DOCKET NO.: X07-CV-24-6193625-S : SUPERIOR COURT
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`HAYBER, MCKENNA & DINSMORE, LLC COMPLEX LITIGATION DOCKET
`V. : JUDICIAL DISTRICT OF
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`: HARTFORD
`ELIOT GERSTEN, ESQ., ET AL. : JUNE 20, 2025
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`MEMORANDUM OF DECISION ON MOTION TO DISMISS, OR IN THE
`ALTERNATIVE, MOTION TO STRIKE No. 107.00
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`The plaintiff, Hayber, McKenna & Dinsmore, LLC, a law firm, has sued the defendants,
`Eliot Gersten and Ryan O’Donnell, who are attorneys, in five almost identical actions for statutory
`and common law vexatious litigation and abuse of process. These actions arise out of five
`underlying actions in which the defendants represented restaurant clients that sued the plaintiff for
`violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.
`(“CUTPA”).! The underlying actions settled at a mediation held in the Fall of 2024, and shortly
`thereafter the plaintiff served and filed these five actions. The defendants move to dismiss all of
`the counts for lack of subject matter jurisdiction.
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`The defendants seek dismissal of the ve;(atious litigation counts on the ground that they are
`not ripe because there is no allegation that the underlying actions terminated in the plaintiff’s favor.
`They have not moved to strike these counts. They were clear at oral argument that their motion as
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`to these counts is solely a motion to dismiss for lack of subject matter jurisdiction. The plaintiff
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`! The five underlying actions were Gold Harp, Inc. v. Hayber, McKenna, & Dinsmore, LLC, Superior Court, judicial
`district of Hartford, Complex Litigation Docket, Docket No. X07-CV-21-6146693-S; WNT V, LLC v. Hayber,
`McKenna, & Dinsmore, LLC, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No.
`X07-CV-21-6146694-S; H&A Group 8, LLC v. Hayber, McKenna, & Dinsmore, LLC, Superior Court, judicial
`district of Hartford, Complex Litigation Docket, Docket No. X07-CV-21-6146695-S; Mix Prime Woodbury, LLC v.
`Hayber, McKenna, & Dinsmore, LLC, Superior Court, judicial district of Hartford, Complex Litigation Docket,
`Docket No. X07-CV-21-6146699-S; Sliders, Inc. v. Hayber, McKenna, & Dinsmore, LLC, Superior Court, judicial
`district of Hartford, Complex Litigation Docket, Docket No. X07-CV-21-6148487-S. The only distinction among
`the five underlying actions were the identities of the restaurant clients -- Wood-n-Tap, Market Place Restaurants,
`Maggie McFly Restaurants, Sliders Restaurants, and Mix Prime Restaurants.
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`1 .
`gephm Notice Set Yo all counsel A reeod # 107.86
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`argues that the justiciability doctrine of ripeness does not apply and therefore the motion to dismiss
`should be denied. The plaintiff concedes that it did not allege that the underlying actions did not
`terminate in its favor. However, that is not the issue on which ripeness turns. Because the doctrine
`of ripeness only bars vexatious litigation claims when the underlying claims are still being
`litigated, and because the underlying actions here have terminated, the motion to dismiss the
`vexatious litigation claims is denied.
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`The defendants move to dismiss the abuse of process counts for lack of subject matter
`jurisdiction based on the argument that they do not sufficiently allege abuse of process claims and
`therefore the litigation privilege confers absolute immunity on the defendants. Alternatively, as to
`the abuse of process counts only, they move to strike them for failure to sufficiently allege the
`elements of that claim. The plaintiff opposes both the motion to dismiss and the motion to strike
`with the argument that it has sufficiently alleged each of the elements of an abuse of process claim.
`Because abuse of process is not sufficiently alleged, the litigation privilege applies to deprive this
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`court of jurisdiction, requiring the dismissal of those counts.?
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`PROCEDURE ON A MOTION TO DISMISS
`Subject matter jurisdiction “is the power [of the court] to hear and determine cases of the
`general class to which the proceedings in question belong.” (Internal quotation marks omitted.)
`Rayhall v. Akim Co., Inc., 263 Conn. 328, 339, 819 A.2d 803 (2003). Once subject matter
`jurisdiction has been raised, the court must determine whether it has jurisdiction “before it can
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`move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.”
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`2 In the interest of judicial economy, because the motions to dismiss are identical, with the exception of the identity
`of the restaurant client and how that restaurant client responded to interrogatories in the related underlying action,
`the court issues an identical memorandum of decision in each of the cases.
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`Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).
`Therefore, this court must decide the motions to dismiss before considering any alternative motion
`to strike the abuse of process counts.
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`“[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.) Sanforso v. Bristol Hospital, 308 Conn.
`338,350, 63 A.3d 940 (2013). “A court deciding a motion to dismiss must determine not the merits
`of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has
`jurisdiction to hear and decide.” (Internal quotation marks omitted.) Hinde v. Specialized
`Education of Connecticut, Inc., 147 Conn. App. 730, 740-41, 84 A.3d 895 (2014).
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`“[The plaintiff bears the burden of proving subject matter jurisdiction, whenever and
`however raised.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New
`London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). “[I]tis the burden of the party who seeks
`the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper
`party to invoke judicial resolution of the dispute. . . . It is well established that, in determining
`whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be
`indulged.” (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of
`Ins., 315 Conn. 196, 226, 105 A.3d 210 (2014).
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`“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant
`to [Practice Book] § 10-31 (a) (1) may encounter different situations, depending on the status of
`the record in the case. As summarized by a federal court discussing motions brought pursuant to
`the analogous federal rule, [I]Jack of subject matter jurisdiction may be found in any one of three
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`instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced
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`in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of
`disputed facts. ... Different rules and procedures will apply, depending on the state of the record at
`the time the motion is filed.” Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
`Here, the defendants have supplemented their motion to dismiss and their reply
`memorandum with the complaints and memoranda of decisions from the underlying actions, an
`affidavit, and requests for admissions that the plaintiff did not answer within the Practice Book
`time limits.> The plaintiff has not provided the court with evidence to dispute any of these
`submissions. “If the complaint is supplemented by undisputed facts established by affidavits
`submitted in support of the motion to dismiss; Practice Book § 10-31(a); [and/or] other types of
`undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial
`court, in determining the jurisdictional issue, may consider these supplementary undisputed facts
`and need not conclusively presume the validity of the allegations of the complaint. . . . Rather,
`those allegations are tempered by the light shed on them by the [supplementary undisputed facts].
`. .. If affidavits [or] other evidence submitted in support of a defendant's motion to dismiss
`conclusively establish[es] that jurisdiction is lacking, and the plaintiff fails to undermine this
`conclusion with counteraffidavits; see Practice Book § 10-31 (b); or other evidence, the trial court
`may dismiss the action without further proceedings.” (Citations omitted; emphasis omitted;
`footnote omitted; internal quotation marks omifiéd.) Conboy v. State, supra, 292 Conn. at 651-52.
`The recitation of facts that follows includes the allegations of the plaintiff®’s complaint and the
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`evidence provided by the defendants in support of their motion.
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`3 The requests for admission are deemed admitted because the plaintiff did not respond or object to the requests for
`admission. Practice Book § 13-23.
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`FACTS
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`The plaintiff represented servers alleging violations of Connecticut’s minimum wage laws
`in sevéral class action lawsuits against the restaurant clients. The defendants represented the
`restaurant clients in some of those lawsuits. In late 2020, the plaintiff began posting
`advertisements on Facebook to notify servers that they “may” be able to assert legal claims for
`violations of the minimum wage laws against the restaurant clients and that the servers should
`contact the plaintiff if they Wished to pursue such claims. In 2021, the defendants, on behalf of
`the restaurant clients, brought the five underlying actions, alleging that the advertisements failed
`to accurately describe the amended regulations for paying less than minimum wage by taking a tip
`credit. Specifically, the restaurant clients asserted CUTPA claims that the allegedly false,
`deceptive, and misleading Facebook advertisements might lure the restaurant clients’ employees
`to retain the plaintiff to represent them based on an incorrect understanding of the law. They
`alleged that they suffered reputational harm, and that as a result, they were forced to hire a public
`relations consultant and legal counsel.
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`The plaintiff, which was the defendant in the underlying actions, moved to strike the
`CUTPA claims in each of the underlying actions. The court (Noble, J.) granted the motion to
`strike, holding that reputational harm was not sufficient for the required element of ascertainable
`loss. The court further held that the hiring of a public relations consultant and legal counsel to
`address that alleged reputational harm was not recoverable as damages because they were
`“consequential to an injury that does not meet the threshold barrier required to be overcome tq
`qualify as an ‘ascertainable loss.””
`In response to this ruling, the defendants, on behalf of the restaurant clients, filed a second .
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`amended complaint that alleged that the plaintiff’s unfair and deceptive advertising caused them
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`to suffer an ascertainable loss in the form of loss of customers, the resignation of employees and
`the withdrawal of applicants from the hiring process. The court (Noble, J.) denied the plaintiff’s
`motion to strike that second amended complaint, holding that the restaurant clients had adequately
`alleged that the advertising had caused an ascertainable loss.
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`At the request of defendant Gersten, this court arranged for the parties to the underlying
`actions to attend a mediation with Judge Glen Pierson in October 2024. After that mediation, the
`defendants, on behalf of the restaurant clients, filed withdrawals in each of the underlying actions.
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`The plaintiff subsequently initiated these five actions, alleging that the defendants’ conduct
`in the underlying actions constituted common law and statutory vexatious litigation and abuse of
`process. The plaintiff alleges that the defendants engaged in the following activities in the
`underlying actions that were abuses of process:
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`o 'Including in the second amended complaint allegations of ascertainable loss that
`the defendants knew to be false -- loss of customers, and the resignation of
`employees and the withdrawal of applicants from the hiring process, which forced
`the restaurant clients to pay more overtime to remaining employees. The plaintiff
`alleges that these allegations “were simply concocted in order to keep the lawsuits
`going after Judge Noble’s decision granting [the earlier] motion to strike.” The
`plaintiff further alleges that the defendants “made up” these allegations to survive
`another motion to strike and “to maintain the litigation primarily for the purpose of
`punishing” the plaintiff for suing the restaurant clients, to use the lawsuit against
`the plaintiff as leverage and in defense of the class action suits it brought, and in an
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`attempt to recoup money spent defending the original class action lawsuits.
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`¢ Fraudulently filing discovery responses that they knew to be false in the Wood-N-
`Tap and Sliders underlying actions. Inthe Sliders action, the interrogatory response
`identified two lost customers. In the Wood-N-Tap action, the defendants identified
`two lost customers and two lost servers, but during the deposition of the person who
`verified the interrogatory responses, that person acknowledged that he had no
`knowledge of whether any of the people identified had ever seen the ads. The
`plaintiff, in its amended complaint, goes on to allege that neither of the two
`customers were deceived by the ads or stopped dining at that restaurant client as a
`result. It also alleges that the servers who quit did not do so because of the ads and
`that one of them had quit nine months before the ads started running.
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`e Serving subpoenas on four attorneys at the plaintiff law firm, rather than a single
`deposition notice sent to counsel for the plaintiff, to purposefully disrupt and harass
`the plaintiff.
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`The plaintiffs further allege that an improper purpose — leverage and intimidation — was revealed
`when defendant Gersten prefaced his request for a settlement conference for the five underlying
`actions with a comment that the restaurant clients had received a “favoréble result” in the original
`class action suits brought by their servers against them. The defendants did not offer any evidence
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`in support of their motion that would counter the plaintiffs’ abuse of process allegations.
`LEGAL ANALYSIS
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`I. The Motion to Dismiss the Vexatious Litigation Counts is Denied.
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`“In Connecticut, the cause of action for vexatious litigation exists both at common law and
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`pursuant to statute. . . . [T]o establish a claim for vexatious litigation at common law, one must
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`prove want of probable cause, rfialice and a termination of suit in the plaintiff’s favor. . . . The
`statutory cause of action for vexatious litigation exists under [General Statutes] § 52-568, and
`differs from a common-law action only in that a finding of malice is not an essential element, but
`will serve as a basis for higher damages.” (Emphasis added; internal quotation marks
`omitted.) MacDermid, Inc. v. Leonetti, 158 Conn. App. 176, 183, 118 A.3d 158 (2015).
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`The defendants seek to dismiss counts two and five alleging common law vexatious
`litigation and counts three and six alleging statutory vexatious litigation, arguing that because the
`underlying actions did not terminate in the plaintiff’s favor, these counts are not ripe. The plaintiff
`counters that a motion to strike, not a motion to dismiss, is the proper procedural tool to challenge
`the element of favorable termination. The court must, therefore, first address whether the
`defendant’s motion to dismiss is the proper procedural vehicle to raise this argument. Although
`the plaintiff has the burden of establishing subject matter jurisdiction; Fort Trumbull Conservancy,
`LLC v. New London, supra, 265 Conn. at 430 n.12; the defendants must first establish that there is
`a basis to challenge subject matter jurisdiction.
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`“[{]fapleading . .. on its face is legally insufficient, although facts may indeed exist which,
`if properly pleaded, would establish a cause of action upon which relief could be granted, a motion
`to strike is required. . . . In contrast, [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.” (Citation omitted; internal quotation marks omitted.) In
`re Jose B., 303 Conn. 569, 576, 34 A.3d 975 (2012). In short, “[t]here is a significant difference
`between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not
`~ stated a cause of action, and therein lies the distinction between the motion to dismiss and the
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`motion to strike.” (Internal quotation marks omitted.) Id., at 577 n.3.
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`The defendants’ sole basis for challenging the vexatious litigation claims is that they are
`notripe. Subject matter jurisdiction requires that there be a justiciable controversy. Milford Power
`Co., LLC v. Alstrom Power, Inc., 263 Conn. 616, 623-25, 822 A.2d 196 (2003). “Justiciability
`comprises several related doctrines, namely, standing, ripeness, mootness and the political question
`doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a
`particular matter.” (Internal quotation marks omitted.) Mendillo v. Tinley, Renehan & Dost, LLP,
`329 Conn. 515, 523, 187 A.3d 1154 (2018). “[T]he rationale behind the ripeness requirement is to
`prevent the courts, through avoidance of premature adjudication, from entangling themselves in
`abstract disagreements . . . . Accordingly, in determining whether a case is ripe, a trial court must
`be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent
`upon some evént that has not and indeed may never transpire.” (Internal quotation marks omitted.)
`Pringle v. Pattis, 212 Conn. App. 736, 742-43,276 A.3d 1042 (2022). A trial court properly grants
`a motion to dismiss if it determines that the cause of action is “unripe for adjudication.” Bloom v.
`Miklovich, 111 Conn. App. 323, 336, 958 A.2d 1283 (2008). The proper time in which to measure
`ripeness is when the motion is before the court, not when the vexatious litigation claim was
`initiated. Keller v. Beckenstein, 122 Conn. App. 438, 447, 998 A.2d 838 (2010), rev’d on other
`grounds, 305 Conn. 523, 46 A.3d 102 (2012).
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`To det;armine whether a vexatious litigation claim is ripe, this court must find that the
`underlying litigation has ended, not necessarily that it terminated in the plaintiff’s favor. See
`Scalise v. East Greyrock, LLC, 148 Conn. App. 176, 181-82, 179, 85 A.3d 7, cert. denied, 311
`Conn. 946, 90 A.3d 976 (2014); Keller v. Beckenstein, 122 Conn. App. 438, 444, 998 A.2d 838
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`(2010), rev’d on other grounds, 305 Conn. 523, 46 A.3d 102 (2012). Both of these Appellate Court
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`decisions only considered ripeness because the defendants argued that the underlying litigation
`was still ongoing.
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`In Scalise v. East Greyrock, LLC, supra, the plaintiffs attempted to sue for vexatious
`litigation for only some of the claims in an action, and the defendants moved to dismiss on ripeness
`grounds because “the underlying action was still pending, the plaintiffs’ claims had not yet
`terminated in their favor, and thus the court lacked jurisdiction to hear their claim.” Scalise v. East
`Greyrock, LLC, supra, 148 Conn. App. at 180. The Appellate Court agreed that the claim was not
`yet ripe because the underlying litigation “has yet to terminate fully in their favor.” Id. at 182.
`Similarly, in another Appellate Court decision rlelied upon by the defendants here, Keller v.
`Beckenstein, supra, the litigation was ongoing at the time the party alleging vexatious litigation
`initiated its claim, and therefore the trial court granted a motion to dismiss based on the ripeness
`doctrine. Keller v. Beckenstein, supra, 122 Conn. App. at 442. However, by the time the case
`reached the Appellate Court, the underlying litigation had concluded, and based on Supreme Court
`precedent that ripeness is determined as of the time the court is deciding the issue, the Appellate
`Court concluded that there was a question as to whether the ripeness doctrine still applied. Id. at
`447. The Appellate Court vacated the judgment of dismissal. Id.
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`The superior court decisions that have granted motions to dismiss based on ripeness all
`appear to have involved situations where part or all of the underlying litigation was still pending.
`See, e.g., Slater v. Yoffe-Solon, Superior Court, judicial district of Stamford-Norwalk, Docket No.
`CV-22-6056637-S (April 5, 2023, Golger, J.); Tatoian v. Tyler, Superior Court, judicial district of
`Tolland, Docket No. CV-14-6007539-S (August 7, 2014, Sferrazza, S.J.); CT Norwich, LLC v.
`Eastern Energy Services, LLC, Superior Court, judicial district of New London, Docket No. CV-
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`12-6013415-S (December 6, 2012, Cosgrove, J.); Branford v. Doyle, Superior Court, judicial
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`district of New Haven, Docket No. CV08-5022420 (May 6, 2011, Lager, J.). In a case where the
`underlying litigation had terminated, the motion to dismiss based on ripeness was denied. J&G
`Realty, LLC v. Bongiorno, Superior Court, judicial district of Stamford-Nowalk, Docket No. CV-
`16-6028992-S (December 20, 2016, Tierney, J.T.R.).
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`The defendants attempt here to stretch the ripeness doctrine too far. Although it is a
`required element of vexatious litigation that the underlying litigation has terminated in the
`plaintiff’s favor, the issue of ripeness turns only on whether the underlying litigation has
`terminated. Because these underlying actions have fully terminated, the doctrine of ripeness is not
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`applicable. The motion to dismiss counts two, three, five and six is denied.
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`1I. The Motion to Dismiss the Abuse of Process Counts is Granted.
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`The defendants argue that counts one and four should be dismissed for lack of subject
`matter jurisdiction because the statements and conduct alleged were undertaken in the underlying
`actions primarily for the purpose of advancing that litigation, and therefore the litigation privilege
`applies to confer absolute immunity. The plaintiff counters that the litigation privilege does not
`bar abuse of process claims. Although the defendants acknowledge that the litigation privilege
`does not apply to abuse of process claims, they argue that the plaintiff has not adequately alleged
`abuse of process and therefore the litigation privilege does apply. In the alternative, the defendants
`move to strike counts one and four on the grounds that they fail to allege that the defendants
`pursued any course of action in the underlying actions that the restaurant clients were not entitled
`to pursue, or that were outside the ordinary course of litigation. The plaintiff argues in response
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`that the alleged conduct by the defendants violates the rules of professional conduct and forms the
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`basis for abuse of process claims. Because the motion to dismiss implicates subject matter
`jurisdiction, this court addresses it first.
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`The litigation privilege is “a long-standing [common-law] rule that communications
`uttered or published in the course of judicial proceedings are absolutely privileged so long as they
`are in some way pertinent to the subject of the controversy.” (Internal quotation marks omitted.)
`Deutsche Bank AG v. Vik, 349 Conn. 120, 137, 314 A.3d 583 (2024). See also Stone v. Pattis, 144
`Conn. App. 79, 97, 72 A.3d 1138 (2013). “[T]he litigation privilege . . . provides absolute
`immunity from suit . . ..” Dorfinan v. Smith, 342 Conn. 582, 585, 271 A.3d 53 (2022). “Our
`Supreme Court has said: ‘The terms absolute immunity and litigation privilege are . . .
`[interchangeable].”” Tyler v. Tatoian, 164 Conn. App. 82, 83 n.1, 137 A.3d 801, cert. denied, 321
`Conn. 908, 135 A.3d 710 (2016). “Whether the litigation privilege applies in a given case is a
`question of law . . . .” Deutsche Bank AG v. Vik, supra, at 137. Because the doctrine of absolute
`immunity concerns a court’s subject matter jurisdiction, a motion to dismiss is the proper
`procedural mechanism by which to raise it. See, e.g., Perugini v. Giuliano, 148 Conn. App. 861,
`873, 89 A.3d 358 (2014).
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`Our Supreme Court has “recognized a distinction between attempting to impose liability
`upon a participant in a judicial proceeding for the words used therein* and attempting to impose
`liability upon a litigant for his improper use of the judicial system itself. . . . In this regard, we have
`refused to apply absolute immunity to causes of action alleging improper use of the judicial
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`system.” (Citation omitted; footnote added.) MacDermid, Inc. v. Leoneiti, 310 Conn. 616, 629,
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`4 “The conduct that absolute immunity is intended to protect, namely, participation and candor in judicial
`proceedings, remains protected regardless of the particular tort alleged in response to the words used during
`participation in the judicial process. Indeed, . . . [clommentators have observed that, because the privilege protects
`the communication, the nature of the theory [on which the challenge is based] is irrelevant.” (Emphasis in original;
`internal quotation marks omitted.) MacDermid, Inc. v. Leoneiti, 310 Conn. 616, 628, 79 A.3d 60 (2013).
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`79 A.3d 60 (2013). For this reason, “the litigation privilege does not bar claims for abuse of
`process, vexatious litigation, and malicious prosecution.” Dorfinan v. Smith, supra, 342 Conn. at
`592. See also Simms v. Seaman, 308 Conn. 523, 69 A.3d 880 (2013).
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`“An action for abuse of process lies against any person using a legal process against another
`in an improper manner or to accomplish a purpose for which it was not designed. . . . Because the
`tort arises out of the accomplishment of a result that céuld not be achieved by the proper and
`successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the
`gravamen of the action for abuse of process is the use of a legal process . . . against another
`primarily to accomplish a purpose for which it is not designed.” (Internal quotation marks
`omitted.) Cadle Co. v. D’Addario, 131 Conn. App. 223, 235-36, 26 A.3d 682 (2011). “[TThe
`addition of [the word] primarily is meant to exclude liability when the process is used for the
`purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of
`benefit to the defendant.” (Internal quotation marks omitted.) Bernhard-Thomas Building
`Systems, LLC v. Dunican, 100 Conn. App. 63, 77, 918 A.2d 889 (2007), aff’d, 286 Conn. 548, 944
`A.2d 329 (2008).
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`When an attorney is a defendant in an abuse of process claim, the standard is heightened
`in order to balance “the attorney’s primary duty of robust representation of the interests of his or
`her client.” Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987). In Mozzochi, an abuse of
`process case brought against an attorney, our Supreme Court determined that:
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`“attorneys are not protected by absolute immunity . . . [for] conduct constitut[ing]
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`the use of legal process in an improper manner or primarily to accomplish a purpose
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`for which it was not designed. . . . The court nevertheless sought to reconcile its
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`responsibility to ensure unfettered access to the courts and to avoid a possible
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`chilling effect on would-be litigants of justiciable issues by limiting liability [for
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`abuse of process] to situations in which the plaintiff can point to specific
`misconduct intended to cause specific injury outside of the normal contemplation
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`of private litigation. Any other rule would ineluctably interfere with the attorney’s
`primary duty of robust representation of the interests of his or her client.”
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`MacDermid, Inc. v. Leonetti, supra, 310 Conn. at 629 (discussing Mozzochi v. Beck, supra, 204
`Conn. 490).
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`In Mozzochi v. Beck, supra, 204 Conn. 490, our Supreme Court affirmed the granting of a
`motion to strike an abuse of process claim. On appeal, the plaintiff claimed that the defendant
`attorneys had engaged in abuse of process because they had filed amended pleadings in the
`underlying action when they knew the allegations were false and refused to withdraw the
`underlying action after learning that it was “utterly without merit.” Id. at 493. The Supreme Court
`held that the allegation that the defendant attorneys “continued to pursue litigation for an unlawful
`ulterior purpose, to wit: “to inflict injury upon the plaintiff and to enrich themselves and their said
`client although they knew that their said lawsuit was without merit” did not satisfy the requirement
`of using legal process “primarily to accomplish a purpose for which it is not designed.” Id. at 497-
`98. Therefore, the court held that the plaintiff failed to state a cause of action for abuse of process.
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`Other superior courts faced with motions to dismiss abuse of process claims have first
`addressed whether a plaintiff alleged a cause of action for abuse of process that meets these
`standards before determining that there is no subject matter jurisdiction because of the litigation
`privilege. See, e.g., Khan v. Jewish Women International, Superior Court, judicial district of
`Hartford, Docket No. CV-24-6185738-S (January 9, 2025, Schuman, J. T R.) (granting motion to
`dismiss because the abuse of process claim sought redress solely for statements made in the
`underlying litigation); Errato v. Lamont, Superior Court, judicial district of New Haven, Docket
`No. CV-23-5055601-S (November 15, 2024, Wilson, J.) (granting attorneys’ motions to dismiss
`because abuse of process claim was based on the filing of a motion for contempt during a
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`dissolution action); Rendahl v. Peluso, Superior Court, judicial district of Stamford-Norwalk,
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`Docket No. CV-15-6025089-S (March 18, 2016, Heller, J.) (denying motion to dismiss abuse of
`process claim arising out a probate appeal that the defendants allegedly brought without believing
`in its validity “to retaliate against [thé plaintiff]; to justify the payment of fees to which they were
`not entitled; to vex, harass, and bully her; and to delay returning fees they had received that they
`were not entitled to retain”).
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`In this case, the plaintiff makes some allegations that satisfy the first element of the
`defendants using legal proceedings against the plaintiff — serving and filing suits against the
`plaintiff and serving four subpoenas on the plaintiff. It also alleges two other acts -- adding
`allegations in support of the required element of ascertainable loss that they knew to be false, and
`in two of the actions, providing false responses to interrogatories relating to those allegations —
`that might merely be communications or statements, and not use of legal process. Cf. Dorfman v.
`Smith, supra, 342 Conn. at 619 (“the litigation privilege bars CUTPA claims, like the claim at issue,
`premised solely on general allegations of intentionally false discovery responses because these
`claims merely challenge the making of false statements™).
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`Even if any of these acts meet the first requirement for abuse of process, and even if this
`court gives every presumption in favor of retaining jurisdiction, the plaintiff has not sufficiently
`alleged that these acts were “primarily to accomplish a purpose for which [they were] not
`designed.” Mozzochi v. Beck, supra, 204 Conn. at 497-98. The allegation that the subpoenas “were
`signed and served in bad faith and done primarily to disrupt and harass” does not meet the standard
`for “misconduct intended to cause specific injury outside of the normal contemplation of private
`litigation.” See, €.g., Munenzon v. Israely, Superior Court, judicial district of Stamford-Norwalk,
`Docket No. CV-24-6068350-S (March 27, 2025, Mernon, J.) (the issuance of subpoenas is protected
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`by the litigation privilege). The other alleged abuses are alleged to have been “primarily for the
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`purpose of punishing [the plaintiff] for suing [the restaurant client] in multiple class actions and to
`use the lawsuit against [the plaintiff] as leverage and in defense of the underlying class actions. It
`was also maintained for the purpose of recouping the attorneys’ fees and costs it spent defending
`the various class actions it had defended — a purpose which Judge Noble had clearly ruled was not
`a proper use of the Connecticut Unfair Trade Practices Act.” Amended Complaint, | 32.
`Continuing to press knowingly false allegations was the same behavior at issue in Mozzochi v.
`Beck. There, the Supreme Court held that a purpose “to inflict injury upon the plaintiff and to
`enrich themselves and their said client” did not satisfy the requirement of using legal process
`“primarily to accomplish a purpose for which it is not designed.” Id. at 497-98. The alleged
`purposes here are not distinguishable. Finally, this court disagrees with the plaintiff’s
`characterization of the defendants’ attempts to recoup their at