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Green v. Doukas

June 22, 2001

MADELYN LISA GREEN, PLAINTIFF,
v.
RUTH DOUKAS, NICK DOUKAS, CLAIRE FALLON, TIMOTHY FALLON, REGINA BENEVENUTI, "GEORGE" BENEVENUTI, MERRILL KELMAR, PAUL KELMAR, JONATHAN FALLON, HILLARY FALLON, LAUREN HEIMAN ANGLE, AND MELINDA HEIMAN HART, DEFENDANTS



The opinion of the court was delivered by: Mcmahon, J.

MEMORANDUM DECISION AND ORDER DISMISSING CERTAIN CLAIMS, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND DISPOSING OF PENDING IN LIMINE MOTIONS

Both parties have made motions at the close of discovery. Defendants move for dismissal and/or summary judgment on a variety of grounds, as well as for an order in limine precluding the testimony of two experts. Plaintiff moves for partial summary judgment on the issue of confidential relationship as against one defendant, her sister Ruth Doukas, and for the most part opposes defendants' various motions.

1. Plaintiff's Claims For Defamation, Intentional Infliction of Emotional Distress, And Tortious Interference With Inheritance Are Dismissed.

Plaintiff concedes that her claims for defamation and intentional infliction of emotional distress are time-barred,*fn1 and that her claim for tortious interference with inheritance does not lie, as Connecticut (where her mother lived and died) does not recognize such a claim. DiMaria v. Silvester, 89 F.Supp.2d 195, 196 (D.Conn.1999). Therefore, these causes of action are dismissed.

2. Plaintiff's Claim For Tortious Interference With Financial Expectancy Is Dismissed In Part.

Plaintiff's concession regarding the claim of tortious interference with inheritance means that her claim for tortious interference with financial expectancy must also be dismissed, at least in part. While Connecticut recognizes a tort of this nature, no claim will lie where one's "expectancy" is the expectancy of an inheritance. Put otherwise, one cannot take the barred claim of interference with inheritance, recharacterize it as a claim for interference with expectancy, and evade the legal bar to suit.

The elements of this claim are as follows: (1) The existence of a business relationship or expectancy; (2) knowledge by the defendant of the relationship; (3) tortious interference by the defendant, i.e ., proof that the defendant acted maliciously, or was guilty of fraud, misrepresentation, intimidation or molestation; (4) proof that the interference cause harm; and (5) damages to the plaintiff. DiMaria, 89 F.Supp.2d at 201 (applying the elements of interference with expectancy to the proper distribution under a will).

Plaintiff's claim is, in substance, that as one of three daughters of Dorothy Green, she had an expectancy of coming into a one-third share of her mother's estate as it existed at a particular point in time. Her expectancy of a one-third share arose from the fact that her mother had so provided in her will. Indeed, she avers that she has satisfied the "knowledge" requirement of the tort of interference with financial expectancy (which lies only where the defendant knew of the plaintiff's expectancy) by pleading and proving that her sisters were aware of the contents of their mother's original will. Thus, there is nothing to the expectancy claim but a claim that she expected to inherit more money than she did-or that there was some interference with her "right" to inherit.*fn2

Connecticut clearly recognizes Dorothy Green's right to do anything she wanted with her property during her life-using it or disposing of it as she wished without regard to the interests of the named beneficiaries in her will. Hall v. Hall, 91 Conn. 514 (1917); Cherniak v. Home National Bank and Trust Co. of Meriden, 151 Conn. 367, 370 n. 2 (1964) (noting, with respect to a spouse's interest in the property of the other spouse before death, that "[o]ne cannot be defrauded of that to which he has no right.") (citing Hall ). Madelyn Green had no legally-cognizable expectancy that her mother's estate (and her one-third share thereof) would be of any particular size. Thus, she has no claim for interference with expectancy for any monies not in Dorothy's estate at the time of her death.

However, plaintiff also claims that Ruth and Claire diverted assets after Dorothy's death, before the will was probated. Madelyn did have a financial expectancy in one-third of her mother's remaining estate as it existed at the time of her death, the equal division of which Ruth was obligated to oversee. See DiMaria, 89 F.Supp.2d at 201. Thus I will not dismiss Madelyn's claim for interference with expectancy to the extent she seeks her full share of any monies that were wrongfully diverted from the estate after her mother's death.

3. The Parties' Motions For Summary Judgment On Plaintiff's Claims Of Constructive Fraud, Constructive Trust, and Breach of Fiduciary Duty Are Granted In Part And Denied In Part.

The Second Circuit reversed this Court's award of summary judgment dismissing plaintiff's claims of alleged undue influence and conversion-claims sounding in constructive trust, breach of fiduciary duty and constructive fraud. This Court does not intend to grant summary judgment on those claims again unless there is a technical reason to do so, such as lack of jurisdiction or time bar. Similarly, I do not believe it appropriate to grant Madelyn summary judgment as against her sister Ruth on the question of confidential relationship. The jury will dispose of that question as part of the trial.

a. Plaintiff's Claims Against Her Nieces And Nephews Are Dismissed For Lack of Subject Matter Jurisdiction

Plaintiff concedes that, as against her nieces and nephews, she has not pled damages in the jurisdictional amount. Since jurisdiction in this action is predicated solely on diversity, and the claims against the various defendants are not joint and several, the law is clear that plaintiff must satisfy the jurisdictional amount as against each individual defendant. See Chase Manhattan Bank N.A. v. Aldridge, 906 F.Supp. 870 (S.D.N.Y.1995); Gardiner Stone Hunter Int'l v. Iberia Lineas Aereas De Espana, 896 F.Supp. 125, 128 (S.D.N.Y.1995); Congram v. Giella, No. 91 Civ. 1134, 1992 WL 349845, at *3 (S.D.N.Y. Nov. 10, 1992) ("In a diversity case involving a single plaintiff and multiple defendants, aggregation of claims is not proper unless the liability to the plaintiff is common, undivided or joint."); 1 James W. Moore et al., Moore's Federal Practice ¶ 0.97[2] (2d ed. 1995) ("Basically, aggregation is allowed when the defendants' liability to the plaintiff is common, undivided, or joint. It is not allowed when the defendants' liability is several, or if the claims against them are separate and distinct from one another."). She has not done so.

Nonetheless, plaintiff insists that this Court need not dismiss as against those defendants, arguing that supplemental or ancillary jurisdiction may be invoked to keep her claims against ...


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