Opinion
CV095032765.
11-26-2012
BRENNER, SALTZMAN & WALLMAN, LLP et al. v. TONY'S LONG WHARF TRANSPORT, LLC et al.
UNPUBLISHED OPINION
BRIAN T. FISCHER, J.
On October 30, 2009 the plaintiff commenced this action against the defendants, Tony's Long Wharf Transportation, LLC., Anthony M. Juliano and Marshal Sanford P. Levine. It is a nine-count complaint.
The defendant Marshal Levine filed the present motion to dismiss counts seven and eight of the complaint. The defendant argues this court lacks subject matter jurisdiction over this claim as the defendant is a duly authorized State Marshal and is therefore protected from this action by the doctrine of sovereign immunity. The plaintiff filed an objection to this motion with an accompanying memorandum of law. The defendant filed a reply to that memorandum. This matter was heard at the short calendar on October 22, 2012.
DISCUSSION
" A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). " [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, supra, 294 Conn. 706.
" When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
In their complaint plaintiff alleges the defendant breached a fiduciary duty to the plaintiff and was negligent. This case stems from actions of the defendants in connection with an order of execution handled by State Marshall Levine and the resultant storage of various property attached to that order.
The defendant was hired by the plaintiff to attach certain assets pursuant to a court order. The defendant secured said items and had them stored at Tony's Long Wharf. The plaintiff objected to the amount of the storage fees and has brought this action.
The defendant is a licensed State Marshall for the State of Connecticut. The doctrine of sovereign immunity provides that the state cannot be sued for monetary damages without its consent. Horton v. Meskill, 172 Conn. 615, 623 (1977). The Connecticut Supreme Court stated " we have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." Fetterman v. University of Connecticut, 192 Conn. 539, 551 (1984).
The Connecticut Appellate Court has stated that: " The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." Tuchman v. State, 89 Conn.App. 745, 751 (2005).
A claim against a State Marshal for negligence in the execution of his duties is not permissible under Connecticut General Statutes § 6-38a(b). That statute provides in relevant part:
Any state marshal in the performance of execution or service of process functions, have the right of entry on private property and no person shall be personally liable for damage or injury not wanton, reckless or malicious caused by the discharge of such function.
The plaintiff has not claimed in its complaint that any of the actions taken by the defendant were wanton, reckless or malicious.
The plaintiff in its complaint cites the defendant's status as that of a state marshal.
For the foregoing reasons, the defendant's motion to dismiss counts seven and eight is granted.