Reale v. State of Rhode Island

          Argued May 23, 2019

         Procedural History

         Action to recover damages for the spoliation of evidence, and for other relief, brought to the Superior Court in the judicial district of Windham, where the court, Cole-Chu, J., granted the defendants' motions to dismiss and rendered judgment thereon, from which the named plaintiff appealed to this court; thereafter, the court, Cole-Chu, J., denied the named plaintiff's motion for articulation; subsequently, this court granted the named plaintiff's motion for review, but denied the relief requested therein. Affirmed.

          Daniel Reale, self-represented, the appellant (named plaintiff).

          Michael W. Field, assistant attorney general for the state of Rhode Island, with whom, on the brief, was Peter F. Neronha, attorney general for the state of Rhode Island, for the appellee (named defendant).

          Steven M. Richard, for the appellee (defendant town of Coventry).

          Keller, Elgo and Harper, Js.

          OPINION

          HARPER, J.

         In this spoliation of evidence action, the plaintiff Daniel Reale^[1] appeals from the judgment of dismissal rendered by the trial court in favor of the defendant town of Coventry, Rhode Island (town), and the state defendants, the state of Rhode Island; the Rhode Island Department of Children, Youth, and Families; Investigator Harry Lonergan; and Attorneys Brenda Baum and Diane Leyden, on the ground of a lack of personal jurisdiction.^[2] On appeal, the plaintiff claims that the court erred in (1) determining that the state defendants did not waive their right to seek dismissal for lack of personal jurisdiction by concurrently moving to strike the plaintiff's complaint as an alternative to dismissal, and (2) granting the state defendants' motions to dismiss on the ground of a lack of personal jurisdiction.^[3] We affirm the judgment of the court.

         The following facts, as set forth in the trial court's memoranda of decision and procedural history are relevant to our resolution of this appeal. ‘‘The plaintiff is a Connecticut resident and father of two children who has joint custody with his ex-wife, who, during the pertinent time, was a resident of Rhode Island. In June, 2016, two neglect petitions were commenced against the plaintiff by the Rhode Island Department of Children, Youth, and Families arising from an allegation by a school psychologist employed by the town . . . that the plaintiff's son suffered a gunshot wound . . . .'' ‘‘That incident was investigated by the Coventry, Rhode Island, Police Department, which determined that no crime, abuse or neglect had occurred.''

         Thereafter, the ‘‘neglect petitions terminated in favor of [the plaintiff] and his ex-wife in August, 2016, and September, 2016, respectively.'' ‘‘The plaintiff subsequently joined a civil action against the town, inter alia, in the United States District Court for the District of Rhode Island . . . .'' In the federal action, ‘‘[the plaintiff] claim[ed] he suffered damages from [the] defendants' wilful withholding, concealment and destruction of evidence, including documents and other records, internal communications, recordings and expert opinions during and since the prosecution of the . . . petitions against him, despite notice by [the plaintiff] . . . instructing said defendants . . . to preserve and produce such evidence.'' The federal action subsequently was dismissed with prejudice.

         ‘‘On January 3, 2018, [the plaintiff] . . . filed this action against [the state defendants] for spoliation of evidence. On February 5, 2018, the [town] moved . . . to dismiss count one of the [plaintiff's] complaint . . . or, in the alternative, to strike count one based on (1) the bar of res judicata; and (2) the claim that the legal basis for the plaintiff's claim-spoliation of evidence- does not exist under governing law, i.e., the law of the state of Rhode Island.'' (Citation omitted; footnote omitted.) A day later, ‘‘the [state defendants] moved . . . to dismiss the [plaintiff's] complaint for [a] lack of personal jurisdiction or, in the alternative, to strike the complaint based on (1) the prior pending case doctrine; (2) lack of service of process; and (3) the claim that there is no cause of action for spoliation of evidence under governing law, i.e., the law of Rhode Island.'' (Citation omitted.)

         ‘‘On February 20, 2018, the [plaintiff] filed a joint objection and memorandum of law . . . in opposition to the [state defendants'] [motions] to dismiss . . . [and] the town filed a reply brief.'' ‘‘On February 22, 2018, [the state defendants] filed a reply brief.'' On July 24, 2018, the trial court granted the state defendants' motions to dismiss for lack of personal jurisdiction, finding that the plaintiff failed (1) to allege sufficient facts to subject the town to this state's jurisdiction under General Statutes § 33-929 (f), the long-arm statute for foreign corporations, and (2) to establish that General Statutes § 52-59b, the long-arm ...