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Goodman v. Bremby

United States District Court, D. Connecticut

September 20, 2017

ALICE V. GOODMAN, by her conservator FRANCINE GOODMAN, and FRANCINE GOODMAN, individually, Plaintiffs,
v.
RODERICK L. BREMBY, Commissioner of the Connecticut Department of Social Services “DSS”, in his official capacity, et al., Defendants.

          RULING ON DEFENDANTS' MOTIONS TO DISMISS

          Michael P. Shea, U.S.D.J.

         Plaintiffs Alice and Francine Goodman allege a civil RICO claim and a claim under 42 U.S.C. § 1985(3) against defendants Zullo, Allison, Spiegel, Puklin, Norwalk Hospital, and several Jane and John Does. The plaintiffs also allege state law claims against these defendants, as well as defendants Keogh and Murphy. Defendants Zullo, Allison, Spiegel, Puklin, and Norwalk Hospital separately have moved to dismiss both federal law claims and the various state law claims.

         For the reasons that follow, I GRANT these defendants' motions to dismiss under Fed.R.Civ.P. 12(b)(6) on both federal law claims with prejudice, and I also DISMISS the federal law claims against the Jane and John Does. With no remaining federal law claims, I decline to exercise supplemental jurisdiction over all remaining state law claims and DISMISS them without prejudice.

         I. Background

         A. Factual Allegations

         Plaintiff Francine Goodman, on her own behalf, and as the conservator of Alice Goodman (Francine's elderly mother) brought this case against Roderick L. Bremby, the Commissioner of the Connecticut Department of Social Services (“DSS”), the Norwalk Hospital Association, Apex Clearing Corporation, Stephen Keogh (past conservator of Alice Goodman's estate), Frank N. Zullo (an attorney who represented Alice Goodman), Diane M. Allison (another attorney who represented Alice Goodman), Frank W. Murphy (a partner in Zullo's firm), Rhea Spiegel (the DSS worker assigned to Alice's case), Marcy Puklin (a clinical social worker assigned to Alice Goodman), and ten Jane and John Does (physicians, nurses, administrators, and/or other medical professionals at Norwalk Hospital).[1]

         The second amended complaint alleges a scheme by the defendants to isolate Francine from Alice and to steal Alice's considerable wealth.[2] As background, the second amended complaint sets forth that Alice, her late husband, and Francine inherited and collected valuable antiques-in addition to amassing a substantial family fortune. (ECF No. 61 at ¶¶ 32-36.) When Alice's husband (Francine's father) died in 2008, he left half of his assets to a trust that named Francine as the trustee and remainderman. (Id. at ¶ 37.) He also left his personal antique and art collection to Francine. (Id. at ¶ 39.) Alice was named executor of his will (id. at ¶ 40), but that duty ultimately fell to Francine, under a durable power of attorney Alice gave her in 2006. (Id.)

         Alice's health declined in 2013. Alice fell down a flight of stairs and broke her wrist, and the Norwalk Hospital treated her for that injury. (ECF No. 61 at ¶¶ 64-66.) Francine arrived in Connecticut after her mother had been released from the Hospital the day of the fall. (Id. at ¶ 66). The next morning, she noticed that Alice's memory seemed to be impaired. (Id. at ¶ 68.) Francine took her back to the hospital, and emergency room physicians there told Francine that Alice was suffering from dementia. (Id. at ¶ 72.)

         Alice's dementia began to worsen. (ECF No. 61 at ¶¶ 74-80, 110-123.) Francine went to the Westport DSS office several times to seek help. (Id. at ¶ 81.) Eventually, DSS assigned Spiegel, a caseworker, to investigate an anonymous report that Alice was being financially exploited, and she visited the Goodmans' house. (Id. at ¶¶ 81-86.) The plaintiffs allege that this visit caused Alice to become upset and to “incorrectly believe that Francine had called DSS and instigated Spiegel's visit.” (Id. at ¶¶ 89-92.) This caused misunderstandings, distrust, and strife between Alice, Francine, and Spiegel. (Id. at ¶¶ 93-109.)

         About a month after Spiegel visited the Goodmans' house, defendant Zullo entered the picture. In March 2014, Alice and a friend went to visit Zullo, an attorney who previously had represented the Goodmans. (ECF No. 61 at ¶¶ 134-42.) Zullo agreed to represent Alice, allegedly “to help her find her [missing] checkbook.” (Id. at ¶¶ 143-45.) After this visit, plaintiffs allege that Zullo “began moving aggressively to marginalize and isolate Francine[] and remove her from her mother's life.” (Id. at ¶¶ 146-61.) Plaintiffs also allege that “in or about mid-March 2014, Zullo directed the United States Post Office to divert Mrs. Goodman's and Francine's mail[] and have it all sent to him.” (Id. at ¶¶ 162-69.)

         The plaintiffs next allege that Zullo brought defendant Diane Allison into a conspiracy to “take over Mrs. Goodman's millions of dollars in assets by exploiting her paranoid delusions and gaslighting her by manipulation of her mail, finances[, ] and interpersonal relationships.” (ECF No. 61 at ¶¶ 170-184.) Specifically, Zullo arranged for Alice to meet Allison, an attorney he “represented to be his partner.” (Id. at ¶ 170.) Shortly thereafter, “Zullo and Allison spoke with . . . Spiegel and directed Spiegel that all future communications should only be made to them.” (Id. at ¶ 173.) The second amended complaint and the RICO case statement allege that Zullo, Allison, and Spiegel initially conspired and acted against Alice and Francine by (1) making arrangements to send Alice back to her native Belgium to stay with relatives there and to sell the Goodman house (id. at ¶ 182); (2) taking over Alice's financial accounts and healthcare decisions, while knowing that she was not competent, and also liquidating various accounts that Alice owned (id. at ¶¶ 234- 44); and (3) separating Alice and Francine by, among other things, changing the locks on the house, thereby preventing Francine from entering and Alice from leaving. (Id. at ¶¶ 217-221, 250.)

         Next, the plaintiffs allege that Norwalk Hospital joined the conspiracy. On April 28, 2014, a DSS psychologist assigned to Alice's case accompanied her to Norwalk Hospital. At the hospital, she was admitted and given a “battery of mental and physical tests. . . to determine the nature and extent of her mental deterioration and whether it had a physical cause.” (ECF No. 61 at ¶¶ 246- 48, 267-73.) The plaintiffs claim that defendants Zullo, Allison, Spiegel, and Norwalk Hospital “executives, administrators[, ] and employees, including the John Does 1[-]10 and the Jane Does 1[-]10, agreed that Francine was not to have access [to] Mrs. Goodman or any say in her medical care.” (Id. at ¶ 277.) The plaintiffs state that these defendants joined the existing conspiracy and “lied to the hospital's non-conspiring nurses, security guards[, ] and other staff in furtherance of their plot to marginalize Francine so they could misappropriate [Alice's] financial assets and . . . valuable personal property.” (Id. at ¶¶ 276-307.) The plaintiffs also allege that Norwalk Hospital “caused to be mailed Mrs. Goodman's complete medical file to Zullo/Allison.” (ECF No. 71 at 6.)

         After Alice's hospital stay, the plaintiffs allege, the defendants' conspiracy to take money from Alice and separate her from Francine continued. Alice was upset that Francine had been staying in the Goodmans' house while she was in the hospital, so Allison told Francine to leave- allegedly searching Francine on her way out. (ECF No. 61 at ¶¶ 321-31.) The plaintiffs also claim that the defendants took money from Alice's brokerage accounts. (Id. at ¶¶ 332-45; ECF No. 71 at 6.) Further, they claim that Zullo and Allison had Alice execute a new will that partially disinherited Francine, two durable powers of attorney (although they knew Alice was suffering from dementia), and a conservatorship form (although they knew Francine had filed a conservatorship petition in probate court). (ECF No. 61 at ¶¶ 360-65.) The defendants allegedly “used the threat of arrest [against Francine] to further isolate [Alice] from Francine and to thwart Francine's oversight of Mrs. Goodman's assets so they could continue appropriating the valuable personal property in” the Goodmans' house. (Id. at ¶¶ 397-404, 416-422.) Previously, Zullo had “convinced Westport Police to tell Mrs. Goodman's neighbors that they should call 911 immediately if they ever saw Francine in the neighborhood-which, of course they then did. . . At Zullo's urging, the Westport Police took Francine to the police station and held her there for hours at a time, but no charges were ever filed against her.” (Id. at ¶¶ 193-94.) Allison also allegedly directed the tenants of a shopping center owned by Alice to pay “all future rents to [Allison] because Mrs. Goodman ‘was almost ninety years old, and she can't handle this.'” (Id. at ¶¶ 405- 15; ECF No. 71 at 6.)

         All the while, the plaintiffs allege, the defendants continued impeding the mother-daughter relationship and “diverting, reading[, ] and retaining personal mail, checks, bills, account statements[, ] and confidential medical records belonging to both [Alice] and Francine.” (ECF No. 61 at ¶¶ 416-433; ECF No. 71 at 6.) The plaintiffs also allege that the defendants interfered with the probate court's determination that Alice needed a temporary conservator appointed. (ECF No. 61 at ¶¶ 434-81.) Finally, the plaintiffs allege that Puklin joined this conspiracy-aiding in stealing from Alice and separating her from Francine, as well as in preventing Alice from receiving proper medical care. (Id. at ¶¶ 482-564.) Although a probate judge had originally appointed Puklin's boss, defendant Keogh, as conservator for Alice, in October 2015 “the Connecticut Superior Court overturned Judge Wexler's order appointing Keogh as Mrs. Goodman's conservator. The Superior Court appointed Francine as the conservator of her mother's person and estate.” (Id. at ¶ 557.)

         B. RICO Case Statement

         On April 28, 2016, the plaintiffs filed their complaint. (ECF No. 1.) On June 20, 2016, they filed an amended complaint. (ECF. No. 12.) They did not file a RICO case statement within twenty days of filing that complaint, although the District of Connecticut has a standing order in RICO cases that requires plaintiffs to “file a RICO Case Statement within twenty (20) days of filing the complaint.”[3] In response to the amended complaint, all of the identified defendants filed motions to dismiss. (ECF Nos. 41, 42, 43, 50, 51, 52, 53, 54, 55.) The defendants noted the failure to file a RICO case statement in support of their motions to dismiss the first amended complaint. (See, e.g., ECF No. 51-1, 52-1.) On September 21, 2016, the Court entered an order, stating that if the plaintiff chose to amend the complaint in response to the motions, the Court would not allow any further amendments. (ECF No. 56.) On October 21, 2016, the plaintiffs filed their second amended complaint (ECF No. 61). The Court denied the original motions to dismiss as moot. (ECF No. 94.)

         All identified defendants then refiled their motions to dismiss. (ECF Nos. 62, 63, 64, 65, 66, 68, 69, 70, 97.) After many of the defendants had refiled their motions to dismiss (ECF Nos. 62, 63, 64, 65, 66, 68, 69, and 70), the plaintiffs filed a RICO case statement for the first time. (ECF No. 71.) Regardless of the intent of plaintiff's counsel, proceeding in this manner effectively deprived some defendants of the opportunity to address fully the statements in the RICO case statement. Nonetheless, because the Local Rule did not unequivocally prohibit the plaintiffs from proceeding in this manner, I will consider the plaintiffs' RICO case statement and accept its content as true. McLaughlin v. Anderson, 962 F.2d 187, 189 (2d Cir. 1992) (“In analyzing the issues on this motion to dismiss, we must take as true the facts as alleged in the complaint and as supplemented by the RICO case statement ordered by the district court.”).

         In their RICO case statement, the plaintiffs allege that Zullo, Allison, Spiegel, Puklin, and the Norwalk Hospital Association all violated 18 U.S.C. §§ 1962(c) and (d) by “engaging in mail and wire fraud and conversion to enrich themselves through a conspiracy that would have continued indefinitely if undetected, ” repeating the allegations found in the second amended complaint. (ECF No. 71 at 1.) Specifically, the plaintiffs allege that these five defendants committed the following predicate acts in violation of these statutes: (1) conspiring to gain control of Alice's financial assets and personal and business correspondence; (2) conspiring to isolate Alice from Francine; (3) conspiring to use their relationships with Alice and their positions to commit wire, mail, and bank fraud; (4) conspiring to close or liquidate Alice's financial accounts while she was not competent and then doing so; (5) conspiring to steal personal property from Alice; (6) conspiring to prevent Francine from fulfilling her duties as Alice's health care proxy and then failing to honor health care directives Alice previously had made; (7) conspiring to divert and read mail addressed to anyone at Alice's house; and (8) conspiring to “make sure that no person or entity honored the durable power of attorney that Mrs. Goodman had given to Francine in 2006.” (Id. at 1-3.)

         C. Legal Claims

         In response to the motions to dismiss, the plaintiffs voluntarily dismissed their claims against defendants Bremby and Apex Clearing Corp. (ECF Nos. 78, 79.) Also, the plaintiffs withdrew their claim of negligent infliction of emotional distress against defendant Keogh (ECF No. 76) and their claim of unjust enrichment against defendant Murphy. (ECF No. 77.) The plaintiffs further withdrew: (1) Alice's unjust enrichment claim against defendant Zullo, (2) their abuse of process claims against defendants Zullo, Allison, Spiegel, and Puklin, (3) their intentional and negligent infliction of emotional distress claims against Zullo, Allison, Spiegel, and Puklin, (4) Francine's negligent infliction of emotional distress claim against Norwalk Hospital, and (5) their respondeat superior claim against Puklin. (ECF Nos. 83 at 2, 96 at 2.) Defendant Murphy's motion to dismiss the state law claim of unjust enrichment is DENIED as moot because the plaintiffs have voluntarily dismissed that claim. (ECF Nos. 64, 77.) And Defendant Keogh's motion to dismiss the state law claim of negligent infliction of emotional distress likewise is DENIED as moot. (ECF Nos. 67, 76.)

         Even in its pared-down form, the second amended complaint still sets forth a bevy of claims.[4] These include two federal law claims: (1) that certain defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq, by conspiring to take property from Alice; and (2) that certain defendants conspired to deprive Alice of her civil rights based on her status as a wealthy, disabled, elderly woman in violation of 42 U.S.C. § 1985(3). (ECF No. 61 at ¶¶ 565-84.) All of the plaintiffs' other claims are state law causes of action based on the common facts surrounding the defendants' treatment of Alice and Francine. (Id. at ¶¶ 585-921.)

         There are several pending motions to dismiss. Defendant Norwalk Hospital has moved to dismiss the state law claims against it under Rule 12(b)(1) and to dismiss the RICO claim, the § 1985(3) claim, and the state law claims for libel/defamation, malpractice, common law negligence, and intentional infliction of emotional distress under Fed.R.Civ.P. 12(b)(6). (ECF No. 63.) Allison and Zullo have moved to dismiss the RICO and the § 1985(3) claims under Fed.R.Civ.P. 12(b)(6). (ECF Nos. 65, 68.) Puklin has moved to dismiss the state law claims based on a failure to file a healthcare opinion letter under Fed.R.Civ.P. 12(b)(1) and to dismiss the RICO and § 1985(3) federal law claims, as well as the state law claims for conversion and libel/defamation, under Fed.R.Civ.P. 12(b)(6). (ECF No. 70.) Spiegel has moved to dismiss the RICO and the § 1985(3) claims, as well as the state law claims for conversion and libel/defamation, under Fed.R.Civ.P. 12(b)(6). (ECF No. 97.)

         For the reasons that follow, I GRANT the motions to dismiss the federal law claims. All remaining claims are state law claims over which I decline to exercise supplemental jurisdiction and are DISMISSED without prejudice.

         II. Standard

         Under Fed.R.Civ.P. 12(b)(6), the Court must determine whether the plaintiffs have alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under Twombly, the Court accepts as true all of the complaint's factual allegations-but not conclusory allegations- when evaluating a motion to dismiss. Twombly, 550 U.S. at 572. The Court must “draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). “When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant defendants['] motion to dismiss.” Scott v. Town of Monroe, 306 F.Supp.2d 191, 198 (D. Conn. 2004). For a complaint to survive a motion to dismiss, “[a]fter the court strips away conclusory allegations, there must remain sufficient well-pleaded factual allegations to nudge plaintiff's claims across the line from conceivable to plausible.” In re Fosamax Products Liab. Litig., No. 09-cv-1412, 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010).

         When a plaintiff alleges RICO claims, he or she “must plead predicate acts sounding in fraud or mistake according to the particularity requirement of Rule 9(b); for other elements of a RICO claim-such as non-fraud predicate acts or . . . the existence of an ‘enterprise'-a plaintiff's complaint need satisfy only the ‘short and plain statement' standard of Rule 8(a).” D. Penguin Bros. Ltd. v. City Nat. Bank, 587 F. App'x 663, 666 (2d. Cir. 2014) (summary order). “Nevertheless, to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must offer more than labels and conclusions in pleading the non-fraud elements of a RICO claim under Rule 8(a).” Id. (internal quotation marks and citations omitted).

         The District of Connecticut has a standing order in civil RICO cases that requires plaintiffs alleging a claim under 18 U.S.C. §§1961-68 to “file a RICO Case Statement within twenty (20) days of filing the complaint. Consistent with counsel's obligations under Fed.R.Civ.P. 11 to ‘make a reasonable inquiry' prior to the filing of the complaint, ” the case statement must “state in detail” certain information, including: a description of the pattern of racketeering activity; a detailed description of the alleged enterprise; whether the plaintiff contends that the pattern of racketeering activity and the enterprise are separate or have merged; and the alleged relationship between the activities of the enterprise and the pattern of racketeering activity.[5] As noted, the Court treats as supplemental factual allegations the statements in the RICO case statement and accepts them as true. McLaughlin, 962 F.2d at 189.

         III. Discussion

         A. Federal law claims

         1. Civil ...


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