United States District Court, D. Connecticut
INITIAL REVIEW ORDER
Michael P. Shea, U.S.D.J.
Introduction and Background
31, 2017, the plaintiff, Ricky Davis, brought a civil action
pro se against the defendants-Caroline B. Lapish,
Adler Pollock & Sheehan, and Home Depot-for events that
took place in a related case, Davis v. Home Depot
(No. 3:16-cv-00008 (MPS)) (“underlying case”). In
that case, the plaintiff sued Home Depot for injuries he
suffered while trying to move plywood into his van with the
help of a Home Depot employee. (Davis v. Home Depot
docket, ECF No. 1). The parties reached a settlement and
filed a subsequent stipulation of dismissal of the case.
(Id., ECF No. 63). The plaintiff then filed several
documents on the docket-which he styled as “amended
complaints”-seeking to set aside the settlement on the
basis that defense counsel Lapish had failed to file a pro
hac vice appearance prior to negotiating the settlement and
that she had made derogatory comments about the plaintiff in
the presence of his family. (Id., ECF No. 65, 66).
The Court construed these documents as a motion to reopen the
case under Fed.R.Civ.P. 60(b) and subsequently issued a
ruling denying the plaintiff's motion. (Id., ECF
plaintiff then filed a complaint in the present matter,
repeating the arguments he made in his motion to reopen the
underlying case. He argued in his complaint that Ms. Lapish,
while acting as defense counsel for Home Depot, failed to a
file a pro hac vice appearance prior to making a court
appearance. (ECF No. 1 at 3). The Court found that these
arguments lacked merit. (ECF No. 5). The plaintiff also
claimed that Ms. Lapish “maliciously accused [him] of
being a unfit [sic] parent by way being a substance abuser in
the [presence] of [his] teenage [son], in her attemp [sic] to
reach an unfair settlemen [sic], under durest [sic] or
distress.” (ECF No. 1 at 3). Consistent with the
Court's obligation to construe pro se complaints
liberally, the Court interpreted the plaintiff's
complaint as setting out a separate claim of defamation
against Ms. Lapish. (ECF No. 5). In an order dated February
5, 2018, the Court found that the plaintiff failed to
adequately allege a claim of defamation and dismissed his
complaint without prejudice. (Id.). The plaintiff
was granted leave to submit, within thirty days of the
dismissal, an amended complaint that set out enough facts to
plead a cognizable defamation claim. (Id.).
March 2, 2018, the plaintiff filed an amended complaint
alleging defamation and defamation per se against
Ms. Lapish, Adler Pollock & Sheehan, and Home Depot. (ECF
No. 9). For the reasons set forth below, the
plaintiff's motion to proceed in forma pauperis (ECF No.
2) is granted, and the claims of defamation and defamation
per se may proceed as to Ms. Lapish and Adler
Pollock & Sheehan. However, all claims against Home Depot
the plaintiff sought to proceed in forma pauperis (ECF No.
2), the Court must evaluate his complaint and determine
whether it should advance. “[T]he court shall dismiss
[a] case at any time if the court determines that [the
action] is frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2). The plaintiff is pro se, so I
construe his pleadings liberally. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
“[A] pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation and quotation
marks omitted). Nevertheless, even a pro se
plaintiff must include sufficient facts to afford the
defendants fair notice of the claims and the grounds upon
which they are based and to demonstrate a right to relief.
Bell Atlantic v. Twombly, 550 U.S. 544, 555-56
(2007). Conclusory allegations are not sufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell
Atlantic, 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
28 U.S.C. § 1332, this Court has diversity jurisdiction
in cases where the parties are citizens of different states
and the amount in controversy exceeds $75, 000. Although the
plaintiff has not pled diversity of citizenship, it appears
that Ms. Lapish is a citizen of Massachusetts and the
plaintiff is a citizen of Connecticut. As to the amount in
controversy, the plaintiff's amended complaint is
unclear, but appears to request $3, 000. (ECF No. 9 at 6).
However, in light of our obligation to construe pro
se complaints liberally, the Court notes that the
original complaint requested $308, 000 and finds that the
amount in controversy requirement is satisfied. As such, the
Court has diversity jurisdiction over this matter.
law defines “[a] defamatory statement . . . as a
communication that tends to harm the reputation of another as
to lower him in the estimation of the community or to deter
third persons from associating or dealing with him.”
Skakel v. Grace, 5 F.Supp.3d 199, 206 (D. Conn.
2014) (quoting Gambardella v. Apple Health Care,
Inc., 291 Conn. 620, 627 (2009)). A claim of defamation
is comprised of four elements.
the plaintiff must demonstrate that “the defendant
published a defamatory statement.”
Gambardella, 291 Conn. at 627. The plaintiff
“need not list the alleged defamatory statements
verbatim, but [he] must at least plead the content of the
alleged communications, when they were made, the context in
which they were made, or by and to whom they were
made.” U.S. ex rel. Smith v. Yale Univ., 415
F.Supp.2d 58, 109 (D. Conn. 2006). In his amended complaint,
the plaintiff alleges that Ms. Lapish said he “ingaged
[sic] i[n] a criminal act by ingaging [sic] in the act of
consuming a controlled dangerous substance.” (ECF No. 9
at 1). He further alleges that this statement was made on
March 21, 2017 at the settlement conference for the
underlying case. (Id. at 2). These allegations
satisfy the first element of the plaintiff's defamation
second, third, and fourth elements require the plaintiff to
demonstrate that “(2) the defamatory statement
identified the plaintiff to a third person; (3) the
defamatory statement was published to a third person; and (4)
the plaintiff's reputation suffered injury as a result of
the statement.” Gambardella, 291 Conn. at
627-28. The plaintiff's amended complaint states that the
allegedly defamatory statement injured his reputation with
the judge and his family. As to the judge, he claims that Ms.
Lapish made the statement “with deliberot [sic] intent
to harm my reputation to the judge whom, ultimately, because
of her statement suggested that if I took this case to court
she would win over me, and that my family and I would not
only have the medical bills but would probably receive
nothing in this case and that we should take the settlement
offer that Ms. Lapish offers.” (ECF No. 9 at 3-4). As
to his family, the amended complaint states that “[m]y
son is now damage [sic] in his outlook at me as a father, as
well as my wife constant doubts and fears about my
character.” (Id. at 4). These allegations of
injury to the plaintiff's reputation satisfy the fourth
element of a defamation claim. Moreover, because these
allegations suggest ...