Reale v. State

Daniel REALE et al. v. STATE of Rhode Island et al.

No. WWMCV185008257S

Superior Court of Connecticut, Judicial District of Windham, Putnam

August 23, 2018

UNPUBLISHED OPINION

OPINION

Cole-Chu, J.

On January 3, 2018, the plaintiffs Daniel Reale and Benjamin Ligeri filed a two-count complaint against the defendants State of Rhode Island, the Rhode Island Department of Children, Youth and Families (DCYF), investigator Harry Lonergan, attorney Brenda Baum, and attorney Diane Leyden.^[1] Count one, brought by Reale, alleges spoliation of evidence as to DCYF, Lonergan, Baum, and Leyden. Count two, brought by Ligeri but incorporating all of count one, alleges spoliation of evidence by the State of Rhode Island, DCYF, and Baum.

On February 6, 2018, the defendants moved (# 115) to dismiss the plaintiffs’ complaint for lack of personal jurisdiction or in the alternative, to strike the complaint based on 1) the prior pending case doctrine; 2) lack of service of process and 3) the claim that there is no cause of action for spoliation of evidence under governing law, i.e., the law of Rhode Island.^[2] On February 20, 2018, the plaintiffs filed a joint objection and memorandum of law (# 118) in opposition to the defendants’ motion to dismiss. On February 22, 2018, the defendants filed a reply brief. On March 26, 2018, the motion was argued and submitted. On July 24, 2018, the court granted the motion to dismiss, with memorandum of decision to follow (# 115.10). This is that memorandum.

FACTS

Plaintiff Reale, in count one, and plaintiff Ligeri, in count two (which incorporates count one), allege the following essential facts, which are deemed to be true for purposes of the present analysis. See Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). Neither conclusions of law nor opinions are included because those are not taken as true. See Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). References to the plaintiff (singular) in count one clearly mean Reale and, therefore, mean Reale in count two, as well. See Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005) (interpretation of pleadings a question of law).^[3]

Reale is a Connecticut resident. He is the father of two children and has joint custody with his ex-wife, who was a resident of Rhode Island until April 8, 2017. Reale has no criminal record. He has not been adjudicated to be dangerous, abusive or unsafe as a parent.

Defendant DCYF is an agency of the defendant State of Rhode Island. DCYF employs defendant Harry Lonergan, an investigator, and defendant Diane Leyden, an attorney. Defendant Brenda Baum is an attorney who represents DCYF.

In June 2016, DCYF commenced two neglect petitions against Reale. Defendant Lonergan, who signed the petitions under oath, acted with malice and intent to harm, vex, and trouble Reale in doing so. The petitions arose from an allegation by a school psychologist in the Town of Coventry, Rhode Island, that one of Reale’s sons suffered a gunshot wound, supposedly as punishment. That incident was investigated by the Coventry, Rhode Island, Police Department, which determined that no crime, abuse or neglect had occurred. Defendant Leyden prosecuted the petitions after learning of their false nature. The defendants in count one- DCYF, Lonergan, Baum, Leyden, and the Town of Coventry- never served Reale with the petitions.

In July of 2016, the Rhode Island family court ordered DCYF to disclose to Reale its files and evidence against him.^[4] Though Reale demanded such disclosure before and since the family court order, no defendant complied with that order. Reale was unable to successfully bring and prosecute a civil action for intentional and negligent infliction of emotional distress, vexatious litigation, abuse of process, malicious prosecution, and deprivation of civil rights because of fear of what would happen to his children and his ex-wife and because of lack of sufficient information prior to September 2016.^[5]

The DCYF neglect petitions terminated in favor of Reale and his ex-wife in August 2016 and September 2016, respectively. Nevertheless, out of fear of reprisal, Reale’s ex-wife and their children moved to Louisiana on April 8, 2017. One or more of the defendants made actual or implied threats or other actions against Reale and his family, including harassment, coercion to waive healthcare privacy laws, threats to interfere with Reale’s custody, and misrepresentation concerning Rhode Island family court orders.

On April 9, 2017, Reale demanded, by way of the Rhode Island Open Records Act, that DCYF, Lonergan, Baum, Leyden, and the Town of Coventry provide him with the records that the Rhode Island family court had ordered disclosed. The defendants did not comply.

Reale joined as plaintiff in a lawsuit brought by plaintiff Ligeri against DCYF, et al., in the United States District Court for the District of Rhode Island. That federal action is similar in background and nature to the present suit. In the federal court action, the defendants in count one- DCYF, Lonergan, Baum, Leyden, and the Town of Coventry- hid, concealed, mutilated and destroyed records and other material evidence.^[6] Reale claims he suffered damages from those defendants’ willful withholding, concealment and destruction of evidence, including documents and other records, internal communications, recordings and expert opinions during and since the prosecution of the DCYF petitions against him, despite notice by Reale and Ligeri instructing said defendants (not the State of Rhode Island directly) to preserve and produce such evidence. Such evidence would have been favorable to Reale in the federal action by showing 1) the intent of the count one defendants to coerce and deceive; 2) the count one defendants’ deliberate failures to contact Reale; 3) DCYF communications with the Coventry Police Department about the absence of probable cause that a criminal or abusive act occurred with a pellet gun; 4) attempts by one or more defendants to fabricate evidence by misconstruing statements by Reale’s minor son; ^[7] and 5) full and fair disclosure required for resolution of Reale’s claims.^[8]

Turning to the facts added in count two, plaintiff Ligeri’s daughter was taken from him by DCYF at her birth, without Ligeri having access to the evidence against him or a timely probable cause hearing. Ligeri has no criminal record and has not been adjudicated dangerous, abusive or unsafe as a parent.

Ligeri sought a temporary restraining order in the federal action but was unable to obtain such order because of the withholding, concealment or destruction of evidence of the type described in count one, but concerning Ligeri, by the defendants in count two- DCYF, the State of Rhode Island, and Baum. As to Ligeri, such evidence would show that said defendants 1) prosecuted and maintain the neglect petition against him without probable cause and with malice; 2) withheld breast milk from his daughter with malice; and 3) have violated Ligeri’s civil rights and treated him in a harsher manner than others similarly situated in retaliation for his exercising his rights and questioning DCYF’s, the State of Rhode Island’s, and Baum’s treatment of his daughter and himself.

DISCUSSION

"A motion to dismiss shall be used to assert ... lack of jurisdiction over the person ..." Practice Book § 10-30(a). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Internal quotation marks omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007). "When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two-part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). Only if the court finds the statute to be applicable does it reach the question whether it would offend due process to assert jurisdiction. Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983).

It is the burden of the party who seeks the court to exercise jurisdiction in his favor to clearly allege facts demonstrating that the court has jurisdiction. Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402 413-14, 35 A.3d 188 (2012); St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011). This is particularly true where "the defendant challenging the court’s personal jurisdiction is a foreign corporation or a nonresident individual ..." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651.^[9] Additionally, "construction of a self-represented party’s pleading should not focus on technical defects, but should afford the [plaintiff] a broad,...