7-6.1 states that the purpose of the proposed bill was “[t]o enable a
pet-owner to provide for the animal’s care after the owner dies.” Sponsor’s Mem. Bill Jacket, L.
1996, ch. 159 (emphasis added). In letters supporting the bill, the sponsors repeated that the
bill’s purpose was to allow pet owners to set up trusts to care for their animals “after the owner
dies.” Letter of Sen. Norman J. Levy, dated June 7, 1996, Bill Jacket, L. 1996, ch. 159; Letter of
Assemb. Michael C. Finnegan, dated June 10, 1996, Bill Jacket, L. 1996, ch. 159. Moreover, the
Sponsor’s Memorandum explains that the rationale for the proposed bill was that “New York
State law does not allow a pet owner to leave any part of his or her estate directly to benefit an
animal.” Sponsor’s Mem. Bill Jacket, L. 1996, ch. 159 (emphasis added).
The Court notes that a New York City Bar Association letter supporting a 2010
amendment to EPTL § 7-8.1 makes reference to the possibility of an inter vivos animal trust. See
Letter of the New York City Bar Association, dated Nov. 2008, Bill Jacket, L. 2010, ch. 70. The
2010 amendment, however, made only a minor change to measure the duration of the trust based
on the animal’s life instead of 21 years; it was thus not an occasion to reexamine the validity or
scope of these trusts in general. The Bar Association letter also post-dates the enactment of the
statute as a whole by over a decade; such post-enactment legislative history is of little or no
weight when determining the legislature’s pre-enactment intent. See Bruesewitz v. Wyeth LLC,
131 S. Ct. 1068, 1082 (2011) (noting that post-enactment legislative history is given little or no

18

weight when determining the legislature’s intent because “by definition [it] could have had no
effect on the congressional vote” (internal quotation marks omitted)); Civil Servs. Emps. Assoc.,
Inc. v. Cnty. Of Oneida, 78 N.Y.S.2d 907, 909 (N.Y. App. Div. 1980) (“[P]ostenactment
statements or testimony … is irrelevant”). The pre-enactment legislative history supports the
conclusion that the drafters of EPTL § 7-6.1 intended the statute to apply only upon the death of
the pet owner.
The only two references to this issue in case law located by the Court also support this
interpretation, although neither bears much weight because neither specifically addressed the
question whether the statute permits the creation of an inter vivos trust. In Feger v. Warwick
Animal Shelter, 870 N.Y.S.2d 124 (N.Y. App. Div. 2008), the New York Appellate Division,
Second Department considered whether an adoptive pet owner’s identity should be revealed to a
putative prior owner of the adopted animal. In its discussion of New York’s “longstanding
history of protecting animals,” the court noted that New York “law now recognizes the creation
of trusts for the care of designated domestic or pet animals upon the death or incapacitation of
their owner.” Id. at 126-27 (emphasis added). Feger favors this Court’s interpretation of EPTL
§ 7-8.1 as barring inter vivos trusts (except, perhaps, where the grantor is incapacitated, which is
not the case here). In In re Fouts, the New York Surrogate’s Court in Nassau County considered
a petition to transfer the situs of an inter vivos trust, which was created under EPTL § 7-6.1 to
provide for the care of five chimpanzees. In re Fouts, 677 N.Y.S.2d 699 (N.Y. Sur. Ct. 1998).
Although that case involved an inter vivos animal trust, the Court did not address whether the
statute authorizes such a trust, because the issue was not raised.12 Id. at 700.

12

To the extent that Fouts can be read to permit an inter vivos trust, Feger controls
because the New York Appellate Division, Second Department has appellate jurisdiction over
the Surrogate’s Court in Nassau County.
19

Based on the statutory language, legislative history, and available case law, the Court
concludes that EPTL § 7-8.1 does not provide for the creation of an inter vivos trust for the care
of animals. Because the grantor, Ms. Chapman-Avery, is living, the Trust is void under New
York law. An invalid trust is not a recognizable legal entity, and the trustee therefore lacks a
legally protected property interest and lacks standing. See Hanson v. Denckla, 357 U.S. 235, 247
n.16 (1958) (where a trust is invalid, the trustee has no legal interest, only the settlor does);
Kinzel v. Bank of Am., No. 3:10-cv-02169, 2013 U.S. Dist. LEXIS 39608, at *17 (N.D. Ohio
Mar. 13, 2013) (noting that “trustees of a void trust would not have standing” to bring a claim
concerning an interest existing solely as a result of the void trust).
C.

The Plaintiff’s Remaining Motions Are Denied

Because the Plaintiff lacks standing, the Court lacks jurisdiction to decide the remaining
motions on their merits. See Ex parte McCardle, 74 U.S. 506, 514 (1869) (“Without jurisdiction
the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and
when it ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause.”). The Plaintiff’s remaining motions are therefore denied.
III.

Conclusion
The Defendants’ Motions to Dismiss based on standing [Dkt. # 19, 36, 44] are

GRANTED. The Defendants’ Motion to Dismiss on grounds other than standing [Dkt. # 42] is
DENIED as moot. The Plaintiff’s Motions for Extension of Time [Dkt. # 58] and for Leave to
Amend [Dkt. # 62] are DENIED. The Clerk is directed to close this case.

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IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
June 14, 2013

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