Opinion
No. CV06 4006084-S
February 4, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #132
Dibble Edge Partners, LLC ("Dibble") has filed a three-count complaint against the Town of Wallingford, ("Town") the Wallingford Planning and Zoning Commission ("Commission"), and Dibble Edge Realty, LLC ("DER"). The complaint alleges the following facts which, for the purposes of the plaintiff's motion to strike, are accepted as true. Dibble owns land in Wallingford, Connecticut, as does DER. Initially, DER owned approximately twenty-eight acres, bounded on one side by Dibble's property, and bounded on another side by a road ending in a cul de sac named Dibble Edge Road. On December 20, 2004, DER filed an application with the Commission for approval of an eight-lot subdivision. After several hearings, the commission approved a revised version of the plan, Dibble appealed the commission's decision to the Superior Court on May 28, 2005.
Heritage Hill, Inc. owned the land until May 25, 2005, when Dibble purchased the property. Heritage Hill, Inc.'s principal stock holder, Joseph Poder, is also Dibble's sole member.
Dibble's appeal was ultimately dismissed. See Dibble Edge Partners, LLC v. Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 05 4011385 (July 16, 2006, Zoarski, J.T.R.).
Dibble alleges that while the appeal was pending, the defendants conspired to defeat Dibble's appeal by taking action to render the issues raised in Dibble's appeal moot. Dibble further alleges that when DER publicly listed a portion of its land for sale, Dibble made a full price offer to purchase the property. DER refused Dibble's offer, and informed Dibble that it would sell to Dibble only if certain restrictions were included in the conveyance. These restrictions were not in the listing and included a condition prohibiting access to Dibble Edge Road from Dibble's property. Dibble also alleges that the Town and DER engaged in a conspiracy that culminated in the Town's purchase of a portion of DER's land which included a "spite" strip that cut off Dibble's only access to Dibble Edge Road.
Dibble alleges that as a result of the conspiracy between DER, the Commission and the Town, Dibble was "deprived of all practical value" of its property, the Town's zoning regulations and requirements were subverted, and the pending appeal was rendered moot. Dibble further alleges that the purchase by the Town of DER's property resulted in a taking of Dibble's property without just compensation, and was arbitrary, capricious, and in violation of Dibble's substantive due process rights. Count one is an inverse condemnation action against the Town. Count two alleges 42 U.S.C. § 1983 violations against the Town and the Commission. Count three, against DER, alleges a conspiracy with the Town and the Commission to deprive Dibble of substantive property rights.
On August 21, 2006, DER filed an answer. On September 5, 2007, DER filed a request for leave to amend its answer to incorporate special defenses, which the court granted on November 5, 2007. The essence of the two special defenses in DER's amended answer is that DER enjoys qualified immunity from liability for damages under 42 U.S.C. § 1983. On November 20, 2007, Dibble filed a motion to strike the special defenses on the ground that DER may not avail itself of the doctrine of qualified immunity as a defense. DER filed an objection to the motion on December 13, 2007. The court heard oral argument on December 17, 2007.
"First Special Defense (Qualified Immunity) The Defendant Dibble Edge Realty, LLC, is immune from liability under 42 U.S.C. 1983 in that Dibble Edge Realty, LLC relied in good faith on presumably valid Land Subdivision Regulations and Zoning Regulations adopted by the Town of Wallingford in obtaining approval for the subdivision of said defendants land.
"Second Special Defense (Qualified Immunity) The Defendant Dibble Edge Realty, LLC, is immune from liability under 42 U.S.C. 1983 in that Dibble Edge Realty, LLC relied in good faith on presumably valid land acquisition purchasing procedures administered by the Town of Wallingford in subdividing land of said defendants, negotiating for the sale and conveying a portion thereof Defendant Town of Wallingford for open space purposes."
DISCUSSION
"A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency . . ." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
Dibble contends that DER's special defenses are legally insufficient because "the protection afforded by the doctrine of qualified immunity applies only to municipal employees who have been sued in their personal names and does not exist for private entities such as Defendant . . ." DER asserts that the issue of whether a defendant such as DER is entitled to qualified immunity is unsettled.
In Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994), Our Supreme Court offered the following guidance: "[A] claim for qualified immunity from liability for damages under § 1983 `raises a question of federal law'; Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials. Id.; Heath v. Henning, 854 F.2d 6, 9 (2d Cir. 1988). Furthermore, in applying federal law in those instances where the United States Supreme Court has not spoken, we generally give special consideration to decisions of the Second Circuit Court of Appeals." Accordingly, the viability of Dibble's motion to strike the qualified immunity defenses turns on federal precedent.
"Under federal law, the doctrine of qualified immunity shields officials from `civil damages liability' for their discretionary actions `as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.' Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Qualified immunity `is an immunity from suit rather than a mere defense to liability' and, therefore, protects officials from the burdens of litigation for the choices that they make in the course of their duties. (Emphasis in original.) Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, the United States Supreme Court has `recognized qualified immunity for government officials where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service.'" Fleming v. Bridgeport, 284 Conn. 502, 517 A.2d (2007).
The courts have not foreclosed, altogether, the possibility that a defendant who is not a government employee might enjoy the benefits of qualified immunity. See, e.g., Bartell v. Lohiser, 215 F.3d 550, 557 (6th Cir. 2000) (allowing certain private defendants to assert qualified immunity because they were closely supervised by the government). Nevertheless, Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992), and Toussie v. Powell, 323 F.3d 178 (2d Cir. 2003), support Dibble's argument against expanding the qualified immunity doctrine in the present case.
In Wyatt v. Cole, supra, 504 U.S. 168-69, the United States Supreme Court framed the issue thusly, "[t]he question on which we granted certiorari is a very narrow one: `[W]hether private persons, who conspire with state officials to violate constitutional rights, have available the good faith immunity applicable to public officials.' The precise issue encompassed in this question, and the only issue decided by the lower courts, is whether qualified immunity, as enunciated in Harlow, is available for private defendants faced with § 1983 liability for invoking a state replevin, garnishment, or attachment statute. That answer is no. In so holding, however, we do not foreclose the possibility that private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens. Because those issues are not fairly before us, however, we leave them for another day."
In light of Wyatt v. Cole, supra, 504 U.S. 158, DER's reliance on two district court cases for the proposition that private defendants are entitled to qualified immunity is untenable. After Wyatt was issued, the Third Circuit vacated Jordan v. Fox, Rothschild, O'Brien Frankel, 787 F.Sup. 471 (E.D.Pa. 1992), stating: "After the district court dismissed the [plaintiff's] actions on the basis of qualified immunity, the Supreme Court decided in Wyatt that qualified immunity is not available to private persons who become state actors for purposes of section 1983. Whether private persons who act under color of law may raise a defense of good faith was left open. Accordingly, the district court's orders dismissing [the plaintiff's] claims must be vacated." See Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1255 (3d Cir. 1994). Additionally, Shipley v. First Federal Savings Loan Ass'n. of Delaware, 703 F.Sup. 1122 (D.Del. 1988), aff'd, 877 F.2d 57 (3d Cir. 1989), predated both Wyatt and the Third Circuit's Jordan ruling. See id., 1132 ("[T]he Third Circuit Court of Appeals has not addressed the issue of whether private defendants can assert a defense of qualified immunity in section 1983 suits . . .").
In Toussie v. Powell, supra, 323 F.3d 180-81, the plaintiff alleged that various individuals pressured the local board of zoning appeals into rescinding a variance that Toussie had obtained earlier and sued the town, the board of zoning appeals, numerous town officials, and a private individual under 42 U.S.C. § 1983. The private individual asserted a qualified immunity defense, which the Second Circuit rejected. Id., 180. Analyzing Wyatt, the Court determined that "[w]hatever the precise holding of Wyatt may be, its logic applies as much to allegations that a private defendant conspired to influence improperly governmental decision-making as it does to allegations that a private defendant invoked an unconstitutional state replevin, garnishment, or attachment statute." Id., 183. The court concluded that "qualified immunity does not protect a private defendant against § 1983 liability where that private defendant is alleged to have conspired with government officials to deprive another of federal rights." Id., 180.
The Toussie court elaborated that "[t]his holding, like that in Wyatt, does `not foreclose the possibility that private defendants faced with § 1983 liability . . . could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens.' Wyatt, 504 U.S. at 169, 112 S.Ct. 1827. Nor does our decision today speak to the question of whether private defendants who are acting pursuant to a government contract or a court order can be shielded by qualified immunity." Toussie v. Powell, supra, 323 F.3d 184. These qualifiers have no bearing on DER's special defenses, as DER specifically seeks qualified immunity, and neither party claims that DER was acting pursuant to either a government contract or a court order.
In the present case, Dibble alleges that DER conspired with the Town and the Commission to deprive it of its property rights. Toussie is directly on point, and DER has provided the court with no authority to depart from the legal reasoning in Toussie.
The plaintiff's motion to strike the defendant DER's special defenses is granted.