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Estate of A.A. v. United States

United States District Court, D. Connecticut

December 28, 2016

ESTATE OF A.A. et al., Plaintiffs,
UNITED STATES OF AMERICA, Defendant and Apportionment Plaintiff,
WINDHAM COMMUNITY MEMORIAL HOSPITAL et al., Apportionment Defendants.


          Janet C. Hall United States District Judge.


         The 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.

         The 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).

         For the 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.


         This 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.

         A.A. 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.

         The 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.

         Ar. A 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.

         A.A. 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.


         A. Motions to Dismiss

         1. Rule 12(b)(1)

         A claim 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).

         “A 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 omitted).

         2. Rule 12(b)(2)

         Upon a 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.

         3. Rule 12(b)(5)

         Under 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).

         4. Rule 12(b)(6)

         When 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).

         To 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).

         B. Motion to Amend

         Rule 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)).


         A. DCF Motion to Dismiss (Doc. No. 27)

         DCF 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.

         In its 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.

         DCF 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.

         1. In Federal Court

         DCF 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.).

         The 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).

         This 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); Spartz v. State, No. CV-065002917, ...

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