Miller v. Bridgeport Bd of Ed et al

Filing 33

ORDER granting in part and denying in part the plaintiff's 31 Motion to Amend/Correct her Amended Complaint, as explained in the attached Memorandum of Decision. The Plaintiff may file a Second Amended Complaint pursuant to this Court's order in the attached document by April 3, 2014. Signed by Judge Vanessa L. Bryant on 3/19/14. (Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSEPHINE MILLER,
Plaintiff,
v.
BRIDGEPORT BOARD OF EDUCATION
and MARK ANASTASI,
Defendants.

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CIVIL ACTION NO.
3:12-CV-01287 (VLB)

March 19, 2014

MEMORANDUM OF DECISION DENYING IN PART AND GRANTING IN PART
PLAINTIFF’S MOTION TO AMEND/CORRECT THE AMENDED COMPLAINT [Dkt.
#31]

I.

Introduction and Factual Background
This action currently encompasses two counts of racial discrimination in

the making or enforcement of contracts pursuant to 42 U.S.C. § 1981 stemming
from the Bridgeport Board of Education’s alleged non-payment for services
rendered by the Plaintiff. On November 30, 2012 the Defendants moved to
dismiss the Plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to
state a claim upon which relief may be granted, and the Court granted the motion
on July 30, 2013, allowing the Plaintiff leave to replead. Miller timely filed an
Amended Complaint. The Defendants then moved to dismiss Miller’s Amended
Complaint for failure to cure the deficiencies articulated in the Court’s ruling on
the first motion to dismiss. The Court recently denied the Defendants’ motion.
Currently pending before the Court is Miller’s Motion to Amend/Correct the
Amended Complaint to add four new claims stemming from several additional

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incidents involving the Bridgeport City Attorney’s Office. For the reasons that
follow, Plaintiff’s Motion to Amend is DENIED in part and GRANTED in part.
II.

Legal Standard
Federal Rule of Civil Procedure 15, which governs Amended and

Supplemental Pleadings, provides that a party may amend a pleading at this
juncture “only with the opposing party's written consent or with the court's
leave,” which should be freely given “when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, “it is within the sound discretion of the district court to grant
or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2d Cir. 2007). A court should deny leave to amend only upon a showing of
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (same).
“Granting leave to amend is futile if it appears that plaintiff cannot address the
deficiencies identified by the court and allege facts sufficient to support the
claim.” Panther Partners Inc. v. Ikanos Commc'ns, Inc., 347 F. App'x 617, 622 (2d
Cir. 2009). A proposed amendment is also futile if it could not withstand a motion
to dismiss pursuant to Rule 12(b)(6). Dougherty, 282 F.3d at 88. See also Basile
v. Connolly, 538 F. App’x 5, 8 (2d Cir. Sept. 3, 2013) (“while a district court
generally should not dismiss a pro se complaint without granting the plaintiff
leave to amend, such leave is not necessary when it would be futile.”).

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III.

Analysis
This action currently encompasses two 42 U.S.C. § 1981 claims: one

against Mark Anastasi, the Bridgeport City Attorney, in his individual capacity,
and a second count for municipal liability against the Bridgeport Board of
Education and Mr. Anastasi in his official capacity. The action stems from Miller’s
legal representation beginning in 2010 of Andrew Cimmino, a Board of Education
employee who is a defendant in a federal action. Miller alleges that while the
Board willingly paid Cimmino’s first attorney, who was Caucasian, pursuant to
Connecticut’s statute governing indemnity of municipal employees, Conn. Gen.
Stat. § 7-101a, the Board has refused to pay her for the same services after her
assumption of Cimmino’s defense.
Miller now seeks to add four new claims to her complaint. First, she
proposes to add quantum meruit and unjust enrichment claims against the
Bridgeport Office of the City Attorney stemming from the City’s alleged nonpayment of Plaintiff’s representation fees in an entirely separate action filed in
state superior court against Bridgeport employee Gilberto Valentin. Miller has
represented Valentin in that action since March 2010 and has allegedly received
no compensation from the City of Bridgeport. As in this action, she claims
payment is due to her pursuant to the City’s duty to Valentin pursuant to Conn.
Gen. Stat. § 7-101a.
Plaintiff also proposes to add a claim for tortious interference with contract
against Mark Anastasi, John Mitola, Errol Skyers, and Russell Liskov in their
individual and official capacities, stemming from a conversation she had with

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Assistant City Attorney Errol Skyers on October 22, 2013. Miller alleges that
Skyers told her that “her name was on a ‘no pay’ list as regards the Bridgeport
City Attorney,” which “meant that Plaintiff was an attorney with whom the Office
of the City Attorney would not settle any case.” [Dkt. 31, Proposed Second Am.
Compl. ¶¶1, 3]. Skyers allegedly explained that “certain attorneys who have
multiple cases against the City of Bridgeport would not be permitted to have their
cases settled under any circumstances.” [Id. at ¶5]. Earlier in October, one of
Miller’s clients told her that he had had a conversation with Assistant City
Attorney Russell Liskov because the client had been named as an individual
defendant along with the City in a civil action. [Id. at ¶¶6-7]. The client told
Liskov that he believed a conflict of interest would arise if the City Attorney’s
Office were to represent him, as he had been terminated by the City and had filed
a complaint with the Commission on Human Rights and Opportunities, in which
proceeding Miller represented him, and that he was about to file a federal court
action. [Id. at ¶¶8, 10]. Liskov allegedly told Miller’s client that he should not
employ Miller, that she was often reversed on decisions entered in her favor, and
that the client should employ a different attorney. [Id. at ¶11]. Miller claims that
these two incidents combined demonstrate “evidence of a plan, and purpose of
the Office of the Bridgeport City Attorney to interfere with Plaintiff’s business
relationships with her clients.” [Id. at ¶17].
Lastly, Miller incorporates each of these incidents, including the alleged
non-payment for services rendered to Cimmino currently at issue in this
litigation, to allege civil conspiracy pursuant to 42 U.S.C. § 1985. She claims that

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the “Defendant municipal agencies, municipal officers, municipal attorneys and
outside attorneys and others in the legal profession committed overt acts in
furtherance of such conspiracy,” including that the “Defendant municipal
agencies refused to compensate Plaintiff for valuable legal services performed by
her on behalf of city employees while compensating Caucasian attorneys for the
same or similar legal services; Defendant municipal officers and attorneys placed
Plaintiff on a ‘no pay’ list in order to discourage clients from utilizing Plaintiff;
Defendant municipal officers and attorneys tortuously [sic] interfered with
Plaintiff’s business relationship with her clients in order to discourage them from
utilizing her services; Defendant municipal attorneys encouraged Plaintiff’s
clients to utilize a Caucasian attorney with whom they would prefer to deal while
discouraging said clients from utilizing Plaintiff,” among other things. [Id. at
¶105]. She claims that these acts have deprived her of the same rights to engage
in the making and enforcement of contracts as are afforded to Caucasian citizens.
[Id. at ¶107].
Plaintiff’s request to amend her complaint to add these new claims is
DENIED in part and GRANTED in part.
First, Plaintiff is seeking to amend to assert claims that arise out of
separate and distinct factual bases than those encompassed in her currently
operative Amended Complaint involving Plaintiff’s representation of City
employees in separate underlying cases. These allegations do not share a
nucleus of common fact such that they should be incorporated into the current
action.

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Second, Plaintiff’s allegations are insufficient to allege a conspiracy
against her. A conspiracy is “an agreement between two or more individuals
where one acts in further[ance] of the objective of the conspiracy and each
member has knowledge of the nature and scope of the agreement.” Martinez v.
Cnty. of Suffolk, 11-CV-5113 ADS WD, 2014 WL 775058, at *5 (E.D.N.Y. Feb. 27,
2014). To maintain an action under section 1985, a plaintiff “must provide some
factual basis supporting a meeting of the minds, such that defendants entered
into an agreement, express or tacit, to achieve the unlawful end.” Webb v. Goord,
340 F.3d 105, 110 (2d Cir. 2003) (citation omitted). Miller has not alleged, except in
the most conclusory fashion, that any meeting of the minds occurred among any
or all of the defendants either currently existing in this lawsuit or those proposed
to be added. While Miller alleges that various Bridgeport City attorneys were
involved in the alleged conspiracy, she has utterly failed to connect either the
attorneys or the incidents she alleges to be involved. Moreover, although she
alleges that this conspiracy’s goal was to deprive her of her right to make or
enforce contracts based on her race, Miller has failed to allege any inference of
discrimination in the new incidents she seeks to add to this action. Indeed, none
of her proposed quantum meruit, unjust enrichment, or tortious interference with
contract claims allege any facts having to do with race in any way.1
Third, Miller’s allegation that her inclusion on a “no pay” list, for instance,
includes no allegation whatsoever that she was placed on this list because she is

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The Court notes that at least one of the attorneys Miller claims to have been
involved in this conspiracy to deprive her of her rights because of her race is a
minority.
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African American; rather, Miller’s own proposed amended pleading admits, by
implication, that the reason she is on such a list is because she often represents
clients suing the City of Bridgeport, which also indicates that Miller may have a
conflict of interest with the City of Bridgeport. An attorney may be disqualified
from representing a client in a particular case if (1) the moving party is a former
client of the adverse party's counsel; (2) there is a substantial relationship
between the subject matter of the counsel's prior representation of the moving
party and the issues of the present action; and (3) attorney whose disqualification
is sought had access to, or was likely to have had access to, relevant privileged
information in the course of the prior representation of the client. Colorpix
Systems of Am. v. Broan Mfg. Co., Inc., 131 F. Supp. 2d 331, 336 (D. Conn. 2001)
(citing U.S. v. DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987)). In Colorpix Systems
of Am. v. Broan Mfg. Co., Inc. the court, citing to Rule 1.9 of the Connecticut Rules
of Professional Conduct, found that under Connecticut law, there was sufficient
indicia of a “vicarious” attorney-client relationship between a manufacturer
defending a subrogation action brought on a product liability theory and law firm
which had represented the manufacturer’s parent and sister company in a prior
subrogation action brought on same theory, to trigger an inquiry into a potential
conflict of interest in the firm's representation of the insurer in the subject action.
The court noted that any judgment against the manufacturer would directly and
adversely affect the parent's bottom line, the parent's general counsel supervised
the manufacturer's defense, and the manufacturer and parent shared identity of
interest in that they shared one legal department, officers, and defense strategy

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in such cases. 131 F. Supp. 2d 331 (D. Conn. 2001). While the record does not
indicate the nature of the various representations, it is not inconceivable for
example that an attorney who represented the City would be privy to information
which would be adverse to its interests in a subsequent action against the City.
The Plaintiff’s proposed amended complaint triggers an inference of conflict of
interest.
The Plaintiff’s failure to allege an agreement between two or more
individuals in furtherance of achieving the unlawful end of depriving Miller of the
right to make and enforce contracts due to her race, particularly when combined
with her admission of facts raising the spector of a legitimate non-discriminatory
reason for the actions about which she complains, renders the proposed
amendment futile; while amendment to include claims unrelated to the claims at
issue here is procedurally improper. The motion to amend her complaint to add
these four new claims is thus DENIED.
Miller has, however, faintly alleged that her proposed conspiracy claim is
based on the incident currently at issue in this case: her representation of
Cimmino and her subsequent non-payment by the City of Bridgeport. As this
Court has found that she has minimally met the pleading standard for her
individual and official capacity claims pursuant to 42 U.S.C. § 1981, Miller may
amend the currently operative Amended Complaint to allege a conspiracy claim
relating to the allegations currently at issue in this action only.
IV.

Conclusion

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For the foregoing reasons, Plaintiff’s request to amend the Amended
Complaint to add four new claims is DENIED. However, the Plaintiff may amend
the Amended Complaint solely to add a conspiracy claim arising from the events
at issue in this case, provided that such proposed amended complaint must
assert facts which constitute each of the essential elements of a conspiracy
claim. The Plaintiff must file her Second Amended Complaint within fourteen (14)
days of the date of this order which is not later than April 3, 2014. The Court
reminds the parties that the Scheduling Order articulated at docket entry 28
remains operative.

IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: March 19, 2014

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