United States District Court, D. Connecticut
RULING AND ORDER
R. UNDERHILL, United States District Judge.
30, 2015, the plaintiff, Schelle Hodges, filed a complaint
against the defendants, the Glenholme School, Claudia
Nicholas, Stephen Nicholas, and John Does One, Two, and
Three, alleging various claims arising from Mr. and Ms.
Nicholas‘ alleged sexual assault of Hodges in 1981 and
1982. (doc. 1) In response to the defendants‘ motions
to dismiss that complaint because of defects in service and
the running of the statute of limitations, Hodges filed an
amended complaint on October 16, 2015 adding the Devereux
Foundation, Inc. as a defendant. (doc. 44) I denied the
initial motions to dismiss without prejudice, and the
identified defendants then moved to dismiss the amended
complaint with prejudice under Rule 12(b)(6) and Rule
12(b)(5). (docs. 57, 58, and 60) I held a hearing on those
motions on April 6, 2016.
following reasons, I find persuasive the defendants‘
arguments that the complaint should be dismissed for failure
to state a claim, and their motions are granted with
prejudice; accordingly, the defendants‘ arguments that
the complaint should be dismissed for ineffective service are
Standard of Review
Motion to Dismiss for Failure to State a Claim
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) is designed "merely to assess the legal
feasibility of a complaint, not to assay the weight of
evidence which might be offered in support thereof."
Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)
(quoting Geisler v. Petrocelli, 616 F.2d 636, 639
(2d Cir. 1980)).
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must accept the material facts alleged in the complaint
as true, draw all reasonable inferences in favor of the
plaintiff, and decide whether it is plausible that plaintiff
has a valid claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007); Leeds v. Meltz, 85 F.3d
51, 53 (2d Cir. 1996).
Twombly, "[f]actual allegations must be enough
to raise a right to relief above the speculative level,
" and assert a cause of action with enough heft to show
entitlement to relief and "enough facts to state a claim
to relief that is plausible on its face." 550 U.S. at
555, 570; see also Iqbal, 556 U.S. at 679
("While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations."). The plausibility standard set forth in
Twombly and Iqbal obligates the plaintiff
to "provide the grounds of his entitlement to
relief" through more than "labels and conclusions,
and a formulaic recitation of the elements of a cause of
action." Twombly, 550 U.S. at 555 (quotation
marks omitted). Plausibility at the pleading stage is
nonetheless distinct from probability, and "a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and .
. . recovery is very remote and unlikely." Id.
at 556 (quotation marks omitted).
was born on August 1, 1967. Rule 26(f) Rep‘t § V
(doc. 33). She turned 48 on August 1, 2015.
following facts are as alleged in the amended complaint. In
1981 and 1982, Hodges was a full-time residential student at
the Glenholme School, which was operated by the Devereux
Foundation, a corporation incorporated and headquartered in
Pennsylvania. Am. Compl. at ¶ 13. Claudia Nicholas
was a school nurse employed at the School during that period.
Id. at ¶ 16. Hodges was repeatedly physically
and sexually assaulted by Ms. Nicholas and her husband,
Stephen Nicholas, and they threatened her to prevent her from
telling anyone about the abuse. Id. at ¶¶
meantime, staff at the School told Hodges she was
"fortunate to have a special relationship" with Ms.
Nicholas. Id. at ¶¶ 24, 25. School
employees, including John Does Two and Three, knew or should
have known that Ms. Nicholas was taking Hodges off-campus.
Id. at ¶ 18. Hodges alleges that the other
named defendants had knowledge that Ms. Nicholas posed a
threat to minors as follows:
Prior to, during, and immediately after, the time Plaintiff
was sexually abused . . . Defendants The Glenholme School,
The Devereux Foundation, Inc., and Stephen Nicholas had
information that Defendant Claudia Nicholas had entered into
inappropriate relationships with others at The Glenholme
School, that Defendant Claudia Nicholas engaged in conduct
involving serious boundary violations and that Defendants The
Glenholme School, The Devereux Foundation, Inc., and Stephen
Nicholas knew Defendant Claudia Nicholas posed a danger to
the minors attending The Glenholme School.
Id. at ¶ 28. Hodges asserts that information
was "fraudulently concealed" from her and her
she was still enrolled at the School, Hodges "expressed
confusion" to her mother regarding her "experiences
at The Glenholme School." Id. at ¶ 25. Her
mother called the School to discuss "issues Plaintiff
reported." Id. School Administrators dismissed
her concerns. Id. In the spring of 1982, while
Hodges was home with her parents, Ms. Nicholas "came to
the Plaintiff‘s parents‘ home in the middle of
the night and tried to get the Plaintiff to leave the
Plaintiff‘s parents‘ home with [her]. The
Plaintiffs‘ parents told [Ms. Nicholas] to leave."
Id. at 26. Hodges did not thereafter return to the
alleges that she "did not know she was a victim of
sexual abuse." Id. at ¶ 27. She "was
not able to understand until the spring of 2013 that [she]
had been sexually abused as a child." Id. The
discovery occurred during a conversation with a friend, who
told Hodges that she was describing sexual abuse.
filed her initial complaint on July 30, 2015. (doc. 1) The
parties agree that, under Connecticut law, apart from any
exceptions, the statute of limitations on Hodges‘
claims ran out on August 1, 2015, thirty years after she
reached the age of majority. See Conn. Gen. Stat.
§§ 52-577d (setting statute of limitations for
personal injury damages for sexual abuse to minors at thirty
years after reaching the age of majority); 1-1d (setting 18
as the age of majority).
marshal serving the complaints received the summons and
complaint against The Glenholme School and Mr. Nicholas on
August 5, 2015. (docs. 13, 24) The marshal attempted to
serve The Glenholme School by serving a summons on Catherine
A. Naum on August 6, 2015. (doc. 24) Stephen Nolan, Senior
Vice President and General Counsel of the Devereux
Foundation, asserts in an affidavit that Naum is a staff
receptionist at the School, and is not an agent authorized to
receive process for the School or the Foundation. Devereux
Br., Ex. G. The marshal attempted to serve Mr. Nicholas by
leaving a summons at his "usual place of abode" in
Warren, Connecticut on August 6, 2015. (doc. 13) The marshal
served Ms. Nicholas by leaving a summons for her at the same
address on the same day. (doc. 14) Hodges does not allege
that any of the defendants were aware of her complaint before
they were served.
summons for the Devereux Foundation was received and served
by the marshal on the Connecticut Secretary of State on
October 19, 2015, following the addition of the Foundation as
a defendant in the amended complaint. (doc. 53)
three largely identical motions,  the defendants raise three
main arguments: (1) Hodges has failed to adequately plead
fraudulent concealment that would justify tolling the statute
of limitations; (2) the suit was not "commenced"
before the statute of limitations had run, so the Connecticut
accidental failure of suit statute, Conn. Gen. Stat. §
52-592(a), was not triggered; and (3) service of process on
the School, the Foundation, and Mr. Nicholas was
insufficient. Hodges properly concedes that Connecticut law
deems an action has "commenced" for the purposes of
the statute of limitations only after the service of the
summons and complaint, and further concedes that the
defendants were not properly served before the statute had
run.Because I determine that Hodges cannot toll
the statute of limitations, I do not address the service of
attempts to toll the applicable statutes of limitations
pursuant to Conn. Gen. Stat. § 52-595, which states that
if the defendant fraudulently concealed the existence of a
cause of action, the action is then deemed to accrue from the
time of discovery.
prove fraudulent concealment, plaintiffs must show:
(1) a defendant‘s actual awareness, rather than imputed
knowledge, of the facts necessary to establish the
plaintiffs‘ cause of action; (2) that defendant‘s
intentional concealment of these facts from the plaintiffs;
and (3) that defendant‘s concealment of the facts for
the purpose of obtaining ...