Zuro v. Town of Darien

          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 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 (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 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (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; see also Iqbal, 556 U.S. at 679 (“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 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 (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 (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 an out-of-district placement for Sibling 1, and the planning and placement team (“PPT”) eventually agreed and made the placement. Id.

         On June 2, 2015, Robert Trifone, the Darien High School's (“DHS”) head football coach, wrote an email to several Darien residents about a meeting earlier that day between Trifone and Chris Manfredonia, the Darien Athletic Director. Id. at ¶ 40; Ex. A to Am. Compl., Doc. No. 101. In that email, Trifone “lamented the financial controls and limitations that had been put in place by the Board.” Id. He stated that “Chris is also worried that [Sarah Zuro] is on the Bd of Ed and does not want her (or anyone else for that matter) to question exactly how the money is raised.” Id. Trifone then proposed, “perhaps we deal in a little more cash than checks and just hold some back.” Id. at ¶ 40. The email was forwarded to Peter Graham, President of the Darien Athletic Foundation, who replied that “[Zuro] is an issue” and offered to “arrange to ‘wash' the money through the Darien Junior Football League in order to avoid being discovered by Sarah Zuro, and to give Trifone complete control over those Board and Town assets.” Id. at ¶ 41.

         In July 2015, Daniel Brenner was appointed as Superintendent of the Darien Public Schools. Id. at ¶ 35. Shortly after his appointment, he learned about Sibling 1's out-of-district placement and grew “incensed that a Board member had a child who was placed out of district at the expense of the Darien Schools.” Id. In retaliation, he “initiated a campaign to marginalize Sarah Schneider Zuro in the eyes of fellow Board members and District personnel in an effort to drive Sarah Schneider Zuro off the Board.” Id. Toward that end, “[w]hen the opportunity presented itself, Brenner acted in the nature of a ‘cat's paw' to foster the grievances against Sarah Zuro held by DAF members, other Board of Education members, school personnel and community members, and used them to help him succeed in his campaign against Sarah Zuro.” Id. The “coordinated campaign” also targeted her older son Charles Zuro, who was a Darien High School student at the time and had been enrolled in a special education program. Id. at ¶¶ 35, 46.

         Over a year later, on September 26, 2016, Brenner - in furtherance of his plan - forwarded an email to Michael Harman, then-chair of the Board, that Sarah Zuro had sent to Brenner about “an incident at DHS earlier that day.” Id. at ¶¶ 36, 37. The email contained sensitive information about Charles's educational program, including his status as a special education student, to which Harman was not entitled. Id. at ¶¶ 36, 37. Harman, in turn, relayed the information to other Board members, who likewise were not authorized to receive the information. Id. at ¶¶ 36, 37. Brenner forwarded responses to Sarah Zuro's original email to Harman as well. Id. at ¶ 38.

         Also in the fall of 2016, Elizabeth Hagerty-Ross, a member of the Board, had accessed the educational records of Charles Zuro and Sibling 1, and improperly shared that information with other Board members. Id. at ¶ 39.

         On October 1, 2016, “the retaliation by Trifone against the Zuro family became physical.” Id. at ¶ 42. The Darien High School varsity football team, of which Charles Zuro was a member, played a home game against Norwich Free Academy. Id. at ¶ 42. A disgruntled opposing player shoved Charles after a play. Id. Charles “held up his hands in a ‘surrender' position and backed away as the referee and others moved to restrain the opposing player.” Id. Charles then lined up with his teammates for the next play. Id. Trifone, who was coaching the game, “suddenly summoned” Charles off the field; Charles jogged to the sideline, but before he reached it, Trifone “began screaming at [Charles], walked onto the field, and without justification of any kind, used all the force of his body to hit Charles in the head - all as he was removing his helmet.” Id. There was an audible “crack, ” which “caused the stadium spectators to gasp” and left Charles staggering for several yards. Id. at ¶¶ 41-42.

         Following the game, Trifone told Brian Zuro that Trifone had been instructed not to participate in football activities until the conclusion of an investigation into the incident, which, according to Trifone, was “unacceptable.” Id. at ¶ 43. Trifone demanded that Brian tell Sarah Zuro to call Brenner and convince Brenner to allow Trifone to return to the field with the team by Monday. Id. at ¶ 43. Trifone then stated, “[y]ou have to do that and get me back. Because if anything bad happens to me, it will become really, really bad for Charlie.” Id. at ¶ 43. Trifone spoke with Sarah afterward, and reiterated that “she needed to call Defendant Superintendent Brenner and get Brenner to re-instate Trifone immediately.” Id. at ¶ 44. Sarah declined to do so. Id.

         The next day, on October 2, 2016, Sarah Zuro discussed with Brenner the football game incident and Trifone's threat. Id. at ¶ 45. She also raised her concern about possible retaliation and harassment against Charles, and asked Brenner to protect Charles while in school. Id. at ¶ 46. Brenner, however, “took this instead as an opportunity to act as a ‘cat's paw,' allowing Trifone to ...