Connelly v. Komm et al
RULING granting 12 Motion to Dismiss as to Count Two of Connelly's Complaint against the Town of Fairfield. Count Two is dismissed without prejudice to replead. Signed by Judge Janet C. Hall on 11/16/2021. (Freberg, B)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL KOMM, ET AL.,
CIVIL CASE NO.
NOVEMBER 16, 2021
RULING RE: DEFENDANTS’ MOTION TO DISMISS (DOC. NO. 12)
Plaintiff Diane Connelly (“Connelly”) brings this action under section 1983 of the
United States Code as well as Connecticut state law against defendants Michael Komm
(“Komm”), Hector Irizarry (“Irizarry”), and the Town of Fairfield (“Fairfield”). Connelly
alleges violations of her rights arising from her 2017 arrest at a car dealership.
Before this court is the defendants’ Motion to Dismiss the Complaint (Doc. No.
12) which the plaintiff opposes. For the reasons set forth below, the court grants the
Motion to Dismiss as to Count Two of the Complaint and denies the remainder of the
Factual Background 1
Connelly’s claims arise from her arrest at Miller Nissan, a car dealership in
Fairfield, Connecticut. A long-time customer of Miller Nissan, Connelly leased a car
1 The facts in this section are drawn from the Complaint. See Compl. (Doc. No. 1). Because, at
the motion to dismiss stage, the court must accept all factual allegations in the Complaint as true, “we
describe the facts as alleged in the complaint, drawing all reasonable inferences in the plaintiff's favor,
and construing any ambiguities in the light most favorable to upholding the plaintiff's claim.” Sung Cho v.
City of New York, 910 F.3d 639, 642 n.1 (2d Cir. 2018) (internal quotation marks and citations omitted).
from the dealership. Eventually, she returned that car and began to lease another.
When she swapped cars, however, Nissan failed to credit her for the return of the first
vehicle, resulting in a $14,000 charge to Connelly. Connelly tried for months to resolve
the issue, ultimately returning to the dealership on July 19, 2017. While Connelly was
speaking with staff at the dealership, employee Gregg Miller (“Miller”), grabbed her
keys, threw her purse across the showroom, and pushed her before taking her by the
arm and leading her out of the building.
Outside of the building, Defendants Komm and Irizarry, who were on the scene,
questioned Connelly, who told them that Miller had assaulted her. The officers then
turned to Miller, who told them that he had pushed Connelly. According to Connelly, the
parties “disagreed with one another on the details”, but both agreed that Miller had
assaulted her. See Compl. at ¶ 25. Nonetheless, the officers arrested Connelly,
charging her with criminal trespass in the first degree and interfering with an officer.
Conn. Gen. Stat. §§ 53a-107 & 53a-167a. On July 28, 2017, a nolle prosequi was
entered on Connelly’s criminal charges.
Connelly filed her Complaint against the defendants on July 27, 2020. See
Compl. (Doc. No. 1). She brings five Counts, alleging false arrest, unreasonable force,
and malicious prosecution in violation of her Fourth and Fourteenth Amendment rights
in Count One. In Count Two, which she brings against Fairfield, she alleges that the
town is liable under section 1983 of title 42 of the United States Code. Counts Three,
Four, and Five allege assault, battery, unlawful detention, and intentional infliction of
emotional distress against Komm and Irizarry under Connecticut state law.
In response, the defendants filed a Motion to Dismiss on the grounds that
Connelly failed to timely serve the Complaint; the claims against Fairfield in Count Two
lack sufficient factual allegations; and the excessive force, false arrest, and municipal
liability claims are time barred. See Mot. to Dismiss (“Mot.”) (Doc. No. 12). The plaintiff
opposes this Motion. See Pl.’s Opp’n (Doc. No. 21).
On April 23, 2021, the Court issued a Ruling granting Connelly time, nunc pro
tunc, to serve the defendants. See Ruling (Doc. No. 18).
To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. Reviewing a motion to dismiss under Rule
12(b)(6), the court liberally construes the claims, accepts the factual allegations in a
complaint as true, and draws all reasonable inferences in the non-movant's favor. See
La Liberte v. Reid, 966 F.3d 79, 85 (2d Cir. 2020). However, the court does not credit
legal conclusions or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal,
556 U.S. at 678.
Failure to Timely Serve
The first ground upon which the defendants move to dismiss, failure to timely
serve, is terminated as moot. The court reluctantly granted plaintiff nunc pro tunc time
to serve the defendants in its April 23, 2021 Ruling. See Ruling.
Count Two: Monell Claim
The defendants move to dismiss Count Two on the ground that it fails to state a
claim against the Town of Fairfield. In Count Two, Connelly alleges that “a municipal
policy or custom exists in the defendant Town of Fairfield”, Compl. at ¶ 43, which “has
caused the plaintiff to be subjected” to a denial of her rights. Compl. at ¶ 44.
To properly bring such a claim, commonly known as a Monell claim, plaintiffs
must allege sufficient facts to plausibly: (1) “establish that [they] suffered a constitutional
violation,” and; (2) establish “that the violation resulted from an identified municipal
‘policy,’ ‘custom,’ or ‘practice.’” Parker v. City of Long Beach, 563 Fed. App'x 39, 41 (2d
Cir. 2014) (citing Monell, 436 U.S. at 690-91 (1978)). “Monell also recognizes liability
where a municipality's failure to train its employees . . . amount[s] to deliberate
indifference to the rights of persons with whom the untrained employees come into
contact.” Parker, 563 F. App'x at 41 (quoting Connick v. Thompson, 563 U.S. 51, 61
A policy, custom, or practice “need not be memorialized in a specific rule or
regulation.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (internal quotations
and citation omitted). Nor must it have “received formal approval through the body's
official decisionmaking channels.” Monell, 436 U.S. at 691. A Monell claim may still
succeed when the constitutional violations are so “persistent and widespread . . . so
permanent and well settled” that they “constitute a ‘custom or usage’ with the force of
law.” Sorlucco v. New York City Police Dep’t., 971 F.2d 864, 870-71 (2d Cir. 1992)
(internal quotations and citations omitted). However, “the mere assertion . . . that a
municipality has such a custom or policy is insufficient in the absence of allegations of
fact tending to support, at least circumstantially, such an inference.” Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir. 1995).
Here, Connelly fails to allege that any violation of her rights occurred pursuant to
a policy, custom, or practice of the Town of Fairfield. Indeed, Count Two contains only
conclusory allegations that any such policy, custom, or practice existed. See Compl. at
¶ 44 (“the actions and conduct of the defendant Town of Fairfield evidence an official
policy or custom . . . .”). Nowhere in the first forty-six paragraphs of the Complaint, 2 all
of which are incorporated into Count Two, does Connelly allege any facts plausibly
supporting a claim that the violations she has alleged are “persistent” or “widespread” in
the Town of Fairfield. See, e.g., Sorlucco, 971 F.2d at 870-71. To the contrary, the only
facts offered relate to the actions of the two officer defendants and their arrest of
Connelly. There are no facts alleged that could plausibly support a Monell claim.
The Complaint contains four paragraphs numbered “1.-41.”, five paragraphs numbered “42”,
four paragraphs numbered “43”, two paragraphs numbered “44”, two paragraphs numbered “45”, and two
paragraphs numbered “46.” As one might imagine, this numbering scheme complicates the citations in
this Ruling. In the future, the court would be greatly aided by a complaint that takes a more sensible
approach to numbering paragraphs and adheres to the requirements of Federal Rule of Civil Procedure
10. See Fed. R. Civ. P. 10 (“A party must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances.”). If plaintiff’s counsel again submits a
pleading that fails to comply with the Federal Rules of Civil Procedure, the court intends to impose
Because the plaintiff has failed to plead facts sufficient to assert a Monell claim,
the defendants’ Motion to Dismiss is granted as to Count Two. The court dismisses this
claim without prejudice should Connelly choose to replead.
Timeliness of Claims
The final ground of defendants’ Motion to Dismiss is that the plaintiff’s false arrest
and unreasonable force claims in Count One as well as her Monell claims in Count Two
are untimely. Connelly brings these claims under section 1983 of title 42 of the United
Because section 1983 has no federal statute of limitations, courts borrow the
“most analogous” state statute of limitations. Board of Regents v. Tomanio, 446 U.S.
478, 488 (1980). The statute of limitations for claims in Connecticut under section 1983,
which courts borrow from Connecticut’s personal injury statute, is three years. See
Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994); see also Conn. Gen. Stats. § 52577. Not only do courts borrow state limitations periods, but they also use state “tolling
rules” in section 1983 cases. Pearl v. City of Long Beach, 296 F.3d 76, 80-81 (2d Cir.
2002) (citing Tomanio, 446 U.S. at 484-86). The Second Circuit has held that,
“[b]ecause the Supreme Court wanted section 1983 actions to be subject to state ‘tolling
rules,’ both statutory and common law rules are to be borrowed.” Id. at 81. However,
courts should not apply state tolling rules if doing so would “defeat the goals” of section
1983. See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007). Here, Connelly’s arrest
took place on July 19, 2017, and she failed to file her Complaint until July 27, 2020.
The claims for false arrest and excessive use of force therefore appear untimely on their
face, because they were brought outside the relevant three-month period.
Connelly argues, though, that her claims are timely because Governor Lamont
suspended Connecticut statutes of limitations between March 2020 and March 2021 in
response to the COVID-19 pandemic. See Executive Order No. 7G (March 19, 2020),
CT.GOV, https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/LamontExecutive-Orders/Executive-Order-No-7G.pdf (“Exec. Order 7G”); Executive Order No.
10A (February 8, 2021), CT.GOV, https://portal.ct.gov/-/media/Office-of-theGovernor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-10A.pdf
(“Exec. Order 10A”). 3 The defendants contend that the Governor’s Executive Order
does not apply to toll the statute of limitations for claims under section 1983. See Defs.’
Mem. of Law at 6-8 (Doc. No. 12-1).
In borrowing state limitations periods and tolling rules, the Supreme Court has
explained, federal courts “rely[ ] on the State's wisdom in setting a limit, and exceptions
thereto, on the prosecution of a closely analogous claim.” Tomanio, 446 U.S. at 486
(emphasis added) (internal citations omitted). Such state-determined “exceptions” need
not be statutory in nature; in Pearl, the Second Circuit considered the “scope of
borrowed tolling rules”, determining that “both statutory and common law rules”
constitute “tolling rules” that should be borrowed. Pearl, 296 F.3d at 81. Governor
Lamont’s Executive Order 7G, which “suspend[ed] . . . all statutory . . . time
requirements, statutes of limitation, or other limitations or deadlines relating to service of
process, court proceedings, or court filings”, likewise served as a state “tolling rule”,
3 The court takes judicial notice of the State of Connecticut’s online copy of the Governor’s
Executive Orders. See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose accuracy cannot reasonably be
carving out an exception to the prosecution of state personal injury claims analogous to
1983 actions. Exec. Order 7G. Thus, Executive Order 7G tolled the three-year statute
of limitations for Connelly’s claims unless such tolling would “defeat the goals” of section
1983. See Abbas, 480 F.3d at 641.
The policies underlying section 1983 include “compensation of persons injured
by deprivation of federal rights” and “prevention of abuses of power by those acting
under color of state law.” Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978); see
also Tomanio, 446 U.S. at 488 (identifying two of the principal policies embodied in
section 1983 as “deterrence and compensation”). “Considerations of federalism” are
also “quite appropriate in adjudicating federal suits based on 42 U.S.C. § 1983.”
Tomanio, 446 U.S. at 492.
Applying Executive Order 7G to Connelly’s section 1983 claims bolsters the
policy aims of section 1983. By allowing these claims to proceed, the state tolling rule
grants Connelly her day in court to seek compensation for her alleged constitutional
deprivation. Likewise, permitting the claims to go forward furthers the goal of deterring
abuses of power by state officials, requiring the defendants to answer for the alleged
rights violations. Finally, borrowing the tolling rule established in Governor Lamont’s
Executive Order comports with principles of federalism, as the court will apply
Connecticut’s state tolling policy rather than adopting its own “ad hoc federal rule”
interpreting state law. See, e.g., id.
In support of their position that the Executive Order does not toll the three-year
limitations period, the defendants cite a number of cases, all of which are
distinguishable. See Defs.’ Mem. at 7-8, Defs.’ Reply at 3-5. Two of the cases upon
which they rely address equitable tolling doctrines rather than tolling by executive order.
See Dragoman v. Midwest Hose & Specialty, Inc., No. 19-CV-01581-RBJ, 2020 WL
7043864, at *3 (D. Colo. Dec. 1, 2020) (determining that the court would not apply
equitable tolling principles to toll state law statutes of limitation in a diversity case); Hood
v. Cath. Health Sys., Inc., No. 1:20-CV-673, 2020 WL 8371205, at *5 (W.D.N.Y. Sept.
28, 2020) (refusing to apply equitable tolling principles to toll state statutes of limitations
applicable under the Federal Tort Claims Act). The remainder of the cases the
defendants cite are Initial Review Orders that do not discuss Governor Lamont’s
Executive Order. See Goins v. Papoosha, No. 3:21-CV-00405 (VAB), 2021 WL
1600720 (D. Conn. Apr. 23, 2021); Rivera v. Erfe, No. 3:21CV316(KAD), 2021 WL
1601147 (D. Conn. Apr. 23, 2021); Ruiz v. Taranovich, No. 3:20-CV-316 (SRU), 2021
WL 1969730, at *1 (D. Conn. May 5, 2021). There is no indication whatsoever that the
courts considered the impact of the Executive Order’s tolling rule on the plaintiffs’ claims
in these cases. Thus, the defendants’ cited cases do not support the contention that
7G’s tolling provision does not apply to Connelly’s claims.
By contrast, at least two district courts in this Circuit have found that executive
orders enacted in response to the COVID-19 pandemic do toll borrowed state statutes
of limitations. See Bonilla v. City of New York, No. 20CV1704RJDLB, 2020 WL
6637214, at *3 (E.D.N.Y. Nov. 12, 2020) (holding that a magistrate judge’s decision to
apply former Governor Cuomo’s Executive Order tolling New York statutes of limitations
during the COVID-19 pandemic to a plaintiff’s section 1983 claims was not clearly
erroneous or contrary to law); Citi Connect, LLC v. Loc. Union No. 3, Int'l Brotherhood of
Elec. Workers, AFL-CIO, No. 20-cv-05147 (CM), 2020 WL 5940143, at *4 (S.D.N.Y.
Oct. 7, 2020) (holding that the court should “borrow the ‘arguably tolled’ [New York]
state statute of limitations” for a federal action under the Labor Management Relations
Act). This court will follow the lead of its sister courts, borrowing the tolling provision set
forth in Executive Order 7G.
Because the Executive Order tolls Connelly’s claims under section 1983, the
court denies the defendants’ Motion to Dismiss Connelly’s claims in Count One on the
grounds of a lack of timeliness. 4
For the reasons stated above, the court grants the defendants’ Motion to Dismiss
(Doc. No. 12) as to Count Two of Connelly’s Complaint against the Town of Fairfield.
Count Two is dismissed without prejudice to replead. If the plaintiffs choose to amend
their Complaint, the court grants them leave to do so within 14 days of this Ruling. The
court denies the remainder of the defendants’ Motion to Dismiss, allowing the plaintiff’s
claims in Count One and Counts Three through Five to proceed.
Dated at New Haven, Connecticut this 16th day of November 2021.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
While the court has dismissed Connelly’s Monell claims in Count Two of her Complaint for
failure to state a claim, see pp. 4-5, supra, the three-year statute of limitations for these claims under
section 1983 is likewise tolled by Executive Order 7G.
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