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DOCKET NO. NNH-CV-23-5055601-S
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ROBERT M. ERRATO, :
:
Plaintiff, : JUDICIAL DISTRICT
: OF NEW HAVEN
v. :
:
HON. EDWARD MINER LAMONT, STATE OF :
CONNECTICUT, STATE OF CONNECTICUT :
JUDICIAL DEPARTMENT, LAUREN SEDER, :
CAMPBELL D. BARRETT, JON T. KUKUCKA, :
JOHANNA S. KATZ, EDWARD P. McCREERY, III, : APRIL 12, 2024
HON. GERARD ADELMAN, HON. MICHAEL A. :
ALBIS, HON. BARBARA M. QUINN, HON. LEO V. :
DIANA, HON. ANNA FICETO, HON. JOSE A SUAREZ, :
:
Defendants. :
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MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
DEFENDANTS CAMPBELL D.
BARRETT, JON T. KUKUCKA,
JOHANNA S. KATZ, and
EDWARD P. McCREERY, III
David P. Friedman
dfriedman@murthalaw.com
Lorey Rives Leddy
lleddy@murthalaw.com
Murtha Cullina LLP
107 Elm Street, 11th Floor
Stamford, CT 06902
Telephone: 203-653-5437
Facsimile: 203-653-5444
Their Attorneys
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
I. INTRODUCTION ...............................................................................................................2
II. ALLEGATIONS IN THE COMPLAINT IN THIS ACTION ............................................8
III. LEGAL STANDARDS .......................................................................................................9
IV. ARGUMENT .....................................................................................................................10
A. Litigation Privilege Bars All Claims Against the Attorney Defendants ................10
B. Plaintiff’s Vexatious Litigation and Malicious Prosecution Claims Are
Not Ripe and Must Be Dismissed ..........................................................................16
C. Rules of Professional Conduct Do Not Confer Standing to Assert Claims ...........19
V. CONCLUSION ..................................................................................................................21
i
TABLE OF AUTHORITIES
Page(s)
Cases
Ankerman v. Mancuso, 79 Conn. App. 480 (2003),
aff'd, 271 Conn. 772 (2004) .....................................................................................................20
Bank of New York Mellon v. Worth, 2017 WL 2427966
(Conn. Super. Ct. Mar. 20, 2017) ..............................................................................................5
Bayer v. Showmotion, Inc., 292 Conn. 381 (2009) ..........................................................................3
Beach v. Reg'l Sch. Dist. No. 13, 42 Conn. App. 542 (1996) ........................................................20
Bhatia v. Debek, 287 Conn. 397 (2008).........................................................................................17
Bruno v. Geller, 136 Conn. App. 707 (2012) ..................................................................................3
Bruno v. Travelers Companies, 172 Conn. App. 717 (2017) ..................................................10, 11
Cadle Co. v. D'Addario, 111 Conn. App. 80 (2008) .....................................................................16
Cannatelli v. Statewide Grievance Comm., 186 Conn. App. 135 (2018) ........................................4
Conboy v. State, 292 Conn. 642 (2009) .........................................................................................10
Day v. Trybulski, 2008 WL 2039301 (Conn. Super. Ct. Apr. 28, 2008) .........................................4
DeLaurentis v. New Haven, 220 Conn. 225 (1991) .................................................................13, 14
Deutsche Bank AG v. Sebastian Holdings, Inc., 174 Conn. App. 573 (2017),
aff'd, 331 Conn. 379 (2019) .......................................................................................................6
Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791 (2010) .........................10
Dorfman v. Smith, 342 Conn. 582 (2022) ......................................................................................14
Dorry v. Garden, 313 Conn. 516 (2014) .......................................................................................10
Dressler v. Riccio, 205 Conn. App. 533 (2021).............................................................................16
Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402 (2012) ...................................19
Firmin v. Charles, 2021 Conn. Super. LEXIS 1218, 2021 WL 3609631
(July 20, 2021) .........................................................................................................................15
Foreman v. Hausman, 1991 WL 209647 (Conn. Super. Ct. Oct. 2, 1991) ...................................20
ii
Gomez v. Conte, 2011 WL 2536181 (Conn. Super. Ct. May 27, 2011) ........................................20
Grammatico v. Grammatico, 2023 Conn. Super. LEXIS 2533 (Oct. 27, 2023)........................1, 15
Hopkins v. O'Connor, 282 Conn. 821 (2007) ................................................................................14
Jewett v. Jewett, 265 Conn. 669 (2003) ...........................................................................................3
Kenneson v. Eggert, 196 Conn. App. 773 (2020) ....................................................................10, 11
Kizis v. Morse Diesel Int’l, Inc., 260 Conn. 46 (2002) ....................................................................9
Lance Liu v. Minchella, 2023 U.S. Dist. LEXIS 163109 (D. Conn. Sep. 14, 2023) .....................21
Lopes v. Farmer, 286 Conn. 384 (2008) ........................................................................................18
MacDermid, Inc. v. Leonetti, 310 Conn. 616 (2013) .................................................................9, 14
May v. Coffey, 291 Conn. 106 (2009) ............................................................................................19
Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616 (2003) .......................................10
Mozzochi v. Beck, 204 Conn. 490 (1987) ......................................................................................20
Naier v. Beckenstein, 131 Conn. App. 638 (2011) ........................................................................19
Neron v. Cossette, 2015 WL 5315563 (Conn. Super. Ct. Aug. 12, 2015) .......................................5
Noble v. Marshall, 23 Conn. App. 227 (1990) ..............................................................................20
Rioux v. Barry, 283 Conn. 338 (2007).....................................................................................13, 14
Rucci v. Stuart, 2016 WL 5108046 (Conn. Super. Ct. Aug. 12, 2016) .........................................20
Scalise v. E. Greyrock, LLC, 148 Conn. App. 176 (2014).............................................................17
Scholz v. Epstein, 341 Conn. 1 (2021) ...........................................................................................14
Simms v. Seaman, 69 A.3d 880 (Conn. 2013) ....................................................................... passim
Slater v. Yoffe-Solon, 2023 WL 2889287 (Conn. Super. Ct. Apr. 5, 2023) ...................................17
Statewide Grievance Comm. v. Ross,1996 WL 626293
(Conn. Super. Ct. Oct. 18, 1996) ...............................................................................................4
Stone v. Pattis, 144 Conn. App. 79 (2013) ....................................................................................14
Tierinni v. Town of Vernon, 2015 WL 3798181 (Conn. Super. Ct. May 21, 2015) ......................18
iii
Town of Lisbon v. R.S.T. Excavation, LLC, 2013 WL 1010567
(Conn. Super. Ct. Feb. 19, 2013) .............................................................................................17
Vandersluis v. Weil, 176 Conn. 353 (1978) ...................................................................................17
Weyher v. Cohen, No. 2016 Conn. Super. LEXIS 542 (Super. Ct. Mar. 10, 2016) ................20, 21
iv
In the Complaint in this action, Plaintiff Robert Errato (“Plaintiff”) has asserted sixteen
causes of action against Defendants, Attorneys Campbell D. Barrett, Jon T. Kukucka, Johanna S.
Katz and Edward P. McCreery, III (collectively, “Attorney Defendants”),1 all premised on the
exact same allegation of fraud on the court which Plaintiff contends occurred in October and
December 2015, and which Plaintiff has repeatedly and unsuccessfully asserted against the
Attorney Defendants in multiple motions and proceedings in both State and Federal Court.
Pursuant to Practice Book §§ 10-30 and 11-10, the Attorney Defendants respectfully submit this
Memorandum of Law in support of their Motion to Dismiss seeking dismissal of all sixteen counts
against them based on lack of subject matter jurisdiction on several grounds.2
First, the Attorney Defendants seek dismissal of all sixteen counts against them based on
the application of the litigation privilege, which in turn deprives this Court of subject matter
jurisdiction over those claims. As set forth herein, the Supreme Court’s decision in Simms v.
Seaman, 69 A.3d 880, 906 (Conn. 2013), and this Court’s decision in Grammatico v. Grammatico,
2023 Conn. Super. LEXIS 2533 (Oct. 27, 2023), are directly on point and require dismissal of all
sixteen counts against the Attorney Defendants since the underlying allegations for all sixteen
counts relate to the filing of allegedly fraudulent financial affidavits and the giving of false
testimony in connection with Plaintiff’s and Defendant Lauren Seder’s dissolution action in the
matter of Seder v. Errato, HHD-FA15-5039554-S (“Divorce Action”).
1
Count Fourteen, for contribution, appears to be directed solely to Defendant Lauren Seder,
Plaintiff’s ex-wife and not against the Attorney Defendants. Accordingly, the Attorney
Defendants do not address this claim herein.
2
Plaintiff has mis-numbered the Counts in the Complaint by including two Count Fours – one for
abuse of process, which the Attorney Defendants will refer to as Count Four (i), and the other for
malicious prosecution, which the Attorney Defendants will refer to as Count Four (ii).
1
Second, the Attorney Defendants seek to dismiss two counts against them, Counts Four (ii)
(Malicious Prosecution) and Six (Vexatious Litigation), on the additional basis that these claims
are not ripe for adjudication, again, depriving this Court of subject matter jurisdiction.
Lastly, the Attorney Defendants seek dismissal of Count Nine (Fraud/Failure to
Disclose/Concealment), which is based on alleged violations of the Rules of Professional Conduct,
on the additional ground of Plaintiff’s lack of standing to assert the claim, which likewise deprives
this Court of subject matter jurisdiction.
I. INTRODUCTION
Plaintiff’s claims against the Attorney Defendants arise out of Pullman & Comley’s
representation of Plaintiff’s former spouse, Defendant Seder, in the Divorce Action, which was
filed by Ms. Seder on May 12, 2015. All sixteen claims against the Attorney Defendants are
premised entirely on the exact same allegations – that the Attorney Defendants, on behalf of Ms.
Seder, filed two financial affidavits in the Divorce Action, in October and December 2015
respectively, and that the Attorney Defendants elicited Ms. Seder’s testimony about those
affidavits at a pendente lite support hearing on December 16, 2015. Plaintiff contends the financial
affidavits and Ms. Seder’s testimony were fraudulent and resulted in the award of excessive
temporary alimony to Ms. Seder. In the entire Complaint, these are the only allegations of
purported misconduct that Plaintiff asserts against the Attorney Defendants, conduct which the
Attorney Defendants deny.
This is not the first time Plaintiff has raised these identical allegations in Court. In the
Divorce Action, immediately after the pendente lite support hearing, Plaintiff began a campaign
to undo the temporary support orders, claiming Ms. Seder and Attorney Barrett had committed
fraud on the court by filing fraudulent financial affidavits and proffering fraudulent testimony at
2
the December 16, 2015 hearing.3 Plaintiff first asked for a new trial and for reargument,4 claiming
the temporary support orders were obtained through the fraudulent financial affidavits; Plaintiff
then filed a Motion for Modification on September 14, 2016 (Divorce Action, Dkt. No. 189.00),
in which Plaintiff asserted as the only basis for a downward modification that Ms. Seder and
Attorney Barrett had committed a fraud on the court in submitting the 2015 financial affidavits.5
3
This Court may take judicial notice of the pleadings and orders in other state court actions,
including the Divorce Action. See Bayer v. Showmotion, Inc., 292 Conn. 381, 394 n.8 (2009);
Jewett v. Jewett, 265 Conn. 669, 678 n. 7 (2003); Bruno v. Geller, 136 Conn. App. 707, 717 (2012).
4
In addition to the Motion for Modification, Plaintiff filed numerous pleadings in the Divorce
Action and the appeals related to the Divorce Action, all raising the alleged fraud on the court as
the basis for seeking relief, including the following:
• Motion for New Trial or to Open or Set Aside Alimony Pendente Lite Judgment (Dkt. No.
138.06), dated March 28, 2016;
• Motion to Have Court Order Attorney Campbell Barrett to Re-Cues [sic] Himself and His Firm
From Representing the Plaintiff Lauren T. Seder (Dkt. No. 142.00), April 6, 2016;
• Motion to Reargue Decision of the Court in its Award of Alimony Pendente Lite (Dkt. No.
142.01), dated April 11, 2016;
• Motion for Sanctions (Dkt. No. 436.00), dated November 13, 2017;
• Motions for Mistrial (Dkt. Nos. 510.00, 513.00, 514.00), dated July 10 and 11, 2018;
• Motion to Open and Modify Judgment/Escrow Order (Dkt. No. 582.00), dated December 31,
2019;
• Post-Judgment Motion for Modification (Dkt. No. 597.00), dated August 21, 2020;
• Motion for Order re Mandamus (Dkt. No. 673.00), dated May 24, 2022;
• Motion for Order to Stay Post-Judgment Contempt Hearing (Dkt. Nos. 678.00, 679.00), dated
July 1, 2022;
• Motion for Order for Hearing before Contempt Hearing (Dkt. No. 687.00), dated July 15, 2022;
• Motion for Order to Take Discovery/Depositions (Dkt. No. 697.00), dated November 18, 2022;
• Affidavit Challenging Jurisdiction (Dkt. No. 703.00), dated April 20, 2023 (also Dkt. No.
121.00 in this Action); and
• Motion for Order to Set Aside and Cancel Rulings and Judgments (Dkt. Nos. 708.00, 709.00
and 710.00), dated May 2, 2023.
5
For the Court’s convenience, a true and accurate copy of the Motion for Modification is appended
to the Affidavit of Lorey Rives Leddy (“Leddy Affidavit”), submitted herewith, as Exhibit 1. As
set forth in fn. 3, this Court can take judicial notice of pleadings in the Divorce Action.
3
In response to the Motion for Modification, the trial court (Adelman, J.) held a three-day
contested, evidentiary hearing, in May and June 2017, specifically to address Plaintiff’s claims of
fraud on the court. The trial court concluded, in a written decision denying Plaintiff’s request for
a downward modification, that no fraud had been committed by the Attorney Defendants or Ms.
Seder. A true and accurate copy of Judge Adelman’s June 29, 2017 Decision (Divorce Action,
Dkt. No. 374.00) is appended to the Leddy Affidavit as Exhibit 2. Plaintiff did not appeal this
decision.
Instead, Plaintiff continued to raise these same allegations in numerous pre- and post-
judgment motions in the Divorce Action, but he also expanded the campaign outside of the Divorce
Action. In 2016, Plaintiff asserted these same allegations in a complaint filed against Attorney
Barrett with the Statewide Grievance Committee. The complaint was dismissed for lack of
probable cause.6 A true and accurate copy of the Dismissal is appended to the Leddy Affidavit as
Exhibit 3.
In August 2018, Plaintiff filed a civil action in the Superior Court entitled Errato v. Seder
et al., NNH-CV18-5043839-S, against Ms. Seder and Attorneys Barrett, Kukucka and Katz, based
on these same allegations of fraud on the court arising out of the financial affidavits and the
pendente lite support hearing in 2015.7 A true and accurate copy of the 2018 complaint in this
6
This Court may also take judicial notice of the file from disciplinary proceedings before the
Statewide Grievance Committee. See Cannatelli v. Statewide Grievance Comm., 186 Conn. App.
135, 137 (2018); Day v. Trybulski, 2008 WL 2039301, at *2 fn 6 (Conn. Super. Ct. Apr. 28, 2008);
Statewide Grievance Comm. v. Ross, 1996 WL 626293, at *2 (Conn. Super. Ct. Oct. 18, 1996).
7
Plaintiff also filed a civil action in Superior Court against only Ms. Seder, entitled Errato v. Seder,
Docket No. NNH-CV16-5036696-S, which was premised on the same allegations of fraud on the
court. In that complaint, Plaintiff also made extensive allegations against Attorney Barrett which
he then attempted (unsuccessfully) to use in the Divorce Action to have Attorney Barrett and
Pullman & Comley disqualified from representing Ms. Seder. See Divorce Action, Dkt. No.
142.00. As set forth above, the Court can take judicial notice of all pleadings and orders in both
the 2016 and 2018 civil actions commenced by Plaintiff based on these exact same allegations.
4
civil action is appended to the Leddy Affidavit as Exhibit 4. Plaintiff voluntarily withdrew that
case in November 2018.
Plaintiff filed another civil action in the United States District Court for the District of
Connecticut, entitled Errato v. Seder et al., 3:22-CV-00793 (SVN) (“Federal Action”), again
premised on the exact same allegations against the Attorney Defendants and Ms. Seder, as well as
four Connecticut State Court Judges who had presided over the Divorce Action at some point since
2015.8 Plaintiff contended in the Federal Action that the alleged fraud on the court, arising out of
the filing of the 2015 financial affidavits and the December 2015 pendente lite support hearing in
the Divorce Action, violated his constitutional rights.9
In a decision dated March 31, 2023, the complaint in the Federal Action was dismissed in
its entirety as to all defendants, specifically without leave to amend the complaint on grounds that
amendment would be futile. A true and correct copy of that decision is appended hereto as Exhibit
5. In its decision dismissing the complaint, the federal court (Nagala, J.) specifically determined
Plaintiff’s claims against the Attorney Defendants based on the allegations of fraud on the court
were barred by the litigation privilege; the claims were:
squarely barred by the litigation privilege as to all of the Attorney Defendants, and
as to Defendant Seder. Simms v. Seaman, 69 A.3d 880, 906 (Conn. 2013) (holding
8
This Court also can take judicial notice of court files in the Federal Action. See Bank of New
York Mellon v. Worth, 2017 WL 2427966, at *1 (Conn. Super. Ct. Mar. 20, 2017); Neron v.
Cossette, 2015 WL 5315563, at *3 (Conn. Super. Ct. Aug. 12, 2015).
9
In 2023, Plaintiff also filed a separate motion in federal court seeking a Writ of Mandamus
against the state court in the Divorce Action on the exact same grounds of fraud on the court in
2015. The matter, entitled In re Robert M. Errato, Civil No. 3:23-cv-672 (OAW) (“Mandamus
Action”) was dismissed by order dated September 7, 2023, in a decision in which Judge Williams
warned Plaintiff that, because he had also filed the Federal Action based on identical allegations,
“that further filings in this court of claims on this basis may result in sanctions, including an order
requiring [Plaintiff] to obtain the court’s permission prior to any further filings.” ECF No. 8, at 5
n. 4, a true and correct copy of which is appended hereto as Exhibit 6. This Court can also take
judicial notice of the filings in the Mandamus Action.
5
that “attorneys are protected by the litigation privilege against claims of fraud for
their conduct during judicial proceedings”); Tyler v. Tatoian, 137 A.3d 801, 807
(2016) (“Although not all of the reasoning in Simms applies when the person
invoking the privilege is not representing a party as an attorney, the underlying
policy and history of the privilege lead us to conclude that it extends to bar claims
of fraud against a party opponent.”), cert. denied, 135 A.3d 710 (2016).
Exhibit 5, at 12 n. 5.
Plaintiff appealed Judge Nagala’s decision to the Second Circuit. On February 22, 2024,
the Second Circuit issued a decision affirming the District Court’s dismissal of the complaint in
the Federal Action as to all defendants and specifically concluded that,
[t]o the extent Errato has attempted to bring any state-law claim for fraud against
Seder and the attorney Defendants separate from his § 1983 claim, we agree with
the district court that the claim would be barred by the litigation privilege under
Connecticut law. See Simms v. Seaman, 69 A.3d 880, 906 (Conn. 2013)
(“[A]ttorneys are protected by the litigation privilege against claims of fraud for
their conduct during judicial proceedings.”); Tyler v. Tatoian, 137 A.3d 801, 807
(Conn. App. Ct. 2016) (concluding that the litigation privilege “extends to bar
claims of fraud against a party opponent”), cert. denied, 135 A.3d 710 (Conn.
2016).
Errato v. Seder et al., Dkt. No. 23-638, Summary Order (2d Cir. Feb. 22, 2024) (Dkt. No. 124.00
in this case).10
Shortly after filing the Federal Action, Plaintiff commenced the civil action before this
Court against the Attorney Defendants, Ms. Seder, and the same Connecticut State Court Judges
as in the Federal Action, but adding several new Connecticut State Court Judges and State
defendants, including Governor Lamont. The allegations underlying all of the claims in this
10
Arguably, based on the Second Circuit’s determination that the claims premised on the same
allegations of fraud on the court are barred by the litigation privilege, Plaintiff is collaterally
estopped from arguing that litigation privilege does not apply to his claims in this case when the
allegations against the Attorney Defendants are identical to the allegations asserted against them
in the Federal Action, the issue of litigation privilege was fully and fairly litigated through the
motions to dismiss in the Federal Action, the issue was actually decided, and such decision was
necessary to the federal court’s final judgment in the Federal Action dismissing Plaintiff’s claims
against the Attorney Defendants. See Deutsche Bank AG v. Sebastian Holdings, Inc., 174 Conn.
App. 573, 587 (2017), aff'd, 331 Conn. 379 (2019).
6
Complaint are the same allegations Plaintiff has repeatedly asserted in each motion, grievance and
civil action filed by him since 2016: that Attorney Barrett and Ms. Seder allegedly filed fraudulent
financial affidavits in October and December 2015, which he claims resulted in an excessive
temporary support award to Ms. Seder in December 2015 that has never been vacated or voided
by any court despite Plaintiff’s efforts to prove the alleged fraud on the court. Plaintiff has merely
regurgitated the same allegations in this case as the basis for the sixteen claims against the Attorney
Defendants.
In this case, Plaintiff filed an “Affidavit Challenging Jurisdiction” (Dkt. No. 124.00), which
he had previously submitted to the court in the Divorce Action, documenting his allegations of
alleged fraud on the court and asserting that, as a result of such fraud, the alimony orders in the
Divorce Action were void and the court in the Divorce Action lacked jurisdiction over the claims
therein. Plaintiff filed this same affidavit in the Divorce Action shortly before filing a motion to
dismiss the entire Divorce Action on the same grounds – that the court lacked subject matter
jurisdiction over the Divorce Action based on the alleged fraud on the court from December 2015,
which Plaintiff contended rendered void all orders and judgments therein. (Divorce Action, Dkt.
No. 715.00). On July 11, 2023, the court in the Divorce Action (Nastri, J.) denied Plaintiff’s
motion to dismiss the Divorce Action, holding that all issues raised in the motion by Plaintiff had
been fully adjudicated previously. See Order on Motion to Dismiss, Divorce Dkt. No. 715.01, a
copy of which is appended to the Leddy Affidavit as Exhibit 7.
The Attorney Defendants now move to dismiss all sixteen claims against them on the
grounds that this Court lacks subject matter jurisdiction over those claims. As set forth herein, even
if the Court accepts all the allegations in the Complaint as true, draws all reasonable inferences in
favor of the Plaintiff, and otherwise gives every benefit of the doubt to the Plaintiff, who is acting
pro se in this matter, the sixteen claims asserted against the Attorney Defendants must be dismissed
7
based on the litigation privilege. Two of the claims asserted against the Attorney Defendants also
are not ripe for adjudication and must be dismissed on this basis as well. And one claim, in addition
to being barred by the litigation privilege, must be dismissed because Plaintiff lacks standing to
assert it.
II. ALLEGATIONS IN THE COMPLAINT IN THIS ACTION
Plaintiff concedes in the opening paragraph of the Complaint that his claims arise out of
the filing of the financial affidavits and the pendente lite support hearing in the Divorce Action in
2015. According to Plaintiff, the defendants in this action, including the Attorney Defendants, Ms.
Seder, six Connecticut State Court Judges, Governor Lamont, the State of Connecticut and the
Connecticut Judicial Department, purportedly engaged in an elaborate scheme, beginning in 2015,
to fabricate evidence, suborn perjury, commit a fraud upon the court, and perpetuate that fraud, all
of which led to the allegedly “irrevocable financial, emotional and reputational damages to the
plaintiff that continues today.” Comp., ¶ 2.
As to the Attorney Defendants in particular, Plaintiff alleges they “conspired together to
commit fraud on the court by officers and then executed the scheme by fabricating evidence,
committing perjury, suborning perjury.” Id., ¶ 4. He continues that this conduct was intentional
and with severe malice. Id., at ¶ 5. As a result of this alleged misconduct, not only does Plaintiff
seek monetary damages of $100,000,000.00; he also seeks to void all rulings and judgments in the
Divorce Action, particularly to the extent those judgments relate to support obligations in favor of
Ms. Seder. Id.
Plaintiff references in the Complaint the fact that the Attorney Defendants, all current or
former attorneys with the law firm of Pullman & Comley, previously represented Plaintiff’s ex-
spouse – Ms. Seder – in the Divorce Action, and that all the allegations of misconduct against them
occurred in the context of the Attorney Defendants’ representation of Ms. Seder in the Divorce
8
Action. See id., at Count Five, ¶¶ 4-5, 8, 9 (“On October 11, 2015 and then again on December
16, 2015 defendant Seder and defendant Barrett fabricated the financial affidavit(s) of Seder.”);
Count Fifteen, ¶ 6; Count Sixteen, ¶ 2 (“The attorney Defendants individually and together created
a scheme with the sole intention to have the plaintiff ‘Errato’ pay temporary, permanent alimony
and a portion of defendant ‘Seder’s’ legal fees by using criminal acts and actions in the family case
Seder v. Errato.”).
Plaintiff repeats throughout the Complaint that each claim against the Attorney Defendants
is premised entirely on the purportedly fraudulent financial affidavits and testimony submitted in
the Divorce Action at a pendente lite support hearing in 2015. See id., Count One, ¶ 2, Count Two,
¶ 1 (“the attorney Defendants knowingly committed more than one criminal act in a civil family
matter”); Count Three, ¶ 2 (referencing Divorce Action docket); Count Five ¶¶ 3, 6-9; Count
Seven, ¶ 1; Count Eight, ¶ 1; Count Nine, ¶ 1A; Count Ten, ¶¶ 1-2; Count Eleven, ¶¶ 1-3; Count
Twelve, ¶ 1 (referencing Divorce Action docket); Count Thirteen, ¶ 1 (referencing Divorce Action
docket); Count Fifteen, ¶ 6; Count Sixteen, ¶¶ 1-2.
Plaintiff asserts no factual allegations of misconduct by the Attorney Defendants which
took place outside of the context of proceedings in the Divorce Action in 2015. In fact, Plaintiff
asserts no allegations of wrongdoing or misconduct whatsoever specifically as to Attorneys
Kukucka, Katz or McCreery.
III. LEGAL STANDARDS
“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without
jurisdiction.” MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626 (2013). “A motion to dismiss shall
be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff
cannot as a matter of law and fact state a cause of action that should be heard by the court.” Kizis
v. Morse Diesel Int’l, Inc., 260 Conn. 46, 518 (2002). “[S]ubject matter jurisdiction involves the
9
authority of the court to adjudicate the type of controversy presented by the action before
it.” Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 798 (2010).
“[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no
matter in what form it is presented ... and the court must fully resolve it before proceeding further
with the case.” Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25 (2003).
Where, as here, a motion to dismiss is premised on lack of subject matter jurisdiction, additional
standards may apply:
Trial courts addressing motions to dismiss for lack of subject matter jurisdiction
pursuant to [Practice Book] § 10-31(a)(1) may encounter different situations,
depending on the status of the record in the case ... [L]ack of subject matter
jurisdiction may be found in any one of three instances: (1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court's resolution of disputed
facts.
Dorry v. Garden, 313 Conn. 516, 521-22 (2014). In resolving a motion to dismiss for lack of
subject matter jurisdiction, the Court may consider pleadings and orders from other, related cases
of which this Court can take judicial notice, and the Court need not conclusively presume the
validity of the allegations of the complaint. Conboy v. State, 292 Conn. 642, 652 (2009).
IV. ARGUMENT
A. Litigation Privilege Bars All Claims Against the Attorney Defendants.
All sixteen claims against the Attorney Defendants are barred by the doctrine of absolute
immunity conferred by the litigation privilege and, accordingly, those claims must be dismissed.
“[T]he doctrine of absolute immunity concerns a court's subject matter jurisdiction.” Bruno v.
Travelers Companies, 172 Conn. App. 717, 724-25 (2017) (quoting Tyler v. Tatoian, 164 Conn.
App. 82, 87, cert. denied, 321 Conn. 908 (2016)); see also Kenneson v. Eggert, 196 Conn. App.
773, 775 n.1 (2020) (same). Because absolute immunity implicates the Court’s subject matter
jurisdiction, a motion to dismiss is the proper means by which this Court must determine “whether
10
the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are
sufficient to survive dismissal on the grounds of absolute immunity.” Bruno, 172 Conn. App. at
725.
Absolute immunity based on litigation privilege derives from the public policy of
“permitting the complete freedom of expression” during judicial proceedings. Kenneson, 196
Conn. App. at 782. To determine whether the privilege bars the claims at issue in this case, the
Court must first determine whether the allegedly fraudulent statements “took place during a
judicial proceeding.” Id. If yes, then “the court must decide as a matter of law whether the ...
statements are sufficiently relevant to the issues involved in a proposed or ongoing judicial
proceeding, so as to qualify for the [litigation] privilege. The test for relevancy is generous, and
judicial proceeding has been defined liberally to encompass more than civil litigation or criminal
trials.” Id. (quoting Hopkins v. O'Connor, 282 Conn. 821, 839 (2007)).
First, there is no question that the alleged fraudulent conduct took place entirely in judicial
proceedings in the Divorce Action. Indeed, by Plaintiff’s own allegations in the Complaint, the
claims are all premised on his allegations that Ms. Seder and Attorney Barrett engaged in a fraud
on the court by (i) filing the purportedly “false” 2015 financial affidavits, and (ii) offering Ms.
Seder’s testimony at the December 16, 2015, all in connection with the pendente lite support
hearing.
The second issue is whether the fraudulent statements allegedly made in judicial
proceedings are relevant to the dispute in the new action. Again, Plaintiff’s allegations in the
Complaint stem entirely from this purported fraud on the court by Attorney Barrett and Ms. Seder
through filings and testimony in the Divorce Action. Accordingly, the allegedly fraudulent
conduct in the Divorce Action is directly and entirely relevant to the claims in the Complaint in
11
this action. As such, the litigation privilege applies in this case and bars all sixteen claims asserted
against the Attorney Defendants based on those allegations.
In Simms v. Seaman, the Supreme Court addressed allegations virtually identical to the
allegations in the Complaint in this action, definitively holding that, under Connecticut law,
“attorneys are protected by the litigation privilege against claims of fraud for their conduct during
judicial proceedings.” 308 Conn. at 569. As the District Court and Second Circuit have already
concluded in the Federal Action, the Simms decision is directly on point and dispositive of these
thirteen claims against the Attorney Defendants. In Simms, the plaintiff sued his ex-wife’s
attorneys for fraud and intentional infliction of emotional distress on the grounds that the attorneys
had fraudulently concealed the former wife’s true financial condition in proceedings to modify her
support award by not including a six-figure inheritance on the former wife’s financial affidavit.
Id., at 527. The court in the dissolution action determined this information had been intentionally
and improperly concealed from the court and the plaintiff. Id. Based on this alleged misconduct,
the plaintiff filed a separate civil action in the Superior Court against his ex-wife’s attorneys
claiming he had suffered damages as a result of their fraud. Id., at 528.
The trial court in Simms “conclud[ed] that such claims against attorneys for conduct that
occurred during judicial proceedings were barred as a matter of law by the doctrine of absolute
immunity.” Id. The Supreme Court affirmed the decision in addressing the question: “Did the
Appellate Court properly determine that claims of fraud and intentional infliction of emotional
distress brought against attorneys for conduct that occurred during judicial proceedings were
barred as a matter of law by the doctrine of absolute immunity?” Id., at 529. After reviewing the
history of, and policy reasons for, the litigation privilege, the Supreme Court concluded “attorneys
are shielded by the litigation privilege from claims of fraud.” Id., at 545. The litigation privilege
applies even in cases like Simms where counsel for the ex-wife “deliberately concealed material
12
evidence from the [ex-husband] and incorrectly portrayed [the] former spouse as economically
disadvantaged.” Id., at 546.
Significantly, unlike the trial court in Simms, the court in the Divorce Action in this case
specifically determined, after a contested hearing on Plaintiff’s allegations, that no fraud had
occurred (see Exhibit 2, June 29, 2017 Memorandum of Decision). Plaintiff never appealed that
decision and it remains part of the final judgment in the Divorce Action. The Statewide Grievance
Committee likewise dismissed Plaintiff’s complaint against Attorney Barrett (and against Ms.
Seder) for lack of probable cause (see Exhibit 3, Panel Decision). If the trial court in Simms
dismissed the claims as barred by the litigation privilege, even after finding the ex-wife’s attorneys
may have engaged in intentional misconduct, then here, where the court in the Divorce Action
found the opposite – that no misconduct took place – the litigation privilege certainly protects the
Attorney Defendants from liability and bars these thirteen claims premised on alleged fraud. In
fact, the Second Circuit recently affirmed the dismissal of the entire complaint in the Federal
Action on the alternative grounds that the fraud claims against the Attorney Defendants were
barred by the litigation privilege.
The litigation privilege protects attorneys from a wide range of claims premised on conduct
or statements made during judicial proceedings that forecloses Plaintiff’s ability to assert those
claims against the Attorney Defendants:
we have concluded that absolute immunity bars claims of intentional interference
with contractual or beneficial relations arising from statements made during a civil
action (see Rioux v. Barry, 283 Conn. 338, 350–51 (2007)) (absolute immunity
applies to intentional interference with contractual relations because that tort
comparatively is more like defamation than vexatious litigation). We have also
precluded claims of intentional infliction of emotional distress arising from
statements made during judicial proceedings on the basis of absolute immunity
(see DeLaurentis v. New Haven, 220 Conn. 225, 263-64 (1991)). Finally, we have
most recently applied absolute immunity to bar retaliatory claims of fraud against
attorneys for their actions during litigation (see Simms v. Seaman, 308 Conn. at
545–46). In reviewing these cases, it becomes clear that, in expanding the doctrine
13
of absolute immunity to bar claims beyond defamation, this court has sought to
ensure that the conduct that absolute immunity is intended to protect, namely,
participation and candor in judicial proceedings, remains protected regardless of
the particular tort alleged in response to the words used during participation in
the judicial process.
MacDermid, Inc. v. Leonetti, 310 Conn. at 627–29. “As new tort theories have emerged, courts
have not hesitated to expand the privilege to cover theories, actions, and circumstances never
contemplated by those who formulated the rule in medieval England. One objective of expanding
the privilege has been to prevent plaintiffs from subverting the purposes of the defamation
privilege by bringing actions on other legal theories.” Simms, 308 Conn. 566-67.
This clear precedent supports dismissal of the claims against the Attorney Defendants
where each claim is premised on the same fraud allegations based on alleged misconduct during
the Divorce Action. More particularly, the litigation privilege bars Plaintiff’s claims in Count One
for negligence (see Stone v. Pattis, 144 Conn. App. 79, 96, 99, (2013)), Count Two for intentional
infliction of emotional distress (see DeLaurentis v. New Haven, 220 Conn. at 263-64), Count
Three for negligence per se (see Stone v. Pattis, 144 Conn. App. at 96-97), Count Five for “judicial
fraud” (see Simms, 308 Conn. at 545), Count Seven for fraud and intentional misrepresentation
(id.), Count Eight for conversion by fraud and willful wrongdoing (id.), Count Nine for fraud on
the court-duty to disclose-concealment (id.), Count Ten for conspiracy to commit fraud (Stone v.
Pattis, 144 Conn. App. at 99), Count Eleven for civil theft (see Scholz v. Epstein, 341 Conn. 1, 23
(2021)), Count Twelve for tortious interference (see Rioux v. Barry, 283 Conn. at 350), Count
Thirteen for defamation and slander (see id.; Hopkins, 282 Conn. at 830; Dorfman v. Smith, 342
Conn. 582, 605 (2022)), Count Fifteen for fraud regarding the interim support agreement (see
Simms, 308 Conn. at 545), and Count Sixteen for wire fraud/mail fraud (id.).
Plaintiff’s claims in Counts Four (i) (abuse of process), Four (ii) (malicious prosecution)
and Six (vexatious litigation) also should be dismissed. While generally, such claims are not
14
barred per se by the litigation privilege, in cases where – as here – the claims are merely labeled
as “abuse of process,” “malicious prosecution,” and “vexatious litigation,” but are actually
premised entirely on statements made and/or conduct engaged in by an attorney during judicial
proceedings, those claims also fall under the litigation privilege and must be dismissed. See
Grammatico, 2023 Conn. Super. LEXIS 2533 (Oct. 27, 2023); Firmin v. Charles, 2021 Conn.
Super. LEXIS 1218, 2021 WL 3609631 (July 20, 2021). In Grammatico, this Court acknowledged
that various torts, including abuse of process, can be barred by the doctrine of absolute immunity
and litigation privilege where the conduct underlying the claims took place within the course of
judicial proceedings:
During oral argument on defendant's motion to dismiss, the plaintiff stated
unequivocally that his causes of action against the defendant and the damages he
claims resulted therefrom arise from alleged false statements the defendant made
about the plaintiff in the restraining order and during the course of the hearing on
the restraining order. The court concludes that the defendant's statements in her
affidavit in support of the restraining order, and statements made during the course
of the hearing on the application for the restraining order are absolutely privileged
because they were made in the course of judicial proceedings, and because they
were in some way pertinent to the subject of the controversy.
Id., at **11-12. In Firmin, the trial court (Genaurio, J.) held that,
[w]hile it is labeled abuse of process, and abuse of process claims are exempted
from the doctrine of absolute immunity and litigation privilege, the court is not
bound by the title of the count. The factual allegations contained in [the abuse of
process] count are that the defendant filed a motion for contempt within that
dissolution of marriage proceeding in Superior Court … Whether the motion for
contempt was meritorious or filed in good faith, under Simms, is not the issue. A
motion for contempt is the appropriate motion to assert a violation of a court order
and the filing of that motion for contempt whether meritorious or not does not
constitute actionable abuse of process. It is clearly protected by the doctrine of
absolute immunity and litigation privilege.
2021 Conn. Super. LEXIS 1218, at *8. Each of these three claims asserted by Plaintiff – abuse of
process, malicious prosecution and vexatious litigation – are identical in substance to each of the
claims in the Complaint and arise entirely out of the filing of the financial affidavits in 2015 and
15
the testimony elicited at the temporary support hearing in December 2015, all within the context
of judicial proceedings. Looking at the substance of each claim rather than the label used by
Plaintiff, these claims also are barred by the litigation privilege and must be dismissed.
In sum, because all sixteen claims in the Complaint against the Attorney Defendants are
barred by the litigation privilege, this Court lacks subject matter jurisdiction over the claims and
each of them must be dismissed.
B. Plaintiff’s Vexatious Litigation and Malicious
Prosecution Claims are not Ripe and Must Be Dismissed.
Where a party asserts a claim that is not ripe for consideration by the court, the court’s
subject matter jurisdiction is implicated. “[J]usticiability comprises several related doctrines …
[including ripeness] … A case that is nonjusticiable must be dismissed for lack of subject matter
jurisdiction.” Dressler v. Riccio, 205 Conn. App. 533, 546 (2021) (quoting Taylor v. Wallace, 184
Conn. App. 43, 47-48 (2018)). “[T]he rationale behind the ripeness requirement is to prevent the
courts, through avoidance of premature adjudication, from entangling themselves in abstract
disagreements … Accordingly, in determining whether a case is ripe, a trial court must be satisfied
that the case before [it] does not present a hypothetical injury or a claim contingent upon some
event that has not and indeed may never transpire.” Cadle Co. v. D'Addario, 111 Conn. App. 80,
82-83 (2008).
In this case, Plaintiff asserts claims for malicious prosecution (Count Four(ii)) and
vexatious litigation (Count Six) against the Attorney Defendants based on the exact same alleged
fraud on the court from 2015 in the Divorce Action. However, to assert claims either for malicious
prosecution or vexatious litigation, Plaintiff must allege as a condition precedent that he prevailed
in a prior action in which the allegedly vexatious or malicious conduct took place. Even assuming
16
for purposes of this Motion to Dismiss that all allegations in the Complaint are true, Plaintiff has
not and cannot allege (or prove) that he prevailed in any prior action.
“A vexatious suit is a type of malicious prosecution action, differing principally in that it
is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior
criminal complaint. To establish either cause of action, it is necessary to prove want of probable
cause, malice and a termination of suit in the plaintiff's favor.” Vandersluis v. Weil, 176 Conn.
353, 356 (1978) (emphasis added); see also Bhatia v. Debek, 287 Conn. 397, 405 (2008). Where
no such prior action is alleged to have been terminated in favor of a plaintiff, the doctrine of
ripeness has consistently been applied by Connecticut courts to dismiss claims of malicious
prosecution and/o
Preview
DOCKET NO. NNH-CV-23-5055601-S -----------------------------------------------------------------------X ROBERT M. ERRATO, : : Plaintiff, : JUDICIAL DISTRICT : OF NEW HAVEN v. : : HON. EDWARD MINER LAMONT, STATE OF : CONNECTICUT, STATE OF CONNECTICUT : JUDICIAL DEPARTMENT, LAUREN SEDER, : CAMPBELL D. BARRETT, JON T. KUKUCKA, : JOHANNA S. KATZ, EDWARD P. McCREERY, III, : APRIL 12, 2024 HON. GERARD ADELMAN, HON. MICHAEL A. : ALBIS, HON. BARBARA M. QUINN, HON. LEO V. : DIANA, HON. ANNA FICETO, HON. JOSE A SUAREZ, : : Defendants. : -----------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS DEFENDANTS CAMPBELL D. BARRETT, JON T. KUKUCKA, JOHANNA S. KATZ, and EDWARD P. McCREERY, III David P. Friedman dfriedman@murthalaw.com Lorey Rives Leddy lleddy@murthalaw.com Murtha Cullina LLP 107 Elm Street, 11th Floor Stamford, CT 06902 Telephone: 203-653-5437 Facsimile: 203-653-5444 Their Attorneys TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION ...............................................................................................................2 II. ALLEGATIONS IN THE COMPLAINT IN THIS ACTION ............................................8 III. LEGAL STANDARDS .......................................................................................................9 IV. ARGUMENT .....................................................................................................................10 A. Litigation Privilege Bars All Claims Against the Attorney Defendants ................10 B. Plaintiff’s Vexatious Litigation and Malicious Prosecution Claims Are Not Ripe and Must Be Dismissed ..........................................................................16 C. Rules of Professional Conduct Do Not Confer Standing to Assert Claims ...........19 V. CONCLUSION ..................................................................................................................21 i TABLE OF AUTHORITIES Page(s) Cases Ankerman v. Mancuso, 79 Conn. App. 480 (2003), aff'd, 271 Conn. 772 (2004) .....................................................................................................20 Bank of New York Mellon v. Worth, 2017 WL 2427966 (Conn. Super. Ct. Mar. 20, 2017) ..............................................................................................5 Bayer v. Showmotion, Inc., 292 Conn. 381 (2009) ..........................................................................3 Beach v. Reg'l Sch. Dist. No. 13, 42 Conn. App. 542 (1996) ........................................................20 Bhatia v. Debek, 287 Conn. 397 (2008).........................................................................................17 Bruno v. Geller, 136 Conn. App. 707 (2012) ..................................................................................3 Bruno v. Travelers Companies, 172 Conn. App. 717 (2017) ..................................................10, 11 Cadle Co. v. D'Addario, 111 Conn. App. 80 (2008) .....................................................................16 Cannatelli v. Statewide Grievance Comm., 186 Conn. App. 135 (2018) ........................................4 Conboy v. State, 292 Conn. 642 (2009) .........................................................................................10 Day v. Trybulski, 2008 WL 2039301 (Conn. Super. Ct. Apr. 28, 2008) .........................................4 DeLaurentis v. New Haven, 220 Conn. 225 (1991) .................................................................13, 14 Deutsche Bank AG v. Sebastian Holdings, Inc., 174 Conn. App. 573 (2017), aff'd, 331 Conn. 379 (2019) .......................................................................................................6 Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791 (2010) .........................10 Dorfman v. Smith, 342 Conn. 582 (2022) ......................................................................................14 Dorry v. Garden, 313 Conn. 516 (2014) .......................................................................................10 Dressler v. Riccio, 205 Conn. App. 533 (2021).............................................................................16 Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402 (2012) ...................................19 Firmin v. Charles, 2021 Conn. Super. LEXIS 1218, 2021 WL 3609631 (July 20, 2021) .........................................................................................................................15 Foreman v. Hausman, 1991 WL 209647 (Conn. Super. Ct. Oct. 2, 1991) ...................................20 ii Gomez v. Conte, 2011 WL 2536181 (Conn. Super. Ct. May 27, 2011) ........................................20 Grammatico v. Grammatico, 2023 Conn. Super. LEXIS 2533 (Oct. 27, 2023)........................1, 15 Hopkins v. O'Connor, 282 Conn. 821 (2007) ................................................................................14 Jewett v. Jewett, 265 Conn. 669 (2003) ...........................................................................................3 Kenneson v. Eggert, 196 Conn. App. 773 (2020) ....................................................................10, 11 Kizis v. Morse Diesel Int’l, Inc., 260 Conn. 46 (2002) ....................................................................9 Lance Liu v. Minchella, 2023 U.S. Dist. LEXIS 163109 (D. Conn. Sep. 14, 2023) .....................21 Lopes v. Farmer, 286 Conn. 384 (2008) ........................................................................................18 MacDermid, Inc. v. Leonetti, 310 Conn. 616 (2013) .................................................................9, 14 May v. Coffey, 291 Conn. 106 (2009) ............................................................................................19 Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616 (2003) .......................................10 Mozzochi v. Beck, 204 Conn. 490 (1987) ......................................................................................20 Naier v. Beckenstein, 131 Conn. App. 638 (2011) ........................................................................19 Neron v. Cossette, 2015 WL 5315563 (Conn. Super. Ct. Aug. 12, 2015) .......................................5 Noble v. Marshall, 23 Conn. App. 227 (1990) ..............................................................................20 Rioux v. Barry, 283 Conn. 338 (2007).....................................................................................13, 14 Rucci v. Stuart, 2016 WL 5108046 (Conn. Super. Ct. Aug. 12, 2016) .........................................20 Scalise v. E. Greyrock, LLC, 148 Conn. App. 176 (2014).............................................................17 Scholz v. Epstein, 341 Conn. 1 (2021) ...........................................................................................14 Simms v. Seaman, 69 A.3d 880 (Conn. 2013) ....................................................................... passim Slater v. Yoffe-Solon, 2023 WL 2889287 (Conn. Super. Ct. Apr. 5, 2023) ...................................17 Statewide Grievance Comm. v. Ross,1996 WL 626293 (Conn. Super. Ct. Oct. 18, 1996) ...............................................................................................4 Stone v. Pattis, 144 Conn. App. 79 (2013) ....................................................................................14 Tierinni v. Town of Vernon, 2015 WL 3798181 (Conn. Super. Ct. May 21, 2015) ......................18 iii Town of Lisbon v. R.S.T. Excavation, LLC, 2013 WL 1010567 (Conn. Super. Ct. Feb. 19, 2013) .............................................................................................17 Vandersluis v. Weil, 176 Conn. 353 (1978) ...................................................................................17 Weyher v. Cohen, No. 2016 Conn. Super. LEXIS 542 (Super. Ct. Mar. 10, 2016) ................20, 21 iv In the Complaint in this action, Plaintiff Robert Errato (“Plaintiff”) has asserted sixteen causes of action against Defendants, Attorneys Campbell D. Barrett, Jon T. Kukucka, Johanna S. Katz and Edward P. McCreery, III (collectively, “Attorney Defendants”),1 all premised on the exact same allegation of fraud on the court which Plaintiff contends occurred in October and December 2015, and which Plaintiff has repeatedly and unsuccessfully asserted against the Attorney Defendants in multiple motions and proceedings in both State and Federal Court. Pursuant to Practice Book §§ 10-30 and 11-10, the Attorney Defendants respectfully submit this Memorandum of Law in support of their Motion to Dismiss seeking dismissal of all sixteen counts against them based on lack of subject matter jurisdiction on several grounds.2 First, the Attorney Defendants seek dismissal of all sixteen counts against them based on the application of the litigation privilege, which in turn deprives this Court of subject matter jurisdiction over those claims. As set forth herein, the Supreme Court’s decision in Simms v. Seaman, 69 A.3d 880, 906 (Conn. 2013), and this Court’s decision in Grammatico v. Grammatico, 2023 Conn. Super. LEXIS 2533 (Oct. 27, 2023), are directly on point and require dismissal of all sixteen counts against the Attorney Defendants since the underlying allegations for all sixteen counts relate to the filing of allegedly fraudulent financial affidavits and the giving of false testimony in connection with Plaintiff’s and Defendant Lauren Seder’s dissolution action in the matter of Seder v. Errato, HHD-FA15-5039554-S (“Divorce Action”). 1 Count Fourteen, for contribution, appears to be directed solely to Defendant Lauren Seder, Plaintiff’s ex-wife and not against the Attorney Defendants. Accordingly, the Attorney Defendants do not address this claim herein. 2 Plaintiff has mis-numbered the Counts in the Complaint by including two Count Fours – one for abuse of process, which the Attorney Defendants will refer to as Count Four (i), and the other for malicious prosecution, which the Attorney Defendants will refer to as Count Four (ii). 1 Second, the Attorney Defendants seek to dismiss two counts against them, Counts Four (ii) (Malicious Prosecution) and Six (Vexatious Litigation), on the additional basis that these claims are not ripe for adjudication, again, depriving this Court of subject matter jurisdiction. Lastly, the Attorney Defendants seek dismissal of Count Nine (Fraud/Failure to Disclose/Concealment), which is based on alleged violations of the Rules of Professional Conduct, on the additional ground of Plaintiff’s lack of standing to assert the claim, which likewise deprives this Court of subject matter jurisdiction. I. INTRODUCTION Plaintiff’s claims against the Attorney Defendants arise out of Pullman & Comley’s representation of Plaintiff’s former spouse, Defendant Seder, in the Divorce Action, which was filed by Ms. Seder on May 12, 2015. All sixteen claims against the Attorney Defendants are premised entirely on the exact same allegations – that the Attorney Defendants, on behalf of Ms. Seder, filed two financial affidavits in the Divorce Action, in October and December 2015 respectively, and that the Attorney Defendants elicited Ms. Seder’s testimony about those affidavits at a pendente lite support hearing on December 16, 2015. Plaintiff contends the financial affidavits and Ms. Seder’s testimony were fraudulent and resulted in the award of excessive temporary alimony to Ms. Seder. In the entire Complaint, these are the only allegations of purported misconduct that Plaintiff asserts against the Attorney Defendants, conduct which the Attorney Defendants deny. This is not the first time Plaintiff has raised these identical allegations in Court. In the Divorce Action, immediately after the pendente lite support hearing, Plaintiff began a campaign to undo the temporary support orders, claiming Ms. Seder and Attorney Barrett had committed fraud on the court by filing fraudulent financial affidavits and proffering fraudulent testimony at 2 the December 16, 2015 hearing.3 Plaintiff first asked for a new trial and for reargument,4 claiming the temporary support orders were obtained through the fraudulent financial affidavits; Plaintiff then filed a Motion for Modification on September 14, 2016 (Divorce Action, Dkt. No. 189.00), in which Plaintiff asserted as the only basis for a downward modification that Ms. Seder and Attorney Barrett had committed a fraud on the court in submitting the 2015 financial affidavits.5 3 This Court may take judicial notice of the pleadings and orders in other state court actions, including the Divorce Action. See Bayer v. Showmotion, Inc., 292 Conn. 381, 394 n.8 (2009); Jewett v. Jewett, 265 Conn. 669, 678 n. 7 (2003); Bruno v. Geller, 136 Conn. App. 707, 717 (2012). 4 In addition to the Motion for Modification, Plaintiff filed numerous pleadings in the Divorce Action and the appeals related to the Divorce Action, all raising the alleged fraud on the court as the basis for seeking relief, including the following: • Motion for New Trial or to Open or Set Aside Alimony Pendente Lite Judgment (Dkt. No. 138.06), dated March 28, 2016; • Motion to Have Court Order Attorney Campbell Barrett to Re-Cues [sic] Himself and His Firm From Representing the Plaintiff Lauren T. Seder (Dkt. No. 142.00), April 6, 2016; • Motion to Reargue Decision of the Court in its Award of Alimony Pendente Lite (Dkt. No. 142.01), dated April 11, 2016; • Motion for Sanctions (Dkt. No. 436.00), dated November 13, 2017; • Motions for Mistrial (Dkt. Nos. 510.00, 513.00, 514.00), dated July 10 and 11, 2018; • Motion to Open and Modify Judgment/Escrow Order (Dkt. No. 582.00), dated December 31, 2019; • Post-Judgment Motion for Modification (Dkt. No. 597.00), dated August 21, 2020; • Motion for Order re Mandamus (Dkt. No. 673.00), dated May 24, 2022; • Motion for Order to Stay Post-Judgment Contempt Hearing (Dkt. Nos. 678.00, 679.00), dated July 1, 2022; • Motion for Order for Hearing before Contempt Hearing (Dkt. No. 687.00), dated July 15, 2022; • Motion for Order to Take Discovery/Depositions (Dkt. No. 697.00), dated November 18, 2022; • Affidavit Challenging Jurisdiction (Dkt. No. 703.00), dated April 20, 2023 (also Dkt. No. 121.00 in this Action); and • Motion for Order to Set Aside and Cancel Rulings and Judgments (Dkt. Nos. 708.00, 709.00 and 710.00), dated May 2, 2023. 5 For the Court’s convenience, a true and accurate copy of the Motion for Modification is appended to the Affidavit of Lorey Rives Leddy (“Leddy Affidavit”), submitted herewith, as Exhibit 1. As set forth in fn. 3, this Court can take judicial notice of pleadings in the Divorce Action. 3 In response to the Motion for Modification, the trial court (Adelman, J.) held a three-day contested, evidentiary hearing, in May and June 2017, specifically to address Plaintiff’s claims of fraud on the court. The trial court concluded, in a written decision denying Plaintiff’s request for a downward modification, that no fraud had been committed by the Attorney Defendants or Ms. Seder. A true and accurate copy of Judge Adelman’s June 29, 2017 Decision (Divorce Action, Dkt. No. 374.00) is appended to the Leddy Affidavit as Exhibit 2. Plaintiff did not appeal this decision. Instead, Plaintiff continued to raise these same allegations in numerous pre- and post- judgment motions in the Divorce Action, but he also expanded the campaign outside of the Divorce Action. In 2016, Plaintiff asserted these same allegations in a complaint filed against Attorney Barrett with the Statewide Grievance Committee. The complaint was dismissed for lack of probable cause.6 A true and accurate copy of the Dismissal is appended to the Leddy Affidavit as Exhibit 3. In August 2018, Plaintiff filed a civil action in the Superior Court entitled Errato v. Seder et al., NNH-CV18-5043839-S, against Ms. Seder and Attorneys Barrett, Kukucka and Katz, based on these same allegations of fraud on the court arising out of the financial affidavits and the pendente lite support hearing in 2015.7 A true and accurate copy of the 2018 complaint in this 6 This Court may also take judicial notice of the file from disciplinary proceedings before the Statewide Grievance Committee. See Cannatelli v. Statewide Grievance Comm., 186 Conn. App. 135, 137 (2018); Day v. Trybulski, 2008 WL 2039301, at *2 fn 6 (Conn. Super. Ct. Apr. 28, 2008); Statewide Grievance Comm. v. Ross, 1996 WL 626293, at *2 (Conn. Super. Ct. Oct. 18, 1996). 7 Plaintiff also filed a civil action in Superior Court against only Ms. Seder, entitled Errato v. Seder, Docket No. NNH-CV16-5036696-S, which was premised on the same allegations of fraud on the court. In that complaint, Plaintiff also made extensive allegations against Attorney Barrett which he then attempted (unsuccessfully) to use in the Divorce Action to have Attorney Barrett and Pullman & Comley disqualified from representing Ms. Seder. See Divorce Action, Dkt. No. 142.00. As set forth above, the Court can take judicial notice of all pleadings and orders in both the 2016 and 2018 civil actions commenced by Plaintiff based on these exact same allegations. 4 civil action is appended to the Leddy Affidavit as Exhibit 4. Plaintiff voluntarily withdrew that case in November 2018. Plaintiff filed another civil action in the United States District Court for the District of Connecticut, entitled Errato v. Seder et al., 3:22-CV-00793 (SVN) (“Federal Action”), again premised on the exact same allegations against the Attorney Defendants and Ms. Seder, as well as four Connecticut State Court Judges who had presided over the Divorce Action at some point since 2015.8 Plaintiff contended in the Federal Action that the alleged fraud on the court, arising out of the filing of the 2015 financial affidavits and the December 2015 pendente lite support hearing in the Divorce Action, violated his constitutional rights.9 In a decision dated March 31, 2023, the complaint in the Federal Action was dismissed in its entirety as to all defendants, specifically without leave to amend the complaint on grounds that amendment would be futile. A true and correct copy of that decision is appended hereto as Exhibit 5. In its decision dismissing the complaint, the federal court (Nagala, J.) specifically determined Plaintiff’s claims against the Attorney Defendants based on the allegations of fraud on the court were barred by the litigation privilege; the claims were: squarely barred by the litigation privilege as to all of the Attorney Defendants, and as to Defendant Seder. Simms v. Seaman, 69 A.3d 880, 906 (Conn. 2013) (holding 8 This Court also can take judicial notice of court files in the Federal Action. See Bank of New York Mellon v. Worth, 2017 WL 2427966, at *1 (Conn. Super. Ct. Mar. 20, 2017); Neron v. Cossette, 2015 WL 5315563, at *3 (Conn. Super. Ct. Aug. 12, 2015). 9 In 2023, Plaintiff also filed a separate motion in federal court seeking a Writ of Mandamus against the state court in the Divorce Action on the exact same grounds of fraud on the court in 2015. The matter, entitled In re Robert M. Errato, Civil No. 3:23-cv-672 (OAW) (“Mandamus Action”) was dismissed by order dated September 7, 2023, in a decision in which Judge Williams warned Plaintiff that, because he had also filed the Federal Action based on identical allegations, “that further filings in this court of claims on this basis may result in sanctions, including an order requiring [Plaintiff] to obtain the court’s permission prior to any further filings.” ECF No. 8, at 5 n. 4, a true and correct copy of which is appended hereto as Exhibit 6. This Court can also take judicial notice of the filings in the Mandamus Action. 5 that “attorneys are protected by the litigation privilege against claims of fraud for their conduct during judicial proceedings”); Tyler v. Tatoian, 137 A.3d 801, 807 (2016) (“Although not all of the reasoning in Simms applies when the person invoking the privilege is not representing a party as an attorney, the underlying policy and history of the privilege lead us to conclude that it extends to bar claims of fraud against a party opponent.”), cert. denied, 135 A.3d 710 (2016). Exhibit 5, at 12 n. 5. Plaintiff appealed Judge Nagala’s decision to the Second Circuit. On February 22, 2024, the Second Circuit issued a decision affirming the District Court’s dismissal of the complaint in the Federal Action as to all defendants and specifically concluded that, [t]o the extent Errato has attempted to bring any state-law claim for fraud against Seder and the attorney Defendants separate from his § 1983 claim, we agree with the district court that the claim would be barred by the litigation privilege under Connecticut law. See Simms v. Seaman, 69 A.3d 880, 906 (Conn. 2013) (“[A]ttorneys are protected by the litigation privilege against claims of fraud for their conduct during judicial proceedings.”); Tyler v. Tatoian, 137 A.3d 801, 807 (Conn. App. Ct. 2016) (concluding that the litigation privilege “extends to bar claims of fraud against a party opponent”), cert. denied, 135 A.3d 710 (Conn. 2016). Errato v. Seder et al., Dkt. No. 23-638, Summary Order (2d Cir. Feb. 22, 2024) (Dkt. No. 124.00 in this case).10 Shortly after filing the Federal Action, Plaintiff commenced the civil action before this Court against the Attorney Defendants, Ms. Seder, and the same Connecticut State Court Judges as in the Federal Action, but adding several new Connecticut State Court Judges and State defendants, including Governor Lamont. The allegations underlying all of the claims in this 10 Arguably, based on the Second Circuit’s determination that the claims premised on the same allegations of fraud on the court are barred by the litigation privilege, Plaintiff is collaterally estopped from arguing that litigation privilege does not apply to his claims in this case when the allegations against the Attorney Defendants are identical to the allegations asserted against them in the Federal Action, the issue of litigation privilege was fully and fairly litigated through the motions to dismiss in the Federal Action, the issue was actually decided, and such decision was necessary to the federal court’s final judgment in the Federal Action dismissing Plaintiff’s claims against the Attorney Defendants. See Deutsche Bank AG v. Sebastian Holdings, Inc., 174 Conn. App. 573, 587 (2017), aff'd, 331 Conn. 379 (2019). 6 Complaint are the same allegations Plaintiff has repeatedly asserted in each motion, grievance and civil action filed by him since 2016: that Attorney Barrett and Ms. Seder allegedly filed fraudulent financial affidavits in October and December 2015, which he claims resulted in an excessive temporary support award to Ms. Seder in December 2015 that has never been vacated or voided by any court despite Plaintiff’s efforts to prove the alleged fraud on the court. Plaintiff has merely regurgitated the same allegations in this case as the basis for the sixteen claims against the Attorney Defendants. In this case, Plaintiff filed an “Affidavit Challenging Jurisdiction” (Dkt. No. 124.00), which he had previously submitted to the court in the Divorce Action, documenting his allegations of alleged fraud on the court and asserting that, as a result of such fraud, the alimony orders in the Divorce Action were void and the court in the Divorce Action lacked jurisdiction over the claims therein. Plaintiff filed this same affidavit in the Divorce Action shortly before filing a motion to dismiss the entire Divorce Action on the same grounds – that the court lacked subject matter jurisdiction over the Divorce Action based on the alleged fraud on the court from December 2015, which Plaintiff contended rendered void all orders and judgments therein. (Divorce Action, Dkt. No. 715.00). On July 11, 2023, the court in the Divorce Action (Nastri, J.) denied Plaintiff’s motion to dismiss the Divorce Action, holding that all issues raised in the motion by Plaintiff had been fully adjudicated previously. See Order on Motion to Dismiss, Divorce Dkt. No. 715.01, a copy of which is appended to the Leddy Affidavit as Exhibit 7. The Attorney Defendants now move to dismiss all sixteen claims against them on the grounds that this Court lacks subject matter jurisdiction over those claims. As set forth herein, even if the Court accepts all the allegations in the Complaint as true, draws all reasonable inferences in favor of the Plaintiff, and otherwise gives every benefit of the doubt to the Plaintiff, who is acting pro se in this matter, the sixteen claims asserted against the Attorney Defendants must be dismissed 7 based on the litigation privilege. Two of the claims asserted against the Attorney Defendants also are not ripe for adjudication and must be dismissed on this basis as well. And one claim, in addition to being barred by the litigation privilege, must be dismissed because Plaintiff lacks standing to assert it. II. ALLEGATIONS IN THE COMPLAINT IN THIS ACTION Plaintiff concedes in the opening paragraph of the Complaint that his claims arise out of the filing of the financial affidavits and the pendente lite support hearing in the Divorce Action in 2015. According to Plaintiff, the defendants in this action, including the Attorney Defendants, Ms. Seder, six Connecticut State Court Judges, Governor Lamont, the State of Connecticut and the Connecticut Judicial Department, purportedly engaged in an elaborate scheme, beginning in 2015, to fabricate evidence, suborn perjury, commit a fraud upon the court, and perpetuate that fraud, all of which led to the allegedly “irrevocable financial, emotional and reputational damages to the plaintiff that continues today.” Comp., ¶ 2. As to the Attorney Defendants in particular, Plaintiff alleges they “conspired together to commit fraud on the court by officers and then executed the scheme by fabricating evidence, committing perjury, suborning perjury.” Id., ¶ 4. He continues that this conduct was intentional and with severe malice. Id., at ¶ 5. As a result of this alleged misconduct, not only does Plaintiff seek monetary damages of $100,000,000.00; he also seeks to void all rulings and judgments in the Divorce Action, particularly to the extent those judgments relate to support obligations in favor of Ms. Seder. Id. Plaintiff references in the Complaint the fact that the Attorney Defendants, all current or former attorneys with the law firm of Pullman & Comley, previously represented Plaintiff’s ex- spouse – Ms. Seder – in the Divorce Action, and that all the allegations of misconduct against them occurred in the context of the Attorney Defendants’ representation of Ms. Seder in the Divorce 8 Action. See id., at Count Five, ¶¶ 4-5, 8, 9 (“On October 11, 2015 and then again on December 16, 2015 defendant Seder and defendant Barrett fabricated the financial affidavit(s) of Seder.”); Count Fifteen, ¶ 6; Count Sixteen, ¶ 2 (“The attorney Defendants individually and together created a scheme with the sole intention to have the plaintiff ‘Errato’ pay temporary, permanent alimony and a portion of defendant ‘Seder’s’ legal fees by using criminal acts and actions in the family case Seder v. Errato.”). Plaintiff repeats throughout the Complaint that each claim against the Attorney Defendants is premised entirely on the purportedly fraudulent financial affidavits and testimony submitted in the Divorce Action at a pendente lite support hearing in 2015. See id., Count One, ¶ 2, Count Two, ¶ 1 (“the attorney Defendants knowingly committed more than one criminal act in a civil family matter”); Count Three, ¶ 2 (referencing Divorce Action docket); Count Five ¶¶ 3, 6-9; Count Seven, ¶ 1; Count Eight, ¶ 1; Count Nine, ¶ 1A; Count Ten, ¶¶ 1-2; Count Eleven, ¶¶ 1-3; Count Twelve, ¶ 1 (referencing Divorce Action docket); Count Thirteen, ¶ 1 (referencing Divorce Action docket); Count Fifteen, ¶ 6; Count Sixteen, ¶¶ 1-2. Plaintiff asserts no factual allegations of misconduct by the Attorney Defendants which took place outside of the context of proceedings in the Divorce Action in 2015. In fact, Plaintiff asserts no allegations of wrongdoing or misconduct whatsoever specifically as to Attorneys Kukucka, Katz or McCreery. III. LEGAL STANDARDS “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626 (2013). “A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” Kizis v. Morse Diesel Int’l, Inc., 260 Conn. 46, 518 (2002). “[S]ubject matter jurisdiction involves the 9 authority of the court to adjudicate the type of controversy presented by the action before it.” Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 798 (2010). “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case.” Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25 (2003). Where, as here, a motion to dismiss is premised on lack of subject matter jurisdiction, additional standards may apply: Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book] § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case ... [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Dorry v. Garden, 313 Conn. 516, 521-22 (2014). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider pleadings and orders from other, related cases of which this Court can take judicial notice, and the Court need not conclusively presume the validity of the allegations of the complaint. Conboy v. State, 292 Conn. 642, 652 (2009). IV. ARGUMENT A. Litigation Privilege Bars All Claims Against the Attorney Defendants. All sixteen claims against the Attorney Defendants are barred by the doctrine of absolute immunity conferred by the litigation privilege and, accordingly, those claims must be dismissed. “[T]he doctrine of absolute immunity concerns a court's subject matter jurisdiction.” Bruno v. Travelers Companies, 172 Conn. App. 717, 724-25 (2017) (quoting Tyler v. Tatoian, 164 Conn. App. 82, 87, cert. denied, 321 Conn. 908 (2016)); see also Kenneson v. Eggert, 196 Conn. App. 773, 775 n.1 (2020) (same). Because absolute immunity implicates the Court’s subject matter jurisdiction, a motion to dismiss is the proper means by which this Court must determine “whether 10 the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive dismissal on the grounds of absolute immunity.” Bruno, 172 Conn. App. at 725. Absolute immunity based on litigation privilege derives from the public policy of “permitting the complete freedom of expression” during judicial proceedings. Kenneson, 196 Conn. App. at 782. To determine whether the privilege bars the claims at issue in this case, the Court must first determine whether the allegedly fraudulent statements “took place during a judicial proceeding.” Id. If yes, then “the court must decide as a matter of law whether the ... statements are sufficiently relevant to the issues involved in a proposed or ongoing judicial proceeding, so as to qualify for the [litigation] privilege. The test for relevancy is generous, and judicial proceeding has been defined liberally to encompass more than civil litigation or criminal trials.” Id. (quoting Hopkins v. O'Connor, 282 Conn. 821, 839 (2007)). First, there is no question that the alleged fraudulent conduct took place entirely in judicial proceedings in the Divorce Action. Indeed, by Plaintiff’s own allegations in the Complaint, the claims are all premised on his allegations that Ms. Seder and Attorney Barrett engaged in a fraud on the court by (i) filing the purportedly “false” 2015 financial affidavits, and (ii) offering Ms. Seder’s testimony at the December 16, 2015, all in connection with the pendente lite support hearing. The second issue is whether the fraudulent statements allegedly made in judicial proceedings are relevant to the dispute in the new action. Again, Plaintiff’s allegations in the Complaint stem entirely from this purported fraud on the court by Attorney Barrett and Ms. Seder through filings and testimony in the Divorce Action. Accordingly, the allegedly fraudulent conduct in the Divorce Action is directly and entirely relevant to the claims in the Complaint in 11 this action. As such, the litigation privilege applies in this case and bars all sixteen claims asserted against the Attorney Defendants based on those allegations. In Simms v. Seaman, the Supreme Court addressed allegations virtually identical to the allegations in the Complaint in this action, definitively holding that, under Connecticut law, “attorneys are protected by the litigation privilege against claims of fraud for their conduct during judicial proceedings.” 308 Conn. at 569. As the District Court and Second Circuit have already concluded in the Federal Action, the Simms decision is directly on point and dispositive of these thirteen claims against the Attorney Defendants. In Simms, the plaintiff sued his ex-wife’s attorneys for fraud and intentional infliction of emotional distress on the grounds that the attorneys had fraudulently concealed the former wife’s true financial condition in proceedings to modify her support award by not including a six-figure inheritance on the former wife’s financial affidavit. Id., at 527. The court in the dissolution action determined this information had been intentionally and improperly concealed from the court and the plaintiff. Id. Based on this alleged misconduct, the plaintiff filed a separate civil action in the Superior Court against his ex-wife’s attorneys claiming he had suffered damages as a result of their fraud. Id., at 528. The trial court in Simms “conclud[ed] that such claims against attorneys for conduct that occurred during judicial proceedings were barred as a matter of law by the doctrine of absolute immunity.” Id. The Supreme Court affirmed the decision in addressing the question: “Did the Appellate Court properly determine that claims of fraud and intentional infliction of emotional distress brought against attorneys for conduct that occurred during judicial proceedings were barred as a matter of law by the doctrine of absolute immunity?” Id., at 529. After reviewing the history of, and policy reasons for, the litigation privilege, the Supreme Court concluded “attorneys are shielded by the litigation privilege from claims of fraud.” Id., at 545. The litigation privilege applies even in cases like Simms where counsel for the ex-wife “deliberately concealed material 12 evidence from the [ex-husband] and incorrectly portrayed [the] former spouse as economically disadvantaged.” Id., at 546. Significantly, unlike the trial court in Simms, the court in the Divorce Action in this case specifically determined, after a contested hearing on Plaintiff’s allegations, that no fraud had occurred (see Exhibit 2, June 29, 2017 Memorandum of Decision). Plaintiff never appealed that decision and it remains part of the final judgment in the Divorce Action. The Statewide Grievance Committee likewise dismissed Plaintiff’s complaint against Attorney Barrett (and against Ms. Seder) for lack of probable cause (see Exhibit 3, Panel Decision). If the trial court in Simms dismissed the claims as barred by the litigation privilege, even after finding the ex-wife’s attorneys may have engaged in intentional misconduct, then here, where the court in the Divorce Action found the opposite – that no misconduct took place – the litigation privilege certainly protects the Attorney Defendants from liability and bars these thirteen claims premised on alleged fraud. In fact, the Second Circuit recently affirmed the dismissal of the entire complaint in the Federal Action on the alternative grounds that the fraud claims against the Attorney Defendants were barred by the litigation privilege. The litigation privilege protects attorneys from a wide range of claims premised on conduct or statements made during judicial proceedings that forecloses Plaintiff’s ability to assert those claims against the Attorney Defendants: we have concluded that absolute immunity bars claims of intentional interference with contractual or beneficial relations arising from statements made during a civil action (see Rioux v. Barry, 283 Conn. 338, 350–51 (2007)) (absolute immunity applies to intentional interference with contractual relations because that tort comparatively is more like defamation than vexatious litigation). We have also precluded claims of intentional infliction of emotional distress arising from statements made during judicial proceedings on the basis of absolute immunity (see DeLaurentis v. New Haven, 220 Conn. 225, 263-64 (1991)). Finally, we have most recently applied absolute immunity to bar retaliatory claims of fraud against attorneys for their actions during litigation (see Simms v. Seaman, 308 Conn. at 545–46). In reviewing these cases, it becomes clear that, in expanding the doctrine 13 of absolute immunity to bar claims beyond defamation, this court has sought to ensure that the conduct that absolute immunity is intended to protect, namely, participation and candor in judicial proceedings, remains protected regardless of the particular tort alleged in response to the words used during participation in the judicial process. MacDermid, Inc. v. Leonetti, 310 Conn. at 627–29. “As new tort theories have emerged, courts have not hesitated to expand the privilege to cover theories, actions, and circumstances never contemplated by those who formulated the rule in medieval England. One objective of expanding the privilege has been to prevent plaintiffs from subverting the purposes of the defamation privilege by bringing actions on other legal theories.” Simms, 308 Conn. 566-67. This clear precedent supports dismissal of the claims against the Attorney Defendants where each claim is premised on the same fraud allegations based on alleged misconduct during the Divorce Action. More particularly, the litigation privilege bars Plaintiff’s claims in Count One for negligence (see Stone v. Pattis, 144 Conn. App. 79, 96, 99, (2013)), Count Two for intentional infliction of emotional distress (see DeLaurentis v. New Haven, 220 Conn. at 263-64), Count Three for negligence per se (see Stone v. Pattis, 144 Conn. App. at 96-97), Count Five for “judicial fraud” (see Simms, 308 Conn. at 545), Count Seven for fraud and intentional misrepresentation (id.), Count Eight for conversion by fraud and willful wrongdoing (id.), Count Nine for fraud on the court-duty to disclose-concealment (id.), Count Ten for conspiracy to commit fraud (Stone v. Pattis, 144 Conn. App. at 99), Count Eleven for civil theft (see Scholz v. Epstein, 341 Conn. 1, 23 (2021)), Count Twelve for tortious interference (see Rioux v. Barry, 283 Conn. at 350), Count Thirteen for defamation and slander (see id.; Hopkins, 282 Conn. at 830; Dorfman v. Smith, 342 Conn. 582, 605 (2022)), Count Fifteen for fraud regarding the interim support agreement (see Simms, 308 Conn. at 545), and Count Sixteen for wire fraud/mail fraud (id.). Plaintiff’s claims in Counts Four (i) (abuse of process), Four (ii) (malicious prosecution) and Six (vexatious litigation) also should be dismissed. While generally, such claims are not 14 barred per se by the litigation privilege, in cases where – as here – the claims are merely labeled as “abuse of process,” “malicious prosecution,” and “vexatious litigation,” but are actually premised entirely on statements made and/or conduct engaged in by an attorney during judicial proceedings, those claims also fall under the litigation privilege and must be dismissed. See Grammatico, 2023 Conn. Super. LEXIS 2533 (Oct. 27, 2023); Firmin v. Charles, 2021 Conn. Super. LEXIS 1218, 2021 WL 3609631 (July 20, 2021). In Grammatico, this Court acknowledged that various torts, including abuse of process, can be barred by the doctrine of absolute immunity and litigation privilege where the conduct underlying the claims took place within the course of judicial proceedings: During oral argument on defendant's motion to dismiss, the plaintiff stated unequivocally that his causes of action against the defendant and the damages he claims resulted therefrom arise from alleged false statements the defendant made about the plaintiff in the restraining order and during the course of the hearing on the restraining order. The court concludes that the defendant's statements in her affidavit in support of the restraining order, and statements made during the course of the hearing on the application for the restraining order are absolutely privileged because they were made in the course of judicial proceedings, and because they were in some way pertinent to the subject of the controversy. Id., at **11-12. In Firmin, the trial court (Genaurio, J.) held that, [w]hile it is labeled abuse of process, and abuse of process claims are exempted from the doctrine of absolute immunity and litigation privilege, the court is not bound by the title of the count. The factual allegations contained in [the abuse of process] count are that the defendant filed a motion for contempt within that dissolution of marriage proceeding in Superior Court … Whether the motion for contempt was meritorious or filed in good faith, under Simms, is not the issue. A motion for contempt is the appropriate motion to assert a violation of a court order and the filing of that motion for contempt whether meritorious or not does not constitute actionable abuse of process. It is clearly protected by the doctrine of absolute immunity and litigation privilege. 2021 Conn. Super. LEXIS 1218, at *8. Each of these three claims asserted by Plaintiff – abuse of process, malicious prosecution and vexatious litigation – are identical in substance to each of the claims in the Complaint and arise entirely out of the filing of the financial affidavits in 2015 and 15 the testimony elicited at the temporary support hearing in December 2015, all within the context of judicial proceedings. Looking at the substance of each claim rather than the label used by Plaintiff, these claims also are barred by the litigation privilege and must be dismissed. In sum, because all sixteen claims in the Complaint against the Attorney Defendants are barred by the litigation privilege, this Court lacks subject matter jurisdiction over the claims and each of them must be dismissed. B. Plaintiff’s Vexatious Litigation and Malicious Prosecution Claims are not Ripe and Must Be Dismissed. Where a party asserts a claim that is not ripe for consideration by the court, the court’s subject matter jurisdiction is implicated. “[J]usticiability comprises several related doctrines … [including ripeness] … A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction.” Dressler v. Riccio, 205 Conn. App. 533, 546 (2021) (quoting Taylor v. Wallace, 184 Conn. App. 43, 47-48 (2018)). “[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements … Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” Cadle Co. v. D'Addario, 111 Conn. App. 80, 82-83 (2008). In this case, Plaintiff asserts claims for malicious prosecution (Count Four(ii)) and vexatious litigation (Count Six) against the Attorney Defendants based on the exact same alleged fraud on the court from 2015 in the Divorce Action. However, to assert claims either for malicious prosecution or vexatious litigation, Plaintiff must allege as a condition precedent that he prevailed in a prior action in which the allegedly vexatious or malicious conduct took place. Even assuming 16 for purposes of this Motion to Dismiss that all allegations in the Complaint are true, Plaintiff has not and cannot allege (or prove) that he prevailed in any prior action. “A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor.” Vandersluis v. Weil, 176 Conn. 353, 356 (1978) (emphasis added); see also Bhatia v. Debek, 287 Conn. 397, 405 (2008). Where no such prior action is alleged to have been terminated in favor of a plaintiff, the doctrine of ripeness has consistently been applied by Connecticut courts to dismiss claims of malicious prosecution and/o