United States District Court, D. Connecticut
ESTATE OF A.A. et al., Plaintiffs,
UNITED STATES OF AMERICA, Defendant and Apportionment Plaintiff,
WINDHAM COMMUNITY MEMORIAL HOSPITAL et al., Apportionment Defendants.
RULING RE: MOTIONS TO DISMISS (DOC. NOS. 27, 38, 40,
AND 42) AND MOTION TO AMEND APPORTIONMENT COMPLAINT (DOC. NO.
C. Hall United States District Judge.
plaintiffs, Estate of A.A., by its administrator Hugo
Angeles, and Ar. A., a Minor, by her father and next friend
Hugo Angeles, brought this Federal Tort Claims Act (FTCA)
action against the defendant and apportionment plaintiff, the
United States of America (“United States”).
See Compl. (Doc. No. 1). The plaintiffs allege
negligence with regard to the conduct of Dr. Berett Shaps,
M.D. (“Dr. Shaps”) and Generations Family Health
Center, Inc. (“Generations”). See id.
¶¶ 33, 57.
United States filed an Apportionment Complaint (Doc. No. 23)
against the apportionment defendants, Windham Community
Memorial Hospital (“Windham Community”),
Northeast Emergency Medicine Specialists
(“Northeast”), Hartford Healthcare Corporation
(“Hartford Healthcare”), Dr. Mark Dziedzic, M.D.
(“Dr. Dziedzic”), Dr. Constantine Mesologites,
M.D. (“Dr. Mesologites”), and the State of
Connecticut Department of Children and Families
(“DCF”). DCF, Dr. Mesologites, Dr. Dziedzic, and
Northeast have each moved to dismiss. See DCF Mot.
to Dismiss (Doc. No. 27), Dr. Mesologites Mot. to Dismiss
(Doc. No. 38), Dr. Dziedzic Mot. to Dismiss (Doc. No. 40),
Northeast Mot. to Dismiss (Doc. No. 42). The Motions seek
dismissal under Federal Rules of Civil Procedure 12(b)(1),
12(b)(2), 12(b)(5), and 12(b)(6). The United States has moved
to amend its Apportionment Complaint to substitute as an
apportionment defendant Thalia Mesologites, in her capacity
as representative of the estate of Dr. Mesologites.
See Mot. to Amend (Doc. No. 48).
reasons that follow, DCF's Motion to Dismiss (Doc. No.
27) is GRANTED, Dr. Mesologites's Motion to Dismiss (Doc.
No. 38) is DENIED, Dr. Dziedzic's Motion to Dismiss (Doc.
No. 40) is DENIED, Northeast's Motion to Dismiss (Doc.
No. 42) is DENIED, and the United States' Motion to Amend
(Doc. No. 48) is GRANTED.
FACTUAL BACKGROUND 
action arises out of the tragic death of A.A., a
three-year-old child, as well as the injuries to her sister,
Ar. A. See Compl. ¶¶ 15-62. The boyfriend
of the mother of A.A. and Ar. A. caused the children's
injuries, and caused A.A.'s death, by abusing A.A. and
Ar. A. See id. ¶¶ 32, 45, 55.
and Ar. A. were seen and treated at Generations, a
federally-funded Community Health Center, by Dr. Shaps, a
physician employed there. See id. ¶ 15, 38;
Apportionment Compl. ¶ 3. A.A. and Ar. A. were also seen
and treated by Dr. Dziedzic and Dr. Mesologites. See
Apportionment Compl. Count One ¶¶ 8-9. Dr. Dziedzic
and Dr. Mesologites worked for Windham Community, Northeast,
and Hartford Healthcare. See id. at 1.
plaintiffs allege that Dr. Shaps and Generations caused
A.A.'s continued injuries and her death, and caused Ar.
A.'s continued injuries, by failing to treat the
girls' ongoing symptoms as signs of abuse. See
Compl. ¶¶ 33-35, 41, 57, 59. These symptoms
included significant facial bruising and black eyes. See,
e.g., id. ¶ 41. The plaintiffs sue the United
States, as the employer of Dr. Shaps and Generations. See
Id. ¶¶ 7, 9. The United States, in turn,
alleges that A.A.'s and Ar. A.'s injuries were caused
in whole or in part by the negligence of Windham Community,
Northeast, Hartford Healthcare, Dr. Dziedzic, Dr.
Mesologites, and DCF. See Apportionment Compl. Count
One ¶ 10, Count Two ¶ 10.
was presented to Dr. Shaps at Generations with swelling and
cuts on her lip, on September 23, 2011. See Compl.
¶ 40. On several occasions prior to October 18, 2011,
Dr. Shaps examined A.A. and observed bruising. See
id. ¶ 16. A.A. was then presented to Dr. Shaps with
significant bruising on October 18, 2011. See id.
¶ 15. On that same day, a United States employee
reported suspected child abuse to DCF. See
Apportionment Compl. ¶ 7. At some point after October
18, 2011, A.A. was also examined or treated by Dr. Dziedzic,
Dr. Mesologites, Windham Community, Northeast, and Hartford
Healthcare. See id. ¶ 8. On November 14, 2011,
a federal program for children, Head Start, communicated to
DCF that A.A. had repeated facial bruising. See id.
Count Two ¶ 9(e). The next day, Dr. Shaps learned of
reports that A.A. had new bruising, see Compl.
¶ 25, and Head Start communicated to DCF that A.A.'s
further bruising suggested child abuse, see
Apportionment Compl. Count Two ¶ 9(f). On November 21,
2011, Head Start called DCF regarding Ar. A.'s
unexplained black eye. See id. Count Two ¶
9(i). At some point after November 21, 2011, Dr. Shaps
learned that Ar. A. had bruising and an injury to her eye and
face. See Compl. ¶ 48-49.
died on November 23, 2011. See id. ¶ 31. A.A.
and Ar. A. remained in the custody of their mother and their
mother's live-in boyfriend up until A.A.'s death.
See Id. ¶ 32, 56.
STANDARD OF REVIEW
Motions to Dismiss
is properly dismissed “under [Federal Rule of Civil
Procedure] 12(b)(1) for lack of subject matter jurisdiction
if the court lacks the statutory or constitutional power to
adjudicate it.” Cortland St. Recovery Corp. v.
Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d
Cir. 2015) (internal quotation marks omitted).
Rule 12(b)(1) motion challenging subject matter jurisdiction
may be either facial or fact-based.” Carter v.
Healthport Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016).
When ruling on a facial Rule 12(b)(1) motion-one that relies
on the facts alleged in a complaint-the court accepts the
allegations as true and draws all reasonable inferences in
favor of the plaintiff. See id. at 56-57. “The
task of the district court is to determine whether the
Pleading alleges facts that affirmatively and plausibly
suggest that the plaintiff has standing to sue.”
See id. at 56 (internal quotation marks and brackets
motion to dismiss pursuant to Rule 12(b)(2) for lack of
personal jurisdiction, the plaintiff bears the burden of
demonstrating that the court may properly exercise
jurisdiction over the defendants. See Dorchester Fin.
Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84-85 (2d
Cir. 2013). “In order to survive a motion to dismiss
for lack of personal jurisdiction, a plaintiff must make a
prima facie showing that jurisdiction exists.”
Eades v. Kennedy, PC Law Offices, 799 F.3d 161,
167-68 (2d Cir. 2015) (internal quotation marks omitted).
“A plaintiff can make this showing through his own
affidavits and supporting materials, containing an averment
of facts that, if credited, would suffice to establish
jurisdiction over the defendant.” Whitaker v.
American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.
2008) (citations, internal quotation marks, brackets, and
ellipsis omitted). The court “construe[s] the pleadings
and affidavits in the light most favorable to the plaintiffs,
resolving all doubts in their favor.”
Dorchester, 722 F.3d at 85.
Rule 12(b)(5), a party may file a motion to dismiss due to
insufficiency of service of process. See
Fed.R.Civ.P. 12(b)(5). “Once validity of service has
been challenged, it becomes the plaintiff's burden to
prove that service of process was adequate.” Carney
v. Horion Investments Ltd., 107 F.Supp.3d 216, 223 (D.
Conn. 2015) (internal quotation marks omitted).
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must determine whether the plaintiff has stated a
legally cognizable claim by making allegations that, if true,
would show that the plaintiff is entitled to relief. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)
(interpreting Rule 12(b)(6), in accordance with Rule 8(a)(2),
to require allegations with “enough heft to
‘sho[w] that the pleader is entitled to
relief'” (alteration in original)). The court takes
all factual allegations in the complaint as true and draws
all reasonable inferences in the plaintiff's favor.
See Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir.
2015). However, the tenet that a court must accept a
complaint's allegations as true is inapplicable to
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
survive a motion pursuant to Rule 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 Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. 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.” Iqbal, 556 U.S. at 678 (2009)
(quoting Twombly, 550 U.S. at 556).
Motion to Amend
15(a)(2) of the Federal Rules of Civil Procedure provides
that, “a party may amend its pleading [ ] with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15. In considering whether to
grant a litigant leave to amend, the court considers such
factors as undue delay, bad faith, dilatory motive, undue
prejudice, and futility of the amendment. See Foman v.
Davis, 371 U.S. 178, 182 (1962). “An amendment is
futile if the proposed claim could not withstand a motion to
dismiss.” Brinn v. Syosset Pub. Library, 624
F. App'x 47, 48-49 (2d Cir. 2015) (internal quotation
marks and ellipses omitted) (quoting Lucente v. Int'l
Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002)).
DCF Motion to Dismiss (Doc. No. 27)
moves to dismiss the action under Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure, as barred by
sovereign immunity. See DCF Mot. to Dismiss at 1.
Motion, DCF acknowledges that “Connecticut law provides
a mechanism” by which the state's Claims
Commissioner may waive sovereign immunity by authorizing a
claim. Id. at 6-7. At the time DCF filed the Motion,
the plaintiffs had not received authorization to sue DCF.
See id. at 7-8. On September 7, 2016, however, the
State of Connecticut Claims Commissioner, Christy Scott,
authorized the plaintiffs to “bring suit against the
state for the claims and damages set forth in” the
plaintiffs' three notices of claim relating to A.A.'s
death. See Claims Commissioner Decision (Doc. No.
56-1) at 3. Section 52-102b of the Connecticut General
Statutes allows for apportionment claims, except that,
“[n]o person who is immune from liability shall be made
an apportionment defendant.” Conn. Gen. Stat. Ann.
§ 52-102b(c). The United States argues that, “[i]n
light of this waiver of sovereign immunity, the State is not
a person who is ‘immune from liability' for
purposes of the apportionment act.” United States'
Second Supplemental Statement (Doc. No. 56) at 2.
replies that the Claims Commissioner's Decision
authorizes only a suit (1) by the plaintiffs (2) in state
court. See DCF Reply (Doc. No. 57) at 1. DCF argues
that the Decision does not authorize an apportionment claim
against DCF (1) by the United States, nor (2) in federal
court. See id. at 2-3.
argues that Connecticut has only consented to suit in state
court, without consenting to suit in federal court.
See DCF Reply at 3. Indeed, “a State does not
consent to suit in federal court merely by consenting to suit
in the courts of its own creation.” College Savings
Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 676 (1999); see also Oliver v. Univ. of
Connecticut Health Care, 292 F.Supp.2d 398, 406 (D.
Conn. 2003) (“[A] state may consent to suit in its own
courts without consenting to suit in federal court.”).
Thus, “a federal court should not infer that a state
has consented to suit in federal court merely because it has
waived its common law sovereign immunity in its own
courts.” Cates v. State of Connecticut Dep't of
Corr., No. 3:98-CV-2232 (SRU), 2000 WL 502622, at *9 (D.
Conn. Apr. 13, 2000) (internal quotation marks omitted);
see also Avoiding Sovereign Immunity: Consent or
Waiver by the State, 13 Fed. Prac. & Proc.
Juris. § 3524.4 (3d ed.).
language of the Claims Commissioner Decision lacks any
restriction as to in which court the suit may be brought.
See Claims Commissioner Decision at 3 (“[T]he
claimants are authorized to bring suit against the state for
the claims and damages set forth in the notices of
claim.”). Nevertheless, DCF argues that the Claims
Commissioner lacked power to authorize suit in federal court.
See DCF Reply at 2. DCF points to section 4-160(d)
of the Connecticut General Statutes, which states that, when
the Claims Commissioner authorizes a claim, “[t]he
claimant shall bring such action [ ] in the judicial district
in which the claimant resides or, if the claimant is not a
resident of [Connecticut], in the judicial district of
Hartford or in the judicial district in which the claim
arose.” Conn. Gen. Stat. § 4-160(d).
court agrees that the Claims Commissioner lacked the power to
authorize suit by the plaintiffs directly against DCF in
federal court. Citing section 4-160(d), a judge in this
District has stated that, “Connecticut law [ ] provides
that the Claims Commissioner can only authorize suit in state
court, not federal court.” Doe v. Barrett, No.
3:01-CV-519 (PCD), 2006 WL 3741825, at *7 (D. Conn. Dec. 19,
2006) (dismissing claim under Eleventh Amendment without
waiting for Claims Commissioner decision); see also Reese
v. Garcia, 68 F.Supp.2d 131, 133 (D. Conn. 1999)
(“[I]n order to sue the state pursuant to Connecticut
General Statute § 4-160 . . . the state claims
commissioner [ ] must [ ] authorize the bringing of such a
suit in the state courts.”) (emphasis added);
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