      16-3446
      Hodges v. Glenholme Sch., et al.

                               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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
      City of New York, on the 16th day of November, two thousand seventeen.
      PRESENT:
                     ROBERT A. KATZMANN,
                            Chief Judge,
                     RAYMOND J. LOHIER, JR.,
                     CHRISTOPHER F. DRONEY,
                            Circuit Judges.


      SCHELLE HODGES,

                                   Plaintiff-Appellant,

                         v.                                         No. 16-3446


      GLENHOLME SCHOOL, AKA THE GLENHOLME
      SCHOOL, DEVEREUX CONNECTICUT, OTHER,
      THE DEVEREUX FOUNDATION, INC., CLAUDIA
      NICHOLAS, STEPHEN NICHOLAS, DEVEREUX
      FOUNDATION, INC., “JOHN DOE,” TWO,
      “JOHN DOE,” THREE,

                                   Defendants-Appellees,

      “JOHN DOE,” ONE,

                                   Defendant.




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For Plaintiff-Appellant:                             WILLIAM H. GORDON (Mitchell Garabedian,
                                                     on the brief) Law Offices of Mitchell
                                                     Garabedian, Boston, MA; (Andrea Bierstein,
                                                     on the brief), Simmons Hanly Conroy, New
                                                     York, New York; (Steven J. Errante, Marisa
                                                     A. Bellair, on the brief), Lynch, Traub,
                                                     Keefe, & Errante, P.C., New Haven, CT.

For Defendants-Appellees:                            Glenholme School, AKA The Glenholme
                                                     School, Devereux Connecticut, Other, The
                                                     Devereux Foundation, Inc.
                                                     JONATHAN A. KOCIENDA (Michael R.
                                                     McPherson, on the brief), Danaher Lagnese,
                                                     PC, Hartford, CT.

For Defendant-Appellee:                              Claudia Nicholas
                                                     TIMOTHY BRIGNOLE, Brignole, Bush &
                                                     Lewis, Hartford, CT.

For Defendant-Appellee:                              Stephen Nicholas
                                                     JEFFREY C. NICHOLAS, The Nicholas Law
                                                     Firm, LLC, Torrington, CT.

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

Connecticut (Underhill, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Schelle Hodges appeals from a final judgment dismissing her

amended complaint with prejudice, entered on September 19, 2016, by the United States District

Court for the District of Connecticut (Underhill, J.). We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

       Hodges enrolled at Defendant-Appellee The Glenholme School in the spring of 1981 at

the approximate age of thirteen. Glenholme is operated by Defendant-Appellee The Devereux

Foundation, and employed Defendants-Appellees Claudia and Stephen Nicholas during the

relevant time period.

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       On July 30, 2015, Hodges filed suit in the United States Court for the District of

Connecticut against Glenholme, Claudia and Stephen Nicholas, and the three John Does,

alleging that Claudia and Stephen Nicholas sexually assaulted her while she attended Glenholme

from 1981 to 1982. Under Connecticut law, Hodges had thirty years from the “age of majority”

(eighteen years old) to commence a civil action seeking damages for personal injury based on the

sexual abuse of a minor. Conn. Gen. Stat. §§ 52-577d, 1-1d. Because an action is commenced

under Connecticut law for statute of limitations purposes “once the writ, summons and complaint

have been served upon a defendant,” Rana v. Ritacco, 236 Conn. 330, 337 (1996), the parties

agree that Hodges had until August 1, 2015 (her forty-eighth birthday) to file her complaint and

serve process.

       Although Hodges timely filed her complaint, she did not deliver the writ, summons, and

complaint to the marshal until August 5, 2015, and the marshal did not attempt to effectuate

service until August 6, 2015. The defendants accordingly moved to dismiss, arguing that

Hodges’ complaint was time-barred. Before the motions could be decided, however, Hodges

amended her complaint to allege that the defendants fraudulently concealed her cause of action,

thereby tolling the statute of limitations, and to add Devereux as a party. The district court denied

the pending motions as moot, and the defendants again moved to dismiss on statute of limitations

grounds.

       The district court granted the renewed motions on September 13, 2016, holding that

Hodges had failed to plausibly allege that the defendants had fraudulently concealed her cause of

action, that her action was therefore time-barred, and that Connecticut’s accidental failure of suit

statute, Conn. Gen. Stat. § 52-592(a), did not permit Hodges to refile her action. The district




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court entered final judgment on September 19, 2016 dismissing Hodges’ amended complaint

with prejudice, and Hodges timely appealed on October 11, 2016.

       We review a district court’s decision to grant a motion to dismiss de novo, “accepting all

factual allegations in the complaint as true and drawing all reasonable inferences in Plaintiffs’

favor.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 169 (2d Cir.

2015). We review the denial of leave to amend for abuse of discretion, id., but if the leave to

amend is denied as futile, the decision is a matter of law that is reviewed de novo, Panther

Partners Inc. v. Ikanos Commc’ns., Inc., 681 F.3d 114, 119 (2d Cir. 2012).

       We agree with the district court that Hodges has failed to plausibly plead fraudulent

concealment. The Connecticut fraudulent concealment statute sets forth that “[i]f any person,

liable to an action by another, fraudulently conceals from him the existence of the cause of such

action, such cause of action shall be deemed to accrue against such person so liable therefor at

the time when the person entitled to sue thereon first discovers its existence.” Conn. Gen. Stat.

§ 52-595. This requires a three-part showing under Connecticut law:

       (1) a defendant’s actual awareness, rather than imputed knowledge, of the facts necessary
       to establish the plaintiffs’ cause of action; (2) that defendant’s intentional concealment of
       these facts from the plaintiffs; and (3) that defendant’s concealment of the facts for the
       purpose of obtaining delay on the plaintiffs’ part in filing a complaint on their cause of
       action.

Bartone v. Robert L. Day Co., 232 Conn. 527, 533 (1995).1 In addition, the parties agree that

“[a]lthough § 52-595 does not explicitly say so, it clearly implies [a] plaintiff’s ignorance of the

facts is a necessary element of tolling under that statute.” Martinelli v. Bridgeport Roman


1
  Hodges asserts that a different standard applies because the defendants allegedly owed her a
fiduciary duty. This is incorrect. While the presence of a fiduciary duty is relevant to the
fraudulent concealment analysis, it does not replace the three elements set forth in Bartone. See
Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 424 (2d Cir. 1999).
Instead, it informs the court’s analysis as to the second element: the defendant’s intentional
concealment of the facts from the plaintiffs. Id.
                                                  4
Catholic Diocesan Corp., 196 F.3d 409, 427 (2d Cir. 1999). A plaintiff must therefore also show

that he or she was “ignorant of the facts that the defendant has sought to conceal.” Id. The

elements of fraudulent concealment must be pled with particularity under Rule 9(b). Armstrong

v. McAlpin, 699 F.2d 79, 88–89 (2d Cir. 1983).

       In brief, Hodges alleges that Glenholme and Devereux knew that Claudia Nicholas

“posed a danger” to her because they had “information” that Claudia Nicholas had

“inappropriate relationships with others” at Glenholme and had “engaged in conduct involving

serious boundary violations.” First Amended Complaint (“FAC”) ¶ 28. Glenholme and

Devereux, however, allegedly concealed these facts from Hodges’ mother and told her that

Hodges’ relationship with Claudia Nicholas was “beneficial.” FAC ¶¶ 25, 28. As a result,

Hodges did not learn that the alleged sexual conduct was “abusive” and “wrongful” until she

spoke about the events with a friend in 2013, FAC ¶¶ 23, 27, and she argues that the statute of

limitations therefore did not begin to run until that date.

       We do not determine whether Hodges has sufficiently pled the elements of fraudulent

concealment set forth in Bartone because Hodges has failed to plausibly allege that she was

“ignorant of the facts that the [defendants have] sought to conceal.” See Martinelli, 196 F.3d at

427. Hodges does not argue that she did not remember the alleged the sexual conduct until 2013.

Instead, she principally asserts that because of her age and “other serious emotional issues,” she

was not able to understand until the spring of 2013 that the sexual contact was “wrongful.” FAC

¶¶ 23, 27.

       Under Connecticut law, however, “[t]he focus is on the plaintiff’s knowledge of facts,

rather than on discovery of applicable legal theories.” BellSouth Telecomms, Inc. v. W.R. Grace

& Co.-Conn., 77 F.3d 603, 611 (2d Cir. 1996) (quoting Catz v. Rubenstein, 201 Conn. 39, 47



                                                  5
(1986)); see United States v. Kubrick, 444 U.S. 111, 122 (1979) (“[A] plaintiff’s ignorance of his

legal rights and his ignorance of the fact of his injury or its cause should [not] receive identical

treatment.”). Hodges’ delayed understanding that the sexual conduct was wrongful, i.e., illegal,

is not a “fact” necessary to establish her causes of action against the defendants. It is an

understanding of law and not a basis to toll the statute of limitations.

       We further find that Hodges has forfeited her alternative theory, raised for the first time

in her reply brief, that she was ignorant until 2013 of the “causal connection” between her

emotional and mental harm and her sexual abuse. “[A]rguments not made in an appellant's

opening brief are waived even if the appellant . . . raised them in a reply brief,” JP Morgan

Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005), and

Hodges does not argue that we should use our discretion to excuse her error, let alone that

“manifest injustice would otherwise result,” see id. (citing Frank v. United States, 78 F.3d 815,

833 (2d Cir. 1996), vacated on other grounds, 521 U.S. 1114 (1997); United States v. Babwah,

972 F.2d 30, 34–35 (2d Cir. 1992)).2

       We finally conclude that the district court did not err in holding that Connecticut’s

accidental failure of suit statute did not save Hodges’ action. Conn. Gen. Stat. § 52-592(a) allows

a plaintiff to re-file a dismissed action, within one year of dismissal, if two requirements are met:

(1) the original action must have been “commenced” within the applicable statute of limitations;



2
  While Hodges’ counsel asserted during oral argument on defendants’ motions to dismiss before
the district court that Hodges could amend her pleadings to allege that she had “repressed” the
memories of her abuse, App. 102, she did not raise the issue on appeal as a reason for why
amendment would not be futile. Indeed, although her brief cites numerous portions of the oral
argument transcript in support of her contention that she “could state additional facts further
showing fraudulent concealment by the defendants,” none of these citations include any
reference to an amendment alleging repression. See Br. 45-46. We therefore consider the
argument abandoned. See JP Morgan Chase, 412 F.3d at 428 (arguments pursued in the district
court but not made in the appellant’s opening brief are abandoned).
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and (2) the original action must have failed because of one of the specific procedural reasons

enumerated in the statute. Even assuming, arguendo, that Hodges timely “commenced” her

action under § 52-592(a), see Rocco v. Garrison, 268 Conn. 541, 550-51 (2004) (distinguishing

commencement for the purposes of a statute of limitations from that of § 52-592), she does not

argue on appeal that this case falls within one of the statute’s enumerated procedural reasons for

failure. We therefore find that § 52-592(a) is inapplicable.

       We have considered all of Hodges’ contentions on appeal and have found in them no

basis for reversal. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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