Charter Practices International, LLC et al v. Robb

Filing 350

ORDER granting 268 Motion for Summary Judgment and finding as moot 335 Recommended Ruling. Please see attached Ruling and Order for details. Signed by Judge Robert N. Chatigny on 9/30/2017. (Chenoweth, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHARTER PRACTICES INT’L, LLC
and MED. MGMT. INT’L, INC.,
Plaintiffs,
v.
JOHN M. ROBB,
Defendant.

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Case No. 3:12-cv-1768 (RNC)

RULING AND ORDER
Pending is plaintiffs’ motion for summary judgment on their
breach of contract and CUTPA claims and Dr. Robb’s counterclaims.
Pls.’ Mot., ECF No. 268.1
the motion be denied.

Judge Martinez has recommended that

Recc. Ruling, ECF No. 335.

have objected to the recommended ruling.
336.

Plaintiffs

Pls.’ Obj., ECF No.

Familiarity with the recommended ruling and objection is

presumed.
Since the recommended ruling was filed, the record has been
supplemented to include the Memorandum of Decision of the Board
of Veterinary Medicine of the Connecticut Department of Health
issued in disciplinary proceedings against Dr. Robb on February
1, 2017.
344-2.

1

Pls.’ Mot. Leave File Suppl. Materials Ex. A, ECF No.
Familiarity with the memorandum is also presumed.

The motion does not address plaintiffs’ trespass and
defamation claims.

Plaintiffs contend that the Board’s decision requires entry
of summary judgment in their favor on the claims and
counterclaims arising from the termination of Dr. Robb’s
franchise.

I agree.

I also conclude that plaintiffs are

entitled to summary judgment on Dr. Robb’s counterclaim for
negligent infliction of emotional distress.
I.
Plaintiffs have demonstrated that issue preclusion prevents
Dr. Robb from relitigating the issues determined by the Board.
The Board’s decision can have preclusive effect in this
case.

When “a state agency ‘acting in a judicial capacity . . .

resolves disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate,’ federal
courts must give the agency’s factfinding the same preclusive
effect to which it would be entitled in the State’s courts.”
Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (citation
omitted) (quoting Utah Constr. & Mining Co., 384 U.S. 394, 422
(1966)).
In order for issue preclusion to apply, the issue must have
been fully and fairly litigated, it must have been actually
decided, and the decision must have been necessary to the
judgment.

Lafayette v. Gen. Dynamics Corp., 255 Conn. 762, 772,

770 A.2d 1, 9 (2001).

All three elements are satisfied with

regard to the issues of consequence to this action.

2

Dr. Robb argues that the issues decided by the Board differ
from the issues in this case.

But plaintiffs seek to invoke

issue preclusion only to the extent there is an identity of
issues.
Dr. Robb states that the Board did not “find facts on the
science” but instead “mechanically applied the statute and rule”
and did so without regard to his “ethical convictions.”
Mem. Opp’n 4-5, ECF No. 347.

Def.’s

I cannot agree with that

description of the Board’s decision.

The decision states:

[Dr. Robb’s] misconduct of undervaccinating animals for rabies endangered
their lives and those around them. The
Department’s expert stated that undervaccination could potentially provide the
vaccinated animals with less protection,
which “could result in the animal getting a
zoonotic disease that’s potentially fatal to
people.” Tr. 3/27/2015, p. 11. In the
situation when an animal is suspected of
having contracted rabies, the Board notes
that the animal must be quarantined and may
be killed in order to examine whether it did
in fact contract rabies. See, Conn. Gen.
Stat. § 22-359(a) and (b).
Therefore, due to the serious consequences
that could result from under-vaccination for
rabies, and [Dr. Robb’s] ardent belief that
under his Aesculapian authority he does not
have to vaccinate animals in accordance with
state laws and regulations (Tr. 1/27/2016,
p.p. 49, 122; Tr. 2/23/2016, pp. 130, 13233), the Board orders that [his] license to
practice veterinary medicine be place[d] on
probation for a period of twenty-five (25)
years under the terms and conditions listed
below.
Pls.’ Mot. Leave File Suppl. Materials Ex. A, at 10, ECF No. 3442.

3

The decision prohibits Dr. Robb from administering rabies
vaccinations to any animal for the entire probationary period of
twenty-five years.

No doubt the Board imposed this condition

because it was concerned that Dr. Robb’s ethical convictions do
not permit him to vaccinate animals as required by state law and
regulations.
Dr. Robb contends that the interests served by issue
preclusion are outweighed by the interest in having a jury
consider the issues in this particular case.

Because the

elements of issue preclusion are satisfied, however, Dr. Robb is
not entitled to relitigate the issues.

No exception to issue

preclusion applies here.
Dr. Robb contends that this case should be allowed to
proceed to a jury trial because he has “an authority bestowed
. . . by God himself which supersedes any man-made laws.”
Mem. Opp’n 6, ECF No. 347.

Def.’s

However, as Judge Haight explained in

dismissing Dr. Robb’s complaint against the Board:
The Rule of Law that courts such as this one enforce is
a secular law. The Constitution places spiritual
questions beyond the competence of courts. If
Connecticut’s rules with respect to rabies vaccine
dosages should be changed, the Legislature and Governor
must be asked to change them.
Robb v. Conn. Bd. of Veterinary Med., 157 F. Supp. 3d 130, 147
(D. Conn. Jan. 20, 2016).

4

Dr. Robb contends that the Board’s decision does not
preclude relitigation because the decision is not final.

It is

well settled, however, that “res judicata and collateral estoppel
apply once final judgment is entered in a case, even while an
appeal from that judgment is pending.”

Chariot Plastics, Inc. v.

United States, 28 F. Supp. 2d 874, 881 (S.D.N.Y. 1998) (citing
Petrella v. Siegel, 843 F.2d 87, 90 (2d Cir. 1988)).
For all these reasons, issue preclusion prevents Dr. Robb
from relitigating issues already decided by the Board.

This

means that Dr. Robb is precluded from relitigating whether his
vaccine protocol violated Connecticut law and the standard of
care.2

2

Of particular relevance here, the Board found that “[t]he
standard of care require[d] that [Dr. Robb] comply with the
statutory and regulatory requirements for rabies vaccination for
dogs.” Mem. of Decision 7, ECF No. 344-2. In Connecticut, the
Board found, the method of administering the rabies vaccine, such
that the animal is legally vaccinated, requires “vaccinating in
accordance with the USDA licensed vaccine label directions.” Id.
The Board found that Dr. Robb’s vaccine protocol “diverged from
the rabies vaccine label instructions, which provided for the
full vaccine dose of one millimeter to be administered regardless
of the weight of the animal.” Id. The Board concluded that Dr.
Robb’s instruction to administer half doses of rabies vaccine to
dogs under 50 pounds was a prima facie violation of Connecticut
General Statute § 22-359b and Connecticut Agencies Regulations §
22-359-1. Id. The Board also found that his employees’ use of
unused half doses of rabies vaccine on animals pursuant to his
instructions constituted a breach of the standard of care and he
failed to obtain informed consent from a pet owner when he
administered half doses of rabies vaccine to her dog without
informing her that he was statutorily required to use a full
dose, the reason the full dose was not used, his ability to apply
for a rabies vaccine exemption from the Department of
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II.
Under the CPA, Dr. Robb was not permitted to violate the law
and the franchise could be terminated immediately in the event of
a violation.

Because the Board’s findings establish that there

was a serious violation, plaintiffs are entitled to summary
judgment on their breach of contract claim and Dr. Robb’s breach
of contract counterclaim.
III.
Plaintiffs argue that Dr. Robb’s practice of administering
half-doses of rabies vaccine, as found by the Board, violated
CUTPA as a matter of law.

I agree.3

In determining whether a practice violates CUTPA, courts
consider (1) whether the practice, without necessarily having
been previously considered unlawful, offends public policy; (2)
whether it is immoral, unethical, oppressive, or unscrupulous;
(3) whether it causes substantial injury to consumers.

Fabri v.

United Tech. Int’l, Inc., 387 F.3d 109, 120 (2d Cir. 2004).
one of these criteria needs to be met.

Only

Id.

Agriculture, and the risks associated with failure to use a full
dose. Id. at 8-9.
3

Because plaintiffs are entitled to summary judgment on the
CUTPA claim on the basis of Dr. Robb’s practice of administering
half-doses, it is unnecessary to consider the allegations of
other misconduct by Dr. Robb that are advanced by plaintiffs in
support of this claim.
6

When a CUTPA claim is predicated on a breach of contract,
the claim may fail unless the plaintiff proves “substantial
aggravating circumstances attending the breach of contract.”
Bartold v. Wells Fargo Bank, No. 14-cv-00865 (VAB), 2015 WL
7458504, at *6 (D. Conn. Nov. 24, 2015) (quoting Eclipse Sys,
Inc. v. Harrell, No. MMXCV106003857S, 2011 WL 2480405, at *2
(Conn. Super. Ct. May 25, 2011)).

This requirement may be

satisfied by proof of multiple breaches of contract.

See Reich

v. Spencer, No. HHDCV075012682S, 2010 WL 5573735, at *21 (Conn.
Super. Ct. Dec. 10, 2010).
Plaintiffs have satisfied their burden of proving a CUTPA
violation based on the Board’s finding that Dr. Robb’s practice
of administering half-doses of rabies vaccine was unlawful and
dangerous.

The Board found that Dr. Robb engaged in this

practice from July 2010 through February 2012.

Mem. of Decision

9, ECF No. 344-2. Each time Dr. Robb followed this practice, he
breached the CPA.

Plaintiffs’ motion for summary judgment as to

the CUTPA claim is therefore granted.
IV.
Dr. Robb’s counterclaim for breach of contract alleges a
violation of the Connecticut Franchise Act, Conn. Gen. Stat.
§ 42-133e, which provides that a franchise cannot be terminated
without good cause and 60 days’ notice.
33-35, ECF No. 159.

Def.’s Am. Answer 20, ¶¶

Dr. Robb’s violation of Connecticut law, as

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found by the Board, provided good cause for the termination.
Whether he was deprived of 60 days’ notice requires further
discussion.
The termination notice, issued December 7, 2012, stated that
the franchise was terminated effective February 5, 2013, exactly
60 days after the date of the notice.
16, ECF No. 225-5.

Notice of Termination 15-

The notice also informed Dr. Robb that

Banfield would step in and operate the franchise until the
termination date.

Id.

Plaintiffs contend that exercising step-

in rights is not equivalent to terminating a franchise.

Dr. Robb

disagrees and points to a Banfield document dated December 13,
2012, which was issued to personnel who were then operating the
franchise.

The document asked them to respond to any press

inquiries by stating, “Dr. Robb no longer owns a Banfield
hospital.”

Def.’s Mem. Opp’n Ex. Z3, ECF No. 282-29 (“the

Banfield document”).
The Franchise Act is silent with regard to the legal status
of a franchise operation within the 60-day window at issue here.
However, “[c]ontract interpretation turns on an objective
examination of the reasonable meaning of the text of the
agreement.”

Sea Shipping Inc. v. Half Moon Shipping, LLC, 848 F.

Supp. 2d 448, 457 (S.D.N.Y. 2012).

When the text of an agreement

is clear, there is no need to examine extrinsic evidence.

Id.

The CPA makes it clear that the franchisee owns the hospital

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until the date of termination.

The CPA states that during the

step-in period, revenue will accrue to the franchisee’s account.
In this case, the notice of termination confirmed that revenue
would be credited to Dr. Robb’s account until February 5, 2013,
at which point the termination would occur.

Because there is no

ambiguity in the CPA, extrinsic evidence such as the Banfield
document does not raise a triable issue.

Therefore, plaintiffs’

motion for summary judgment on this counterclaim is granted.
V.
Dr. Robb’s counterclaim for breach of the covenant of good
faith and fair dealing alleges that plaintiffs “exercised their
business judgment in an unreasonable manner and in bad faith” in
terminating the CPA and exercising their step-in rights.
Am. Answer 19, ¶ 28, ECF No. 159.

Def.’s

In his opposition to

plaintiff’s summary judgment motion, Dr. Robb also asserts that
they acted in bad faith in attempting to consolidate company
ownership of Banfield hospitals by searching for reasons to
terminate franchisees’ CPAs.

Def.’s Am. Answer 13-14, ¶¶ 12-14,

ECF No. 159.
The duty of good faith and fair dealing is “a covenant
implied into a contract or a contractual relationship . . .
[E]very contract imposes upon each party a duty of good faith and
fair dealing in its performance and its enforcement.”

Anderson

v. Governor & Co. of the Bank of Ireland, No. 3:11-cv-355 (VLB),

9

2011 WL 6001621, at *6 (D. Conn. Nov. 30, 2011) (alteration in
original) (quoting De La Concha of Hartford, Inc. V. Aetna Life
Ins. Co., 269 Conn. 424, 432 (2004)).

The duty requires “neither

party to a contract to do anything that will injure the right of
the other to receive the benefits of the agreement.”

Clouston v.

On Target Locating Servs., No. 3:01 CV 2404 DJS, 2005 WL 2338883,
at *6 (D. Conn. Aug. 19, 2005).
To recover on this claim, Dr. Robb must show (1) he and the
plaintiffs were parties to a contract under which he reasonably
expected to receive certain benefits, (2) plaintiffs engaged in
conduct that injured his right to receive some or all of those
benefits, and (3) they acted in bad faith.

Id.

As discussed above, the Board’s findings compel the
conclusion that plaintiffs were entitled to terminate the CPA and
exercise their step-in rights to operate the franchise.

Dr.

Robb’s violations of state law gave them a legal right to do so.
Dr. Robb could not have a reasonable expectation that they would
refrain from doing so, particularly given his insistence that his
practice of administering half-doses was necessary and
appropriate.

Accordingly, the motion for summary judgment is

granted on this counterclaim.
VI.
Dr. Robb’s counterclaim under CUTPA alleges that plaintiffs
“embark[ed] on an unlawful plan to de-franchise the BANFIELD® pet

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hospital network and make most of the BANFIELD® pet hospitals
company-owned.”

Def.’s Am. Answer 13, ¶ 12, ECF No. 159.

They

did so, he alleges, by making a below-market offer to repurchase
franchises from owners, and, if unsuccessful, would abuse its
business judgment “in an unreasonable and unjustified manner.”
Id. at 14, ¶ 14.

Even assuming plaintiffs had a business plan to

centralize ownership of the Banfield pet hospitals, the Board’s
findings establish that Dr. Robb engaged in conduct that violated
Connecticut law and created a danger to pets and people.

In view

of the Board’s decision, plaintiffs did not breach the CPA by
terminating Dr. Robb’s franchise and summary judgment is
therefore proper on his CUTPA claim.
VII.
Dr. Robb’s counterclaim for negligent infliction of
emotional distress is based on events that occurred after he
received the termination notice.

To prevail on this claim, he

must prove the following: the plaintiffs’ conduct created an
unreasonable risk of causing him emotional distress, his distress
was foreseeable, the emotional distress was severe enough that it
might result in illness or bodily harm, and the plaintiffs’
conduct was the cause of his distress.

Carrol v. Allstate Ins.

Co., 262 Conn. 433, 442, 815 A.2d 119, 126 (2003).

In order to

avoid summary judgment on this claim, Dr. Robb must “set out
specific facts showing a genuine issue for trial,” Fed. R. Civ.

11

P. 56(e), and cannot rely upon “self-serving affidavits, sitting
alone,” to create a triable issue of fact.

Dowd v. City of New

York, No. 11 Civ. 9333(KBF), 2012 WL 5462666, at *1 (S.D.N.Y.
Nov. 5, 2012).

Dr. Robb has not met this burden.

supporting evidence is his own affidavit.

His only

His testimony as set

forth in the affidavit is inadmissible with regard to some of the
factual matters essential to his claim.

In the absence of

admissible evidence sufficient to permit a jury to find in favor
of Dr. Robb, the motion for summary judgment is granted on this
claim as well.
VIII.
Accordingly, the motion for summary judgment is granted on
plaintiff’s first and second claims for relief and all four
counterclaims.

As a result of this ruling, the only claims that

remain open are plaintiffs’ claims for trespass and defamation.
It is unclear whether plaintiffs will want to pursue those claims
or simply withdraw them because they have stated that no trial is
necessary in this case.

It is also unclear whether plaintiff’s

will seek to prove compensatory damages, which also could require
a trial.
Plaintiffs will file and serve a statement, on or before
October 14, 2017, informing the Court and Dr. Robb of their
intentions with regard to the trespass and defamation claims and
their requests for compensatory damages.

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So ordered this 30th day of September 2017.

/s/RNC
Robert N. Chatigny
United States District Judge

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