United States District Court, D. Connecticut
RULING ON MOTIONS TO DISMISS
R. Underhill, United States District Judge.
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,
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.
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.
Standard of Review
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)).
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.
Standard of Review under Rule 12(b)(6)
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.
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).
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).
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.
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.
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.
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.
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.
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.
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.
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 ...