Powell v. Jones-Soderman et al

Filing 43

ORDER. For the reasons stated in the attached, Powell has alleged facts sufficient to plead his claims of defamation per se, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. Jones-Sodermans motion for judgment on the pleadings, (ECF No. 39), is therefore DENIED. Signed by Judge Michael P. Shea on 4/15/2019. (Guevremont, Nathan)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SCOTT POWELL,
Plaintiff,
No. 3:16-CV-1653 (MPS)
v.

JILL JONES-SODERMAN
Defendant.

RULING ON THE DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff Scott Powell filed this action against Defendant Jill Jones-Soderman alleging that
Jones-Soderman posted statements on a public website falsely accusing him of physically and
sexually abusing his children. He brings claims for defamation per se, invasion of privacy,
intentional infliction of emotional distress, and negligent infliction of emotional distress.
Discovery closed on August 31, 2018. When neither party filed a motion for summary judgment
by the deadline of October 1, 2018, I posted a notice reiterating the deadline for the parties’ Joint
Trial Memorandum. Two weeks later, Jones-Soderman filed a motion for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c). (ECF No. 39.) She argues that Powell has failed to
state a claim on which relief can be granted. For the reasons set forth below, the motion is
DENIED.
I.

Legal Standard

“In deciding a Rule 12(c) motion, [courts] apply the same standard as that applicable to a
motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and
drawing all reasonable inferences in favor of the nonmoving party.” Burnette v. Carothers, 192
F.3d 52, 56 (2d Cir.1999). As under Rule 12(b)(6), the Court must determine whether the Plaintiff
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has alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). For a complaint to survive the motion, “[a]fter the court strips
away conclusory allegations, there must remain sufficient well-pleaded factual allegations to
nudge plaintiff’s claims across the line from conceivable to plausible.” In re Fosamax Products
Liab. Litig., 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II.

Factual Allegations

The following facts are taken from Powell’s complaint (ECF No. 1) and are treated as true
for the purposes of the motion for judgment on the pleadings.
Defendant Jill Jones-Soderman is the founder and director of the Foundation for the Child
Victims of the Family Courts. (Complaint, ECF No. 1 ¶ 4.) She was formerly a licensed clinical
social worker, but her license has been suspended by the State of New York. (Id.) On April 25,
2016, Jones-Soderman published several “false and malicious” accusations against Powell on the
Foundation’s website. The complaint identifies ten allegedly false accusations:
That living with the plaintiff is “a death sentence” for the plaintiff's children;
That the plaintiff is a “vicious abuser” of his children;
That the plaintiff is an “accused child abuser”;
That the plaintiff's good reputation in his community is “based on the reluctance of
those too fearful to take on the rage and intimidation to report him for crimes for
which he should have been reported”;
E. That the plaintiff, on an ongoing basis, “hits the buttocks of his younger daughter,”
and is “grabbing/patting [her] buttocks” and the breasts of his older daughter;
F. That evidence of sexual assaults being committed by the plaintiff upon his minor
daughters “are now on camera . . . .”;
G. That the plaintiff is “an accused child sexual abuser [who has been elevated] to the
position of teacher in a program alerting parents to sexual abuse in the camp
program, where he has been a long time camp Director at Woodway Country Club,
in Darien, Connecticut. This camp Director has an institutional history, though
undisclosed, of inappropriate behavior with teenage girls and children. He no longer
works as a teacher, but rather as a carpenter in his own Business”;
A.
B.
C.
D.

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H. That the plaintiff has “threatened and intimidated” his daughters;
I. That the plaintiff is comparable to other prominent child abusers and that “the
accused abuser, Scott Powell will not be allowed to languish under the veil of
secrecy. He has forcibly, through threats, intimidation . . . been able to hide in plain
sight. We expect that Scott Powell's reign of terror over his children . . . will not be
allowed to prevail . . .”;
J. That one of the plaintiff's minor daughters (whose name the defendants publish on
their website) “was the major target of Scott Powell's aggressive abuse” while the
other minor daughter (whose name the defendants also publish on their website)
“was the target of Scott Powell's most aggressive sexual incursions.”
(Id. ¶ 6.) Powell asserts that he suffered “severe emotional distress” as a result of these accusations,
and that Jones-Soderman published them “with full knowledge that it would cause the plaintiff,
like any person of ordinary sensibility under the circumstances, to suffer emotional distress.” (Id.
¶ 7–8.)
III.

Discussion1
A. Defamation Per Se

Jones-Soderman argues that she is entitled to judgment on the pleadings with respect to
Powell’s defamation claim because Powell has not alleged that he suffered a reputational injury. I
disagree. In Connecticut, “to establish a prima facie case of defamation, the 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.”

Jones-Soderman is a pro se litigant, and courts ordinarily afford “special solicitude” to pro se
litigants. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (“There are
many cases in which we have said that a pro se litigant is entitled to special solicitude . . . .”)
(quotation marks omitted). Nonetheless, Jones-Soderman represents that she hired an attorney to
draft her motion for judgment on the pleadings. (Motion for Leave to File Dispositive Motion,
ECF No. 38 at 2 (“In April 2018, Defendant had commissioned outside counsel to draft a motion
for judgment on the pleadings to be filed in this action . . . . Outside counsel completed the
subject motion and transmitted it to Defendant by email on or about April 30, 2018.”). As a
result, I will treat the motion as if it was filed by an attorney.
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Gleason v. Smolinski, 319 Conn. 394, 430 (2015). In this case, however, Powell alleges defamation
per se. (ECF No. 1 ¶ 9.) An allegedly-defamatory statement is actionable per se if it accuses the
plaintiff of a crime punishable by imprisonment. Gleason, 319 Conn. at 430 n.31. “In the case of
a statement that is defamatory per se, injury to a plaintiff's reputation is conclusively presumed
such that a plaintiff need neither plead nor prove it.” Id. Here, the defamatory statements plainly
accuse Powell of criminal conduct punishable by imprisonment. For example, Jones-Soderman
stated that Powell physically and sexually abused his daughters. (See, e.g., ECF No. 1 ¶ 6(F) (“That
evidence of sexual assaults being committed by the plaintiff upon his minor daughters ‘are now
on camera . . . .’”)); see also Conn. Gen. Stat. § 53a-72a (compelling an individual under the age
of 16 years to submit to sexual contact by force is a felony punishable by up to 10 years
imprisonment). Indeed, Jones-Soderman’s website explicitly claimed that Powell committed
“crimes for which he should have been reported.” (Id. ¶ 6(D)). The complaint therefore states a
claim for defamation per se.2
B. Invasion of Privacy
Jones-Soderman next argues that the complaint fails to state a claim for invasion of
privacy because Connecticut recognizes four theories of invasion of privacy and Powell has not

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Heightened requirements apply when the plaintiff is a public figure or the allegedly-defamatory
statement relates to a matter of public concern. See Gleason, 319 Conn. at 432. Jones-Soderman
does not claim that Powell is a public figure. In her answer, she asserts the affirmative defense of
“fair comment.” (Answer, ECF No. 25 at 3.) “The privilege of fair comment is a common law
qualified privilege arising out of an occasion to express an opinion or otherwise comment on
matters of public interest.” Miles v. Perry, 11 Conn. App. 584, 595 (1987). Jones-Soderman’s
motion does not invoke this defense, but even assuming the privilege applies in this case, the
question of whether Jones-Soderman nevertheless abused the privilege is an issue of fact that is
not amenable to determination based on the pleadings alone. See Goodrich v. Waterbury
Republican-American, Inc., 188 Conn. 107, 119–20 (1982) (“We conclude that the privilege
applied here since the articles involved a matter of public interest. . . . Whether this privilege was
abused, however, is an issue of fact.”).

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identified which of those theories he intends to pursue. Under the Federal Rules of Civil
Procedure, “[e]ach allegation [in the complaint] must be simple, concise, and direct. No technical
form is required.” Fed. R. Civ. P. 8. If a party believes that a complaint is “so vague or
ambiguous that the party cannot reasonably prepare a response,” the Federal Rules allow the
party to file a motion for a more definite statement. See Fed. R. Civ. P. 12(e). Jones-Soderman
filed no such motion, but answered Powell’s complaint and denied his invasion of privacy claim
without qualification. (See Answer, ECF No. 25 ¶ 9.) Powell has indicated in responding to the
motion for judgment on the pleadings that he alleges a “false light” invasion of privacy. JonesSoderman does not contend that the facts alleged in the complaint are insufficient to support that
claim.3 Even if I concluded that Powell’s failure to state the particular legal theory underlying his
claim warranted dismissal of that claim, I would likely also be required to allow him an
opportunity to amend his complain to include additional detail. See Fed. R. Civ. P. 15(a)(2)
(“The court should freely give leave [to amend] when justice so requires.”) Here, though,
dismissal is not warranted. Jones-Soderman filed her responsive pleading in November of 2017,
and the parties completed discovery over the next year and four months. It is far too late now for
her to claim that she lacks adequate notice of Powell’s legal theories.
C. Intentional Infliction of Emotional Distress
Jones-Soderman next asserts that Powell’s claim for intentional infliction of emotional
distress fails because the conduct alleged in the complaint is not “extreme and outrageous” as a

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The Connecticut Supreme Court has recognized the rule from the Second Restatement of Torts
that “a false light invasion of privacy occurs if (a) the false light in which the other was placed
would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in
reckless disregard as to the falsity of the publicized matter and the false light in which the other
would be placed.” Goodrich, 188 Conn. at 131 (internal quotation marks omitted).
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matter of law. I disagree. To establish a claim for intentional inflict of emotional distress, a
plaintiff must allege
(1) that the actor intended to inflict emotional distress or that he knew or should have
known that emotional distress was the likely result of his conduct; (2) that the conduct
was extreme and outrageous; (3) that the defendant's conduct was the cause of the
plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was
severe.
Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 210, 757 A.2d 1059, 1062
(2000). Conduct is “extreme or outrageous” if it “exceed[s] all bounds usually tolerated by
decent society and [is] of a nature which is especially calculated to cause and does cause mental
distress of a very serious kind.” Grisanti v. Cioffi, 38 F. App’x 653, 657 (2d Cir. 2002).
“Generally, the case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to exclaim,
Outrageous!” Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 527 (2012). “Whether a
defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is
initially a question for the court to determine.” Appleton v. Bd. of Educ. of Town of Stonington,
254 Conn. 205, 210 (2000).
Viewing the complaint in the light most favorable to Powell, I find that JonesSoderman’s alleged conduct is sufficiently extreme and outrageous to support a claim for
intentional inflict of emotional distress. As alleged in the complaint, her statements accused
Powell of physically and sexually abusing his children, engaging in “inappropriate behavior with
teenage girls and children” while a camp director, and committing other unspecified crimes
while using intimidation to avoid being reported. (ECF No. 1 ¶ 6.) A reasonable factfinder could
also infer that her allegations were intended to cause Powell to lose custody of his children. (See
id. ¶¶ 5–6 (describing Jones-Soderman as an employee of the Foundation for the Child Victims

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of the Family Courts and alleging that she posted the false statements on that organization’s
website); id. ¶ 6(I) (“We expect that Scott Powell’s reign of terror over his children . . . will not
be allowed to prevail . . . .”).) In short, if a reader believed the material Jones-Soderman posted
about Powell, he or she could only conclude that Powell was a violent criminal who should be
separated from his children and incarcerated. Making such accusations publicly without evidence
to support their truth is sufficiently “extreme and outrageous” to support a claim for intentional
infliction of emotional distress.
D. Negligent Infliction of Emotional Distress
Lastly, Jones-Soderman argues that Powell has failed to state a claim for negligent
infliction of emotional distress because he has not specifically alleged that Jones-Soderman
should have known that her conduct would cause the kind of emotional distress that could lead to
illness or bodily harm. To show negligent infliction of emotion distress under Connecticut law,
Powell must prove “(1) the defendant’s conduct created an unreasonable risk of causing the
plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress
was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct
was the cause of the plaintiff’s distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).
“The foreseeability requirement in a negligent infliction of emotional distress claim is more
specific than the standard negligence requirement that an actor should have foreseen that his
tortious conduct was likely to cause harm.” Stancuna v. Schaffer, 122 Conn. App. 484, 490
(2010). “In order to state a claim for negligent infliction of emotional distress, the plaintiff must
plead that the actor should have foreseen that her behavior would likely cause harm of a specific
nature, i.e., emotional distress likely to lead to illness or bodily harm.” Id.

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In this case, Powell alleges that Jones-Soderman’s conduct caused him “severe emotional
distress.” (ECF No. 1 ¶ 7.) Jones-Soderman contends that Powell’s claim fails because it does
not include talismanic language about her awareness of the likelihood of “illness or bodily
harm.” But courts in Connecticut have not required such formalistic incantations at the pleading
stage. Rather, courts consider whether the factual allegations are sufficient to allow a reasonable
juror to conclude that the defendants “should have foreseen that their conduct was likely to cause
emotional distress severe enough that it might result in illness or bodily harm.” Wade v. Kay
Jewelers, Inc., No. 3:17-CV-990-MPS, 2018 WL 4440532, at *10 (D. Conn. Sept. 17, 2018); see
also Doe v. Hotchkiss Sch., No. 3:15-CV-160-VAB, 2019 WL 1099027, at *13 (D. Conn. Mar.
8, 2019) (denying summary judgment on a claim for negligent infliction of emotional distress
because the plaintiff had adduced evidence from which a reasonable juror could conclude that
the severity of plaintiff’s emotional distress was reasonably foreseeable to the defendant). As
noted above, a reasonable juror could conclude from the content of the allegations posted on the
website that Jones-Soderman intended to cause Powell to be permanently separated from his
children and incarcerated. The complaint alleges that Jones-Soderman used the names of both of
Powell’s minor children in connection with her accusations. Taking these allegations as true and
drawing all reasonable inferences in Powell’s favor, I find that the complaint adequately pleads
that it was reasonably foreseeable to Jones-Soderman that her accusations could cause Powell
severe emotional distress that would potentially cause illness or other bodily harm.
IV.

Conclusion

For the foregoing reasons, Powell has alleged facts sufficient to plead his claims of
defamation per se, invasion of privacy, intentional infliction of emotional distress, and negligent

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infliction of emotional distress. Jones-Soderman’s motion for judgment on the pleadings, (ECF
No. 39), is therefore DENIED.
IT IS SO ORDERED.

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

Hartford, Connecticut
April 15, 2019

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