Doe v. Roe

Full title: John Doe v. Jane Roe et al

Court: Superior Court of Connecticut

Date published: Jul 3, 2017

CV165037281 (Conn. Super. Ct. Jul. 3, 2017)

Opinion

CV165037281

07-03-2017

John Doe v. Jane Roe et al

James W. Abrams, Judge.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS (#115.00)

James W. Abrams, Judge.

The defendants Jane Roe #1 and Jane Roe #2 filed a Motion to Dismiss dated November 26, 2017 and the parties presented oral argument to the court on March 27, 2017. This action is predicated on the plaintiff's claims that he was defamed by the defendants when they testified against him in a legal proceeding. The defendants claim that the alleged defamatory statements are entitled to absolute privilege because they were made during a legal proceeding and that this fact deprives the court of subject matter jurisdiction.

" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Santorso v. Bristol Hosp., 308 Conn. 338, 350, 63 A.3d 940 (2013) (quoting Narayan v. Narayan, 305 Conn. 394, 401, 46 A.3d 90 (2012)). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013) (quoting Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011)). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." Bailey v. Med. Examining Bd. for State Emp. Disability Ret., 75 Conn.App. 215, 219, 815 A.2d 281, 285 (2003) (citing Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988)). " It is well established that '[i]n ruling upon whether a complaint survives a motion to dismiss, 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.'" Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999) (quoting Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998)). " A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a).

There is no question that statements made in connection with a judicial proceeding are absolutely privileged against claims of defamation. Gallo v. Barile, 284 Conn. 459, 470, 935 A.2d 103 (2007). The issue before the court is whether a claim of absolute privilege deprives the court of subject matter jurisdiction or whether the issue is more properly raised in a motion for summary judgment. At the time this Motion was briefed and argued, the plaintiffs admitted that there was no appellate authority on this issue and that a split of authority existed in the Superior Court. However, in the interim, the Appellate Court decided the case of Bruno v. Travelers Companies, 172 Conn.App. 717, 161 A.3d 630 (2017): " [A]bsolute immunity implicates the trial court's subject matter jurisdiction. See Tyler v. Tatoian, 164 Conn.App. 82, 87, 137 A.3d 801 (" the doctrine of absolute immunity concerns a court's subject matter jurisdiction" [internal quotation marks omitted]), cert. denied, 321 Conn. 908, 135 A.3d 710 (2016); Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014) (same); see also Stone v. Pattis, 144 Conn.App. 79, 95-100, 72 A.3d 1138 (2013) (claim for negligent infliction of emotional distress against certain attorney-defendants for communications made while defending against federal lawsuit was barred by absolute immunity because communications were absolutely privileged; trial court properly dismissed claim for lack of subject matter jurisdiction)." Id., 723.

Based on the foregoing, this Court finds that it is without subject matter over this action and it is hereby dismissed.