Williams et al v. Bean et al
ORDER granting 77 Motion for Clarification regarding clerical errors. See attached Amended Ruling and Order on Motion to Dismiss Counterclaims and Motion to Seal. Signed by Judge Victor A. Bolden on 11/8/2017. (Riegel, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVE WILLIAMS and REBA WILLIAMS,
Plaintiffs and Counter Defendants,
No. 16-cv-1633 (VAB)
RANDALL BEAN, ELIZABETH BLACK
BEAN, et al.,
Defendants and Counter Claimants.
AMENDED RULING AND ORDER ON MOTION TO DISMISS COUNTERCLAIMS
AND MOTION TO SEAL1
Dave Williams and Reba Williams (collectively, “Plaintiffs,” “Counter Defendants” or
“Williamses”) brought this action against Randall Bean, Elizabeth Black, Christopher Bean, and
Matthew Bean (collectively, “Defendants,” “Counter Claimants,” or “Beans”) in the Connecticut
Superior Court for the Judicial District of New London. ECF No. 1-2. The Beans removed this
case to this Court. ECF No. 1. The Beans then filed Counterclaims against the Williamses. ECF
No. 26. The Williamses filed a motion to dismiss the Counterclaims. ECF No. 30. Defendants
then filed Amended Counterclaims. ECF No. 41. The Court agreed to consider the original
motion to dismiss, ECF No. 30, as applying to the Amended Counterclaims, and allowed the
parties to file supplemental briefing as to the new allegations in the Amended Counterclaims.
ECF No. 49; ECF No. 50. The Williamses then filed a supplemental motion to dismiss as to the
new allegations in the Amended Counterclaims. ECF No. 57.
Under Federal Rule of Civil Procedure 60(a), the Court issues this Amended Ruling and Order to correct clerical
errors in the Court’s Ruling and Order from September 29, 2017, ECF No. 73, that the Williamses brought to the
Court’s attention by letter dated October 26, 2017, ECF No. 77. The Court treated the Williams’ letter as a motion
for clarification and allowed the Beans an opportunity to respond, ECF No. 78, which they did on November 3,
2017, ECF No. 79.
As the parties briefed the motion to dismiss as to the Counterclaims and the Amended
Counterclaims, the parties indicated that the Williamses would be requesting that Ms. Williams’s
deposition transcript and all exhibits to that deposition be designated Confidential under the
Court’s Standing Protective Order, ECF No. 11, and that the parties would, therefore, be filing
documents under seal pending the resolution of a dispute over whether the documents should, in
fact, be sealed. See, e.g., 4/7/2017 Motion to Seal at 1-2, ECF No. 39 (“Defendants object to
Plaintiffs’ designation of the entire transcript of Reba Williams’ deposition and all exhibits
thereto being designated Confidential . . . Defendants assume that the designations of the
deposition transcript and exhibits were made because Plaintiffs believe they implicate a
legitimate expectation of privacy. Defendants disagree . . . Defendants plan to meet and confer
with counsel for Plaintiffs regarding this matter, and then seek relief from the Court if such meet
and confer does not yield positive results.”). On July 24, 2017, the Court provisionally granted
the most recent motion to seal pending the resolution of the underlying dispute over whether Ms.
Williams’s deposition and the attached exhibits should be sealed. ECF No. 64.
For the reasons that follow, the Court here GRANTS in part and DENIES in part the
Williams’ Motion to Dismiss the Beans’ Counterclaims.
As explained below, the Court ORDERS that all documents must be unsealed.
This matter is a dispute between neighbors. The Williamses allegedly reside in
Greenwich, Connecticut. Amend. Countercl. ¶ 14, ECF No. 40. The Beans allegedly reside in
The Court includes only factual allegations that are relevant to the motion to dismiss the Counterclaims and the
Amended Counterclaims in this section.
Boston, Massachusetts. Id. ¶ 13. Matthew Bean and Christopher Bean are the adult children of
Mr. Bean and Ms. Black. Id. ¶¶ 20-21.
On October of 2014, Mr. Bean and Ms. Black allegedly purchased a home at 28 Water
Street in Stonington, Connecticut (the “Bean Property”). Amend. Countercl. ¶ 22. The house on
the Bean Property was built around 1870 and in need of repair at the time. Id. The Bean Property
allegedly had, as a defining characteristic, uninterrupted views of Montauk Point, Fishers Island,
and the Fishers Island Sound (“Water Views”). Id. ¶ 23. The Beans allegedly purchased the Bean
Property primarily because of the Water Views and the property’s waterfront location. Id. ¶ 24.
The Beans allege that they began moving into the Bean Property on June 5, 2016. Id. ¶ 77.
The Williamses allegedly own two houses in Stonington that immediately surround the
Bean Property (collectively, the “Williams Properties”). Amend. Countercl. ¶ 48. One house,
located at 24 Water Street, is immediately next door to the Bean Property (“24 Water Street”).
Id. ¶ 49. The second house, located at 29 Water Street, is located directly across the street from
the Bean Property (“29 Water Street”). Id. One of the Williams Properties has a dock. Id. ¶ 42.
Defendants allege that the Williamses “have a history of antagonistic relations with the
Stonington community as detailed in an article published by the New London Day in March
2011.” Amend. Countercl. ¶ 50. Defendants further allege that the Williamses filed two separate
lawsuits in or around 2009 against the previous owners of the Bean Property, alleging a property
line dispute. Id. ¶¶ 51–52. The Beans allege that the previous owners of the Bean Property sold
them the property “well below their initial asking price, in part, because of the Williams’
harassing actions.” Id. ¶ 53.
Design Plan and Stonington Planning and Zoning Commission
Before the Beans purchased the Bean Property, they allegedly met with an architect to
determine what renovations they could make to the existing house under the Town of Stonington
Planning and Zoning Commission (“Stonington P&Z”) Guidelines. Amend. Countercl. ¶ 25. An
experienced architect allegedly assisted them in developing a renovation design (the “Design
Plan”) that included installing predominantly south and southwest-facing windows to “take
advantage of south facing solar gain, the natural light, and the Water Views.” Id. ¶ 26. The
Design Plan allegedly placed as few windows as feasible on the north side of the home because
of the absence of any solar gain or natural light from that direction. Id. ¶ 27. Overall, the Design
Plan allegedly added windows and changed the usage of certain spaces, but did not change the
footprint or height of the existing house on the Bean Property. Id. ¶ 28.
Before submitting the Design Plan to the Stonington P&Z, the Beans allege that they
asked the real estate agents for the Bean Property to inquire as to whether the Williamses, as the
owner of the properties next door and across the street from the Bean Property, had any
objections. Id. ¶ 29. The real estate agent allegedly reported that the Williamses did not object to
the Design Plan. Id. ¶ 30.
On March of 2015, the Beans allegedly worked with the Stonington P&Z officer to
submit their design plan for approval. Id. ¶ 31. Many in the Stonington community allegedly
supported the plan, with around 50 neighbors either sending letters of support to Stonington P&Z
or planning to attend the plan review hearing in support. Id. ¶ 32. Two households allegedly
objected to the Design Plan. Id. ¶ 33. The Williamses were, allegedly, not among these objectors.
Id. The Stonington P&Z allegedly approved of the Design Plan unanimously. Id. ¶ 35.
Following the Stonington P&Z’s approval of the Design Plan for the Bean Property, the
individuals who had allegedly opposed the Design Plan, Martina Durner and Larry Alstiel and
Paul Koushouris (collectively, the “Design Plan Objectors”), allegedly filed two lawsuits against
“the Town of Stonington, Stonington Planning & Zoning, Stonington Zoning Board of Appeals,
and the Bean Family.” Id. ¶ 36. Ms. Durner and Mr. Alstiel allegedly contacted multiple
neighbors, including the Williamses, in an effort to build support for Ms. Durner and Mr.
Alstiel’s lawsuit. Id. ¶ 37.
In November of 2015, the Beans allegedly agreed to a stipulated settlement with the
Design Plan Objectors that the Beans, moving forward, would not make changes to the Design
Plan for a period of ten years. Id. ¶ 38. The Williamses allegedly named Ms. Durner and Mr.
Alstiel as principal witnesses in the matter currently pending before the Court. Id. ¶ 39.
In or around August of 2015, the Beans allegedly filed an application for a dock permit to
build a short dock on the Bean Property. Id. ¶ 41. They allegedly sent notifications to their
immediate neighbors, including the Williamses. Id. Mr. Williams allegedly opposed the
Defendants’ dock permit application. Id. ¶ 42. The opposition letter from the Williamses
allegedly stated, in relevant part, that “[w]hen we brought our home, 24 Water Street, six years
ago, we were informed that no more docks would be permitted in the Commons to the Point
area.” Id. ¶ 43. The Stonington Harbor Marine Commission allegedly approved the Beans’ dock
permit application unanimously, with a 10-0 vote, roughly one month later. Id. ¶ 44.
The Beans allegedly proceeded to make a necessary dock permit application to the State
of Connecticut Department of Energy and Environmental Protection (“DEEP”). Amend.
Countercl. ¶ 45. On February 29, 2016, DEEP allegedly granted tentative approval for the dock
permit for the Bean Property. Id. The Beans allege that, around the time of DEEP’s February 29,
2016, tentative approval for their dock permit application, the Williamses began to harass them.
Id. ¶ 47. On March 28, 2016, DEEP allegedly gave formal approval for the dock permit, and the
Beans began preparing to construct the dock. Id. ¶ 68. The Williamses allegedly appealed the
decision to DEEP, which allegedly denied their appeal. Id. ¶ 69.
Allegedly Harassing Activities by Mr. Williams and Ms. Williams
Correspondence with Individuals
On August 31, 2015, Ms. Williams allegedly sent an e-mail to a neighbor Lynn Young
that read, in part, “Mr. Bean plans to build high enough to see over our hedge. If he does and
peers into our privacy, we’ll know he’s a peeping tom.” Amend. Countercl. ¶ 34.
On February 9, 2016, Ms. Williams allegedly sent an e-mail to another neighbor, stating
that the renovated Bean Property “ruin[ed] the look of Water Street,” and called Mr. Bean a
“barbarian.” Amend. Countercl. ¶ 40.
On March 4, 2016, Ms. Williams allegedly sent another e-mail to someone named
“Josie,” stating in relevant part that Mr. Bean “told the world he’d build to see into our yard and
he’s done it.” Amend. Countercl. ¶ 55 n. 3.
In or around March 6, 2016, Mr. Williams allegedly sent an e-mail to neighbor Betty
Richards that read, in relevant part: “Reba wants me to send this on. For her, the dock does it.
Can’t live with that and all else next door. We’ll have to move.” Amend. Countercl. ¶ 46.
Ms. Williams allegedly also sent an e-mail to Mr. Alstiel on March 7, 2016, stating that
Mr. Bean “had said he planned to build so high he could see over our hedge into our garden.”
Amend. Countercl. ¶ 59.
On April 5, 2016, Ms. Williams allegedly sent an e-mail to neighbor Spike Lobdell,
which stated that “Mr. Bean was telling people how he was going to build a tall place which
would overlook ours, including our garden – ruining our privacy. He did what he said he would.”
Amend. Countercl. ¶ 70 n. 4.
On July 18, 2016, Ms. Williams allegedly sent an e-mail to neighbor Annette Blaugrund,
stating that Mr. Williams and Ms. Williams “were being ‘spied upon’ by the Bean Family.”
Amend. Countercl. ¶ 85.
On July 20, 2016, Mr. Williams allegedly sent identical e-mails to five neighbors, Tom
Hausman, Al Razzano, Heidi Reavis, Betty Richards and Mary Fitzgibbons. Amend. Countercl.
¶ 86. This e-mail allegedly stated that “the Beans were snooping on the Williams” and further
stated that “last week a young man from next door began taking photographs of us in our
On October 20, 2016, Ms. Williams allegedly sent an e-mail to Ms. Young, stating that
“‘just like [previous owner of the Bean Property] Hobbs,’ the Bean Family ‘won’t stop.’”
Amend. Countercl. ¶ 107. This e-mail allegedly went on to accuse one Defendant of “staring at
Ms. Williams” and further stated that the Williamses only sued the Beans “because the Beans
refused twice to agree to stay out of our property.” Id. The Beans allege that the allegations about
them in this e-mail are false. Id. ¶ 108. The Beans further allege that these accusations are likely
to harm their reputations and damage them in their professional endeavors. Id. ¶ 109. The Beans
further allege that these accusations are likely to harm Christopher Beans’s reputation and
damage him in his nascent professional endeavors. Id. ¶ 110.
Correspondence with Multiple Recipients
The March 4, 2016 E-mail to Multiple Stonington Residents
On March 4, 2016, at a time when the Beans allege that they had yet to meet the
Williamses, the Beans allege that they learned that the Williamses had circulated a disparaging email about them to numerous residents of Stonington. Amend Countercl. ¶¶ 54-55. In this e-mail,
the Williamses allegedly accused the Beans of stating they were “friends” with Mr. Williams and
Ms. Williams. Id. ¶ 55. This e-mail further alleged that Mr. Bean and Ms. Black told an
unidentified third party that they had designed the Bean Property “so that they could look into
the Williams’ garden.” Id.
On March 5, 2016, Ms. Black allegedly responded to this e-mail by sending Mr. Williams
an e-mail that stated, in relevant part, that “we have never indicated in writing or conversation
that we are ‘friends with you or your wife,” and that “we have never, in writing or conversation,
indicated that the reason for this purchase was so that we could look at your gardens,” and “I can
assure you that we have absolutely no intention of interfering with your privacy and look
forward to being cordial and respectful neighbors.” Amend. Countercl. ¶ 57.
Ms. Williams allegedly responded to Ms. Black’s e-mail with a March 7, 2016, e-mail to
neighbor Ms. Richards, stating that, just as in prior years when they had been “made miserable”
by the previous owner of the Bean Property, whom Ms. Williams referred to as “Horrible
Hobbs,” it was happening again. Amend. Countercl. ¶ 58. Ms. Williams’s e-mail allegedly said
that Ms. Black’s was “lying” in Ms. Black’s March 5, 2016, e-mail. Id.
Ms. Williams allegedly responded to Ms. Black’s March 5, 2016, e-mail in March 7,
2016, e-mail stating, in relevant part:
I have no interest in the past. All that I care about is recent behavior of your
husband. You imply that I have misstated facts about him. I have huge amounts
of backup from people who detest you both. Should I have to go to court for
anything -- they have all offered support. At one time I thought you were
innocent, and didn’t know anything about your husband’s behavior. I now know
Amend. Countercl. ¶ 60 (emphasis in original). The Beans allege that they have no knowledge of
what “behavior” Ms. Williams was referring to and the Beans alleged that they were “baffled and
alarmed.” Id. ¶¶ 61–62. Mr. Bean allegedly contacted the Stonington Police Department to
express his concerns about Ms. Williams’s e-mail.
On March 8, 2016, Mr. Bean allegedly sent an e-mail to both the Williamses, explaining,
among other things, that “I want to make abundantly clear that at no stage did we ever make any
comments with regard to you, nor would we have any reason to,” and that “[w]e hope to be
cordial neighbors.” Countercl. ¶ 64. Mr. Bean allegedly invited the Williamses to ask any
questions about the renovation plans at the Bean Property and further invited the Williamses for
drinks. Id. The e-mail emphasized that the Beans “possess only goodwill with regard to you, and
a “hope that you will come to feel the same way.” Id.
Roughly an hour later on March 8, 2006, Ms. Williams allegedly responded with an email stating that:
As a consequence of your constantly forcing yourself in our lives we are leaving
Stonington. We do not want to live next door to you. Do not contact us again.
You will always be the person who has forced me away from a house and garden
Amend. Countercl. ¶ 65.
E-mails to the “Private Lives” E-mail List
On March 14, 2016, Ms. Williams allegedly sent an e-mail to an e-mail group called
“Private Lives.” Amend. Countercl. ¶ 67. This e-mail allegedly accused Mr. Bean of improperly
obtaining approval for renovations to the Bean Property, and further allegedly that the
renovations were “out-of-code.” Id.
On May 26, 2016, Ms. Williams allegedly sent another e-mail to “Private Lives,” stating
that “Mr. Bean had said that ‘[t]his house under renovation is going to be so tall I will be able to
look right into the Williams’ garden.’” Amend. Countercl. ¶ 74. She allegedly further stated that
“[t]the renovations to the Bean Property were ‘designed for spying’ on the Williams, and again
suggested that the members of the Bean Family are peeping toms.” Id. Neighbor Susan
Kinsolving allegedly responded to Ms. Williams’s May 26, 2016, e-mail, writing that the
Williamses should “shin[e] very bright lights back at them [which] might force them to lower
blinds and pull curtains.” Id. ¶ 75. Ms. Williams allegedly responded: “[W]e’ll have to figure out
how to do it.” Id.
On June 3, 2016, Ms. Williams allegedly sent another e-mail to “Private Lives.” Id. ¶ 76.
The Beans allege that, at this time, they had yet to move into the Bean Property. Id. Ms.
Williams’s e-mail allegedly stated that “‘several people’ were ‘staring’ and ‘looking at us’ from
the Bean Property.”
On September 12, 2016, Mr. Williams allegedly sent an e-mail to “Private Lives.” Id. ¶
98. This e-mail allegedly informed recipients that the Williamses had filed suit against the Beans
to “prevent their eavesdropping, spying, and photographing us and our guests while we are in our
property,” and it allegedly noted that Williamses had sued the previous owners of the Bean
Property. Id. Defendants allege that this e-mail contained statements concerning them that were
false. Id. ¶ 99.
The April 5, 2016 Letter
On April 5, 2016, the Williamses allegedly sent a letter to several other people in
Stonington that “disparaged the Bean Family’s home,” “suggested that the Bean Family were
‘peeping toms’” and claimed that Mr. Bean had said that “the Bean Property had been
specifically designed to see into the Williams’ yard.” Amend. Countercl. ¶ 70. The Beans allege
that they only learned about this letter after this case was first filed. Id. ¶ 71.
The October 5, 2017 Letter
On October 6, 2016, the Williamses allegedly sent a letter to several other people in
Stonington (the “October 2016 Letter”).3 Amend. Countercl. ¶¶ 100-01. This letter allegedly
contained “additional disparaging statements about the Bean Family.” Id. ¶ 102. It allegedly
contained statements about the Beans that are false. Id. ¶ 103.
The Beans allege that the October 2016 Letter contained false statements that are
injurious, “particularly to Christopher Bean who is in the process of launching his career.”
Amend. Countercl. ¶ 104. Specifically, this letter allegedly falsely claimed that Christopher had
trespassed on the Williams Properties and again described the Defendants as “peeping toms.” Id.
The October 2016 Letter allegedly stated that the Williamses had filed this lawsuit and
that they “expect[ed] the trial to attract the press, permanently damaging” Christopher Bean.
Amend. Countercl. ¶ 106.
In April 2016, the Beans allegedly learned that Mr. Williams had requested a copy of the
Bean Property Design Plan from the Stonington P&Z. Amend. Countercl. ¶ 72. In light of this
and Ms. Williams’ earlier reference to being willing to go to court, id. ¶ 60, Mr. Bean and Ms.
Black allegedly instructed the contractors working on the Bean Property “to be extremely
sensitive to the Williamses and the Williams Properties.” Id. ¶ 73.
The Beans allege that Ms. Williams sent an October 4, 2016 e-mail to “Private Lives” that was identical to the
October 2016 Letter, except for the added signature, “Fondly, Reba.” Amend. Countercl. ¶ 100 n. 5.
The Beans allege that they first moved into the Bean Property for the summer on June 5,
2016. Amend. Countercl. ¶ 77. The Beans allege that, on this date, while they were moving their
belongings, “Ms. Williams stood at the side entrance of her property,” “very close” to the Bean
Property, “holding an iPad or other digital recording device and point[ing] and gestur[ing]
wildly.” Id. ¶ 78. Mr. Williams allegedly stood next to her. Id. Allegedly, neither Ms. Williams
nor Mr. Williams spoke directly to Mr. Bean or Ms. Black. Id. The Beans allege that “this was
intended to cause Mr. Bean and Ms. Black to turn and look in her direction.” Id.
Several days later, Mr. Williams allegedly “stood directly in front of the Bean Property
on the sidewalk, obstructing the entrance to the Bean Property from the street.” Amend.
Countercl. 79. The Beans allege that “this action was designed to provoke a response form Mr.
Bean or Ms. Black.” Id.
The Beans allege that, following these incidents, the Williamses “have continued to
harass” the Beans when they visit the Bean Property. Amend. Countercl. ¶ 80. Specifically, the
Beans allege that, on over ten occasions throughout the summer of 2016, “the Williams[es] have
positioned themselves close to the Bean Property, making inflammatory gestures, or stood
directly in front of the Bean Property.” Id. ¶ 81. The Beans allege that they felt “intimidated,
threatened and bullied by the Williams’ pattern of behavior,” that these actions have “made the
Bean Family uncomfortable moving about their own home when the Williams are in
Stonington,” and that the Beans are “reluctant to go outside when the Williams are in Stonington
and avoid inviting friends and family to visit for fear that they will be subjected to the Williams’
harassment.” Id. ¶¶ 82-84.
“The Wall of Trees”
The Williamses have allegedly planted a row of high trees designed to eliminate the
Water Views of the Bean Property. Amend. Countercl. ¶ 87. Before Mr. Bean and Ms. Black
purchased the Bean Property, the Williams Properties were already allegedly protected by a
roughly six-foot tall mature hedge. Id. ¶ 88.
On April of 2016, someone who represented themselves as being employed as a gardener
by the Williamses allegedly telephoned Mr. Bean at his office and “advised him that the
Williams[es] intended to plant even taller trees along the parties’ shared property line.” Amend.
Countercl. ¶ 89. In May 2016, the Williamses allegedly planted four large trees along the shared
property line, behind the existing hedge. Id. ¶ 90. The Beans allege that these trees violate
Stonington P&Z guidelines. Id. ¶ 91.
In June 2016, a person who allegedly represented themselves as being employed as a
gardener by the Williamses allegedly again contacted the Beans, and advised them that the
Williamses planned to plant additional, taller trees along the property line. Amend. Countercl. ¶
92. The previous four trees were allegedly then removed. Id. ¶ 93. On July 20, 2016, those trees
were allegedly replaced by thirty taller trees, each approximately fourteen feet tall, along the
boundary between the Williams Property and the Bean Property (the “Tree Wall”). Id. The Beans
allege that the Tree Wall also violate Stonington P&Z guidelines. Id. ¶ 94. The Beans further
allege that these trees block large portions of the Bean Property’s Water Views. Id. 95.
The Beans allege that the current trees are of a species that will likely grow to thirty feet
or more. Amend. Countercl. ¶ 96. The Beans allege that, if the trees attain this height, they would
be sufficient “to eliminate the Bean Family’s ability to enjoy the Water View[s] from any floor
of the Bean Property.” Id. ¶ 96. Defendants further allege that the Tree Wall “deprive[s] the Bean
Family of their enjoyment of their Property and has impacted the Bean Property’s value and
STANDARD OF REVIEW
A motion to dismiss for failure to state a claim under Rule 12(b)(6) is designed “merely
to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be
offered in support thereof.” Official Comm. of Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003) (internal citations omitted). When
deciding a Rule 12(b)(6) motion to dismiss, a court must accept the material facts alleged in the
complaint as true, draw all reasonable inferences in favor of the plaintiff, and decide whether it is
plausible that the plaintiff has a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); In re NYSE Specialists Sec.
Litig., 503 F.3d 89, 95 (2d Cir. 2007).
A plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” and assert a cause of action with enough heft to show entitlement to relief and
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555,
570. A claim is facially plausible if “the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Although “detailed factual allegations” are not required, a complaint must offer
more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,”
or “naked assertion [s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 555-57.
Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is
improbable, and . . . recovery is very remote and unlikely.” Id. at 556 (internal quotation marks
The Bean Family raises eight claims for relief under Connecticut law. Count One brings a
claim for abuse of process against the Williamses. Amend. Countercl.4 ¶¶ 111–16. Count Two
brings a claim for invasion of privacy against the Williamses. Id. ¶¶ 117–20. Count Three brings
a claim for defamation against Williamses as to their various alleged communications. Id. ¶¶
121-25. Count Four brings a claim of absolute private nuisance against the Williamses. Id. ¶¶
126-31. Count Five brings a claim of negligent private nuisance against the Williamses. Id. ¶¶
132-36. Count Six alleges that the Williamses are in violation of Conn. Gen. Stat. § 52–570
through the planting of the Tree Wall. Id. ¶¶ 137–42. Count Seven alleges that the Williamses
are in violation of Conn. Gen. Stat. § 52–480, which provides for potential injunctive relief
requiring the removal of the Tree Wall. Id. ¶¶ 143–49. Count Eight brings a claim for private
enforcement of Stonington Borough zoning regulations that allegedly prohibit the Tree Wall
against the Williamses. Id. ¶¶ 150–65.
For the following reasons, the Court grants in part and denies in part the motion to
dismiss. The Court grants the motion to dismiss Count One in its entirety and Count Six, Count
Seven, and Count Eight as to Christopher and Matthew Bean. The Court otherwise denies the
motion to dismiss Count Two through and including Count Eight.
Abuse of Process
The Williamses argue that the Beans’ counterclaim for abuse of process is premature
absent disposition of the underlying litigation. Pls.’ Br. 5. The Beans argue that prior resolution
Each Count incorporates the preceding paragraphs in the Beans’ Counterclaims.
of the underlying litigation is not an element of abuse of process at common law. Defs.’ Resp. 4–
5. The Court agrees with the Williamses. The Williams’ motion to dismiss the claim is granted.
Under Connecticut law, “[a]n action for abuse of process lies against any person using a
legal process against another in an improper manner or to accomplish a purpose for which it was
not designed.” Passaro-Henry v. Allstate Ins. Co., No. 3:10-CV-450 JCH, 2010 WL 5174405, at
*3 (D. Conn. Dec. 15, 2010) (quoting Larobina v. McDonald, 274 Conn. 394, 403 (2005));
Rogan v. Rungee, 165 Conn. App. 209, 220 (2016). Central to an action for abuse of process is
the use of legal process “against another [party] primarily to accomplish a purpose for which it is
not designed. Abuse of process requires conduct (1) occurring after the issuance of process and
(2) intended primarily to accomplish a purpose for which the process is not designed.” PassaroHenry, 2010 WL 5174405, at *3 (internal citations omitted and quotation marks omitted); see
also Doctor’s Assocs., Inc. v. Weible, 92 F.3d 108, 114 (2d Cir. 1996) (“[L]iability for abuse of
process lies only when the offending party overtly misuses the process once the proceeding has
“Although abuse of process claims do not include favorable termination as an essential
element, the cause of action is still considered premature until the underlying litigation has been
completed.” MacDermid v. Leonetti, 158 Conn. App. 176, 184 (2015) (citing Larobina v.
McDonald, 274 Conn. 394, 407–08 (2005)).
The Williamses brought suit against the Beans in the Connecticut Superior Court for the
Judicial District of New London. ECF No. 1-2. The Beans removed this case to this Court, EDF
No. 1, and subsequently brought Counterclaims against the Williamses. ECF No. 26. The
Williamses moved the Court to dismiss the Beans’ Counterclaims, ECF No. 30, which brings us
to the current moment. The Beans’ “cause of action is . . . premature until the underlying
litigation has been completed,” and must be dismissed. MacDermid, 158 Conn. App. at 184
The Beans’ attempt to distinguish Larobina is misplaced. In Larobina, plaintiff brought
suit against a bank for breach of contract, negligence, defamation and a number of other claims
sounding in federal and state law. Larobina, 274 Conn. at 396–97. While the first matter was
pending in Superior Court, plaintiff brought a second action against the bank and the attorneys
defending the bank in the underlying lawsuit alleging, among other claims, abuse of process. Id.
at 397. While the court recognized that success in the first action was not a prerequisite for a
claim of abuse of process, the court noted that “the eventual outcome of that action and the
evidence presented by the parties therein would be relevant in litigating an abuse of process
claim.” Id. at 407. When plaintiff brought the second action, he had not yet established that the
bank was not legally entitled to the money that plaintiff claims the defendants were attempting to
extort from him by their allegedly oppressive litigation tactics, or that the bank had “no goodfaith reason to believe that it [was] entitled to the money,” which were issues in dispute in the
underlying litigation. Id. at 407–08. “Moreover, allowing the claim could subject the courts to a
flood of similarly duplicative claims and effectively chill the vigorous representation of clients
by their attorneys.” Id. at 408.
These reasons apply with equal force to the matter before the Court. Here, like in
Larobina, the Beans have yet to establish that the Williamses were not legally entitled to any of
the relief the Williamses seek, which the Beans allege form the basis of the Williamses’
allegedly oppressive litigation. See id. at 407. Neither have the Beans, like in Larobina,
established that the Williamses have “no good-faith reason to believe that [the Williamses are]
entitled to the [relief].” See id. at 407–08. “Those very issues are in dispute in the [instant]
action.” Id. at 408.
While the Beans have alleged that the October 2016 letter stated that the Williamses
“expect[ed] the trial to attract the press, permanently damaging” Christopher Bean, Amend.
Countercl. ¶ 106, at this juncture, the Court will not presume that the Williamses had “no goodfaith reason” to bring suit. Larobina, 274 Conn. at 407–08. Because the “gravamen of the action
for abuse of process is the use of a legal process against another primarily to accomplish a
purpose for which it is not designed,” id. at 403, absent disposition of this case, the Court is not
in a position to assess whether the Williamses’ use of legal process was designed “primarily to
accomplish a purpose for which it is not designed.” Id.; see also id. at 403–04 (noting that
comment b to the Restatement Second (1922) of Torts § 682 “explains that the addition of
primarily is meant to exclude liability when the process is used for the purpose for which it is
intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the
defendant.”). “Moreover, allowing the claim could subject the [C]ourt to a flood of similarly
duplicative claims and effectively chill the vigorous representation of [the Williamses] by their
attorneys.” Id. at 408.
Contrary to the Beans’ contention that Rogan overturned Larobina sub silentio,
Rogan and Larobina exist in harmony. In Rogan, also a dispute between neighbors, defendant
brought a counterclaim against plaintiff for abuse of process. 165 Conn. App. at 212–13. The
court affirmed the lower court’s determination that there was sufficient evidence in the record to
support Defendant’s claim of abuse of process. Id. at 219. Because, however, “all of the counts
of the plaintiff’s complaint had been stricken or had been disposed of by summary judgment . . .
by the time this case came on for trial . . . the only issues before the court were those raised by
the defendant’s five[-]count counterclaim,” including defendant’s claim of abuse of process. Id.
at 213. At the time of trial, the court in Rogan was able to assess whether the plaintiff’s use of
legal process was designed “primarily to accomplish a purpose for which it is not designed.”
Larobina, 274 Conn. at 403. The same is not true here.
The Williams’ motion to dismiss the abuse of process claim is therefore granted.5
Invasion of Privacy
The Beans contend that the Williamses allegedly acted with intention to intrude on the
Beans’ private enjoyment of their home with such severity as to cause the Beans to feel
intimidated, embarrassed and bullied. Amend. Countercl. ¶¶ 70–75. The Williamses move to
dismiss the Beans’ counterclaim for invasion of privacy on two bases: That the Beans fail to
allege the Williamses acted with the requisite intention and that the Williams’ alleged conduct
was not sufficiently offensive. Pls.’ Br. at 5–6. The Court finds the Beans have plead sufficient
detail to merit further factual discovery.
“One who intentionally intrudes physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of
privacy, if the intrusion would be highly offensive to a reasonable person.” Gallagher v.
Rapoport, No. CV 960149891S, 1997 WL 240907, at *2 (Conn. Super. Ct. May 6, 1997) (citing
Restatement (Second) of Torts § 652B (1977)).
The Beans alleged that “Ms. Williams stood at the side entrance of her property,”
“holding an iPad or other digital recording device and point[ing] and gestur[ing] wildly.”
Amend. Countercl. ¶ 78. “Connecticut trial courts have allowed causes of actions asserting
Because the Beans’ claim fails for want of maturity, the Court need not reach whether the Beans’ have plead
sufficient facts to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
unreasonable intrusion based upon claims of non-physical conduct.” Cavallaro v. Rosado, No.
CV054009939, 2006 WL 2949143, at *4 (Conn. Super. Ct. Oct. 5, 2006) (listing cases in which
courts have allowed claims of invasion of privacy to proceed where defendants made comments
about plaintiff’s sex lives; eavesdropping on plaintiff’s home; or secretly tape recorded another
employee). As alleged, a reasonable person could believe that Ms. Williams acted with intent to
intrude. See Cavallaro v. Rosado, No. CV054009939, 2006 WL 2949143, at *4 (Conn. Super.
Ct. Oct. 5, 2006) (“[V]erbal statements or non-physically intrusive conduct may adequately
support a claim for intrusion upon seclusion.”); WVIT, Inc. v. Gray, No. CV 950547689S, 1996
WL 649334, at *4 (Conn. Super. Ct. Oct. 25, 1996) (“[A] complaint alleging that an employee
has for personal reasons [surreptitiously] recorded conversations of a fellow employee . . . states
a cause of action for unreasonable intrusion on the privacy of another by intruding on their
The Williamses argue that at all times they were on their own property and intrusion
upon seclusion cannot lie where matters are “exhibited to the public gaze.” Fiorillo v. Berkley
Adm’rs, No. CV010458400S, 2004 WL 1153678, at *3 (Conn. Super. Ct. May 5, 2004). It
cannot be that by virtue of the Williamses “public” conduct, anything viewed by them from their
own property is necessarily open to public gaze. After all, Stonington Borough is allegedly
“densely populated,” Amend. Countercl. ¶ 1, and the Beans acknowledge that the Bean and
Williams properties are “immediately adjacent.” Compl. ¶ 6. While the Beans are ostensibly not
well positioned to know at the pleading stage whether Ms. Williams was using the digital
recording device or what was recorded with it, if anything, the Beans have offered enough detail
to plausibly allege that the Williamses, from their own property, could have overseen or
overheard the Beans’ private affairs using a digital recording device. See Restatement (Second)
of Torts § 652B, cmt. b (1977) (“It may also be by the use of the defendant’s senses, with or
without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into
his upstairs windows with binoculars or tapping his telephone wires.”).
The Williams’ motion to dismiss the Beans’ claim for invasion of privacy is denied.
The Beans allege that the Williamses have defamed the Beans through a serious of emails and letters Mr. or Ms. Williams sent members of the surrounding community. For
example, the Beans have alleged that on August 31, 2015, Ms. Williams sent an e-mail to
neighbor Lynn Young allegedly stating “Mr. Bean plans to build high enough to see over our
hedge. If he does and peers into our privacy, we’ll know he’s a peeping tom.” Amend. Countercl.
¶ 34. The Beans have alleged that, on February 9, 2016, Ms. Williams sent an e-mail to Ms.
Richards stating that the Bean Property “ruin[ed] the look of Water Street,” and went on to call
Mr. Bean a “barbarian.” Id. ¶ 40. The Beans have alleged that, on March 4, 2016, Ms. Williams
allegedly sent an e-mail to an individual named “Josie,” stating that Mr. Bean “told the world
he’d build to see into our yard and he’s done it.” Id. ¶ 55 n. 3. The Beans further allege that on
July 20, 2016, Ms. Williams sent identical e-mails to five neighbors, Tom Hausman, Al Razzano,
Heidi Reavis, Ms. Richards, and Mary Fitzgibbons, allegedly stating that the Beans were
snooping on the Williamses and that “last week a young man from next door began taking
photographs of us in our garden.” Id. at 86.6
Rather than address whether the Complaint affords the Williamses sufficient notice of the
communications complained of to enable them to defend themselves, the Williamses instead
The Court notes this list of allegations that the Beans contend are defamatory should not be read as representing
the totality of sufficiently plead defamatory comments.
attempt to show how each communication complained of fails as a matter of law. See generally
Ps.’ Supp. Br. This type of analysis is inappropriate at the pleading stage.
“Under Connecticut law, to establish a prima facie case of defamation, a plaintiff must
demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory
statement identified the plaintiff to a third person; (3) the defamatory statement was published to
a third person; and (4) the plaintiff’s reputation suffered injury as a result of the statement.”
Bagley v. Yale Univ., 42 F. Supp. 3d 332, 364 (D. Conn. 2014) (internal quotation marks and
citation omitted); see also Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28
The pleading of claims for defamation is governed by the liberal standards of Fed. R. Civ.
P. 8, and not a more heightened standard. See Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir.
1986). “The test of a [defamation] complaint’s sufficiency is whether it is detailed and
informative enough to enable defendant to respond and to raise the defense of res judicata if
appropriate . . . . The central concern is that the complaint afford defendant sufficient notice of
the communications complained of to enable him to defend himself.” Id. (internal quotation
marks and citations omitted). In order to provide such sufficient notice, a plaintiff must plead
what defamatory statements were made concerning the plaintiff, when they were made, and to
whom they might have been made. Abrahams v. Young & Rubicam, 979 F. Supp. 122, 128 (D.
Conn. 1997); see also U.S. ex rel. Smith v. Yale Univ., 415 F. Supp. 2d 58, 109 (D. Conn. 2006)
(defamation plaintiff “must at least plead the content of the alleged communications, when they
were made, the context in which they were made, or by and to whom they were made”). The
Beans have alleged facts that go to each of these elements.
Citing Dongguk University v. Yale University, the Williamses argue that the Complaint
must plead and satisfy each element of a prima facie case of defamation. 734 F.3d 113, 123 (2d
Cir. 2013). The Court disagrees. Yes, “[u]nder Connecticut law, each statement is a separate
cause of action and requires proof of each of the elements for defamation.” The Court, however,
must recognize the “difference between disposing of a case on a 12(b)(6) motion and resolving
the case later in the proceedings, for example by summary judgment.” Boyd v. Nationwide Mut.
Ins. Co., 208 F.3d 406, 410 (2d Cir. 2000). In Dongguk University, the case under review
involved summary judgment, and is therefore of limited value to the matter pending before the
Court. 734 F.3d at 122.
The Williams’ argument that, at the pleading stage, the Beans’ defamation claims are
privileged because they relate to matters of public concern and are therefore protected by the
First Amendment or are privileged as statements made during the course of a judicial or quasijudicial proceeding, Pls.’ Supp. Br. at 3, is, on the limited facts before the Court, similarly
a. Public Concern
The U.S. Constitution places limits on common law defamation actions. “[I]n a suit by a
private plaintiff involving a matter of public concern, . . . defamatory statements must be
provably false, and the plaintiff must bear the burden of proving falsity, at least in cases where
the statements were directed towards a public audience with an interest in that concern.” Flamm
v. Am. Ass’n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000). “[W]hether a publication
addresses a matter of public concern ‘must be determined by the content, form, and context of a
given statement, as revealed by the whole record.’” Id. at 150 (quoting Connick v. Myers, 461
U.S. 138, 147 (1983)). “[T]o survive this motion to dismiss, [a plaintiff] must have shown that a
reasonable person could find that the challenged statement alleges or implies a provably false
fact.” Id. at 155.
The Beans have done just this. By way of example, the Beans have alleged that Ms.
Williams’s May 26, 2016, e-mail to “Private Lives,” stated that Mr. Bean had said that “[t]his
house under renovation is going to be so tall I will be able to look right into the Williams’
garden.” Amend. Countercl. ¶ 74. Ms. Williams allegedly further stated that the Renovation Plan
was “designed for spying” on the Williamses. Id. The Beans, however, have alleged that while
the Design Plan incorporated south and southwest-facing windows “to take advantage of south
facing solar gain, the natural light, and the Water Views,” id. ¶ 26, the Design Plan did not
change the footprint or height of the existing home on the Bean Property. Id. ¶ 28. Assuming, but
not deciding, that communications regarding the Design Plan are matters of public interest, the
challenged statement reasonably can be understood to imply that the Beans, by way of the
Design Plan, while provably false, intended to surveil the Williams’ private comings and goings.
See Flamm, 201 F.3d at 155. The Beans are entitled to continue with this claim, and the authority
the Williamses cite to do not say otherwise. For example, in Goodrich v. Waterbury RepublicanAmerican, Inc., in which the court found that the challenged articles published in defendant’s
newspaper were privileged as “newsworthy matters,” 188 Conn. 107, 134 (1982), the court was
reviewing plaintiff’s assignment of error to the trial court’s directing the verdict and refusing to
set aside the verdict. Id. at 107. Goodrich, therefore, does not require a determination as to
whether certain alleged defamatory statements are privilege at the pleading stage.
b. Judicial Privilege
“In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are
entitled to absolute immunity for the content of statements made therein.” Field v. Kearns, 43
Conn. App. 265 (1996). “It is well settled that communications uttered or published in the course
of judicial proceedings are absolutely privileged as long as they are in some way pertinent to the
subject of the controversy.” Gallo v. Barile, 284 Conn. 459, 465–66 (2007). “The effect of an
absolute privilege in a defamation action . . . is that damages cannot be recovered for a
defamatory statement even if it is published falsely and maliciously.” Chadha v. Charlotte
Hungerford Hosp., 272 Conn. 776 (2005).
Judicial privilege does not bar the Beans’ defamation claim. The Williamses, as an
example, argue that Ms. Williams’s March 7, 2016, e-mail to Mr. Alstiel is barred by absolute
privilege by virtue of the fact that Mr. Alstiel was the alleged single recipient, is allegedly one of
the Williams’ principle witnesses in this matter and had allegedly contacted the Williamses in an
effort to build support for an earlier lawsuit Mr. Alstiel had brought, and since settled, against the
Beans regarding the Design Plan. Pls.’ Supp. Br. At 18. The Beans allege the March 7, 2016, email to Mr. Alstiel from Ms. Williams stated that “[Mr.] Bean had said he planned to build so
high he could see over our hedge into our Garden.” Amend. Countercl. ¶ 59.
Absent are details the Court would need to intelligently determine whether the privilege
applies, i.e., whether Mr. Alstiel’s lawsuit was “in some way pertinent to the subject of the
[instant] controversy.” Gallo, 284 Conn. at 466. It is conceivable, given the paucity of factual
detail at the pleading stage, that Mr. Alstiel challenged the Design Plan because it included
painting the exterior of the Beans’ home the color lavender. While “the [C]ourt must particularly
evaluate the factual circumstances peculiar to each case to determine whether application of
absolute privilege is warranted,” at present, the Court is not able to do so. Kelley v. Bonney, 221
Conn. 549, 573 (1992).
With these allegations, the Beans have provided “sufficient notice of the communications
complained of, and the more particular details may be drawn out in discovery.” Bailey v. ESPN,
Inc., No. 3:14-CV-01509 VAB, 2015 WL 4601101, at *8 (D. Conn. July 29, 2015) (citing Boyd,
208 F.3d at 410) (observing the importance of “recogniz[ing] the difference between disposing
of a case on a 12(b)(6) motion and resolving the case later in the proceedings, for example by
summary judgment” and noting that “a plaintiff may allege facts suggestive enough to warrant
discovery, even where those facts alone would not establish a cause of action for defamation”).7
The Williams’ motion to dismiss the Bean’s defamation claim is denied.
Absolute Private Nuisance and Negligent Private Nuisance
The Beans have brought both absolute private nuisance and negligent private nuisance
claims against the Williamses. The Beans have alleged that the Williams’ actions, Amend.
Countercl. ¶¶ 78–81, including that the Williamses have positioned themselves near or in front of
the Bean Property while “making inflammatory gestures,” id. ¶ 81, Ms. Williams stood at an
entrance to the property holding “an iPad or other digital recording device” while “gesture[ing]
wildly,” id. ¶ 78, and the Williamses used their persons to obstruct the entrance to the Bean
Property from the street, id. ¶ 79, all of which have “made the Bean Family uncomfortable
moving about their own home.” Id. ¶ 83. The Beans alleged they are “reluctant to go outside
when the Williams are in Stonington and avoid inviting friends and family to visit for fear that
they will be subjected to the Williams’ harassment.” Amend. Countercl. Id. ¶ 84. The Beans
Of course, if discovery yields no evidence to corroborate these allegations, the claim must be dismissed at the
summary judgment stage.
further allege that the Tree Wall the Williamses planted along the Bean-Williams property line
blocks large portions of the Bean Property’s Water Views, id. ¶ 95 which the Beans allege is a
defining characteristic of the property. Id. ¶ 23. The Williamses contend that the Beans have
failed to complain of a condition that tends to cause danger, an essential element of private
nuisance and therefore the claims must fail as a matter of law. The Williamses misstate the law
Under Connecticut law, “a private nuisance exists only where one is injured in relation to
a right he enjoys by reason of his ownership of an interest in land.” Ming Li v. Colonial BT, LLC,
No. 3:14-CV-999 (CSH), 2015 WL 5684060, at *4 (D. Conn. Sept. 28, 2015). In other words,
“[a] private nuisance is a nontrespassory invasion of another’s interest in the private use and
enjoyment of land.” Pestey v. Cushman, 259 Conn. 345, 352 (2002) (quoting 4 Restatement
(Second), Torts § 821D (1979)). “The essential elements of a private nuisance claim in
Connecticut are: (1) an unreasonable interference with the plaintiff’s use and enjoyment of his or
her property; (2) the defendant’s conduct was the proximate cause of the unreasonable
interference; and (3) if injunctive relief is sought, that the defendant’s conduct will cause
irreparable harm and there is no legal remedy.” Li, 2015 WL 5684060, at *4. Absolute nuisance
has the added requirement that the conduct be “intentional.” Green v. Ensign-Bickford Co., 25
Conn. App. 479, 490 (1991) (citing Monick v. Town of Greenwich, 144 Conn. 608, 611, 136
A.2d 501, 503 (1957)). “Intentional . . . means not that a wrong or the existence of a nuisance
was intended, but that the creator of it intended to bring about the conditions which are in fact
found to be a nuisance.” Id.
The Beans have plausibly alleged that the Williams’ conduct, including planting the Tree
Wall, has unreasonably interfered with the Beans’ use and enjoyment of their property, the
Williamses’ conduct was the proximate cause of this injury, and, at least relating to the Tree
Wall, the Beans have suffered irreparable injury. Furthermore, the Beans have alleged that the
Williams’ acted with the intention to bring about the conditions which the Beans allege are a
The Williamses argue that, under Connecticut law, a claim of private nuisance requires a
condition on the Bean Property created by the Williams’ purported conduct that has a tendency
to create danger. As Pestey explains, however, private nuisance “is concerned with conduct that
interferes with an individual’s private right to the use and enjoyment of his or her land,” 259
Conn. at 357, whereas public nuisance “is concerned with the interference with a public right,
and cases in this realm typically involve conduct that allegedly interferes with the public health
and safety.” Id.; see also Li, 2015 WL 5684060, at *4 (“The law of private nuisance arises from
the general principle that it is the duty of every person to make a reasonable use of his own
property so as to occasion no unnecessary damage or annoyance to his neighbor.”) (internal
quotation marks omitted) (quoting Nailor v. C. W. Blakeslee & Sons, 117 Conn. 241, 167 A. 548,
549 (1933)); id. at *6 (stating that an “essential element” of public nuisance is that the “the
condition complained of has a natural tendency to create danger and inflict injury upon persons
or property”). But see Popow v. Town of Stratford, No. 307-CV-1620VLB, 2010 WL 537752 (D.
Conn. Feb. 12, 2010) (suggesting that an element of private nuisance is a “condition” that has a
“natural tendency to create danger and inflict injury upon person or property” yet the claim at
issue was one sounding in public nuisance).
Li does not suggest otherwise. In discussing the danger created by an apartment
complex’s pool, Li states that plaintiffs “allegations describe conditions which combine to allege
sufficiently” a claim for private nuisance. Id. at *4. In other words, a dangerous condition is
sufficient but not necessary to state a claim for private nuisance. See id.
The Williams’ motion to dismiss the Bean’s claims for absolute private nuisance and
negligent private nuisance claim is denied.
Conn. Gen. Stat. §§ 52-480, 52-570
The Beans argue that the Williamses, acting with malicious intent, Amend. Countercl. ¶
139, “erected structures” on their property in the form of a uniform row of 30 trees that are, at
present, approximately fourteen feet in height, id. ¶ 139, and designed to eliminate the Water
Views that “enticed” the Beans to purchase the property in the first instance. Id. ¶ 87. The Beans
further alleged that the trees are located on the border of the Bean Property and serve no useful
purpose to the Williamses other than to annoy and injure the Beans, id. ¶ 140, by eliminating one
of the Property’s most desirable features, the Water Views, thus impairing the fair market value
of the Property. Id. ¶ 141. The Williamses, for their part, argue that the Beans have failed to
sufficiently allege the “actual assistance” of a “structure” which is of no use to the Williamses.
Pls.’ Br. at 20. The Beans have alleged a plausible violation of Conn. Gen. Stat. §§ 52-480, 52570, and the claims may proceed.
Connecticut law provides that “[a]n action may be maintained by the proprietor of any
land against the owner or lessee of land adjacent, who maliciously erects any structure thereon,
with intent to annoy or injure the plaintiff in his use or disposition of his land.” Conn. Gen. Stat.
§ 52-570. Furthermore, “[a]n injunction may be granted against the malicious erection, by or
with the consent of an owner, lessee or person entitled to the possession of land, of any structure
upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or
disposition of the same.” Conn. Gen. Stat. § 52-480.
“The elements essential to prove each statutory section are the same.” Geiger v. Carey,
170 Conn. App. 459, 486–87 (2017). Each statute requires the following:
(1) the defendant to have built a structure on said defendant’s land; (2) the
erection of the structure must have been malicious; (3) the defendant must
have intended to injure the enjoyment of the adjacent landowners land by the
erection of the structure; (4) the structure must impair the value of the
plaintiff’s land; (5) the structure must be useless to the defendant; and (6) the
enjoyment of the plaintiff’s land must be, in fact, impaired.
Id. at 486–87. The word “proprietor” means an owner. Id. at 486 (2017).
Taken together, the Beans have plausibly alleged that the Williams have erected, with
malicious intention, a structure of thirty trees that is of no use to the Williams’ other than to
diminish the Property’s market value and impair the Beans’ use and enjoyment of the property.
Dalton v. Bua does not require a different outcome. 47 Conn. Supp. 645, 649 (2003).
While Dalton notes that “[a]n obstruction that is not ‘artificially built up’ is not a ‘structure,’” id.
at 648, here, the Beans have plausibly alleged that the Tree Wall, “composed of parts and joined
together in some definite manner” is “artificially built up” to obstruct the Williams’ use of
enjoyment of their Property. Dalton, 47 Conn. Supp. at 648; see also Patrell v. Gaudio, No.
CV095012873S, 2010 WL 5610843, at *3 (Conn. Super. Ct. Dec. 15, 2010) (“Dalton does not
stand for the proposition that there is some inherent quality of a hedge that categorically puts it
outside of the definition of ‘structure.’”); id. (finding that defendant was not entitled to judgment
as a matter of law in a challenge to defendant having planted an earthen berm and line of trees on
her property). While the Williamses may foreseeably claim that they built the Tree Wall with the
intention of ensuring their ability to enjoy their property in privacy, it does not follow that they
could not have acted with the malicious intention to also injure the Beans or that the entirety of
the Tree Wall is therefore of use to the Williamses. See Geiger, 170 Conn. App. at 476 (finding
that a portion of the challenged fence was useful to shelter defendant’s property from “storage of
unknown liquids and other large junk-like objects,” while another portion of the fence served no
It is uncontested, however, that Matthew and Christopher Bean are neither owners nor
lessees of the Bean home, see Amend. Countercl. ¶ 22, and thus cannot be owners under Conn.
Gen. Stat. § 52-570 and § 52-480. The Williams’ motion to dismiss is granted as to Matthew and
Christopher Bean but denied as to Mr. Bean and Ms. Black.
Private Enforcement of Stonington Borough Zoning Regulations
The Beans allege that the Tree Wall blocks substantial portions of the Bean Property’s
Water Views, Amend. Countercl. ¶ 95, that the species of tree planted will likely grow to thirty
feet or more, which would eliminate the Bean Family’s Water View, id. ¶ 96, and that the Tree
Wall has adversely impacted the property’s value and marketability. Id. ¶ 97. The Beans
specifically allege that the Water Views “were the primary reasons Mr. Bean and Ms. Black
decided to purchase the Bean Property.” Id. ¶ 24. The Beans further allege that the Tree Wall
violates the Stonington Zoning Regulations Sections 3.1.18, 22.214.171.124, 3.6.310 and 126.96.36.199.11 The
Williams argue that, as plead, the Beans have failed to allege an actual violation of the
regulations at issue. Mr. Bean and Ms. Black have raised a plausible violation Stonington Zoning
Regulations, and the claims may go forward.
“The Planning and Zoning Commission has found that the loss of aquatic vistas, blocked by buildings and
structures which obstruct views of the sea, destroys the very character of the Borough as a seaside community . . . .
[T]he Borough wishes to protect and enhance the remaining vistas of the sea.” Amend. Countercl. ¶ 157.
“Building’s and structures shall be located in such a way as to provide the maximum views of the water from the
nearest public street . . . .” Id. ¶ 158.
“Fences four feet or higher must be authorized by the Commission. Fences in excess of six feet in height may be
authorized by Special Permit only.”
“All Construction, modification, or change in use of buildings, facilities, and property within the coastal boundary
shall be subject to . . . . coastal site plan review requirements . . . .”
Under Connecticut law, “nearby property owners specifically and materially damaged by
the violation of zoning regulations may bring private zoning enforcement actions directly to the
Superior Court, without first applying to municipal zoning authorities, as an exception to the
exhaustion of administrative remedies doctrine.” Reichenbach v. Kraska Enterprises, LLC, 105
Conn. App. 461 (2008); accord Reynolds v. Soffer, 183 Conn. 67, 69 (1981) (“[A]ny person
specifically and materially damaged by a violation of the zoning ordinances which has occurred
or is likely to occur on another’s land may seek injunctive relief restraining such violation.”);
Battistoni v. Zoning Bd. of Appeals of Town of Morris, No. CV0083195S, 2001 WL 1178683, at
*4 (Conn. Super. Ct. Sept. 6, 2001).
To seek injunctive relief to remedy direct injury from a zoning violation, the “property
owner” must establish “(1) that injury from failure to grant an injunction is imminent; (2) the
injury is substantial; (3) the injury is irreparable and there is a substantial probability that unless
an injunction is issued the party seeking it will suffer irreparable harm.” Stewart v. Gothie, No.
CV990549831S, 2001 WL 686851, at *4 (Conn. Super. Ct. May 25, 2001) (citing Karls v.
Alexandra Realty Corp., 179 Conn. 390, 401 (1980)). The Beans have plausibly claimed as
The Williamses argue that the Beans have failed to allege imminent or irreparable harm
because allegedly the Williamses twice had their gardener notify the Beans of the Williams’ plan
to plant trees along the property line. Amend. Countercl. ¶¶ 89, 92. The Court is not convinced.
Moreover, absent more factual detail regarding what the Beans knew, or should have known, and
when, the Court is not well positioned to assess why the Beans allegedly failed to immediately
raise their hackles at news of the Williams’ plan to plant taller trees. The Court also recognizes
that some families and individuals are naturally more litigious than others. As plead, it is by no
means a foregone conclusion that the Beans have somehow waived their right to claim that the
Tree Wall amounts to a substantial and irreparable injury to the Beans.
It is uncontested, however, that Matthew and Christopher Bean are not owners of the
Bean home, see Amend. Countercl. ¶ 22, and thus lack standing to seek enforcement of the
Stonington Zoning Regulations. See Stewart, 2001 WL 686851, at *4 (“To bring an injunction
action to remedy a direct injury from a zoning violation, the private property owner must
establish  that injury . . . is imminent[,] substantial[, and] . . . irreperble . . . .”).12
The Williams’ motion to dismiss is granted as to Matthew and Christopher Bean but
denied as to Mr. Bean and Ms. Black.
The Williamses have requested that Ms. Williams’s entire deposition transcript and all
exhibits to that deposition be designated Confidential under the Court’s Standing Protective
Order. 4/7/2017 Motion to Seal at 1-2. The Beans object to the Williams’ designation of the
entire transcript of Ms. Williams’s deposition and all exhibits thereto being designated
Confidential. Id. Ms. Based on this designation, the parties have filed a number of documents
under seal. See, e.g., ECF No. 40, 57, 62, 68. Wholesale designation of Ms. Williams’s
In responding to the Williams’ Motion for Clarification, the Beans argue, for the first time, that a claim for private
zoning enforcement does not require that the person bringing such a claim be the owner of the property. Defs.’ Brief
at 3, ECF No. 79. Because the Beans failed to raise this argument in their response to the Williamses’ motion to
dismiss, Pls.’ Br. at 24, the Beans have waived this argument. Cf. Hewett v. Triple Point Tech., Inc., No. 3:13-CV1382 (SRU), 2016 WL 3101998, at *1 (D. Conn. June 2, 2016) (“Motions for reconsideration will not be granted
where the party merely seeks to relitigate an issue that has already been decided.”).
Even absent waiver, the case cited by the Beans does not support their contention. While the court in A
Piece of Paraside v. Borough of Fenwick Zoning Board of Appeals, states that “[z]oning is concerned with the use of
property and not primarily with its ownership,” No. LNDCV136047679S, 2015 WL 10285888, at *2 (Conn. Super.
Ct. Dec. 23, 2015), it did so in the context of plaintiff’s appeal of the zoning board’s denial of plaintiff’s request for
a zoning variance, id. at *1. As a result, A Piece of Paradise is inapposite to this case, where the Beans seek private
enforcement of a zoning regulation.
deposition transcript and its exhibits as “Confidential” under the Court’s Standing Proctive
Order, however, is not appropriate.13 Any documents filed under seal based on this designation
must be unsealed.
The Court’s Standing Protective Order provides for documents or portions of documents
to be designated confidential information that the disclosing party “reasonably and in good faith
believes contains or comprises (a) trade secrets, (b) proprietary business information, or (c)
information implicating an individual’s legitimate expectation of privacy.” ECF No. 11. The
matter before the Court does not concern trade secrets or proprietary business information, and
the Williamses have made no representation to the Court that designation of the deposition and
exhibits were made confidential because they implicate a legitimate expectation of privacy.
A First Amendment “presumptive right of access” applies to both criminal and civil
proceedings, which applies to, “among other things,” “summary judgment motions and
documents relied upon in adjudicating them,” “pretrial motions and written documents submitted
in connection with them,” “and docket sheets.” Newsday LLC v. Cty. of Nassau, 730 F.3d 156,
163-64 (2d Cir. 2013) (collecting cases).
There is also a common law right of public access that is “firmly rooted in our nation’s
history” and “based on the need for federal courts, although independent—indeed, particularly
because they are independent—to have a measure of accountability and for the public to have
confidence in the administration of justice.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 119 (2d Cir. 2006) (citing United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)
(“Amodeo II”)). This common law right attaches if a document is a “judicial document,” or an
In their response to the Williams’ Motion for Clarification, the Beans state that the Williamses have since agreed
that the transcript and its exhibits are not “Confidential” under the Protective Order, “except for two short sections,”
which the Williamses have designated “Confidential.” Dfs.’ Br. at 2. The Beans do not contest “the narrowed
Confidential designation” of these two sections. Id.
item that is filed and that is “relevant to the performance of the judicial function and useful in the
judicial process.” Id. “In order to determine whether a judicial document may be filed under seal,
the court must balance the common law right of access against any competing considerations,
such as . . . the privacy interests of those resisting disclosure.” Raffaele v. City of New York, No.
13-CV-4607 (KAM) (VVP), 2014 WL 2573464, at *1 (E.D.N.Y. June 9, 2014) (internal
quotation marks omitted) (citing Lugosch, 435 F.3d at 120). “Under both the common law and
First Amendment frameworks, the party seeking to file a document under seal bears the burden
of demonstrating that sealing is warranted.” Id. (citing DiRussa v. Dean Witter Reynolds, Inc.,
121 F.3d 818, 826 (2d Cir. 1997)).
Court filings “should not remain under seal absent the most compelling reasons.”
Lugosch, 435 F.3d at 125 (discussing both common law and First Amendment rights of access to
documents filed in support of civil summary judgment motion). The basic rule is that “[t]o
overcome the First Amendment right of access, the proponent of sealing must demonstrate that
closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 144 (2d Cir. 2016)
(internal quotation marks omitted). “Broad and general findings and conclusory assertions are
insufficient to justify deprivation of public access to the record, specific, on-the-record findings
are required” if the district court is to seal a proceeding. Id. at 144–45 (finding that attorneyclient privilege concerns were insufficient to justify sealing of complaint alleging that law firm
partners engaged in kickback scheme) (internal quotation marks omitted). Accordingly,
[t]he party seeking to seal the documents in question bears the burden of showing
that higher values overcome the presumption of access. In certain instances, the
privacy interest of the person resisting disclosure can be sufficient to overcome
the public right of access. However, any claimed exception to the right of access
should be based on a particularized showing of need, and any redactions would be
required to be narrowly tailored to accomplish the overriding interest.
United States v. King, No. 10-CR-122 (JGK), 2012 WL 2196674, at *2 (S.D.N.Y. June 15, 2012)
(internal citations omitted); see also Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir.
2004) (explaining that where a party seeking to keep court documents under seal “made no effort
to rebut” the presumptive right of access “by establishing that there was a continuing compelling
reason to require that the documents remain under seal” then “the district court was well within
its discretion to order that the seam on the documents be lifted”).
“In balancing the public right of access against a party’s privacy interest, a court should
consider the degree to which the subject matter is traditionally considered private rather than
public.” Bolia v. Mercury Print Prods., Inc., No. 02-CV-6510T, 2004 WL 2526407, at *3
(W.D.N.Y. Oct. 28, 2004) (citing Amodeo, 71 F.3d at 1051). To the extent that a party to a civil
case requests that a court document or underlying documents from discovery be sealed, courts
recognize that parties to whom the documents pertain may have “a privacy interest,” but that
such privacy interests may be “outweighed . . . by the public’s right of access.” Lown v.
Salvation Army, Inc., No. 04-CIV-01562 (SHS), 2012 WL 4888534, at *3 (S.D.N.Y. Oct. 12,
2012). Courts have found that the “higher value” of a party to the case, or even a third party’s
privacy interests may not overcome “the presumption of access [that] titles the balance in favor
of disclosing th[e] material.” Id.
A Court’s protective orders “issued for the purposes of facilitating discovery . . . do not
bear on the presumption of access to the motion papers.” Raffaele, 2014 WL 2573464, at *2; see
also Lugosch, 435 F.3d at 125-26 (explaining that existence of protective orders to facilitate
discovery are not a “strong factor against access” and noting that even in the absence of a
confidentiality order “civil litigants have a legal obligation to produce all information which is
relevant to the subject matter involved in the pending action” and that “the mere existence of a
confidentiality order says nothing” about whether using that order “to avoid disclosure [is]
reasonable” particularly because such orders generally “contemplate that relief from the
provisions of the order may be sought at any time”).14 Because the Williamses have “made no
effort to rebut” the presumptive right of access “by establishing that there was a continuing
compelling reason to require that the documents remain under seal” the Court orders that all
documents in this matter be unsealed. Gambale, 377 F.3d at 142.
The Williams’ Motion to Dismiss is GRANTED in part and DENIED in part. The Court
grants the motion to dismiss Count One in its entirety and Count Six, Count Seven, and Count
Eight as to Christopher and Matthew Bean. The Court otherwise denies the motion to dismiss
Count Two through and including Count Eight.
The Court ORDERS that all documents in this matter should be unsealed.
SO ORDERED at Bridgeport, Connecticut, this 8th day of November, 2017.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
See Gambale, 377 F.3d at 141 (“It is undisputed that a district court retains the power to modify or lift protective
orders that it has entered.”)
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