Opinion
FSTCV156025883
01-26-2017
Success Systems, Inc. v. Scott Sottile
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT (NO. 120)
Hon. Charles T. Lee, J.
Plaintiff Success Systems, Inc. (" SSI") commenced this action against defendant Scott Sottile (" Sottile") by service of a summons and complaint on July 20, 2015. The complaint alleges that Sottile breached a settlement agreement (" the settlement agreement") entered on the record before Judge Adams on February 27, 2012 in a previous action, Success Systems, Inc. v. Scott Sottile, judicial district of Stamford/Norwalk, Docket No. 11 5013789. On March 23, 2016, defendant filed his answer and a special defense claiming that the claim of defendant's non-compliance with the settlement agreement had been previously litigated and decided, and, accordingly, is barred by the doctrine of collateral estoppel.
On May 5, 2016, the defendant filed an amended motion for summary judgment with a supporting memorandum of law and two affidavits. Plaintiff filed a memorandum in opposition on May 13, 2016 with various supporting exhibits. Defendant filed a reply memorandum and plaintiff filed a supplemental memorandum, both on July 28, 2016. The motion was heard at short calendar on September 19, 2016. Also on September, the court entered an order directing the plaintiff to file an affidavit by September 23, 2016 in compliance with Practice Book Section 17-47 explaining what discovery plaintiff claimed it needed to adequately oppose the motion for summary judgment. The plaintiff filed that affidavit on September 23, 2016, and defendant filed a response on October 7, 2016.
As more fully explained below, the court grants the motion for summary judgment because the claim asserted in the complaint, i.e., defendant's alleged breach of the settlement agreement, was litigated and decided in the previous action. The court further finds that (1) the doctrine of law of the case as applied to the court's denial of defendant's motion to dismiss is inapplicable to this motion for summary judgment, (2) plaintiff has failed to demonstrate fraud by clear evidence, and (3) that it failed to demonstrate the requisite diligence to verify defendant's representations in the previous action. Finally, the court denies plaintiff's request for a postponement of resolution of the motion to enable it to pursue discovery because it had sufficient opportunity to establish such facts, but chose not to do so.
Background
Many of the operative facts in this matter are not contested.
A. The Parties
Plaintiff SSI is a company based in New Canaan, Connecticut, which offers software designed to optimize point of sale results. Defendant Sottile joined the company in 2005 and was employed by it as Vice President of Applications until his employment was terminated on or about December 1, 2011. In October 2010, SSI entered into a General Service Agreement with The Nielsen Company, LLC, an existing customer, pursuant to which SSI would provide services in connection with data collection relating to packaged consumer goods.
B. Sottile's Communications with The Nielsen Company
Unbeknownst to SSI, Sottile began to send pejorative information about SSI to Nielsen using various anonymous email accounts not later than February 2011. Sottile's emails accused SSI of fraudulent inducement with respect to the contract with Nielsen and various other wrongful behavior. The communications were made from four anonymous email accounts established by Sottile to conceal his identity. These accounts were (1) FraudandLiesatSuccess@gmail.com (" fraudandlies), (2) JohnDoe999023 @gmail.com (" Johndoe"), (3) allaboutsuccesssytems@gmail.com (" allaboutsuccess"); and (4) fraudatnielsencontractor@gmail.com (" fraudatnielsen").
As a result of these communications and Nielson's investigation, The Nielsen Company brought suit against SSI for fraud, among other things, in the Southern District of New York later in 2011 and cancelled its contract with SSI. This litigation was settled on November 30, 2015, but, in the course of discovery in that case, Sottile's communications with Nielsen were gradually disclosed to SSI.
C. Termination of Sottile's Employment and the Settlement Agreement
On or about December 14, 2011, SSI commenced an action against Sottile alleging breach of a non-disclosure agreement and tortious interference with a business relationship, among other things, by way of an application for a prejudgment remedy against Sottile. The application for the PJR claims Sottile's performance began to decline in November 2010, and, on October 31, 2011, SSI advised Sottile of its decision to terminate his employment after ninety days, i.e., on January 30, 2012. The application continues to allege that SSI became aware on November 25, 2011 that Sottile made defamatory statements to third parties using the email address fraudandliesatsuccess@gmail.com, commencing not later than February 2011. Additionally, the application sought various injunctive relief, including that he refrain from use of the email address fraudandliesatsuccess@gmail.com and provide SSI with copies of all emails sent and received from that account.
At the hearing on February 27, 2012, Sottile submitted an affidavit correcting testimony he had given on February 14, 2012 at a deposition in the Nielsen case, where he denied communicating with Nielsen, and admitting that he had communicated with Nielsen by email and telephone. The parties then put the terms of a settlement on the record before Judge Adams, and the court canvassed the parties to make sure they understood and agreed to the settlement. The settlement provided in pertinent part that SSI would withdraw the PJR application and settle the litigation, subject to several undertakings to be performed by Sottile, presumably in thirty days. These obligations included a waiver of his claim to certain software, an amended inventory of materials he had taken from SSI upon his departure, and " Mr. Sottile is also willing to agree that he sent other emails to Nielsen similar to but not exactly the same as the fraudandliesatsuccess@gmail.com and that he will endeavor to locate those emails and produce them to us if he can." Only the fraudandlies account was discussed at the hearing and in the settlement agreement, and it appears that SSI was unaware of any communications by Sottile using other accounts.
D. Subsequent events
On March 9, 2012, Sottile provided SSI with all emails he claimed he had with Nielsen to which he had access at that time. These were only from the fraudandlies account, which he had claimed he could not access because he had forgotten the password. Subsequently, additional discovery from Nielsen revealed at least two other accounts: allaboutsuccess and johndoe, the which Sottile also claimed he could not open, having forgotten the password. As a result, the parties exchanged drafts of an affidavit attempting to deal with the situation. However, the parties did not agree to a draft, and SSI refused to withdraw the litigation.
On March 27, 2013, Sottile filed a motion to enforce the settlement and to compel SSI to withdraw the litigation, claiming compliance with the settlement agreement and that the agreement did not obligate them to provide an affidavit. SSI stated that Sottile had misled it at the PJR hearing about the extent of his communications, by claiming that only five emails were involved, all coming from the fraudandlies account. In supplemental discovery in the Nielsen litigation, SSI learned that Sottile had sent emails to Nielsen from other accounts in addition to those he had produced. Accordingly, SSI claimed that Sottile breached the settlement agreement because he did not " endeavor" to locate the other email accounts and, in fact, had concealed them.
At the hearing on Sottile's motion to enforce the settlement agreement, which was heard before the court (Mottolese, J.) on June 6, 2013, SSI expressed its concern that Sottile had breached the settlement agreement by withholding various communications, including those from hitherto undisclosed accounts. Sottile maintained that he was unable to access these other accounts because he had forgotten the passwords. The court directed Sottile to document his efforts to access the Johndoe and Allaboutsuccess accounts, and to produce telephone records in thirty days.
Upon Sottile's failure to comply within thirty days, SSI filed a motion on July 10, 2013 to compel production of, among other things, emails from the Johndoe account and another account it had learned of, fraudatnielsen. The motion also asked the court to require Sottile to cooperate with a subpoena to Google for the records of Sottile's attempts to access the accounts and for their contents, and to issue an order compelling the production.
Sottile's counsel advised SSI in correspondence dated July 17, 2013 that (1) Sottile had been able to access the fraudandlies account and had produced all emails in the file; (2) Sottilehad not been able to access the johndoe account, and provided documents showing his efforts; (3) Sottile had been able to access allaboutsuccess, and they were sending the five pages found in that account; and (4) they had not been previously aware of a fourth account called fraudatNielsencontractor@gmail.com, which Sottile was unable to access and that they were sending documents attesting to his efforts to gain access. Sottile claimed to have produced all relevant emails from the first and third accounts; however, he claimed he could not access the other two accounts because he had forgotten their passwords.
Sottile filed an opposition to the motion to compel in which he took the position that he had complied with the settlement agreement and with Judge Mottolese's order. SSI filed a supplemental memorandum in which it claimed it was also missing emails from the johndoe and fraudatnielsen accounts, which had been produced to it in the Nielsen litigation.
Judge Mottolese issued an order on March 11, 2014 regarding the motion to compel (" the 2014 Order"). The order provides:
The court has reviewed the memoranda of the parties and both submitted transcripts and sees no need for further argument. The court notes that Plaintiff's 10/17/13 memorandum complains only of non compliance concerning the Google emails. The 6/6/13 transcript reveals that defendant made reasonable efforts to access these emails through Google's account recovery team without success. There now appears to be no further option except subpoena. Defendant is therefore ordered to cooperate with Plaintiff in its efforts to gain access to these emails by subpoena. The court has no jurisdiction over Google which would empower it to order it to do anything.
SSI has made no attempt to subpoena the records from Google. Fifteen months after the 2014 order, SSI withdrew its first action on June 4, 2015.
Six weeks later, on July 20, 2015, SSI filed the instant case against Sottile alleging that Sottile fraudulently breached the settlement agreement. The complaint pleads much of the litigation history set forth above, but adds a new allegation, in paragraph 32:
Plaintiffs now have an understanding--as a result of a pending criminal investigation into Mr. Sottile's and Robert Messemer, Nielsen's Chief of Security conduct--that Mr. Sottile has breached the Settlement Agreement by knowingly and intentionally withholding emails and email accounts by falsely claiming that he was unable to recover the missing account information. Upon information and belief, such accounts were accessible through a Google security feature that would allow Mr. Sottile to reset the account password(s) by simply inserting his current personal Gmail email and/or personal cell phone number.
As a result, the complaint alleges that Mr. Sottile can access the two accounts at issue (johndoe and fraudatnielsen) but has failed to do so and, therefore, never " endeavored" to access those accounts as required by the Settlement Agreement, and that he lied about his ability to do so.
On September 2, 2015, Sottile filed a motion to dismiss the complaint, claiming that it was barred under the doctrine of collateral estoppel by reason of the 2014 Order holding that " the defendant made reasonable efforts to access" the emails. On October 26, 2015, the court denied the motion to dismiss, having found at oral argument that the complaint pled fraud sufficiently to defeat application of collateral estoppel.
Contentions of the Parties
On May 5, 2016, Sottile filed the present amended motion for summary judgment, in which he claims that this action is barred by the doctrine of collateral estoppel because the issue was necessarily litigated and determined by the court in the 2014 Order, and that there is not factual or legal basis for the fraud allegations in the complaint. Sottile further contends that, even if SSI could make the required showing of fraud, its sole remedy would be to move to set aside the original ruling, not to commence a new action. In support of the motion, Sottile submitted his own affidavit dated May 4, 2016, in which he responded to paragraph 32 of the complaint (set forth above) as follows,
While Google allowed me to enter a recovery email account when I established the anonymous accounts, it did not require me to enter such information and to better protect my anonymity, I chose not to provide Google with that information or with my cell phone number in connection with any of the anonymous accounts. Thus, the account recovery feature cited by SSI in its Complaint was not available to me when I sought to access the accounts to retrieve the anonymous emails. [Emphasis in original.]
Sottile also submitted the affidavit of William Whitledge dated May 4, 2016, who was put forth as an expert on email communications, which asserted that it was not possible to open anonymous email accounts where the password had been forgotten and other identifying information had not been provided when the accounts were set up.
On May 12, 2016, SSI filed a memorandum in opposition to the motion for summary judgment without supporting affidavits, but with an attached report from the Wilton police department. The report contains several entries, the first of which is dated January 13, 2015, and a later entry, as referenced in the complaint, in which an officer sets forth a response by an unidentified Google employee on March 4, 2015 to an inquiry by ex parte order as follows:
The order explained that the email fraudandliesatsuccess@gmail.com was created on 2/16/2011 at 00:28:UTC. The account showed that scott.sottile@gmail.com was the Recovery account holder email and that IP address 74.208.8.122 was captured on creation. The phone number 203-906-9299 was also tied to the account. Contact was made with the complainant, Scott Tarlow who confirmed that the number is Sottile.
The report also states that State's Attorney Richard Colangelo declined to prosecute the criminal complaint. As a result of that report, SSI claims that Sottile defrauded the court in his affidavit of May 16, 2016 and in the previous action, and demands sanctions against Sottile. SSI also claims that the instant motion is barred by the law of the case arising out of the denial of the motion to dismiss. Further, SSI argues that Sottile's fraudulent answers deprived SSI of the opportunity to fairly litigate the issue of his compliance with the settlement agreement in the first action, making collateral estoppel inapplicable. It further states that SSI should be permitted to pursue additional discovery from Sottile and non-parties, including Google, " to obtain the evidence necessary to substantiate its claim."
In a reply memorandum dated July 28, 2016, Sottile argues that SSI failed to address the applicability of the doctrine of collateral estoppel even though it is admittedly attempting to relitigate the issue of whether Sottile used reasonable efforts to gain access to the email accounts he used to communicate with Nielsen, and so-called new evidence is insufficient to defeat application of the doctrine. Sottile also argues that the law of the case doctrine does not apply as to a summary judgment motion following a ruling on a motion to dismiss. Additionally, Sottile argues that SSI did not offer competent evidence of Sottile's alleged fraud because the police report was unauthenticated and contained inadmissible hearsay, or of its diligence in the first action to discover any such fraud, as required to avoid application of collateral estoppel.
Also on July 28, 2016, SSI submitted a supplemental memorandum in further support of its request for sanctions against Sottile for its allegedly egregious conduct in obstructing discovery and filing a false affidavit. SSI requests sanctions of dismissal or of attorneys fees. In the alternative, it sought an order directing Sottile to attempt to gain access to the email accounts under supervision of a special master and to subpoena Google for information relating to the accounts.
At the hearing on September 19, 2016 and by order of the same date, the court directed SSI, pursuant to Practice Book Section 17-47, to submit an affidavit explaining with specificity what discovery it needed and how it proposed to obtain it in order to properly oppose the motion for summary judgment. Counsel for SSI submitted such an affidavit on September 23, 2016, explaining that it sought (1) responses to its discovery requests previously sent to Sottile on or about February 16, 2016 relating to issues in the litigation and in the previous action; (2) a deposition of Sottile; and (3) information from a subpoena it intends to serve on Google for information relating to the email accounts, including copies of all messages sent through the accounts.
On October 7, 2016, Sottile filed his response to the § 17-47 affidavit, contending that SSI had not established its entitlement to relief under that section because it did not demonstrate what efforts it had previously used to obtain the information sought, pointing out, inter alia, that it had never deposed Sottile and had not subpoenaed Google, contrary to the 2014 Order. Sottile further contended that the discovery described in the § 17-47 affidavit sought information irrelevant to the issues raised by the instant motion, such as communications with Nielsen and information regarding software allegedly appropriated by Sottile. On even date, Sottile also filed objections and responses to the pending written discovery, purportedly including copies of all communications with Google relating to the email accounts at issue.
DISCUSSION
The primary purpose of a motion for summary judgment is to obtain judgment in a case where there are no material facts in dispute. The summary judgment procedure " is designed to eliminate the delay and expense incident to a trial where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). A motion for summary judgment shall be granted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Practice Book § 17-49; Wilson, supra, 213 Conn. at 279. When determining whether a genuine issue of material fact exists, the evidence must be viewed in the light most favorable to the non-moving party. Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010); LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). The test is whether the moving party would be entitled to a directed verdict on the same facts. Weber v. U.S. Sterling Securities, 282 Conn. 722, 728, 924 A.2d 816 (2007); Dugan v. Mobile Medical Testing Service, 265 Conn. 791, 815, 830 A.2d 752 (2003).
" The 'genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Buell Industries, Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" We emphasize the important point, that [a]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . ." (Internal quotation marks omitted.) Buell Industries, Inc., supra, 259 Conn. at 550. Furthermore, a nonmoving party's conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment. Id., 557. " We acknowledge that [o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome . . . summary judgment." (Citation omitted; internal quotation marks omitted.) Id., 558. Walker v. Housing Authority of the City of Bridgeport, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014).
In deciding this motion, the court must determine three issues: whether the doctrine of collateral estoppel applies; whether plaintiff can rely on any exception to the doctrine, such as fraud; and whether plaintiff is entitled to a postponement of decision to permit it to take additional discovery.
A. Applicability of Collateral Estoppel
At the threshold, it is useful to determine whether the defendant properly invokes the doctrine of collateral estoppel, or whether res judicata is more properly to be considered. In Pollansky v. Pollansky, 162 Conn.App. 635, 645, 133 A.3d 167 (2016), the Appellate Court explained the difference as follows:
Res judicata, or claim preclusion, is [however] distinguishable from collateral estoppel, or issue preclusion. Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action . . . between the same parties or those in privity with them, upon the same claim . . . In contrast, collateral estoppel precludes a party from relitigating issues and factsactually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 554-55, 848 A.2d 352 (2004).
In the first case in this matter, a stipulation was entered on the record and, several years later, the action was withdrawn. Accordingly, a final judgment was not entered and the doctrine of res judicata would not apply.
In Powell v. Infinity Ins. Co., 282 Conn. 594, 600-01, 922 A.2d 1073 (2007), our Supreme Court defined collateral estoppel as follows, " . . . [C]ollateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim. Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58, 808 A.2d 1107 (2002); R& R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . ."
The present complaint alleges that defendant breached the 2012 settlement agreement because he did not use reasonable efforts to obtain access to the email accounts, Johndoe and Fraudatnielsen. In the first case, the 2014 Order found that defendant had made reasonable efforts to gain access to those accounts. As a result, the precise issue of whether Sottile used reasonable efforts to gain access to the email accounts was actually litigated and determined, and this second case would be barred by the doctrine of collateral estoppel unless plaintiff can demonstrate the application of some exception to the doctrine.
B. Exceptions to the Application of Collateral Estoppel
Because the defendant has met his initial burden, the burden now shifts to the plaintiff to demonstrate that there is a genuine issue of material fact; Romprey v. Safeco Ins. Co., 310 Conn. 304, 320, 77 A.3d 726 (2013) (" Once the moving party has met its burden, . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue"); or an applicable exception to the doctrine.
To that end, plaintiff raises several arguments: (1) application of the law of the case doctrine; (2) defendant's alleged fraud relating to his efforts to access the accounts in the first action; (3) defendant's fraud in his affidavit in the present action.
1. Law of the Case
As mentioned above, plaintiff contends that because the court denied the motion to dismiss having found the allegations of fraud in the complaint of fraud to bar the application of collateral estoppel at the pleading stage, the defendant should be estopped from raising collateral estoppel on this motion for summary judgment. The court disagrees.
Our Appellate Court recently defined the doctrine of law of the case as follows:
The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . [When] a matter has previously been ruled [on] interlocutorily, the court . . . may treat that [prior] decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge . . . (Citations omitted; internal quotation marks omitted.) Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013).Brown v. Otake, 164 Conn.App. 686, 702-03, 138 A.3d 951 (2016). As is clear from this definition, the decision to apply the law of the case doctrine to a particular ruling is within the court's discretion. In this instance, plaintiff argues that the court's decision on the motion to dismiss should preclude any consideration of collateral estoppel on a summary judgment motion. However, the evidentiary and procedural posture of the two motions is profoundly different. In the former, the court made its ruling on the basis of the allegation of fraud in the complaint without any reference to extrinsic facts. In the latter motion, defendant has established a prima facie basis for application of collateral estoppel. This requires the plaintiff to make a factual or legal showing outside of the allegations of the complaint to defeat the motion. The two motions are plainly different and the decision in the motion to dismiss does not preclude a decision on the motion for summary judgment. See Henderson v. Lagoudis, 148 Conn.App. 330, 339, 85 A.3d 53 (2014) (ruling denying motion to dismiss not law of the case at subsequent hearing on motion for summary judgment because court applies different principles and analysis when ruling on motion to dismiss as opposed to motion for summary judgment).
2. Fraud
In Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 721-22, 627 A.2d 374 (1993), our Supreme Court held that " a party . . . cannot utilize res judicata or collateral estoppel when it has committed fraud . . ."; see also Macomber v. Travelers Prop. & Cas. Corp., 261 Conn. 620, 643, 804 A.2d 180 (2002). As mentioned above, plaintiff takes the position that the Wilton police report demonstrates that Sottile was able to access the email accounts by using the standard access feature, which requires the use of a password or a recovery email address, and so Sottile must have been lying when he claimed he could not access the Johndoe and fraudatnielsen accounts.
The burden of proof for showing fraud is high, and requires " clear proof." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008). Plaintiff has not satisfied this burden. First, the police report is not authenticated. Second, the most important element of the affidavit, being the statement from the unidentified Google employee, is hearsay and therefor inadmissible. Practice Book 17-46 (Form of Affidavits) says that affidavits submitted in connection with a summary judgment motion " shall set forth such facts as would be admissible in evidence." See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007) (affidavit opposing summary judgment defective if based on hearsay); Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997) (" Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"); Karzoun v. Rapo, judicial district of Milford/Ansonia at Derby, Docket No. AANCV106004462S, 2014 WL 2259361, n.3 (Apr. 30, 2014) (double hearsay insufficient to defeat summary judgment).
Even if the police report were admissible, it does not establish fraud on Sottile's part. It refers to the fraudandlies account, to which Sottile said he had gained access in 2012, shortly after the entry of the settlement agreement. As a result, it is a red herring and is consistent with his prior statements. Although his affidavit submitted with the amended motion for summary judgment says that the account access feature was not available to him when he attempted to access the anonymous emails, there is no evidence to show that statement is incorrect with respect to the two accounts at issue in the second action, i.e., Johndoe and Fraudatnielsen. Given the absence of evidence of fraud, the court will not grant plaintiff's request for sanctions against defendant.
3. Diligence
Plaintiff attempts to avoid a finding of collateral estoppel by asserting that it was relying on new evidence discovered after the 2014 Order. However, such evidence cannot be brought forward subsequently to relitigate a factual issue which has been determined. Terracino v. Buzzi, 121 Conn.App. 846, 859-60, 1 A.3d 115 (2010) (" Under the issue preclusion doctrine, a party may not be permitted to introduce new or different evidence to relitigate a factual issue which was presented and determined in a former action"). Plainly, the issue of the reasonableness of Sottile's efforts to access the email accounts was determined in the prior action, and may not be relitigated here.
Further, defendants correctly cite to authority for the proposition that the proper remedy for a showing of fraud in the original ruling is to file a petition for a new trial to set it aside, which plaintiff did not do. See Suffield Dev. Assocs. Ltd. P'ship v. Nat'l Loan Inv'rs, L.P., 260 Conn. 766, 779, 802 A.2d 44 (2002) (" [W]hen one party has made fraudulent representations to a court, or caused a court to be misled in some way, it could be said generally that the party has committed fraud on the court. See Davis v. Fracasso, 59 Conn.App. 291, 298, 756 A.2d 325 (2000) (defendant claimed plaintiff committed fraud on court by inflating amount of income lost after motor vehicle accident). The statutory remedy for fraud on the court is that the Superior Court may grant a new trial for " reasonable cause"; General Statutes § 52-270(a); which includes " every cause for which a court of equity could grant a new trial, such as, for example, fraud, accident and mistake" (internal quotation marks omitted) Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 391, 132 A.2d 573 (1957)").
Equally problematic for plaintiff is the requirement that it must show that it made diligent efforts in the first case to discover and expose the fraud. " When a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud, and that there is clear proof of that fraud. See Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); see also 2 Restatement (Second), Judgments § 70(2), p. 179 (1982); but see Billington v. Billington, 220 Conn. 212, 218-19, 595 A.2d 1377 (1991) (abandoning diligence requirement in context of marital dissolution actions)." Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 107 (2008).
Here, plaintiff makes no showing of any such diligence. Although Judge Mottolese provided for SSI to file a subpoena on Google in the 2014 Order, and directed Sottile to cooperate in that effort, SSI did not do so. Although it has litigated this matter for more than five years, SSI has never taken the deposition of Sottile.
In summary, SSI's defenses to the application to collateral estoppel to this action are ineffective. The doctrine of the law of the case does not apply to a prior ruling in a different procedural and substantive setting. The so-called new evidence of fraud is not admissible, and is not persuasive because it does not deal with the accounts at issue in this case. Finally, SSI has failed to demonstrate sufficient diligence in verifying Sottile's positions over the course of several years. Accordingly, the court holds that the doctrine of collateral estoppel will apply.
C. The Request for a Postponement of Decision for Additional Discovery to Oppose the Motion
At oral argument, SSI claimed that it needed additional discovery in order to allow it to adequately respond to the motion for summary judgment. With the court's permission, it subsequently filed an affidavit, as required by Practice Book Section 17-47, attempting to identify and justify the additional discovery it seeks. Section 17-47 (When Appropriate Documents are Unavailable) provides, " Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovered to be had or may make such other order as is just."
However, " the opposing party must show by affidavit precisely what facts are within the exclusive knowledge of the moving [or non-] party and what steps he has taken to attempt to acquire these facts." Dorazio v. M.B. Foster Elec. Co., 157 Conn. 226, 230, 253 A.2d 22 (1968). As explained by Judge Jennings,
A party opposing a summary judgment motion pursuant to [Practice Book § 17-47] on the ground that more time is needed to conduct discovery bears the burden of establishing a valid reason why the motion should be denied or its resolution postponed, including some indication as to what steps that party has taken to secure facts necessary to defeat the motion . . . The trial court has wide discretion under [Practice Book § 17-47] to determine whether the party seeking additional time to conduct discovery already has had a sufficient opportunity to establish facts in opposition to the summary judgment motion, and we will not disturb its exercise of that discretion absent a clear showing of abuse. Weissman v. Koskoff, Koskoff & Bieder, P.C., 136 Conn.App. 557, 559-60, 46 A.3d 943 (2012), citing Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 489, 697 A.2d 680 (1997).Pollack v. Eitelberg, judicial district of Stamford/Norwalk at Stamford, Docket No. CV095011274S, Id. -*12 (November 30, 2012, Jennings, J.).
Consistent with this authority, SSI must explain what steps it has taken to obtain the discovery it seeks in order for the court to determine if it has had sufficient opportunity to establish facts in opposition to the summary judgment motion. SSI has made no such showing. As mentioned above, it did not subpoena Google, although invited to do so in 2014. It has never deposed Sottile. Nor has it shown that the information it purportedly seeks is properly tailored tothe issue at hand. Accordingly, the request for a continuance pursuant to Section 17-47 is denied.
Conclusion
For the reasons set forth above, defendant's motion for summary judgment is granted and judgment shall enter in its favor dismissing this case.