10-2579-cv
Ross v. New Canaan Envtl. Comm’n

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1.
When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix
or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy
of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 4th day of May two thousand eleven.

PRESENT:
            ROBERT D. SACK,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
______________________________________________

CHRISTINA ROSS,
                                            Plaintiff-Appellant,

                           v.                                       No. 10-2579-cv

NEW CANAAN ENVIRONMENTAL COMMISSION,
                            Defendant-Appellee.

______________________________________________

FOR PLAINTIFF-APPELLANT:                                      JOHN R. WILLIAMS, New Haven,
                                                              Connecticut.

FOR DEFENDANT-APPELLEE:                                       ANTHONY B. CORLETO, Wilson, Elser,
                                                              Moskowitz, Edelman & Dicker LLP,
                                                              Stamford, Connecticut.

        Appeal from a judgment of the United States District Court for the District of

Connecticut (Dorsey, J.). Because the relevant law of the State of Connecticut regarding the

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doctrine of res judicata is clear in the circumstances presented by this case, we are proceeding by

summary order. Thus, UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, that the judgment of the district court is VACATED and the

case is REMANDED for further proceedings.

       Plaintiff-Appellant Christina Ross appeals from the June 10, 2010, judgment of the

United States District Court for the District of Connecticut dismissing her complaint as barred by

the doctrine of res judicata. See Ross v. New Canaan Envtl. Comm’n, No. 09 Civ. 01966, 

(D. Conn. June 8, 2010). On appeal, plaintiff argues that res judicata

does not apply to her case because Connecticut law does not permit a party in a statutory land

use appeal to assert a claim for money damages in the same action. We assume the parties’

familiarity with the facts and procedural history of the case.

       In considering the preclusive effect of a state court judgment on a subsequent federal

action, under the Full Faith and Credit Act, 28 U.S.C. § 1738, we consult the preclusion laws of

the state in which the judgment was issued. Migra v. Warren City Sch. Dist. Bd. of Educ., 

, 81 (1984). The question before us, therefore, is whether Connecticut courts would give

claim preclusive effect to the Connecticut Superior Court’s denial of plaintiff’s administrative

appeal, brought pursuant to Conn. Gen Stat. § 22a-43, and thus bar litigation of her federal

substantive due process and equal protection claims (“constitutional claims”). Reviewing the

district court’s dismissal de novo, Hoblock v. Albany Cnty. Bd. of Elections, 

, 93 (2d

Cir. 2005), we conclude that Connecticut courts would not apply the doctrine of res judicata in

this context. We thus vacate the district court’s judgment dismissing plaintiff’s claims.




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       Res judicata precludes the splitting of actions that could be brought and resolved

together. See generally Restatement (Second) of Judgments § 24. In Connecticut, the doctrine

of res judicata, or claim preclusion, “bars not only subsequent relitigation of a claim previously

asserted, but subsequent relitigation of any claims relating to the same cause of action which

were actually made or which might have been made.” Isaac v. Truck Serv., Inc., 

,

421 (2000) (internal quotation marks omitted). “The appropriate inquiry with respect to claim

preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier

proceeding.” Conn. Nat’l Bank v. Rytman, 

, 44 (1997) (brackets and internal

quotation marks omitted).

       In determining the nature of a cause of action for these purposes, Connecticut courts have

long applied the transactional test under the Restatement (Second) of Judgments. See, e.g.,

Lighthouse Landings, Inc. v. Conn. Light & Power Co., 

, 348-49 (2011). Section

24 of the Restatement provides that “[t]he claim [that is] extinguished includes all rights of the

plaintiff to remedies against the defendant with respect to all or any part of the transaction, or

series of connected transactions, out of which the action arose.” Restatement (Second) of

Judgments § 24; see also Duhaime v. Am. Reserve Life Ins. Co., 

, 365 (1986)

(analyzing the “group of facts which is claimed to have brought about an unlawful injury to the

plaintiff” and noting that “even though a single group of facts may give rise to rights for several

different kinds of relief, it is still a single cause of action” (brackets and internal quotation marks

omitted)). The district court ostensibly relied on this aspect of Connecticut’s res judicata

jurisprudence in support of its conclusion that the doctrine barred plaintiff’s constitutional

claims. Such reliance, however, overlooks an exception.


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       Section 26(1)(c) of the Restatement excepts from the rule against splitting an action the

circumstances in which

       [t]he plaintiff was unable to rely on a certain theory of the case or to seek a
       certain remedy or form of relief in the first action because of the limitations on the
       subject matter jurisdiction of the courts or restrictions on their authority to
       entertain multiple theories or demands for multiple remedies or forms of relief in
       a single action, and the plaintiff desires in the second action to rely on that theory
       or to seek that remedy or form of relief. . . .

This Restatement provision has been adopted as the law of Connecticut. See Conn. Water Co. v.

Beausoleil, 

, 48 (1987) (recognizing an exception to res judicata for later actions

that assert claims or seek relief that could not have been pressed or recovered in the prior

proceeding); see also Szcapa v. United Parcel Servs., Inc., No. CV 000802134, 2002 Conn.

Super. LEXIS 2328, at *8 (Conn. Super. Ct. July 19, 2002) (stating “[i]f the plaintiff was unable

to rely on a specific theory or to seek a specific relief or remedy because of formal barriers in a

prior proceeding, . . . he may bring the same claim in a subsequent proceeding”).

       Additionally, we note the Connecticut Supreme Court has explained that “doctrines of

preclusion . . . should be flexible and must give way when their mechanical application would

frustrate other social policies based on values equally or more important than the convenience

afforded by finality in legal controversies.” Conn. Light & Power 

(internal quotation marks omitted). Under this principle, that Court has recognized exceptions to

the general policy favoring application of the doctrines of res judicata and collateral estoppel.

See, e.g., Truck Serv., 

, 429 (preclusion doctrines do not bar a plaintiff

from bringing a subsequent personal injury action after having litigated to judgment a property

damage claim in small claims court, even though both the small claims and the personal injury

actions were predicated on the same events). In the specific context of administrative appeals,

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the Connecticut Supreme Court in Cumberland Farms, Inc. v. Town of Groton, 

(2002), held that the plaintiff should not have been precluded by the doctrine of collateral

estoppel from relitigating any issue relating to its constitutional takings claim that may have been

decided by the zoning board in the course of the plaintiff’s administrative efforts to obtain a

zoning variance. 

It premised this holding “primarily on the nature of the right that the

plaintiff seeks to vindicate through its inverse condemnation claim and the particular

administrative context in which the [zoning] board made its findings in denying the plaintiff’s

variance application.” 

precedents to the res judicata analysis here, we hold that the

Superior Court’s denial of plaintiff’s administrative appeal does not have a claim preclusive

effect on plaintiff’s subsequent filing in the district court of a complaint seeking compensation

for alleged constitutional violations. Notwithstanding that plaintiff’s federal claims rely on the

same facts as were presented in the administrative proceedings that were before the Superior

Court, in her federal complaint she submits that she suffered both financial and psychological

damages as a proximate result of defendant's constitutional torts—specifically, legal fees from

her state court proceedings and losses resulting from the delay in construction as well as stress,

anxiety, and emotional pain. Under Connecticut law the Superior Court cannot award a

monetary remedy in an administrative appeal. See Cumberland Farms, 

(“[N]o monetary remedy is available in an administrative appeal.”); Ross v. Envtl. Prot.

Comm’n, No. CV 084045017S, 2009 Conn. Super. LEXIS 1311, at *7 (Conn. Super. Ct. May 8,

2009) (“An administrative appeal [pursuant to Conn. Gen. Stat. §§ 8-8 and 22a-43] cannot

provide a monetary remedy to the plaintiff.”). As a consequence, a party to an administrative


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appeal is not barred from later filing an original action in the Superior Court seeking monetary

damages. See 

(citing section 26(1)(c) of the Restatement in support

of its holding that plaintiff was not precluded by the doctrine of res judicata from bringing a

subsequent court action for damages against the defendant after having intervened in an

administrative enforcement proceeding in Superior Court).

       Indeed, in Cumberland Farms, Inc., the Connecticut Supreme Court came to just this

conclusion with respect to an administrative appeal from a zoning board decision brought

pursuant to Conn. Gen. Stat. § 8-8. While the decision primarily addressed the issue-preclusive

effect of any factual findings made by the zoning board in the case, the Court also noted that the

plaintiff had not raised its constitutionally grounded inverse condemnation claim in its

administrative appeal from the zoning board decision. The Court, acknowledging that it had

previously indicated in dictum that claim preclusion would bar a plaintiff from bringing in a

subsequent suit a takings claim not raised in an initial administrative appeal, expressly

disclaimed this suggestion, concluding instead that “in light of the significant differences

between an inverse condemnation action and an administrative appeal from an adverse decision

of a zoning board, we see no reason why a property owner who wishes to pursue both of those

separate and independent legal avenues should be required to seek a consolidation of both

actions.” Cumberland Farms, 

n.26. We similarly fail to see why the minor

distinctions between this case and Cumberland Farms, Inc.—with this case involving an appeal

from the decision of an inland wetlands commission rather than a zoning board and substantive

due process and equal protection claims rather than a takings claim—would alter the application




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of res judicata under Connecticut law. We conclude that Connecticut would not apply res

judicata in a way that would limit the relief available to plaintiff in this case.

        The defendant has not argued on appeal that there are alternative bases on which to

affirm the district court’s judgment. We therefore do not consider any other arguments made

below. The judgment of the district court is VACATED, and the case is REMANDED for

further proceedings.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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