Preview
DOCKET NO. HHD-CV22-5073280-S : SUPERIOR COURT
:
REJEANNE M. BERNIER, ET AL. : JD OF HARTFORD
:
v. : AT HARTFORD
:
TRAVELERS PROPERTY CASUALTY :
INSURANCE COMPANY : SEPTEMBER 16, 2022
DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
I. INTRODUCTION
Defendant, Travelers Property Casualty Insurance Company (“Travelers”), hereby
respectively moves to dismiss the Amended Complaint filed by Plaintiffs, Rejeanne M. Bernier
(“Bernier”) and Hans S. Croteau (“Hans”) (collectively “Plaintiffs”), under the well-settled
doctrine of forum non conveniens. For the past fifteen years, Plaintiffs have filed approximately
twenty-one lawsuits and/or claims against Travelers and various other entities arising out of a 2007
remodel at Plaintiff Bernier’s property located in San Diego, California. Both the District Court
for the Southern District of California and the District Court for the Central District of California
have previously ordered that Plaintiffs are vexatious litigants and have imposed mandatory pre-
filing requirements upon them. In fact, these California courts have ordered Plaintiffs to post
$50,000 bonds each and Plaintiffs have repeatedly failed to do so. Now, Plaintiffs come before
this foreign jurisdiction in a transparent attempt to avoid California’s orders and to continue their
pattern of harassment and abuse of the legal system. For the reasons set forth below, this Court
should dismiss this action in its entirety.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Background Facts
Travelers issued to Plaintiff Bernier a homeowners’ insurance policy for real property
located at 6792 Maury Drive, San Diego, California with effective dates of September 14, 2006 to
September 14, 2007 (“Travelers Policy”). See Policy, attached as Exhibit C to Plaintiffs’
Complaint.
In their Amended Complaint, Plaintiffs allege that, in February 2007, Plaintiff Bernier
“entered into an oral contract with her son, Jessie Croteau, owner of ICS Professional Services
[“ICS] to remodel her property” in San Diego, California (“2007 remodel”). See Amended
Complaint, ¶15. Plaintiffs further allege that, on March 23, 2007, Plaintiff Hans Croteau entered
into a “tripartite oral contract with his brother Jessie and Bernier to provide labor under Jessie on
Bernier’s remodeling project.” Id., ¶16. Plaintiffs allege that, on or about May 25, 2007, “Jessie
removed the main roof from Bernier’s property” and on August 26, 2007, “it rained.” Id., ¶17.
Plaintiffs further allege that they notified Defendant Travelers of damage caused by the rain and
that Travelers “confirmed that the claim, including but not limited to all damage to her building,
was covered by Bernier’s all-risk policy.” Id., ¶18. Plaintiffs allege that “[t]he efficient proximate
cause [of the loss] was [that] the contractor had left [the] house without a roof.” Id., ¶19. Plaintiffs
further allege that non-party Jessie “walked off the job” and “left Bernier’s home without a main
roof, walls, doors, and windows.” Id.
2
A. Plaintiffs’ Twenty-One Prior Lawsuits and/or Claims in California Regarding
2007 Remodel And Rain Damage 1
Since 2007, Plaintiffs collectively have initiated approximately twenty-one lawsuits and/or
claims in California state and federal courts seeking redress for alleged wrongdoings arising out
of the 2007 remodel of Plaintiff Bernier’s home:
1. On October 1, 2007, Plaintiff Bernier sued Jessie and ICS in San Diego Superior
Court for breach of contract/warranty. See Bernier v. Croteau, et al., Case No. 37-2007-76023
(San Diego Sup. Ct.) (“Case No. 76023”); see also Amended Complaint, ¶20;
2. On July 2, 2008, Plaintiff Hans sued Jessie and ICS in San Diego Superior Court
for breach of contract warranty. See Croteau v. Croteau, et al., Case No. 37-2008-87054 (San
Diego Sup. Ct.) (“Case No. 87054”); see also Amended Complaint, ¶24;
3. On January 4, 2010, Plaintiff Bernier sued certain attorneys in San Diego Superior
Court for legal malpractice related to their representation of her in Case No. 76023. See Bernier v.
Curtis Herron, et al., Case No. 37-2010-83059 (San Diego Sup. Ct.) (“Case No. 83059”);
4. On August 12, 2010, Plaintiffs sued Jessie, the State of California, the San Diego
District Attorney’s Office, and others in the United States District Court for the Southern District
of California under 42 U.S.C. § 1983 alleging conspiracy to violate their rights in connection with
1
In deciding a pre-trial motion to dismiss, trial courts may consider supplemental undisputed
evidence established by affidavits or public records of which judicial notice may be taken. See,
e.g., Caron v. Connecticut Pathology Grp., P.C., 187 Conn. App. 555, 563-64 (2019). Each of
Plaintiffs’ own California court filings and the Court’s subsequent orders are matters of public
record of which this Court may take judicial notice.
3
the 2007 remodel. Plaintiffs filed a voluntary notice of dismissal with prejudice. See Bernier, et
al. v. Croteau, et al., No. 3:10-cv-01698 (LAB) (S.D. Cal.);
5. Plaintiffs subsequently appealed the District Court’s order dismissing their 42
U.S.C. § 1983 action. See Bernier v. Croteau, 536 F.App’x 732 (9th Cir. 2013) (vacating the order
because the dismissal should have been without prejudice);
6. On October 29, 2010, Plaintiff Bernier sued Defendant Travelers in San Diego
Superior Court for alleged breach of contract and bad faith handling of the 2007 claim. On January
14, 2011, the matter was removed to the United States District Court for the Southern District of
California. The Court entered summary judgment in favor of Defendant Travelers against Plaintiff
Bernier on the ground that her claims were untimely and barred as a matter of law. See Bernier v.
Travelers Property Casualty Insurance Company, No. 3:11-cv-00078 (JLS-RBB);
7. On May 26, 2011, Jessie and ICS sued Plaintiffs in San Diego Superior Court for
malicious prosecution and defamation based on Plaintiffs’ prosecution of the actions related to the
2007 remodel. Bernier filed a cross-complaint for, among other things, malicious prosecution. See
Croteau, et al. v. Bernier, et al., Case No. 37-2011-91919 (San Diego Sup. Ct.) (“Case No.
91919”); see also Amended Complaint, ¶25. Travelers defended Plaintiffs in Case No. 91919 and,
by way of Settlement Agreement dated December 24, 2012, Travelers, Jessie, and ICS agreed to
settle all claims against Plaintiffs for $325,000. See Confidential Comprehensive Settlement
Agreement and Release of All Claims, attached as Exhibit A to Plaintiffs’ Complaint.
4
8. On August 29, 2011, Plaintiff Bernier sued certain attorneys in San Diego Superior
Court alleging legal malpractice related to their representation of her in Case No. 83059. See
Bernier v. Dearn, Case No. 37-2011-97017 (San Diego Sup. Ct.) (“Case No. 97017”);
9. On August 29, 2011, Plaintiff Bernier sued a subcontractor on the 2007 remodel in
San Diego Superior Court for breach of contract. See Bernier v. Royal Electric, Inc., Case No. 37-
2011-97016 (San Diego Sup. Ct.) (“Case No. 97016”);
10. On December 2, 2011, Plaintiff Bernier sued an attorney in San Diego Superior
Court alleging legal malpractice related to an action filed by South Coast Pool and Plastering.2 See
Bernier v. Freedman, Case No. 37-2011-97681 (San Diego Sup. Ct.) (“Case No. 97681”);
11. On December 2, 2011, Plaintiff Bernier sued certain attorneys in San Diego
Superior Court alleging legal malpractice related to Case No. 91919. See Bernier v. Parker
Stanbury LLP, Case No. 37-2011-101949 (San Diego Sup. Ct.) (“Case No. 101949”);
12. On December 20, 2011, Plaintiff Bernier sued Defendant Travelers and three other
contractors from the 2007 remodel in San Diego Superior Court alleging breach of contract,
negligence, and other claims. Plaintiff Bernier alleged, among other things, that Travelers had
wrongfully denied her 2007 claim for rain damage and thereafter wrongfully refused to renew her
2
On August 6, 2007, South Coast Pool Plastering, Inc. (“South Coast”) filed a malicious
prosecution action against Plaintiff Bernier. See Bernier v. Travelers Prop. Cas. Ins. Co., 2017
WL 5843396, *11 (S.D. Cal. Nov. 29, 2017) (listing Plaintiffs’ cases related to the 2007 remodel).
Therein, South Coast alleged that Plaintiff Bernier had filed a lawsuit against it on March 9, 2007
that Bernier “knew lacked merit and filed for the improper purpose and desire to annoy and wrong
South Coast.” Id. The parties entered into a settlement agreement; however, the Court later found
that Plaintiff Bernier “breached the settlement agreement and . . . entered judgment against Bernier
in the amount of $9,036.45.” Id.
5
insurance policy. See Bernier v. Travelers Property Casualty Ins. Co., Case No. 37-2011-102822
(San Diego Sup. Ct.) (“Case No. 102822”);
13. On September 13, 2012, Plaintiff Bernier filed a Chapter 13 bankruptcy petition in
the United States Bankruptcy Court for the Southern District of California (“Bankruptcy Action”).
Jessie and ICS sought relief from the stay and, in response, Plaintiff Bernier commenced adversary
proceedings against Jessie, ICA, and Travelers for wrongful settlement of Case No. 91919. See In
re Bernier, 12-12593-MM13;
14. In 2012, Plaintiff Bernier commenced additional adversary proceedings against the
attorneys who had filed her bankruptcy petition. She claimed, among other things, that the
attorneys had wrongfully advised her to lose her state court cases. See In re Bernier, supra;
15. On July 22, 2013, Plaintiffs sued Jessie, ICS and Travelers in San Diego Superior
Court for breach of contract and breach of the implied covenant of good faith and fair dealing.
Plaintiffs also sought to set aside the judgment in Case No. 76023 based on fraud. The Court
granted Travelers’ motion to have Plaintiffs declared vexatious litigants, ordered Plaintiffs to each
post $50,000 bond, and entered judgment in favor of Jessie, ICS, and Travelers when Plaintiffs
failed to post the bond. See Bernier, et al. v. Croteau, et al., Case No. 37-2013-58680 (San Diego
Sup. Ct.) (“Case No. 58680”); see also March 3, 2015 Judgment of Dismissal, attached hereto as
Exhibit A. According to Plaintiffs themselves, they filed “writs of review at the State Supreme
and U.S. Supreme Court level” and the United States Supreme Court denied Plaintiffs’ writ of
certiorari on January 19, 2016. See Amended Complaint, ¶¶42-44;
6
16. On April 10, 2014, Plaintiffs sued Jessie and ICS in San Diego Superior Court
alleging that they had breached the settlement contract in Case No. 91919. See Bernier, et al. v.
Croteau, et al., Case No. 37-2014-11015 (San Diego Sup. Ct.) (“Case No. 11015”);
17. On November 19, 2015, Jessie and ICS sued the attorneys who had previously
represented Plaintiffs in Case No. 11015 and Case No. 58680. Plaintiff Hans sought leave to file
an intervenor complaint in this action to raise claims against Defendant Travelers; however, the
Court denied the motion. See Croteau, et al. v. Rosen, et al., Case No. 37-2015-38886 (San Diego
Sup. Ct.) (“Case No. 38886”);
18. On May 18, 2017, Plaintiffs sued Defendant Travelers in the United States District
Court for the Southern District of California alleging breach of contract and breach of the covenant
of good faith and fair dealing. See Bernier, et al. v. Travelers, et al., No. 17-cv-1028-MMA-BLM
(S.D. Cal.). Plaintiffs alleged that Travelers improperly settled Case No. 91919, improperly caused
the dismissal of Case No. 58680; and refused to represent Plaintiffs in Case No. 38886. By Order
dated November 29, 2017, the District Court deemed the Plaintiffs to be vexatious litigants and
ordered that the Clerk may not accept any further complaints filed by the Plaintiffs against
Travelers unless the Plaintiffs first obtain leave of Court. See November 29, 2017 Order, attached
hereto as Exhibit B; see also Bernier v. Travelers Prop. Cas. Ins. Co., 2017 WL 5843396 (S.D.
Cal. Nov. 29, 2017). Moreover, the Court ordered Plaintiffs to each post a $50,000 bond on or
before January 5, 2018 “to be applied toward the fees and costs incurred by Travelers should the
instant lawsuit proceed and Travelers prevail, or to be returned to Plaintiffs should they prevail.”
7
Id. at *19. On January 25, 2018, the Court dismissed the action because Plaintiffs had failed to
post the bond. See Bernier v. Travelers Prop. Cas. Ins. Co., 735 F. App’x 423 (9th Cir. 2018);
19. On February 2, 2018, Plaintiffs appealed the District Court’s order dismissing their
action for failure to post a bond and the Court’s order declaring them to be vexatious litigants. See
735 F. App’x 423. The Ninth Circuit affirmed both orders. Id.
20. On April 5, 2019, Plaintiffs sued Defendant Travelers in the United States District
Court for the Central District of California seeking a judgment that the settlement in Case No.
91919 be declared void ab initio. See Bernier, et al. v. Travelers Property Casualty Insurance
Company, Inc., No. 8:19-cv-00657 (PA-FFM) (C.D. Cal.). On October 1, 2019, the District Court
ordered (1) Plaintiffs are hereby designated vexatious litigants (2) the Clerk may not accept any
further complaint absent leave of Court; and (3) Plaintiffs must each post a $50,000 bond on or
before November 30, 2019 to avoid dismissal of the action. See October 1, 2019 Order, attached
hereto as Exhibit C. See also Bernier v. Travelers Prop. Cas. Ins. Co., Inc., 2019 WL 4859064
(C.D. Cal. Oct. 1, 2019). On December 12, 2019, the District Court dismissed the action for
Plaintiffs’ failure to post bond. See December 12, 2019 Order, attached hereto as Exhibit D;
21. On January 7, 2020, Plaintiffs attempted to sue Ricardo Lara, in his capacity as
California Insurance Commissioner, and the California Department of Insurance. See Bernier, et
al. v. Ricardo Lara, et al., No. 20-cv-00046-MMA-BLM (S.D. Cal.). Because Plaintiffs failed to
follow the mandatory pre-filing requirements, the District Court dismissed Plaintiff’s action. Id.;
see also January 23, 2020 Order, attached hereto as Exhibit E.
8
B. Present Action
Plaintiffs initiated the present action against Travelers in Hartford Superior Court by way
of summons and complaint dated May 23, 2022. See Complaint, generally. Plaintiffs amended
their complaint on July 20, 2022, and the Amended Complaint remains the operative complaint
for purposes of this motion. See Amended Complaint, generally.
In Count One, Plaintiffs allege, among other things, that Travelers breached the terms of
its Policy with Plaintiffs by failing to defend Plaintiff Bernier in Case No. 76023 and for
“[n]egotiating and consummating the unlawful settlement” in Case No. 91919. See Amended
Complaint, ¶71. Plaintiffs claim that, as a result of Travelers’ purported breach, Plaintiffs (1) “paid
to repair the damages Jessie caused to her home which Bernier had not contracted for, (2) paid
attorney’s fees, expert witness fees, Court bonds, costs and fees, and miscellaneous office
expenses, and (3) suffered damages . . ..” Id., ¶ 73. In Count Two, Plaintiffs allege, based on
California Code of Regulations and California caselaw, that Travelers owed Plaintiffs a “fiduciary-
like duty and a special relationship” and that Travelers breached this purported duty during the
settlement of Case No. 91919. Id., ¶¶73-75. In Count Three, Plaintiffs allege that “a duty of good
faith and fair dealing was also implied in the California [Policy]” and that Travelers breached this
purported duty. Id. ¶79-83.
In Count Four, Plaintiffs allege that the settlement in Case No. 91919 is “indemnification
in defiance of California Insurance Code § 533” and request that this Court issue “a declaration
that the settlement .. . is unlawful pursuant to California Insurance Code § 533 and California
9
Civil Code §§ 1608, 1667, and 1668.” Id., ¶¶81-82. Plaintiffs further request that this Court issue
“a declaration of the rights of the parties with respect to the Statement of Decision in [Case No.
76023] underlying Jessie and ICS’ First Malicious prosecution Case that was dismissed pursuant
to the settlement . . . .” Id., ¶83. As support for these requests, Plaintiffs rely on “[t]he public policy
of California,” and California caselaw. See Id., ¶81. Finally, in Count Five, Plaintiffs seek
injunctive relief based on Travelers’ purported “failure to protect Plaintiffs from Jessie’s fraud.”
Id., Count Five at ¶83.
III. LAW AND ARGUMENT
It is well-settled that “[a] defendant may raise the doctrine of forum non conveniens by way
of a motion to dismiss. Whether to grant a motion to dismiss for forum non conveniens is within
this court’s discretion.” (Emphasis added.) Bongo Intern., LLC v. Bernstein, 2013 WL 7020517,
at *4 (Conn. Super. Ct. Dec. 20, 2013). In determining which forum is appropriate, a court “must
walk a delicate line to avoid implicitly sanctioning forum-shopping by either litigant at the expense
of the other.” Sherwood v. Cronin, 2015 WL 3521024, at *6 (Conn. Super. Ct. May 6, 2015).
Moreover, although plaintiffs are ordinarily afforded a “thumb on the scale” in favor of their choice
of forum, where, as here, “the plaintiffs are foreign to their chosen forum, the trial court must
readjust the downward pressure of its thumb, but not remove it altogether.” Durkin v. Intevac, Inc.,
258 Conn. 454, 465 (2001); see also Cooper Cos., Inc. v. Woodbridge Assoc. Ltd. P’ship, 1992
WL 316477, at *2 (Conn. Super. Ct. Oct. 21, 1992) (“Where, as here, a plaintiff is foreign to the
chosen forum, the court should exercise a diminished deference for the plaintiff’s choice of
forum.”).
10
In examining a claim of forum non conveniens, Connecticut courts employ a four step
process outlined in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–509, 67 S.Ct. 839, 91 L.Ed. 1055
(1947), and Pain v. United Technologies Corp., 637 F.2d 775, 784–85 (D.C.Cir.1980), cert.
denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). See also Durkin, supra, 258 Conn.
at 466 (citing Picketts v. International Playtex, Inc., 215 Conn. 490, 497 (1990). First, the court
should determine whether an adequate alternative forum exists that possesses jurisdiction over the
whole case. See Durkin, 258 Conn. at 466. Second, the court should consider all relevant private
interest factors with a strong presumption in favor of—or, in the present case, a weakened
presumption against disturbing—the plaintiffs’ initial choice of forum. Id. Third, if the balance of
private interest factors is equal, the court should consider whether any public interest factors tip
the balance in favor of trying the case in the foreign forum. Id. Finally, if the public interest factors
tip the balance in favor of trying the case in the foreign forum, “the court must . . . ensure that [the]
plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or
prejudice.” Id.
A. California Is An Adequate Alternative Forum
At the beginning of any forum non conveniens inquiry, the court must determine “whether
there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant
is amenable to process in the other jurisdiction.” Sherwood, supra, 2015 WL 3521024 at *7.
Plaintiffs cannot dispute that the state and federal courts in California, including San Diego
Superior Court, the District Court for the Southern District of California, and the District Court for
the Central District of California, are adequate alternative forums or that Travelers is amenable to
11
process there.3 In fact, Plaintiffs’ own previous twenty-one lawsuits and/or claims in these forums
concede this point. As set forth in Section II, supra, Plaintiffs collectively have initiated
approximately twenty-one lawsuits and/or claims in California state and federal courts related to
the 2007 remodel and subsequent litigation and Travelers has, at a minimum, participated in eight
of those matters.
B. The Private Interest Factors Weigh Strongly in Favor of Dismissal
“The relevant private interest factors are: (1) the relative ease of access to sources of proof;
(2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost
of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if
such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative
advantages and obstacles to a fair trial; and (6) all other practical problems that make the trial of a
case easy, expeditious and inexpensive.” Durkin, supra, 258 Conn. at 467. Each of these private
interest factors weigh in favor of dismissing the present action.
The first two private interest factors address the accessibility of evidence in Plaintiffs’
chosen foreign jurisdiction. “The assessment of the relative ease of access to sources of proof and
the availability of witnesses for trial generally requires that the trial court become entangled in the
merits of the underlying dispute.” Id., 467-68 (citing Van Cauwenberghe v. Biard, 486 U.S. 517,
528, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988)). Requiring “extensive investigation”, however,
3
Travelers expressly reserves all rights related to its defenses and claims in connection with any
action brought in or transferred to California or any other venue. Nothing contained herein shall
serve to limit or preclude any defense or claim on behalf of Travelers in an alternative forum.
12
would “defeat the purpose” of a motion to dismiss. Id., 427. Here, there is no evidence regarding
Plaintiffs’ 2007 remodel of her San Diego, California home or the subsequent California litigation
in Connecticut. To the contrary, all evidence is in California, where Plaintiffs themselves chose to
bring twenty-one lawsuits and/or claims for the past fifteen years.4 Moreover, there is no potential
witness to Case No. 76023 or the settlement agreement in Case No. 91919 in Connecticut. By
Plaintiffs’ own admission, witness depositions have previously taken place in the twenty-one
California lawsuits and/or claims. See Amended Complaint, generally. Even if any purported
witness to those California lawsuits were to travel voluntarily to Connecticut, which is highly
unlikely, the associated burden to do so tilts the scale strongly in favor of dismissing this action.
See, e.g., Cooper Cos., Inc., supra, 1992 WL 316477 at *3 (“While the plaintiffs correctly point
out that the distance from Manhattan to New Haven is not great, the time involved in travel can
certainly be considerable, and the fact that some potential witnesses to the transactions are
attorneys will add considerably to the expense of trial here.”) The third and fourth private interest
factors have little to no applicability to the present matter. See Durkin, 258 Conn. at 467; see also
Sherwood, supra, 2015 3521024 at *8 (Where, as here, “a judgment in either state is subject to
domestication in the other, the court regards this as a neutral private interest factor.”)
4
In fact, on September 6, 2022, Plaintiffs submitted a “Public Records Act Request” pursuant to
California Government Code § 6250 seeking “all records and information from the former
California Attorney General about its federal ex parte motion in 2012.” See Public Records
Request Letter, attached hereto as Exhibit F. Plaintiffs addressed this request to “the Former
California Department of Justice” including Vice President Kamala D. Harris, Linda K. Schneider,
and Michael G. German. Id.
13
The fifth factor and sixth private interest factors also weigh strongly in favor of dismissing
this action. See Durkin, 258 Conn. at 467. The fifth factor addresses “the relative advantages and
obstacles to a fair trial,” and the sixth factor addresses “all other practical problems that make the
trial of a case easy, expeditious and inexpensive.” Id. The biggest “practical problem” in this case
is the unnecessary expense and burden of litigating in Connecticut after this matter has already
been litigated for fifteen years in California.
If this Court allows this action to proceed in Connecticut, Travelers will be forced to
relitigate issues that were previously adjudicated by the California courts. As set forth in Travelers’
July 5, 2022 Disclosure of Defense, the allegations in the present lawsuit have previously been
adjudicated in San Diego Superior Court in Bernier v. Croteau, Case No. 58680. There, the Court
determined that Plaintiffs are vexatious litigants and dismissed the action with prejudice due to the
Plaintiffs’ failure to comply with the Court’s order to post $50,000 security each. Under California
law, “[a] dismissal with prejudice ‘is equivalent to a judgment on the merits and as such bars
further litigation on the same subject matter between the parties.” Long Beach Grand Prix Ass’n
v. Hunt, 25 Cal. App. 4th 1195, 1197-98 (1994). Similarly, in Bernier et al. v. Travelers, et al.,
Case No. 17-cv-1028-MMA (BLM), the Southern District of California dismissed Plaintiffs’
action after determining that they are vexatious litigants and based on their failure to post the
mandatory bond. See Bernier v. Travelers Prop. Cas. Ins. Co., 2017 WL 5843396. The Ninth
Circuit affirmed that final judgment. See 735 F. App’x 423.
For each of these reasons, the balance of the private interest factors weighs strongly in
favor of dismissal.
14
C. The Public Interest Factors Weigh In Favor of Dismissal
Although the balance of the private interest strongly favors dismissal and further analysis
is unnecessary, this Court may, alternatively, dismiss this action based on the public interest
factors. These factors include: “(1) administrative difficulties for the courts, i.e., court congestion
and the court’s familiarity with the applicable law; (2) imposing the burden of jury duty on [the]
people of a community with no relation to the litigation; (3) holding trial in the view of interested
persons; and (4) having matters decided in their local forum.” Durkin, supra, 258 Conn. at 462.
Moreover, “[w]hen a state court with little legitimate interest in a matter purports to speak on a
subject of importance to a sister state, the reliability of state law is undermine. . . . The doctrine of
forum non conveniens provides the primary vehicle through which courts apply the doctrine of
comity.” Hamilton Partners, L.P. v. Englard, 11 A.3d 1180 (De. Ch. Ct. 2010).
Here, Connecticut courts, jurors, and members of the community have no appreciable
interest in this California dispute. To be sure, the alleged wrongdoings did not occur in
Connecticut, Plaintiffs are not Connecticut residents, and Connecticut law and public policy do
not apply. By Plaintiffs’ own admissions, the instant action involves application of California law
and California public policy. See Amended Complaint, ¶81.
Accordingly, it appears that Plaintiffs have filed this lawsuit in Connecticut in a transparent
attempt to avoid their status as vexatious litigants and the mandatory pre-filing requirements in the
Southern District of California and the Central District of California. To be sure, as recently as
January 2020, Plaintiffs attempted to file a lawsuit related to the 2007 remodel in the Southern
District of California. When the District Court dismissed that action, Plaintiffs traveled across the
15
country and, for the first time, filed suit in Connecticut. Plaintiffs undoubtedly “can reinstate their
[action] in [California] without undue inconvenience or prejudice[;]” Gulf Oil Corp., supra, 330
U.S. at 508–509; they simply would need to follow the Court’s mandatory pre-filing requirements.
IV. CONCLUSION
WHEREFORE, based on the foregoing, Travelers Property Casualty Insurance Company
hereby respectfully requests that this Court dismiss Plaintiffs’ action in its entirety.
DEFENDANT,
TRAVELERS PROPERTY CASUALTY
INSURANCE COMPANY
By: ___/s/ 435240____
Logan A. Carducci
Usery & Associates
P.O. Box 2996
Hartford, CT 06104-2996
Tel: (917) 778-6680
Juris No.: 435240
Its Attorneys
lcarducc@travelers.com
16
CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was served via U.S. Mail, postage
prepaid and/or served electronically to those that have agreed to accept electronic service under
Practice Book §10-13, this 16th day of September, 2022 to the following counsel of record and/or
pro se parties:
Rejeanne M. Bernier
6792 Maury Drive
San Diego, CA 92119
hanscroteau@hotmail.com
Hans S. Croteau
6792 Maury Drive
San Diego, CA 92119
hanscroteau@hotmail.com
/s/435240 ___
Logan A. Carducci
17
EXHIBIT A
EXHIBIT B
Case 3:17-cv-01028-MMA-BLM Document 12 Filed 11/29/17 PageID.2489 Page 1 of 37
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 REJEANNE BERNIER and HANS Case No.: 17cv1028-MMA (BLM)
CROTEAU,
12
Plaintiffs, ORDER:
13
v. GRANTING IN PART AND
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DENYING IN PART DEFENDANT'S
TRAVELERS PROPERTY CASUALTY
15 MOTION TO DISMISS; AND
INSURANCE COMPANY, et al.,
16 Defendants. [Doc. No. 3]
17
GRANTING DEFENDANT’S
18
MOTION RE: VEXATIOUS
19 LITIGANTS
20
[Doc. No. 4]
21
22 On May 18, 2017, Plaintiffs Rejeanne Bernier (“Bernier”) and Hans Croteau
23 (“Hans”), proceeding pro se, commenced this action by filing a complaint for breach of
24 contract and breach of the covenant of good faith and fair dealing. Doc. No. 1
25 (“Compl.”). The matters presently before the Court are Defendant Travelers Property
26 Casualty Insurance Company’s (“Travelers”) “Motion to Dismiss Under FRCP 12(b)(6)”
27 [Doc. No. 3-1 (“MTD”)], and “Motion to Require Vexatious Litigant Plaintiffs to Obtain
28 Court’s Permission for Further Filing or Post Security” [Doc. No. 4-1 (“Vex. Mtn”)].
1
17cv1028-MMA (BLM)
Case 3:17-cv-01028-MMA-BLM Document 12 Filed 11/29/17 PageID.2490 Page 2 of 37
1 Plaintiffs opposed both motions [Doc. No. 9 (“MTD Oppo.”); Doc. No. 7 (“Vex.
2 Oppo.”)], and Travelers replied [Doc. No. 8 (“MTD Reply”); Doc. No. 10 (“Vex.
3 Reply”)]. The Court took the matters under submission on the papers and without oral
4 argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 11. For the reasons stated
5 herein, the Court GRANTS IN PART AND DENIES IN PART Travelers’ motion to
6 dismiss [Doc. No. 3] and GRANTS Travelers’ motion re: vexatious litigants [Doc. No.
7 4].
8 JUDICIAL NOTICE
9 Travelers requests the Court judicially notice 57 documents in support of its
10 vexatious litigant motion and 7 documents in support of its motion to dismiss. See Doc.
11 Nos. 4-3 (“Requests for Judicial Notice”), 3-2. All 7 of the documents in support of the
12 motion to dismiss and 56 of the documents in support of the vexatious litigant motion are
13 court filings. See Requests for Judicial Notice, Exhibits 1-55; Doc No. 3-2, Exhibits 1-7.
14 The remaining documents include a settlement agreement for case no. 37-2011-00091919
15 (“case 91919”) between Jessie Croteau (“Jessie”), ICS Professional Services, Inc.
16 (“ICS”), and Travelers, and correspondence from Hans and Bernier regarding the
17 proposed settlement of case 91919 and demand to act pro se. Requests for Judicial
18 Notice, Exhibits 56-57. Plaintiffs also request the Court judicially notice 30 documents
19 in support of their opposition to the motion to dismiss, which also consists of court
20 filings. See Doc. Nos. 7 at 33-38.
21 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not
22 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903,
23 908 (9th Cir. 2003). “A court may, however, consider certain materials—documents
24 attached to the complaint, documents incorporated by reference in the complaint, or
25 matters of judicial notice—without converting the motion to dismiss into a motion for
26 summary judgment.” Id.; see also Fed. R. Evid. 201; Lee v. City of Los Angeles, 250
27 F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa
28 Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002). “[E]ven if a document is not attached to
2
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1 a complaint, it may be incorporated by reference into a complaint if the plaintiff refers
2 extensively to the document or the document forms the basis of the plaintiff’s claim.”
3 Ritchie, 342 F.3d at 908 (internal citations omitted). A court “may consider a document
4 the authenticity of which is not contested, and upon which the plaintiff’s complaint
5 necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded
6 by statute on other grounds in Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006);
7 Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The Court may also judicially
8 notice court filings in other tribunals and other matters of public record. Fed. R. Evid.
9 201; Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006);
10 Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir. 2003).
11 The complaint relies on and references the settlement agreement in case 91919
12 (Requests for Judicial Notice, Exhibit 56) and Plaintiffs’ correspondence demanding they
13 be permitted to act pro se (Requests for Judicial notice, Exhibit 57). Therefore, they are
14 appropriate for incorporation by reference. See Davis v. HSBC Bank Nevada, N.A., 691
15 F.3d 1152, 1159-61 (9th Cir. 2012). Additionally, the court filings are appropriate for
16 judicial notice. See Reyn’s Pasta Bella, LLC, 442 F.3d at 746 n.6; Biggs, 334 F.3d at 916
17 n.3. However, Travelers requests that the Court judicially notice some of the documents
18 in both its request in support of the vexatious litigant motion and its request in support of
19 the motion to dismiss. Additionally, Plaintiffs request the Court judicially notice some of
20 the same documents as Travelers. Further, Plaintiffs do not attach Exhibits 23 through 30
21 to either of their oppositions.
22 As such, the Court GRANTS Travelers’ request to judicially notice Exhibits 1-12,
23 14, and 16-57 attached in support of Travelers’ vexatious litigant motion and Exhibits 2,
24 4, and 7 attached in support of Travelers’ motion to dismiss, and DENIES AS MOOT
25 Exhibits 13 and 15 attached in support of Travelers’ vexatious litigant motion and
26 Exhibits 1, 3, and 5-6 attached in support of Travelers’ motion to dismiss. Additionally,
27 the Court GRANTS Plaintiffs’ request to judicially notice Exhibits 2-5, 7-8, 11-12, 15-
28
3
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1 19, and 21-22, DENIES AS MOOT Exhibits 1, 6, 9-10, 13-14, and 20, and DENIES
2 Exhibits 23-30.
3 MOTION TO DISMISS
4 Travelers moves to dismiss portions of
Preview
DOCKET NO. HHD-CV22-5073280-S : SUPERIOR COURT : REJEANNE M. BERNIER, ET AL. : JD OF HARTFORD : v. : AT HARTFORD : TRAVELERS PROPERTY CASUALTY : INSURANCE COMPANY : SEPTEMBER 16, 2022 DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS I. INTRODUCTION Defendant, Travelers Property Casualty Insurance Company (“Travelers”), hereby respectively moves to dismiss the Amended Complaint filed by Plaintiffs, Rejeanne M. Bernier (“Bernier”) and Hans S. Croteau (“Hans”) (collectively “Plaintiffs”), under the well-settled doctrine of forum non conveniens. For the past fifteen years, Plaintiffs have filed approximately twenty-one lawsuits and/or claims against Travelers and various other entities arising out of a 2007 remodel at Plaintiff Bernier’s property located in San Diego, California. Both the District Court for the Southern District of California and the District Court for the Central District of California have previously ordered that Plaintiffs are vexatious litigants and have imposed mandatory pre- filing requirements upon them. In fact, these California courts have ordered Plaintiffs to post $50,000 bonds each and Plaintiffs have repeatedly failed to do so. Now, Plaintiffs come before this foreign jurisdiction in a transparent attempt to avoid California’s orders and to continue their pattern of harassment and abuse of the legal system. For the reasons set forth below, this Court should dismiss this action in its entirety. II. FACTUAL AND PROCEDURAL BACKGROUND A. Background Facts Travelers issued to Plaintiff Bernier a homeowners’ insurance policy for real property located at 6792 Maury Drive, San Diego, California with effective dates of September 14, 2006 to September 14, 2007 (“Travelers Policy”). See Policy, attached as Exhibit C to Plaintiffs’ Complaint. In their Amended Complaint, Plaintiffs allege that, in February 2007, Plaintiff Bernier “entered into an oral contract with her son, Jessie Croteau, owner of ICS Professional Services [“ICS] to remodel her property” in San Diego, California (“2007 remodel”). See Amended Complaint, ¶15. Plaintiffs further allege that, on March 23, 2007, Plaintiff Hans Croteau entered into a “tripartite oral contract with his brother Jessie and Bernier to provide labor under Jessie on Bernier’s remodeling project.” Id., ¶16. Plaintiffs allege that, on or about May 25, 2007, “Jessie removed the main roof from Bernier’s property” and on August 26, 2007, “it rained.” Id., ¶17. Plaintiffs further allege that they notified Defendant Travelers of damage caused by the rain and that Travelers “confirmed that the claim, including but not limited to all damage to her building, was covered by Bernier’s all-risk policy.” Id., ¶18. Plaintiffs allege that “[t]he efficient proximate cause [of the loss] was [that] the contractor had left [the] house without a roof.” Id., ¶19. Plaintiffs further allege that non-party Jessie “walked off the job” and “left Bernier’s home without a main roof, walls, doors, and windows.” Id. 2 A. Plaintiffs’ Twenty-One Prior Lawsuits and/or Claims in California Regarding 2007 Remodel And Rain Damage 1 Since 2007, Plaintiffs collectively have initiated approximately twenty-one lawsuits and/or claims in California state and federal courts seeking redress for alleged wrongdoings arising out of the 2007 remodel of Plaintiff Bernier’s home: 1. On October 1, 2007, Plaintiff Bernier sued Jessie and ICS in San Diego Superior Court for breach of contract/warranty. See Bernier v. Croteau, et al., Case No. 37-2007-76023 (San Diego Sup. Ct.) (“Case No. 76023”); see also Amended Complaint, ¶20; 2. On July 2, 2008, Plaintiff Hans sued Jessie and ICS in San Diego Superior Court for breach of contract warranty. See Croteau v. Croteau, et al., Case No. 37-2008-87054 (San Diego Sup. Ct.) (“Case No. 87054”); see also Amended Complaint, ¶24; 3. On January 4, 2010, Plaintiff Bernier sued certain attorneys in San Diego Superior Court for legal malpractice related to their representation of her in Case No. 76023. See Bernier v. Curtis Herron, et al., Case No. 37-2010-83059 (San Diego Sup. Ct.) (“Case No. 83059”); 4. On August 12, 2010, Plaintiffs sued Jessie, the State of California, the San Diego District Attorney’s Office, and others in the United States District Court for the Southern District of California under 42 U.S.C. § 1983 alleging conspiracy to violate their rights in connection with 1 In deciding a pre-trial motion to dismiss, trial courts may consider supplemental undisputed evidence established by affidavits or public records of which judicial notice may be taken. See, e.g., Caron v. Connecticut Pathology Grp., P.C., 187 Conn. App. 555, 563-64 (2019). Each of Plaintiffs’ own California court filings and the Court’s subsequent orders are matters of public record of which this Court may take judicial notice. 3 the 2007 remodel. Plaintiffs filed a voluntary notice of dismissal with prejudice. See Bernier, et al. v. Croteau, et al., No. 3:10-cv-01698 (LAB) (S.D. Cal.); 5. Plaintiffs subsequently appealed the District Court’s order dismissing their 42 U.S.C. § 1983 action. See Bernier v. Croteau, 536 F.App’x 732 (9th Cir. 2013) (vacating the order because the dismissal should have been without prejudice); 6. On October 29, 2010, Plaintiff Bernier sued Defendant Travelers in San Diego Superior Court for alleged breach of contract and bad faith handling of the 2007 claim. On January 14, 2011, the matter was removed to the United States District Court for the Southern District of California. The Court entered summary judgment in favor of Defendant Travelers against Plaintiff Bernier on the ground that her claims were untimely and barred as a matter of law. See Bernier v. Travelers Property Casualty Insurance Company, No. 3:11-cv-00078 (JLS-RBB); 7. On May 26, 2011, Jessie and ICS sued Plaintiffs in San Diego Superior Court for malicious prosecution and defamation based on Plaintiffs’ prosecution of the actions related to the 2007 remodel. Bernier filed a cross-complaint for, among other things, malicious prosecution. See Croteau, et al. v. Bernier, et al., Case No. 37-2011-91919 (San Diego Sup. Ct.) (“Case No. 91919”); see also Amended Complaint, ¶25. Travelers defended Plaintiffs in Case No. 91919 and, by way of Settlement Agreement dated December 24, 2012, Travelers, Jessie, and ICS agreed to settle all claims against Plaintiffs for $325,000. See Confidential Comprehensive Settlement Agreement and Release of All Claims, attached as Exhibit A to Plaintiffs’ Complaint. 4 8. On August 29, 2011, Plaintiff Bernier sued certain attorneys in San Diego Superior Court alleging legal malpractice related to their representation of her in Case No. 83059. See Bernier v. Dearn, Case No. 37-2011-97017 (San Diego Sup. Ct.) (“Case No. 97017”); 9. On August 29, 2011, Plaintiff Bernier sued a subcontractor on the 2007 remodel in San Diego Superior Court for breach of contract. See Bernier v. Royal Electric, Inc., Case No. 37- 2011-97016 (San Diego Sup. Ct.) (“Case No. 97016”); 10. On December 2, 2011, Plaintiff Bernier sued an attorney in San Diego Superior Court alleging legal malpractice related to an action filed by South Coast Pool and Plastering.2 See Bernier v. Freedman, Case No. 37-2011-97681 (San Diego Sup. Ct.) (“Case No. 97681”); 11. On December 2, 2011, Plaintiff Bernier sued certain attorneys in San Diego Superior Court alleging legal malpractice related to Case No. 91919. See Bernier v. Parker Stanbury LLP, Case No. 37-2011-101949 (San Diego Sup. Ct.) (“Case No. 101949”); 12. On December 20, 2011, Plaintiff Bernier sued Defendant Travelers and three other contractors from the 2007 remodel in San Diego Superior Court alleging breach of contract, negligence, and other claims. Plaintiff Bernier alleged, among other things, that Travelers had wrongfully denied her 2007 claim for rain damage and thereafter wrongfully refused to renew her 2 On August 6, 2007, South Coast Pool Plastering, Inc. (“South Coast”) filed a malicious prosecution action against Plaintiff Bernier. See Bernier v. Travelers Prop. Cas. Ins. Co., 2017 WL 5843396, *11 (S.D. Cal. Nov. 29, 2017) (listing Plaintiffs’ cases related to the 2007 remodel). Therein, South Coast alleged that Plaintiff Bernier had filed a lawsuit against it on March 9, 2007 that Bernier “knew lacked merit and filed for the improper purpose and desire to annoy and wrong South Coast.” Id. The parties entered into a settlement agreement; however, the Court later found that Plaintiff Bernier “breached the settlement agreement and . . . entered judgment against Bernier in the amount of $9,036.45.” Id. 5 insurance policy. See Bernier v. Travelers Property Casualty Ins. Co., Case No. 37-2011-102822 (San Diego Sup. Ct.) (“Case No. 102822”); 13. On September 13, 2012, Plaintiff Bernier filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Southern District of California (“Bankruptcy Action”). Jessie and ICS sought relief from the stay and, in response, Plaintiff Bernier commenced adversary proceedings against Jessie, ICA, and Travelers for wrongful settlement of Case No. 91919. See In re Bernier, 12-12593-MM13; 14. In 2012, Plaintiff Bernier commenced additional adversary proceedings against the attorneys who had filed her bankruptcy petition. She claimed, among other things, that the attorneys had wrongfully advised her to lose her state court cases. See In re Bernier, supra; 15. On July 22, 2013, Plaintiffs sued Jessie, ICS and Travelers in San Diego Superior Court for breach of contract and breach of the implied covenant of good faith and fair dealing. Plaintiffs also sought to set aside the judgment in Case No. 76023 based on fraud. The Court granted Travelers’ motion to have Plaintiffs declared vexatious litigants, ordered Plaintiffs to each post $50,000 bond, and entered judgment in favor of Jessie, ICS, and Travelers when Plaintiffs failed to post the bond. See Bernier, et al. v. Croteau, et al., Case No. 37-2013-58680 (San Diego Sup. Ct.) (“Case No. 58680”); see also March 3, 2015 Judgment of Dismissal, attached hereto as Exhibit A. According to Plaintiffs themselves, they filed “writs of review at the State Supreme and U.S. Supreme Court level” and the United States Supreme Court denied Plaintiffs’ writ of certiorari on January 19, 2016. See Amended Complaint, ¶¶42-44; 6 16. On April 10, 2014, Plaintiffs sued Jessie and ICS in San Diego Superior Court alleging that they had breached the settlement contract in Case No. 91919. See Bernier, et al. v. Croteau, et al., Case No. 37-2014-11015 (San Diego Sup. Ct.) (“Case No. 11015”); 17. On November 19, 2015, Jessie and ICS sued the attorneys who had previously represented Plaintiffs in Case No. 11015 and Case No. 58680. Plaintiff Hans sought leave to file an intervenor complaint in this action to raise claims against Defendant Travelers; however, the Court denied the motion. See Croteau, et al. v. Rosen, et al., Case No. 37-2015-38886 (San Diego Sup. Ct.) (“Case No. 38886”); 18. On May 18, 2017, Plaintiffs sued Defendant Travelers in the United States District Court for the Southern District of California alleging breach of contract and breach of the covenant of good faith and fair dealing. See Bernier, et al. v. Travelers, et al., No. 17-cv-1028-MMA-BLM (S.D. Cal.). Plaintiffs alleged that Travelers improperly settled Case No. 91919, improperly caused the dismissal of Case No. 58680; and refused to represent Plaintiffs in Case No. 38886. By Order dated November 29, 2017, the District Court deemed the Plaintiffs to be vexatious litigants and ordered that the Clerk may not accept any further complaints filed by the Plaintiffs against Travelers unless the Plaintiffs first obtain leave of Court. See November 29, 2017 Order, attached hereto as Exhibit B; see also Bernier v. Travelers Prop. Cas. Ins. Co., 2017 WL 5843396 (S.D. Cal. Nov. 29, 2017). Moreover, the Court ordered Plaintiffs to each post a $50,000 bond on or before January 5, 2018 “to be applied toward the fees and costs incurred by Travelers should the instant lawsuit proceed and Travelers prevail, or to be returned to Plaintiffs should they prevail.” 7 Id. at *19. On January 25, 2018, the Court dismissed the action because Plaintiffs had failed to post the bond. See Bernier v. Travelers Prop. Cas. Ins. Co., 735 F. App’x 423 (9th Cir. 2018); 19. On February 2, 2018, Plaintiffs appealed the District Court’s order dismissing their action for failure to post a bond and the Court’s order declaring them to be vexatious litigants. See 735 F. App’x 423. The Ninth Circuit affirmed both orders. Id. 20. On April 5, 2019, Plaintiffs sued Defendant Travelers in the United States District Court for the Central District of California seeking a judgment that the settlement in Case No. 91919 be declared void ab initio. See Bernier, et al. v. Travelers Property Casualty Insurance Company, Inc., No. 8:19-cv-00657 (PA-FFM) (C.D. Cal.). On October 1, 2019, the District Court ordered (1) Plaintiffs are hereby designated vexatious litigants (2) the Clerk may not accept any further complaint absent leave of Court; and (3) Plaintiffs must each post a $50,000 bond on or before November 30, 2019 to avoid dismissal of the action. See October 1, 2019 Order, attached hereto as Exhibit C. See also Bernier v. Travelers Prop. Cas. Ins. Co., Inc., 2019 WL 4859064 (C.D. Cal. Oct. 1, 2019). On December 12, 2019, the District Court dismissed the action for Plaintiffs’ failure to post bond. See December 12, 2019 Order, attached hereto as Exhibit D; 21. On January 7, 2020, Plaintiffs attempted to sue Ricardo Lara, in his capacity as California Insurance Commissioner, and the California Department of Insurance. See Bernier, et al. v. Ricardo Lara, et al., No. 20-cv-00046-MMA-BLM (S.D. Cal.). Because Plaintiffs failed to follow the mandatory pre-filing requirements, the District Court dismissed Plaintiff’s action. Id.; see also January 23, 2020 Order, attached hereto as Exhibit E. 8 B. Present Action Plaintiffs initiated the present action against Travelers in Hartford Superior Court by way of summons and complaint dated May 23, 2022. See Complaint, generally. Plaintiffs amended their complaint on July 20, 2022, and the Amended Complaint remains the operative complaint for purposes of this motion. See Amended Complaint, generally. In Count One, Plaintiffs allege, among other things, that Travelers breached the terms of its Policy with Plaintiffs by failing to defend Plaintiff Bernier in Case No. 76023 and for “[n]egotiating and consummating the unlawful settlement” in Case No. 91919. See Amended Complaint, ¶71. Plaintiffs claim that, as a result of Travelers’ purported breach, Plaintiffs (1) “paid to repair the damages Jessie caused to her home which Bernier had not contracted for, (2) paid attorney’s fees, expert witness fees, Court bonds, costs and fees, and miscellaneous office expenses, and (3) suffered damages . . ..” Id., ¶ 73. In Count Two, Plaintiffs allege, based on California Code of Regulations and California caselaw, that Travelers owed Plaintiffs a “fiduciary- like duty and a special relationship” and that Travelers breached this purported duty during the settlement of Case No. 91919. Id., ¶¶73-75. In Count Three, Plaintiffs allege that “a duty of good faith and fair dealing was also implied in the California [Policy]” and that Travelers breached this purported duty. Id. ¶79-83. In Count Four, Plaintiffs allege that the settlement in Case No. 91919 is “indemnification in defiance of California Insurance Code § 533” and request that this Court issue “a declaration that the settlement .. . is unlawful pursuant to California Insurance Code § 533 and California 9 Civil Code §§ 1608, 1667, and 1668.” Id., ¶¶81-82. Plaintiffs further request that this Court issue “a declaration of the rights of the parties with respect to the Statement of Decision in [Case No. 76023] underlying Jessie and ICS’ First Malicious prosecution Case that was dismissed pursuant to the settlement . . . .” Id., ¶83. As support for these requests, Plaintiffs rely on “[t]he public policy of California,” and California caselaw. See Id., ¶81. Finally, in Count Five, Plaintiffs seek injunctive relief based on Travelers’ purported “failure to protect Plaintiffs from Jessie’s fraud.” Id., Count Five at ¶83. III. LAW AND ARGUMENT It is well-settled that “[a] defendant may raise the doctrine of forum non conveniens by way of a motion to dismiss. Whether to grant a motion to dismiss for forum non conveniens is within this court’s discretion.” (Emphasis added.) Bongo Intern., LLC v. Bernstein, 2013 WL 7020517, at *4 (Conn. Super. Ct. Dec. 20, 2013). In determining which forum is appropriate, a court “must walk a delicate line to avoid implicitly sanctioning forum-shopping by either litigant at the expense of the other.” Sherwood v. Cronin, 2015 WL 3521024, at *6 (Conn. Super. Ct. May 6, 2015). Moreover, although plaintiffs are ordinarily afforded a “thumb on the scale” in favor of their choice of forum, where, as here, “the plaintiffs are foreign to their chosen forum, the trial court must readjust the downward pressure of its thumb, but not remove it altogether.” Durkin v. Intevac, Inc., 258 Conn. 454, 465 (2001); see also Cooper Cos., Inc. v. Woodbridge Assoc. Ltd. P’ship, 1992 WL 316477, at *2 (Conn. Super. Ct. Oct. 21, 1992) (“Where, as here, a plaintiff is foreign to the chosen forum, the court should exercise a diminished deference for the plaintiff’s choice of forum.”). 10 In examining a claim of forum non conveniens, Connecticut courts employ a four step process outlined in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Pain v. United Technologies Corp., 637 F.2d 775, 784–85 (D.C.Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). See also Durkin, supra, 258 Conn. at 466 (citing Picketts v. International Playtex, Inc., 215 Conn. 490, 497 (1990). First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case. See Durkin, 258 Conn. at 466. Second, the court should consider all relevant private interest factors with a strong presumption in favor of—or, in the present case, a weakened presumption against disturbing—the plaintiffs’ initial choice of forum. Id. Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum. Id. Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, “the court must . . . ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice.” Id. A. California Is An Adequate Alternative Forum At the beginning of any forum non conveniens inquiry, the court must determine “whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is amenable to process in the other jurisdiction.” Sherwood, supra, 2015 WL 3521024 at *7. Plaintiffs cannot dispute that the state and federal courts in California, including San Diego Superior Court, the District Court for the Southern District of California, and the District Court for the Central District of California, are adequate alternative forums or that Travelers is amenable to 11 process there.3 In fact, Plaintiffs’ own previous twenty-one lawsuits and/or claims in these forums concede this point. As set forth in Section II, supra, Plaintiffs collectively have initiated approximately twenty-one lawsuits and/or claims in California state and federal courts related to the 2007 remodel and subsequent litigation and Travelers has, at a minimum, participated in eight of those matters. B. The Private Interest Factors Weigh Strongly in Favor of Dismissal “The relevant private interest factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to a fair trial; and (6) all other practical problems that make the trial of a case easy, expeditious and inexpensive.” Durkin, supra, 258 Conn. at 467. Each of these private interest factors weigh in favor of dismissing the present action. The first two private interest factors address the accessibility of evidence in Plaintiffs’ chosen foreign jurisdiction. “The assessment of the relative ease of access to sources of proof and the availability of witnesses for trial generally requires that the trial court become entangled in the merits of the underlying dispute.” Id., 467-68 (citing Van Cauwenberghe v. Biard, 486 U.S. 517, 528, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988)). Requiring “extensive investigation”, however, 3 Travelers expressly reserves all rights related to its defenses and claims in connection with any action brought in or transferred to California or any other venue. Nothing contained herein shall serve to limit or preclude any defense or claim on behalf of Travelers in an alternative forum. 12 would “defeat the purpose” of a motion to dismiss. Id., 427. Here, there is no evidence regarding Plaintiffs’ 2007 remodel of her San Diego, California home or the subsequent California litigation in Connecticut. To the contrary, all evidence is in California, where Plaintiffs themselves chose to bring twenty-one lawsuits and/or claims for the past fifteen years.4 Moreover, there is no potential witness to Case No. 76023 or the settlement agreement in Case No. 91919 in Connecticut. By Plaintiffs’ own admission, witness depositions have previously taken place in the twenty-one California lawsuits and/or claims. See Amended Complaint, generally. Even if any purported witness to those California lawsuits were to travel voluntarily to Connecticut, which is highly unlikely, the associated burden to do so tilts the scale strongly in favor of dismissing this action. See, e.g., Cooper Cos., Inc., supra, 1992 WL 316477 at *3 (“While the plaintiffs correctly point out that the distance from Manhattan to New Haven is not great, the time involved in travel can certainly be considerable, and the fact that some potential witnesses to the transactions are attorneys will add considerably to the expense of trial here.”) The third and fourth private interest factors have little to no applicability to the present matter. See Durkin, 258 Conn. at 467; see also Sherwood, supra, 2015 3521024 at *8 (Where, as here, “a judgment in either state is subject to domestication in the other, the court regards this as a neutral private interest factor.”) 4 In fact, on September 6, 2022, Plaintiffs submitted a “Public Records Act Request” pursuant to California Government Code § 6250 seeking “all records and information from the former California Attorney General about its federal ex parte motion in 2012.” See Public Records Request Letter, attached hereto as Exhibit F. Plaintiffs addressed this request to “the Former California Department of Justice” including Vice President Kamala D. Harris, Linda K. Schneider, and Michael G. German. Id. 13 The fifth factor and sixth private interest factors also weigh strongly in favor of dismissing this action. See Durkin, 258 Conn. at 467. The fifth factor addresses “the relative advantages and obstacles to a fair trial,” and the sixth factor addresses “all other practical problems that make the trial of a case easy, expeditious and inexpensive.” Id. The biggest “practical problem” in this case is the unnecessary expense and burden of litigating in Connecticut after this matter has already been litigated for fifteen years in California. If this Court allows this action to proceed in Connecticut, Travelers will be forced to relitigate issues that were previously adjudicated by the California courts. As set forth in Travelers’ July 5, 2022 Disclosure of Defense, the allegations in the present lawsuit have previously been adjudicated in San Diego Superior Court in Bernier v. Croteau, Case No. 58680. There, the Court determined that Plaintiffs are vexatious litigants and dismissed the action with prejudice due to the Plaintiffs’ failure to comply with the Court’s order to post $50,000 security each. Under California law, “[a] dismissal with prejudice ‘is equivalent to a judgment on the merits and as such bars further litigation on the same subject matter between the parties.” Long Beach Grand Prix Ass’n v. Hunt, 25 Cal. App. 4th 1195, 1197-98 (1994). Similarly, in Bernier et al. v. Travelers, et al., Case No. 17-cv-1028-MMA (BLM), the Southern District of California dismissed Plaintiffs’ action after determining that they are vexatious litigants and based on their failure to post the mandatory bond. See Bernier v. Travelers Prop. Cas. Ins. Co., 2017 WL 5843396. The Ninth Circuit affirmed that final judgment. See 735 F. App’x 423. For each of these reasons, the balance of the private interest factors weighs strongly in favor of dismissal. 14 C. The Public Interest Factors Weigh In Favor of Dismissal Although the balance of the private interest strongly favors dismissal and further analysis is unnecessary, this Court may, alternatively, dismiss this action based on the public interest factors. These factors include: “(1) administrative difficulties for the courts, i.e., court congestion and the court’s familiarity with the applicable law; (2) imposing the burden of jury duty on [the] people of a community with no relation to the litigation; (3) holding trial in the view of interested persons; and (4) having matters decided in their local forum.” Durkin, supra, 258 Conn. at 462. Moreover, “[w]hen a state court with little legitimate interest in a matter purports to speak on a subject of importance to a sister state, the reliability of state law is undermine. . . . The doctrine of forum non conveniens provides the primary vehicle through which courts apply the doctrine of comity.” Hamilton Partners, L.P. v. Englard, 11 A.3d 1180 (De. Ch. Ct. 2010). Here, Connecticut courts, jurors, and members of the community have no appreciable interest in this California dispute. To be sure, the alleged wrongdoings did not occur in Connecticut, Plaintiffs are not Connecticut residents, and Connecticut law and public policy do not apply. By Plaintiffs’ own admissions, the instant action involves application of California law and California public policy. See Amended Complaint, ¶81. Accordingly, it appears that Plaintiffs have filed this lawsuit in Connecticut in a transparent attempt to avoid their status as vexatious litigants and the mandatory pre-filing requirements in the Southern District of California and the Central District of California. To be sure, as recently as January 2020, Plaintiffs attempted to file a lawsuit related to the 2007 remodel in the Southern District of California. When the District Court dismissed that action, Plaintiffs traveled across the 15 country and, for the first time, filed suit in Connecticut. Plaintiffs undoubtedly “can reinstate their [action] in [California] without undue inconvenience or prejudice[;]” Gulf Oil Corp., supra, 330 U.S. at 508–509; they simply would need to follow the Court’s mandatory pre-filing requirements. IV. CONCLUSION WHEREFORE, based on the foregoing, Travelers Property Casualty Insurance Company hereby respectfully requests that this Court dismiss Plaintiffs’ action in its entirety. DEFENDANT, TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY By: ___/s/ 435240____ Logan A. Carducci Usery & Associates P.O. Box 2996 Hartford, CT 06104-2996 Tel: (917) 778-6680 Juris No.: 435240 Its Attorneys lcarducc@travelers.com 16 CERTIFICATION THIS IS TO CERTIFY THAT a copy of the foregoing was served via U.S. Mail, postage prepaid and/or served electronically to those that have agreed to accept electronic service under Practice Book §10-13, this 16th day of September, 2022 to the following counsel of record and/or pro se parties: Rejeanne M. Bernier 6792 Maury Drive San Diego, CA 92119 hanscroteau@hotmail.com Hans S. Croteau 6792 Maury Drive San Diego, CA 92119 hanscroteau@hotmail.com /s/435240 ___ Logan A. Carducci 17 EXHIBIT A EXHIBIT B Case 3:17-cv-01028-MMA-BLM Document 12 Filed 11/29/17 PageID.2489 Page 1 of 37 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REJEANNE BERNIER and HANS Case No.: 17cv1028-MMA (BLM) CROTEAU, 12 Plaintiffs, ORDER: 13 v. GRANTING IN PART AND 14 DENYING IN PART DEFENDANT'S TRAVELERS PROPERTY CASUALTY 15 MOTION TO DISMISS; AND INSURANCE COMPANY, et al., 16 Defendants. [Doc. No. 3] 17 GRANTING DEFENDANT’S 18 MOTION RE: VEXATIOUS 19 LITIGANTS 20 [Doc. No. 4] 21 22 On May 18, 2017, Plaintiffs Rejeanne Bernier (“Bernier”) and Hans Croteau 23 (“Hans”), proceeding pro se, commenced this action by filing a complaint for breach of 24 contract and breach of the covenant of good faith and fair dealing. Doc. No. 1 25 (“Compl.”). The matters presently before the Court are Defendant Travelers Property 26 Casualty Insurance Company’s (“Travelers”) “Motion to Dismiss Under FRCP 12(b)(6)” 27 [Doc. No. 3-1 (“MTD”)], and “Motion to Require Vexatious Litigant Plaintiffs to Obtain 28 Court’s Permission for Further Filing or Post Security” [Doc. No. 4-1 (“Vex. Mtn”)]. 1 17cv1028-MMA (BLM) Case 3:17-cv-01028-MMA-BLM Document 12 Filed 11/29/17 PageID.2490 Page 2 of 37 1 Plaintiffs opposed both motions [Doc. No. 9 (“MTD Oppo.”); Doc. No. 7 (“Vex. 2 Oppo.”)], and Travelers replied [Doc. No. 8 (“MTD Reply”); Doc. No. 10 (“Vex. 3 Reply”)]. The Court took the matters under submission on the papers and without oral 4 argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 11. For the reasons stated 5 herein, the Court GRANTS IN PART AND DENIES IN PART Travelers’ motion to 6 dismiss [Doc. No. 3] and GRANTS Travelers’ motion re: vexatious litigants [Doc. No. 7 4]. 8 JUDICIAL NOTICE 9 Travelers requests the Court judicially notice 57 documents in support of its 10 vexatious litigant motion and 7 documents in support of its motion to dismiss. See Doc. 11 Nos. 4-3 (“Requests for Judicial Notice”), 3-2. All 7 of the documents in support of the 12 motion to dismiss and 56 of the documents in support of the vexatious litigant motion are 13 court filings. See Requests for Judicial Notice, Exhibits 1-55; Doc No. 3-2, Exhibits 1-7. 14 The remaining documents include a settlement agreement for case no. 37-2011-00091919 15 (“case 91919”) between Jessie Croteau (“Jessie”), ICS Professional Services, Inc. 16 (“ICS”), and Travelers, and correspondence from Hans and Bernier regarding the 17 proposed settlement of case 91919 and demand to act pro se. Requests for Judicial 18 Notice, Exhibits 56-57. Plaintiffs also request the Court judicially notice 30 documents 19 in support of their opposition to the motion to dismiss, which also consists of court 20 filings. See Doc. Nos. 7 at 33-38. 21 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 22 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 23 908 (9th Cir. 2003). “A court may, however, consider certain materials—documents 24 attached to the complaint, documents incorporated by reference in the complaint, or 25 matters of judicial notice—without converting the motion to dismiss into a motion for 26 summary judgment.” Id.; see also Fed. R. Evid. 201; Lee v. City of Los Angeles, 250 27 F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa 28 Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002). “[E]ven if a document is not attached to 2 17cv1028-MMA (BLM) Case 3:17-cv-01028-MMA-BLM Document 12 Filed 11/29/17 PageID.2491 Page 3 of 37 1 a complaint, it may be incorporated by reference into a complaint if the plaintiff refers 2 extensively to the document or the document forms the basis of the plaintiff’s claim.” 3 Ritchie, 342 F.3d at 908 (internal citations omitted). A court “may consider a document 4 the authenticity of which is not contested, and upon which the plaintiff’s complaint 5 necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded 6 by statute on other grounds in Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006); 7 Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The Court may also judicially 8 notice court filings in other tribunals and other matters of public record. Fed. R. Evid. 9 201; Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); 10 Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir. 2003). 11 The complaint relies on and references the settlement agreement in case 91919 12 (Requests for Judicial Notice, Exhibit 56) and Plaintiffs’ correspondence demanding they 13 be permitted to act pro se (Requests for Judicial notice, Exhibit 57). Therefore, they are 14 appropriate for incorporation by reference. See Davis v. HSBC Bank Nevada, N.A., 691 15 F.3d 1152, 1159-61 (9th Cir. 2012). Additionally, the court filings are appropriate for 16 judicial notice. See Reyn’s Pasta Bella, LLC, 442 F.3d at 746 n.6; Biggs, 334 F.3d at 916 17 n.3. However, Travelers requests that the Court judicially notice some of the documents 18 in both its request in support of the vexatious litigant motion and its request in support of 19 the motion to dismiss. Additionally, Plaintiffs request the Court judicially notice some of 20 the same documents as Travelers. Further, Plaintiffs do not attach Exhibits 23 through 30 21 to either of their oppositions. 22 As such, the Court GRANTS Travelers’ request to judicially notice Exhibits 1-12, 23 14, and 16-57 attached in support of Travelers’ vexatious litigant motion and Exhibits 2, 24 4, and 7 attached in support of Travelers’ motion to dismiss, and DENIES AS MOOT 25 Exhibits 13 and 15 attached in support of Travelers’ vexatious litigant motion and 26 Exhibits 1, 3, and 5-6 attached in support of Travelers’ motion to dismiss. Additionally, 27 the Court GRANTS Plaintiffs’ request to judicially notice Exhibits 2-5, 7-8, 11-12, 15- 28 3 17cv1028-MMA (BLM) Case 3:17-cv-01028-MMA-BLM Document 12 Filed 11/29/17 PageID.2492 Page 4 of 37 1 19, and 21-22, DENIES AS MOOT Exhibits 1, 6, 9-10, 13-14, and 20, and DENIES 2 Exhibits 23-30. 3 MOTION TO DISMISS 4 Travelers moves to dismiss portions of