Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00372-AVC

Document 54

Filed 03/23/2007

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : : : : : : : : : : : : :

KELLY PHANEUF, Plaintiff, v. ROSE MARIE CIPRIANO, DORENE M. FRAIKIN, KATHLEEN BINKOWSKI, TOWN OF PLAINVILLE and PLAINVILLE BOARD OF EDUCATION, Defendants.

Civil No. 3:03CV00372 (AVC)

MARCH 23, 2007

DEFENDANTS' REPLY TO PLAINTIFF'S OBJECTION TO MOTION FOR RECONSIDERATION RE: MOTION FOR SUMMARY JUDGMENT The Defendants, Rose Marie Cipriano and Dorene M. Fraikin, hereby respectfully reply to the plaintiff's Objection to Defendants' Motion for Reconsideration, dated March 21, 2007. For the reasons set forth herein, and in defendants' Motion dated February 14, 2007, the defendants' respectfully request that the Court reconsider its ruling pertaining to its denial of Summary Judgment as to the plaintiff's claims sounding in Invasion of Privacy against the defendants Cipriano and Fraikin. In her Objection, the plaintiff contends that this Court maintains jurisdiction over the plaintiff's invasion of privacy claims because the plaintiff has appealed the
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Williams, Walsh & O'Connor, LLC
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Connecticut Superior Court's dismissal of her state law claims, including invasion of privacy claims, in its decision of August 18, 2005. The defendants submit that plaintiff's assertion is incorrect and the plaintiff's claims of invasion of privacy are barred by the doctrine of res judicata. As indicated in defendants' Motion, on August 18, 2005, the Connecticut Superior Court (Judge Berger) issued a Memorandum of Decision granting defendants Motion for Summary Judgment in its entirety, including plaintiff's claims of invasion of privacy. Accordingly, the deadline for appeal of said decision, pursuant to Connecticut practice, expired on September 7, 2005. On or about August 26, 2005, the plaintiff filed a Motion for Extension of Time in which to file an appeal of the Superior Court's decision, requesting an extension until September 27, 2005. (Plaintiff's Motion for Extension of Time, August 26, 2005, attached as Exhibit A). On or about September 2, 2005, the Court, per Judge Berger, granted plaintiff's request for extension of time in which to file an appeal on or before September 27, 2005. (Connecticut Judicial Branch Case Detail, last visited/obtained March 23, 2007, attached as Exhibit B). To this day, the plaintiff has failed to file an appeal of the Superior Court's August 18, 2005 decision. (Exhibit B). Accordingly, plaintiff's claims of invasion of privacy are barred by the doctrine of res judicata.

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110 Washington Avenue, Second Floor North Haven, CT 06473
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Federal Courts give a prior state court decision the same preclusive effect it would have in the courts of that state. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982); 28 U.S.C. § 1738. In Connecticut, "'under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim [or any claim based on the same operative facts that] might have been made. . . . The appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding. . . .'" Connecticut Nat'l Bank v. Rytman, 241 Conn. 24, 28, 694 A.2d 1246 (1997) (alterations in original) (quoting Joe's Pizza, Inc. v. Aetna Life & Cas. Co., 236 Conn. 863, 871-72, 675 A.2d 441 (1996)). Because the plaintiff was afforded a full and fair opportunity to litigate her state law claims of invasion of privacy in the Connecticut Superior Court and to challenge the summary judgment rendered against her on direct appeal, she may not use this action as a vehicle to relitigate that claim. Accordingly, it is respectfully requested that this Honorable Court reconsider its decision of January 25, 2007 and grant defendant's Motion for Summary Judgment as to plaintiff's claims sounding in invasion of privacy against defendants Cipriano and Fraikin.

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Williams, Walsh & O'Connor, LLC
110 Washington Avenue, Second Floor North Haven, CT 06473
203-234203-234(Tel) 203-234-6333 (Fax) 203-234-6330

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Respectfully Submitted, THE DEFENDANTS, ROSEMARIE CIPRIANO, DORENE M FRAIKIN, By Their Attorney,

/s/ James G. Williams JAMES G. WILLIAMS, ESQ. FEDERAL BAR NO CT 01938 WILLIAMS WALSH & O'CONNOR LLC 110 WASHINGTON AVE, 2ND FLR NORTH HAVEN CT 06473 TEL (203) 234 6333 FAX (203) 234 6330

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Williams, Walsh & O'Connor, LLC
110 Washington Avenue, Second Floor North Haven, CT 06473
203-234203-234(Tel) 203-234-6333 (Fax) 203-234-6330

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CERTIFICATE OF SERVICE I hereby certify that on March 23, 2007, a copy of the foregoing Reply to Plaintiff's Objection to Defendants' Motion for Reconsideration Re: Motion for Summary Judgment was filed electronically and via U.S Mail, first class, postage prepaid, to the following counsel of record: Gesmonde, Pietrosimone, Sgrignari & Pinkus, LLC 3127 Whitney Avenue Hamden, CT 06518 /s/ James G. Williams James G. Williams

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Williams, Walsh & O'Connor, LLC
110 Washington Avenue, Second Floor North Haven, CT 06473
203-234203-234(Tel) 203-234-6333 (Fax) 203-234-6330

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