Opinion
No. CV-05-4008609 S
May 31, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( # 123)
This is a mandamus action wherein the plaintiff, Robert Nappe, seeks to compel the defendant, Board of Police Commissioners for the Town of East Haven, to restore him to his former position as a police officer. The plaintiff's action is brought pursuant to Public Act 05-200. In the present motion, the defendant moves to strike the plaintiff's Second Revised Complaint on the grounds that it fails to allege a clear legal right to reinstatement and further that the prayer for relief seeks damages beyond those available in an action for mandamus. For the reasons set forth below, the motion to strike is denied as to the allegations of a violation of Public Act 05-200 but granted as to the prayer for relief insofar as it can be construed to seek money damages.
Public Act 05-200 in relevant part provides: Any sworn police officer employed by the state or a municipality who takes a leave of absence or resigns from such officer's employment on or after September 11, 2001, to volunteer for participation in international peacekeeping operations, is selected for such participation by a company which the United States Department of State has contracted with to recruit, select, equip and deploy police officers for such peacekeeping operations, and participates in such peacekeeping operations under the supervision of the United Nations, the Organization for Security and Cooperation in Europe or other sponsoring organization, shall be entitled, upon return [from such leave] to the United States, (1) to be restored by such officer's employer to the position of employment held by the officer when the leave commenced, or (2) if the original position of employment is not available, to be restored to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment, provided not later than six months after such return such officer notifies such officer's employer of such return and such officer's desire to be restored to such officer's original position of employment or an equivalent position of employment.
FACTS
The operative complaint for purposes of the present motion to strike is the Second Revised Complaint dated January 26, 2006 (#119) (hereinafter complaint). As relevant here, it alleges the following:
Robert Nappe (Nappe) had been employed as a police officer for the Town of East Haven. The East Haven Board of Police Commissioners (Board) is charged with the responsibility of appointing and removing police officers.
On January 10, 2004, Nappe left his employment as a police officer via retirement in order to serve in a peacekeeping mission in Iraq training local police officers under the auspices of the United States State Department. Nappe retired after the Board refused to allow him to take a one-year leave of absence in order to serve in the peacekeeping mission.
Nappe's tour of service in Iraq ended on February 23, 2005 and he returned home. On February 28, 2005, Nappe informed Police Chief Leonard Gallo of his intent to return to his position as an East Haven police officer. Nappe's requested return was denied by the Board. On July 19, 2005, Nappe again requested to return to his position as an East Haven police officer. This request was made pursuant to Public Act 05-200. This request was also denied.
Nappe prays for a Writ of Mandamus ordering the Board to comply with Public Act 05-200 and restore him to his former position. Nappe further seeks: "Such further relief as in law or equity pertain."
DISCUSSION I Standards For A Motion To Strike
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998); Practice Book § 10-39. A motion to strike may also be directed at a prayer for relief if such relief cannot legally be awarded. Pamela B. v. Ment, 244 Conn. 296, 325 (1998).
In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Doe v. Marselle, 38 Conn.App. 360, 364 (1995). A "speaking" motion to strike will not be granted. Id. For purpose of a motion to strike, the moving party admits all well-pleaded facts. RK Constructors v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). The court must construe the facts in the complaint most favorably to the plaintiff. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997).
"If the facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000). Stated differently, the court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder." Campbell v. Town of Plymouth, 74 Conn.App. 67, 77 (2002).
II Right to Reinstatement Under Public Act 05-200
The essential conditions for the issuance of a writ of mandamus are (1) the party against whom the writ is sought must be under an obligation imposed by law to perform a ministerial duty; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other sufficient remedy. Chatfield Co. v. Reeves, 87 Conn. 63, 64 (1913); Venditto v. Auletta, 31 Conn.Sup. 145, 148 (1974). The defendant's principal argument is that the complaint fails to plead a clear legal right to reinstatement under Public Act 05-200. In this regard, the defendant asserts that the complaint is defective because Nappe fails to allege that (1) he resigned from the police department or took a leave of absence; (2) he volunteered for duty in Iraq; and (3) the peacekeeping mission was under the supervision of the United States State Department. The defendant further asserts that the complaint is defective because the Board is not his employer and that the reinstatement sought does not involve a ministerial duty.
A.
Public Act 05-200 provides in part as follows:
Any sworn police officer employed by . . . a municipality who takes a leave of absence or resigns from such officer's employment on or after September 11, 2001, to volunteer for participation in international peacekeeping operations, is selected for such participation by a company which the United States Department of State has contracted with to recruit, select, equip and deploy police officers for such peacekeeping operations, and participates in such peacekeeping operations under the supervision of the United Nations, the Organization for Security and Cooperation in Europe or other sponsoring organization, shall be entitled, upon return . . . to be restored by such officer's employer to the position of employment held by the officer when the leave commenced . . . (Emphasis added.)
Public Act 05-200.
The complaint alleges that Nappe left his employment via "retirement" in order "to serve" in a peacekeeping mission in Iraq "under the auspices" of the United States State Department. Paragraph 3. The complaint further alleges that Nappe's retirement occurred after the Board declined his request for a leave of absence. Paragraph 4. Finally, the complaint alleges that the Board had a duty to follow Public Act 05-200 and restore Nappe to his position. Paragraph 12.
The defendant asserts that the above allegations deviate from the statutory language so as to make the complaint legally insufficient. The court finds this argument unpersuasive. As stated above, in ruling on a motion to strike, the court must construe the facts alleged in favor of the plaintiff. This includes facts that are both implied from and provable under the express allegations. Campbell v. Town of Plymouth, supra, 74 Conn.App. 77.
A common sense reading of the complaint supports a cause of action based on Public Act 05-200. The allegation that Nappe left his employment via "retirement" (after having been denied a leave of absence) is the functional equivalent of having resigned. Likewise, the allegation that he left his job in order "to serve" in Iraq is the functional equivalent of having "volunteered." The allegation that the peacekeeping mission was "under the auspices" of the United States State Department is also adequate to allege application of the statute that requires the operation to be under the "supervision" of a sponsoring agency. The point is that elements of the statute are fairly proveable under these express allegations of the complaint.
The defendant also asserts that the statute compels the police officer's "employer" to restore the officer to previous position and that the Board is not Nappe's employer. The complaint asserts that the Board had the duty to restore him to his original position. For purposes of the present motion, the court must take this allegation as true. This allegation is sufficient to plead application of the statute.
B. CT Page 10232
The defendant asserts that the alleged duty of the Board to restore Nappe to his original position involves the exercise of discretion such that it is outside the reach of a writ of mandamus. This is not an appropriate claim to be raised by a motion to strike because it involves matters beyond the complaint itself. For purposes of the present motion, the court must accept the allegation that the Board had a duty to comply with Public Act 05-200. Whether such duty is discretionary or ministerial must be left to either summary judgment or trial.III Prayer for Relief
The prayer for relief in the Second Revised Complaint states:
The plaintiff Robert Nappe prays for a Writ of Mandamus ordering the defendant Board of Police Commissioners to comply with the provisions of Public Act 05-200, and restore him to his position as a Police Officer with the Town of East Haven, or, if the same is not available, to a comparable position with the Department of Police Services, with equivalent benefits, pay and other terms and conditions of employment.
Such other relief as in law or equity pertain.
The defendant asserts that the portion of the prayer for relief that seeks "such other relief as in law or equity pertain" should be stricken because it seeks relief beyond the issuance of the writ of mandamus. At argument on the present motion, plaintiff's counsel stated that the plaintiff is seeking more than mandamus and specifically seeks damages for the failure of the defendant to timely restore him to his job.
In Connecticut, a claim for money damages cannot be enforced in a mandamus proceedings. Venditto v. Auletta, supra, 31 Conn.Sup. 151. This is in accord with the general view that damages for delay in doing the thing mandamus seeks to command cannot be sought in the mandamus action. 52 Am.Jur.2d § 472 (2000).
The motion to strike the prayer for relief is granted insofar as it seeks relief beyond the issuance of the writ of mandamus.
CONCLUSION
For the reasons set forth above, the motion to strike is granted only as to that portion of the prayer for relief that seeks relief beyond the issuance of the writ of mandamus. In all other respects, the motion to strike is denied.
So ordered.