Wanzer et al v. Plainville et al

Filing 29

ORDER re 28 Plaintiffs' MOTION regarding Presence of Parties at the June 17, 2015 Settlement Conference. The Court reserves decision on Plaintiffs' motion. Please read and comply with the attached order. 4 pages. Signed by Judge Sarah A. L. Merriam on 6/4/15.(Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
DONALD WANZER,
:
JENNIFER WANZER, and
:
ROBIN MITTASCH, TRUSTEE of the:
COMPANION ANIMAL TRUST for the:
BENEFIT of LUCA, INDIVIDUALLY :
AND EX REL “LUCA,” A DOG, and :
ON BEHALF OF ALL OTHERS
:
SIMILARLY SITUATED
:
:
v.
:
:
TOWN OF PLAINVILLE,
:
MATTHEW CATANIA, CHIEF OF
:
POLICE, DONNA WEINHOFFER,
:
ANIMAL CONTROL OFFICER, and
:
ROBERT LEE, TOWN MANAGER
:
:
------------------------------x

Civ. No. 3:15CV16(AWT)

JUNE 4, 2015

RULING AND ORDER RE: JUNE 17 SETTLEMENT CONFERENCE
Plaintiffs Donald Wanzer, Jennifer Wanzer (“the Wanzers”)
and Robin Mittasch, Trustee of The Companion Animal Trust for
the Benefit of Luca, Individually and Ex Rel “Luca,” a dog,
(“the Trust”), and on behalf of all others similarly situated,
commenced this class action on January 6, 2015, seeking
declaratory and injunctive relief and damages arising under 42
U.S.C. §1983, as a result of the seizure and incarceration of
plaintiffs’ dog, Luca, in violation of plaintiffs’ rights to due
process and guarantee against unreasonable search and seizure
under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the

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United States Constitution and the Connecticut State
Constitution. [Compl. Doc. #1]
This case was referred for a settlement conference on May
6, 2015. [Doc. #17] During a conference on May 27, 2015, the
parties reported that the claim for injunctive relief was moot
as Luca the dog was ordered released from detention at
Plainville’s Animal Control Shelter on May 14, 2015, by Superior
Court Judge Cynthia K. Sweinton in the state court action.

A

settlement conference is scheduled for June 17, 2015 at 9:30 AM.
On June 3, 2015, plaintiffs filed a Consent Motion to
Permit Plaintiffs to Appear at Settlement Conference by Trust
Protector. [Doc. #28]

The Wanzers seek leave of Court excusing

their attendance at the settlement conference, and to permit
Attorney Richard Bruce Rosenthal, the “trust protector” of the
Trust, to appear on behalf of all three plaintiffs. [Doc. #28 at
1-2] The Wanzers represent that Attorney Rosenthal has full
authority to settle on behalf of all three plaintiffs. Id. at 2.
Defendants consent to plaintiffs’ request. Id. The motion does
not include a representation or affidavit from the Trustee,
Robin Mittasch. The motion also does not indicate whether the
Trustee will be available by telephone during the conference
should any issues arise in the course of discussions.
At paragraph 34 of the Complaint, plaintiffs state that
“the trust was formed and ownership of the dog Luca was
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transferred to his trustee.” [Compl. at ¶34] By affidavit dated
June 2, 2015, the Wanzers aver that they “transferred all right,
title, claim and interest in Luca the dog to [the Trust] and
granted the Trust full authority to enter into agreements with
the Town of Plainville to resolve all issues arising from the
disposal order of February 22, 2014 . . . .”

[Aff. at ¶8]

The

Wanzers also state that “[h]aving assigned all rights and claims
to the trust . . . [they] state, acknowledge, and agree that
[the Trust] has full authority and [their] consent to decide all
matters to the case and to settle, compromise or otherwise enter
into any agreements . . . .” [Aff. at ¶13]

Finally, the Wanzers

“further acknowledge that any and all moneys to be paid in
settlement . . . out of this action, or the state action are to
be paid to the trust for the benefit of Luca.” [Aff. at ¶14].
However, at this time, the Wanzers remain named as plaintiffs in
this matter.
Accordingly, on or before June 9, 2015, plaintiffs Donald
Wanzer and Jennifer Wanzer will notify the Court whether they
will continue as plaintiffs in this case or, in the alternative,
they will file a Notice of Voluntary Dismissal of their claims
with prejudice, pursuant to Fed. R. Civ. P. 41(a)(1)(A).
The Court reserves decision on plaintiffs’ Motion pending
their response to this order.

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SO ORDERED at New Haven, Connecticut this 4th day of June 2015.
/S/ ______________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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