    08-0738-cv
    Rhea v. Uhry



                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 25th day of November, two thousand nine.

    PRESENT:
              JOHN M. WALKER, Jr.,
              ROBERT A. KATZMANN,
              DEBRA ANN LIVINGSTON,
                        Circuit Judges.
    __________________________________________

    Russell Boon Rhea,

                   Plaintiff-Appellant,

                   v.                                             08-0738-cv

    Alfred Uhry,

              Defendant-Appellee.
    __________________________________________

    FOR APPELLANT:           Russell Boon Rhea, pro se, Hartford, CT.

    FOR APPELLEE:            James A. Armentano, Katz & Seligman,
                             Hartford, CT.
Appeal from the United States District Court for the District of

Connecticut (Bryant, J.).

     UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

DECREED, that the judgment of the district court be and hereby is

AFFIRMED.

     Appellant Russell Boon Rhea appeals from the judgment of the

district court entered in favor of the Appellee Alfred Uhry in

Appellant’s diversity action for defamation and intentional and

negligent infliction of emotional distress.   We assume the

parties’ familiarity with the underlying facts, proceedings

below, and specification of appellate issues and hold as follows.

     To the extent Appellant challenges the district court’s

grant of Appellee’s cross-motion for summary judgment, we review

an order granting summary judgment de novo, and ask whether the

district court properly concluded there were no genuine material

issues of fact and that the moving party was entitled to judgment

as a matter of law.   See Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 300 (2d Cir. 2003).   In determining whether there

are genuine issues of material fact, we are “required to resolve

all ambiguities and draw all permissible factual inferences in

favor of the party against whom summary judgment is sought.”

Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)(quoting Stern

v. Trs. of Columbia Univ. in the City of N.Y., 131 F.3d 305, 312

(2d Cir. 1997)) (internal quotations marks omitted).   We will


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affirm the dismissal of a claim on summary judgment only if “it

appears beyond doubt that the plaintiff can prove no set of facts

in support of [his] claim which would entitle [him] to relief.”

Id. (alterations in original)(quoting Legnani v. Alitalia Lines

Aero Italiene, S.P.A., 274 F.3d 683, 685 (2d Cir. 2001))

(internal quotation marks omitted).

     Under Connecticut law, “[i]t has long been established that

there is an absolute privilege for statements made in judicial

proceedings.”   Petyan v. Ellis, 200 Conn. 243, 245 (1986).    “The

policy underlying the privilege is that in certain situations the

public interest in having people speak freely outweighs the risk

that individuals will occasionally abuse the privilege by making

false and malicious statements.”     Id. at 246. (quoting Circus

Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 61 (1983)

(internal quotation marks omitted).    “The privilege extends also

to the proceedings of many administrative officers, such as

boards and commissions, so far as they have powers of discretion

in applying the law to the facts which are regarded as judicial

or ‘quasi-judicial’ in character.”    Id. (quoting Prosser &

Keeton, Torts (5th Ed.) § 114, at 818-19)(internal quotation mark

omitted).

     The Connecticut Supreme Court has identified several factors

that assist in determining whether a proceeding is quasi-judicial

in nature, including whether a body has the power to:

     (1) exercise judgment and discretion; (2) hear and
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       determine or to ascertain facts and decide; (3) make
       binding orders and judgments; (4) affect the
       personal or property rights of private persons;
       (5) examine witnesses and hear the litigation of the
       issues on a hearing; and (6) enforce decisions or
       impose penalties.

Kelley v. Bonney, 221 Conn. 549, 567 (1992).      “Further, it is

important to consider whether there is a sound public policy

reason for permitting the complete freedom of expression that a

grant of absolute immunity provides.”    Id.    Finally, in a quasi-

judicial proceeding, absolute privilege “extends to every step of

the proceeding until final disposition.”    Petyan, 200 Conn. at

246.

       Here, Appellant is correct that the Connecticut Department

of Banking did not engage in a hearing after Appellee filed a

letter alleging that Appellant had engaged in illegal conduct,

and instead determined that the available information did not

provide a reasonable basis for an action.      However, Connecticut

courts have provided absolute privilege for complaints seeking to

initiate full quasi-judicial proceedings, even in cases where the

complaint did not result in a full hearing.      See, e.g., Kelley,

221 Conn. at 571; Rand Constr., Inc. v. Walker, 2002 Conn. Super.

LEXIS 725 (Conn. Sup. Ct. 2002) (unpublished); Bieluch v. Smith,

1993 Conn. Super. LEXIS 1319 (Conn. Sup. Ct. 1993)(unpublished).

Accordingly, the district court correctly determined that

Appellee’s letter merited absolute privilege.

       To the extent Appellant challenges discovery rulings in the

                                  4
district court, we review such rulings for abuse of discretion.

See Goetz v. Crosson, 41 F.3d 800, 805 (2d Cir. 1994).     “A

district court abuses its discretion ‘when the action taken was

improvident and affected the substantial rights of the parties.’”

Id. (quoting In re Surety Ass’n of America, 388 F.2d 412, 414 (2d

Cir. 1967)).   In this case, the magistrate judge did not abuse

her discretion in limiting Appellant’s discovery into Appellee’s

financial support for his daughter and his control of a trust,

because such an inquiry was at best tangential to Appellant’s

claims.   Moreover, the district court did not abuse its

discretion in foreclosing an additional opportunity for Appellant

to depose Appellee, because Appellant had the opportunity to

depose Appellee for more than seven hours.   See Fed. R. Civ. P.

30(d)(1).

     To the extent Appellant challenges evidentiary rulings in

the district court, “[d]ecisions to admit or exclude evidence are

reviewed for abuse of discretion and are overturned only where

arbitrary or irrational.”   Provost v. City of Newburgh, 262 F.3d

146, 163 (2d Cir. 2001)(quoting United States v. Han, 230 F.3d

560, 564 (2d Cir. 2000)(internal quotation marks omitted).      Here,

the district court did not abuse its discretion in excluding

evidence of statements made by Appellee after Appellant filed his

action, because such evidence was tangential to his claims.      In

addition, the district court did not abuse its discretion in


                                 5
excluding testimony Appellant sought to admit at trial as hearsay

evidence, because Appellant failed to demonstrate that an

exception applied.

     Finally, Appellant argues that the district court erred in

finding that, because he failed to establish his defamation

claim, he also failed to establish his claims for infliction of

emotional distress.   Insofar as Appellant argues that he could

still raise infliction of emotional distress claims relating to

Appellee’s letter to the Connecticut Department of Banking, those

statements receive absolute privilege for the reasons described

above.   See Kelley, 221 Conn. at 571 n.15.   Appellant’s argument

additionally fails because his infliction of emotional distress

claims stem from his defamation claim, and he presented no

admissible evidence that Appellee made defamatory statements

against him.   See Finnelli v. Tepfer, 2009 Conn. Super. LEXIS

1114 (Conn. Sup. Ct. 2009) (unpublished); Red Apple II, Inc. v.

Hartford Courant, 1996 Conn. Super. LEXIS 153 (Conn. Sup. Ct.

1996)(unpublished).

     We have considered Appellant’s remaining arguments on appeal

and find them to be without merit.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk

                               By:___________________________

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