Zuro v. Town of Darien

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          Elizabeth I. Hook, Braxton Hook LLC, Meredith C. Braxton, Greenwich, CT, for Plaintiff.

          Allison Levene, Ryan Ryan Deluca LLP, Hartford, CT, Beck S. Fineman, Ryan Ryan Deluca LLP, Bridgeport, CT, Catherine S. Nietzel, Jonathan Zellner, Ryan Ryan Deluca, LLP, Gregory J. Bennici, John Peloso, F.X., Jr., Robinson & Cole LLP, Stamford, CT, John A. Blazi, Law Offices of John A. Blazi, Waterbury, CT, Holly G. Rogers, Melick & Porter LLP, Southbury, CT, James C. Riley, John Hendele, IV, Whitman, Breed, Abbott & Morgan LLC, Greenwich, CT, Jonathan R. Donnellan, Hearst Corporation Office of General Counsel, Diego Ibarguen, New York, NY, for Defendants.

         RULING ON MOTIONS TO DISMISS

         Stefan R. Underhill, United States District Judge.

         Brian Zuro, Sarah Zuro, and their child, Charles Zuro (collectively, "Plaintiffs") have brought the instant action against the Town of Darien; the Darien Board of Education and several of its former and current members; the Darien Athletic Foundation, Inc. and several of its members and officers; employees and agents of the Darien Public Schools, including the former Superintendent and the Darien High School football coach; an editor of the Darien Times and the Hersam Acorn Newspapers, LLC (d/b/a the Darien Times); a reporter for the Stamford Advocate and the Hearst Media Services Connecticut, LLC (d/b/a the Stamford Advocate); and

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Nancy Trifone Ferrarese (collectively, "Defendants").

         The suit arises out of alleged harassment and defamation that followed Sarah and Brian Zuro's efforts to secure adequate special education services for their children. The complaint asserts violations under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, defamation, assault, and battery.

         Currently before the court are seven motions to dismiss Plaintiffs' second amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), as well as four special motions to dismiss brought under Connecticut's recently enacted anti-SLAPP statute, Conn. Gen. Stat. § 52-196a. See Doc. Nos. 104, 107, 108, 109, 110, 112, 113, 114, 115, 116, 127. For the reasons that follow, I deny the special motions to dismiss and grant the Rule 12(b) motions.

         I. Standard of Review

         A. Rule 12(b)(1)

         Under Federal Rule of Civil Procedure 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction... when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The party seeking to invoke a court's jurisdiction bears the burden of establishing such jurisdiction. Thompson v. Cnty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (citing Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

         "[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff," but "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal citations omitted). In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court may refer to evidence outside the pleadings. Makarova, 201 F.3d at 113.

         B. Standard of Review under Rule 12(b)(6)

         A motion to dismiss for failure to state a claim under Rule 12(b)(6) is designed "merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).

         When deciding a motion to dismiss under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

         Under Twombly, "[f]actual allegations must be enough to raise a right to relief above the speculative level," and assert a cause of action with enough heft to show entitlement to relief and "enough facts to state a claim to relief that is plausible on its face." 550 U.S. at 555, 570, 127 S.Ct. 1955; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). The plausibility standard set forth in Twombly and Iqbal obligates the

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plaintiff to "provide the grounds of his entitlement to relief" through more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and ... recovery is very remote and unlikely." Id. at 556, 127 S.Ct. 1955 (quotation marks omitted).

         II. Background

         A. Factual Allegations^[1]

         Sarah Zuro was elected as a member to the Darien Board of Education ("the Board") in 2012. Am. Compl., Doc. No. 101, at ¶ 4. Her younger child ("Sibling 1") had been receiving inadequate special education services from the Darien Schools, and in the spring of 2015, Sibling 1's planning and placement team — which comprised of school personnel, Sarah Zuro, and her husband, Brian Zuro — determined that Sibling 1 required additional and different services in order to obtain the education to which Sibling 1 was entitled. Id. Sarah and Brian Zuro advocated for ...