Lamberty et al v. Connecticut State Police Union et al

3:15-cv-00378-VAB

2021 | Cited 0 times | D. Connecticut | March 26, 2021

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

MARC LAMBERTY, JOSEPH MERCER, CARSON KONOW, and COLLIN KONOW, Plaintiffs,

v. CONNECTICUT STATE POLICE UNION, KEVIN LEMBO, Comptroller, State of Connecticut, MELISSA McCAW, Secretary of Office of Policy and Management, State of Connecticut, and SANDRA FAE BROWN-BREWTON, Undersecretary of Labor Relations for the Office of Labor Relations, State of Connecticut,

Defendants.

No. 3:15-cv-00378 (VAB)

RULING AND ORDER ON MOTIONS Current and former Connecticut state troopers Marc Lamberty, Joseph Mercer, Carson Konow, and Collin , Kevin Lembo, Benjamin Barnes, Lisa Grasso Egan, 1

and Sandra Fae Brown-Brewton (collectively, the , and together with the State Police Union, . Compl., ECF No. 1 (Mar. 14, 2015). Plaintiffs alleged that Defendants injured -collection notice and procedural safeguards that had been, at that time, articulated by the United States Supreme Court,

1 On October 19, 2018, the Court ordered that, as Lisa Grasso Egan had become a judge in the Bridgeport Judicial Brown-Brewton be named as a defendant in her official capacity. See Order, ECF No. 181 (Oct. 19, 2018). On September 6, 2019, the Court ordered that the caption be further amended to reflect that Melissa McCaw be automatically substituted for Benjamin Barnes. See Order to Am. Case Caption, ECF No. 201 (Sept. 6, 2019). The fer to Ms. McCaw and Ms. Brown-Brewton.

in violation of their rights under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Id.

On June 27, 2018, the U.S. Supreme Court decided Janus v. AFSCME, overturning Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and holding that any state withholding of fair share fees from public employees covered by collective bargaining agreements was impermissible under the First Amendment. See Janus v. AFSCME, 138 S. Ct. 2448 (2018).

On August 9, 2018, Plaintiffs moved for summary judgment, arguing that there was no longer any dispute of material fact in light of the holding in Janus No. 162 (Aug. 9, 2018) . On August 30, 2018, the State Defendants and State Police

case should be dismissed as moot. See

On October 19, 2018, the Court concluded that because Janus had resolved the question of whether public sector unions could collect agency fees, and Defendants did not dispute that the law of the land had changed and ended their collection of agency fees, and agreed to return all of the agency fees Mot. for Summ. J., ECF No. 182 (Oct. 19, 20 effort to reintroduce agency fees and to the extent Plaintiffs were not adequately reimbursed for

past agency fees already imposed. Id. at 3. The Court also permitted Plaintiffs to file a post- Id.

under 42 U.S.C. § Expenses Pursuant to 42 U.S.C. § 0

and 31, 2019, both sets of Defendants opposed the motion. See State Mem. of L. in to Fee Mot., ECF No. 195 (May 30, 2019) Fee On September 6, 2019, the Court

denied the motion, finding Plaintiffs were not prevailing parties under § 1988. Ruling on Mot. for

(ECF No. 202) Denying Their Petition for Attys 202) Denying Their Petition for Attys Fees and Expenses, ECF No. 203-

motion. See , ECF No. 204 (Sept.

ons for See Notice of Appeal, ECF No. 206 (Oct. 4, 2019).

On for lack of jurisdiction, Lamberty v.

Conn. State Police Union remanded the case to this Court for further proceedings. Id. at 51-52.

On remand, the State Defendants and the State Police Union now move to dismiss the case. See Mot. to Dismiss and to Enter J. Against Pls., ECF No. 226 (Jan. 15, 2021); Mem. of L. in Supp. of

- See to Dismiss on Remand, ECF No. 217

For the reasons explained below, the Court GRANTS the State and State Police motions to dismiss.

The Court also DENIES motions for reconsideration and to modify their request for fees to include additional fees incurred since last filing.

I. FACTUAL AND PROCEDURAL BACKGROUND October 19, 2018 Ruling and Order, is assumed. 2

See SJ Order.

2 In relevant part, the pre-2018 filings referred to in this opinion include the Answer of Defendant Connecticut State r of Defendant Connecticut State Police Union to the Second Amended Complaint, ECF No. 61 (Apr. 20, 2016)

On August 9, 2018, Plaintiffs moved for summary judgment, arguing that there was no longer any dispute of material fact in light of the holding of Janus. See Pls. . At that time, Plaintiffs also requested See id. at 8 10.

On August 21, 2018, the State Police Union filed a status report informing the Court that it had, after Janus monetary demands (dues/fees that had been withheld plus claimed in conference with the Court to discuss the pending motion. See Status Report, ECF No. 165 (Aug. 21, 2018).

On August 29, 2018, the Court held a telephonic status conference with the parties. Min. Entry, ECF No. 169 (Aug. 29, 2018). During that call, Plaintiffs did not challenge the sufficiency of the reimbursements, but instead suggested other remaining injunctive relief rendered the case not moot. SJ Order at 6.

On August 30, 2018, the State Defendants and the State Police Union opposed summary judgment, arguing that any relief available to Plaintiffs was rendered

moot in light of (1) the holding of Janus all fair share fees post-Janus -

withheld fair share fees, plus interest, to Plaintiffs. SJ Order at 6 (citing at 2-4). The State Police Union argued that because the collective bargaining agreement at issue

expired on June 30, 2018, the challenge to the indemnification provision was moot, and also included in its opposition papers images of reimbursement checks it claims it sent to Plaintiffs. Id. -1 (Aug. 20, 2018)).

On October 19, 2018, the Court denied motion for summary judgment, holding that all of claims had become moot. See SJ Order at 18 In the end, there is nothing for this Court to order Defendants to do now. The Court held that the State Police reimbursement of their previously-withheld agency fees, plus interest, mooted Mr. Lamberty and Mr. claims. See id. at 13-14 Mr. Lamberty retired from state service shortly after this lawsuit began, on April 1, 2015, and Mr. Mercer retired on January 1, 2017 . . . . Their injury is their claim for the agency fees that had previously been withheld during their employment. But that injury appears to have been addressed in its entirety when the Union reimbursed Mr. Lamberty and Mr. Mercer for their previously-withheld fees, plus interest. The Court also found that Carson and Collin claims for retrospective relief similarly were mooted by the State Police reimbursement of their previously-withheld agency fees, plus interest, while their claims for declaratory and injunctive relief were mooted by the Supreme broad, unequivocal holding in Janus invalidating all state laws requiring the withholding of agency fees from nonconsenting employees, and the State immediate compliance with that holding. Id. at 16-19.

The denial was without prejudice to renewal in the event there was an effort to re-introduce agency fees, and to the extent the Plaintiffs had not been adequately reimbursed for past agency fees already imposed. Id. at 18-19 By denying the motion without prejudice, the Court permits Plaintiffs Carson and Collin Konow the ability to return to federal court if Defendants were to resume their collection of agency fees. . . . To the extent that Plaintiffs can actually demonstrate, with evidence, that the State Police Union still owes them additional fees, they may move to re-open this case for reconsideration of that issue alone. The Court accordingly directed the Clerk of the Court to administratively close the case. Id. at 19. The Court

also held that, to the extent that Plaintiffs believed they were within the meaning of 42 U.S.C. § 1988, they were required to file a motion with the appropriate supporting documentation, consistent with Second Circuit law, by November 16, 2018. Id.

On November 16, 2018, Plaintiffs moved for an award of fees and costs under 42 U.S.C. § 1988. Fee Mot.

On November 19, 2018, the Court referred the parties to United States Magistrate Judge Holly B. Fitzsimmons to determine whether the fee motion could be resolved without further litigation. Order Referring Case, ECF No. 185 (Nov. 19, 2018).

On April 10, 2019, after a period of delay and a stay of the briefing schedule for the motion, the Court set new deadlines for the State Defendants and the State Police Union to respond to the motion. Scheduling Order, ECF No. 194 (Apr. 10, 2019).

On May 30, 2019, the State Defendants opposed the motion for fees and expenses. State Fee Obj.

On May 31, 2019, the State Police Union opposed the motion. Union Fee Obj. On June 20, 2019, Plaintiffs filed a reply in support of the motion. Mem. Replying to to Their Petition for Fees and Expenses Pursuant to 42 U.S.C. § 1998, ECF No. 197 (June 20, 2019)

On September 6, 2019, the Court denied motion for fees and expenses, finding that Plaintiffs were not prevailing parties under § 1988. See Fee Order.

On September 13, 2019, Plaintiffs moved for reconsideration of the denial of their motion for fees. Mot. for Reconsideration.

On September 20, 2019, the State Police Union objected to the motion for reconsideration. Union Obj. Reconsideration.

On September 23, 2019, the State Defendants objected to the motion for reconsideration. State Obj. Reconsideration.

On October 4, 2019, Plaintiffs appealed the denial of summary judgment and denial of their motion for fees to the Second Circuit. Notice of Appeal.

On October 1, 2020, the Second Circuit dismissed the appeal for lack of jurisdiction and remanded the case to this Court. See Lamberty,

On October 29, 2020, the State Defendants moved to dismiss the action on remand. State

On November 20, 2020, the State Police Union moved for a telephonic status conference with the Court. Mot. for Telephonic Status Conf., ECF No. 219 (Nov. 20, 2020). On November 22, 2020, the Court granted the motion and scheduled a status conference for December 3, 2020. Order, ECF No. 220 (Nov. 22, 2020).

On December 1, 2020, the State Defendants filed a r motion to dismiss the action on remand. Reply Br. in Supp. of Mot. to Dismiss on Remand, ECF

On December 3, 2020, the Court held a telephonic status conference with the parties. Min. Entry, ECF No. 223 (Dec. 3, 2020). That same day, the Court issued an order providing the State Police Union until January 15, 2021 to file its motion to dismiss, and all parties until January 15, 2021 to file briefing on any jurisdictional issues pertaining to the pending motion for reconsideration. Order, ECF No. 224 (Dec. 3, 2020).

On January 15, 2021, the State Police Union moved to dismiss the action on remand. Union MTD.

their motion to dismiss and supplemental brief No. 228 (Feb. 18, 2021)

On February 19, 2021, the State Police Union replied

On March 11, 2021, Plaintiffs filed a supplemental memorandum in opposition to the Remand, ECF No. 234 (Mar. 11

On March 17, 2021, the Court held oral argument on the motions to dismiss and the motion for reconsideration by videoconference. Min. Entry, ECF No. 236 (Mar. 18, 2021). During oral argument, Plaintiffs moved to modify their request for fees to include additional fees incurred since last filing. Oral Mot., ECF No. 237 (Mar. 17, 2021).

II. STANDARD OF REVIEW

A. Motion to Dismiss In every case, a court must determine whether it has subject matter jurisdiction. In evaluating a motion under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the Court accept as true all material factual allegations in the complaint, but need not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). A case is properly dismissed under Rule 12(b)(1) where the district court the statutory or constitutional power to adjudicate the Morrison v. Austl. Bank. Ltd., 547 F.3d 167, 170 (2d Cir. 2008).

The burden to prove subject matter jurisdiction generally falls on the plaintiff, but where a official or government entity asserts the Eleventh Amendment as the basis of the 12(b)(1) motion, the burden falls to that entity to prove its entitlement to dismissal on the grounds of immunity from Pawlow v. of Emergency Servs. & Pub. Prot., 172 F. Supp. 3d 568, 573 (D. Conn. 2016) (internal quotation marks omitted) (citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 239 (2d Cir. 2006)).

Mootness also is a threshold issue that courts must address when changes in circumstances occur that may moot a case. See United States v. Juvenile Male, 564 U.S. 932, 935-36 (2011). This review is required because ticle III, Section 2 of the Constitution limits the jurisdiction of the federal courts to the resolution of cases and controversies. Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (internal quotation marks omitted); see also Already, LLC v. Nike, Inc., 568 no business deciding legal disputes or expounding on law in the absence of . . . a case or controversy [under Article III, Section 2] DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)); Genesis

Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)); DeFunis v. Odegaard, 416 U.S. 312, 316 requirement of Art. III of the Constitution under which exercise of judicial power depends upon the existence (internal quotation marks omitted)). When a case becomes moot, the federal courts lack subject matter jurisdiction over the action. Fox v. Bd. of Tr. of the State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994) (internal quotation marks omitted).

A case becomes moot when there is no longer an ongoing injury that can be redressed through judicial action because the es presented are no longer or the parties lack a legally cognizable interest in the Already, 568 U.S. at 91 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute no longer embedded in any actual controversy about the particular legal Id. (quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009)). Thus, an intervening circumstance deprives the plaintiff of a stake in the outcome of the at any point during litigation, the action can no longer proceed and must be dismissed as Genesis Healthcare, 569 U.S. at 72 (quoting Lewis v. Cont. Bank Corp., 494 U.S. 472, 477 78 (1990)).

However, case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing Knox v. Serv. Empls. Union, 567 U.S. 298, 307 (2012) (internal quotation marks omitted) (finding that offer to refund past fees plus interest to class members did not moot case where a controversy remained as to the adequacy of refund notice). As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot. Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox, 567 U.S. at 307 08).

It is well-settled that significant changes in law are one type of intervening circumstance that can moot a claim or case. See Bigelow v. Virginia, 421 U.S. 809, 817-18 (1975) (affirming finding that statutory amendment mooted the issue of overbreadth, as amendment effectively repealed its prior application such that there was no possibility that its previous form would be applied again to the appellant or chill rights of others); Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 377 79 (2d Cir. 2004) (affirming finding that certain claims directed at town ordinance were rendered moot through amendments); Granite State v. Town of Orange, Conn., 303 F.3d 450, 451 52 (2d Cir. 2002) (per curiam) (affirming denial of injunctive relief as moot where town revised its regulations through proper and had no of returning to the prior regulatory It is also well-settled that where a cessatio of injury-causing conduct is alleged to have mooted a case, the case is not automatically deemed moot; rather, the defendant must show that the conduct is unlikely to reoccur with respect to the plaintiffs before the court. See City of Mesquite v. Aladd Castle, Inc., 455 U.S. 283, 289 (1982) (declining to find case moot where repeal of objectionable language would not preclude it from reenacting precisely the same provision in the future if district court judgment was vacated as moot, and where city had announced its intention to do so); United States v. W.T. Grant Co., 345 U.S. 629, 632 cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the where defendant free to return to his old

The defendant bears a burden in such cases and must show that is no reasonable expectation that the wrong will be Id. at 633; see also Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000) heavy burden of persuading the court that the challenged [voluntarily ceased] conduct cannot reasonably be expected to start up again

lies with the party asserting (internal quotation marks and alteration omitted)). This requirement ensures that defendants cannot simply insulate themselves from binding judicial review of conduct that is likely to reoccur. Id. at 632 courts have rightly refused to grant defendants such a powerful weapon against public law enfo United States v. Oreg. State Med. Soc., 343 U.S. 326, 333 (1952) defendants are shown to have settled into a continuing practice . . ., courts will not assume that it has been abandoned without clear proof. It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of (internal citations omitted)). Finally, while the Supreme Court has held that an unaccepted offer of settlement that has expired, such as a Rule 68 offer, does not moot a case, it also has indicated that that, in individual actions, a decision to fully pay plaintiffs the amount in controversy, and acceptance of those payments, will extinguish those monetary claims. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 162-66 (2016) (contrasting unaccepted Rule 68 offer cases with earlier cases where the Court found actual tender of full amounts in controversy to plaintiffs had mooted claims for actual damages).

B. Motion for Reconsideration

amend a judgment . . . no later than 28 days after the entry of the judgment. Fed. R. Civ. P. 59(e). Courts consider a motion made under Rule 59(e) to be a motion for reconsideration. See Krohn v. , 341 F.3d 177, 179 (2d Cir. 2003) (noting that a party timely filed for reconsideration under Fed R. Civ. P. 59(e) and 60(b)).

The standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd grounds justifying reconsideration are an intervening change of controlling law, the availability of

new evidence, or the need to correct a clear error or prevent manifest injustice. quotation marks to reconsider should not be granted where the moving party seeks Shrader, 70 F.3d at 257.

Under Rule 60(b), the Court may relieve a party from a final judgment, order, or proceeding for, inter alia Fed. R. Civ. P. 60(b)(1); newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) Fed. R. Civ. P. 60(b)(2); . . ., misrepresentation, or misconduct by Fed. R. Civ. P. 60(b)(3) decision whether is committed to the sound discretion of the

district court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) (internal quotation marks omitted).

Rule 60(b) provides extraordinary relief, and a motion under Rule 60 should be granted Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1993); Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009) (Rule 60(b) if the moving party demonstrates exceptional circumstances, and relief under the rule is

(alteration in original)). The Court, however, may assess a pro se party's motion

under Rule 60(b) any pro se pleading. Matura v. United States, 189 F.R.D. 86, 89 (S.D.N.Y. 1999).

Nygren v. Greater N.Y. Mut. Ins. Co., No. 3:07-cv-462 (DJS), 2010 WL 3023892, at *2 (D. Conn. Aug. 2, 2010); see also Lesch v. United States , 182 review of a district court order granting or denying a motion for [reconsideration under both Rule

Devlin v. ion, 175 F.3d 121, 132 (2d Cir. 1999))).

III. DISCUSSION The State Defendants and the Union both move Union MTD. Plaintiffs move expenses. Mot. for Reconsideration.

The Court addresses the motions in turn.

A. Motions to Dismiss The t 2-4. As

Id. at 2. The State Defendants also

Janus

constituted and substituted for the dec Connecticut General Statutes § 5-280, the state statute authorizing agency fees. Id. at 3.

Defendants, for both liabilit see 3-5; and (2) qualified immunity, see id. at 4-5; and also argue that Wholean v. CSEA SEIU Local 2001, 955 F.3d 332 (2d Cir. 2020), cert.

petition pending, U.S. Dkt. No. 20-605, see 4-5.

, claims seeking declaratory and injunctive relief. Union MTD at 7. As the Union argues, dismissal

is warranted because post-Janus Id. at 7; id. at 8-11 (collecting cases). The Union also argues that conduct that violates Janus Id. at 11.

The Union also argue declaratory judgment invalidating the Connecticut statute because there is no ongoing violation of

id. at 12-e good faith Wholean, id. at 13-14.

Plaintiffs argue that entry of judgment is not appropriate at this time because (1) their motion for reconsideration remains pending and (2) the Plaintiffs anticipate the filing of a -2 (also requesting that the Court

exercise its discretion under Federal Rule of Civil Procedure 58 to extend the time for filing a notice of appeal until thirty (30) days after final disposition of a timely-filed supplemental petition

Plaintiffs also raise several arguments as to why their claims are not moot, including that (1) Janus does not moot the case id. voluntarily cessation does not moot the case because Defendants remain free to resume their challenged activity, particularly as the Connecticut statute authorizing agency fees remains on the books, id. at 4-8; (3) the case remains live because the Plaintiffs seek declaratory relief, id. at 8-9; and (4) the case remains live because Defendants did not give Plaintiffs all that they sought with their lawsuit, id. at 9-10. With respect to the arguments raised by the Union, Plaintiffs argue that id. at 4-5.

Id. at 5-8.

The Court addresses each argument in turn.

1. Mootness Given Janus and Post-Janus Actions As the Court described, after the Supreme Janus,

Defendants took a number of responsive steps, including issuing notice that the state would - announcing that new procedures to agencies would be introduced in light of Janus; publicly stating

that withholding of agency fees would end effective with July 2018 paychecks; and issuing legal guidance on implementation of Janus. Id. at 5-6. The Court also observed that Plaintiffs did not dispute that Union reimbursements of past agency fees occurred, or continue to assert a claim for actual damages, though the Court noted in a footnote that Plaintiffs claimed at oral argument that the fees may not have been properly calculated and invited Plaintiffs to reopen the case on that issue alone should they maintain the Union owed them additional fees. Id. at 11 & n.2.

to possess legally cognizable interests in spite of the change in circumstances that is claimed to

id. at 12 (citing Already they have suffered, are suffering, or will be threatened with an injury in fact that is fairly traceable to id. (citing Allen v. Wright, 468 U.S. 737, 751 (1984)) continue[d] to exist in light of the relevant change in circu Janus and

Janus, for each set of Plaintiffs, id. at 13.

The Court concluded that the claims of retired Plaintiffs Mr. Lamberty and Mr. Mercer were moot for several reasons, including that Id. at 13-14.

The Court also concluded that the claims of currently employed Plaintiffs Carson and Collin Janus efendants Id. at 17.

The Court, however, also Id. at 18. It did so for two reasons: first, to

efendants - the State Police Union still owes them

Id. at 18-19.

Plaintiffs do not allege that either event has occurred here: that Defendants have resumed their collection of agency fees or that the calculation of fee reimbursements was erroneous. Instead, Plaintiffs seek to relitigate the question of mootness, setting forth arguments each of which was considered and addressed by the Court in its order denying summary judgment.

t [in] each and every statutory or regulatory regime -6. Janus Id. at 6.

The Court, however, thoroughly addressed this issue in its order denying summary judgment. The Court - uded

[] their collection of agency Id. at 17. Instead, the Court observed Janus . . . not because but because Janus. Id. Plaintiffs have set forth insufficient support for their present claim that this conclusion was incorrect or that the ul examination of its cited cases bears the opposite conclusion. Even if true that settlement informed the calculation of agency fees repaid to Plaintiffs, as Plaintiffs suggest, see - conclusion that Janus fees as Janus requires.

The Court also at summary judgment current claim that the case is not moot becau (1) Janus; (2) an injunction

preventing the State Defendants from enforcing the agency fee statute; and (3) an injunction SJ Orderat 11-12. judgment stage, Janus ic sector unions

Id. at 17.

explicitly finds that relief, are moot in light of Janus. Indeed, as the Court observed at summary judgment, several

cases to have considered this question post-Janus have concluded that repeal of state agency-fee statutes is not required to render a case moot. See, e.g., Yohn v. , No. SACV 17-202-JLS-DFM, 2018 WL 5264076, at *4 (C.D. Cal. Sept. 28 change would certainly render this case moot, a policy change can as well, depending on whether

the challenged conduct can be reasonably expected to recur. Accordingly, because the challenged

(internal quotation marks and citations omitted)); Danielson v. Inslee, 345 F. Supp. 3d 1336, 1340 (W.D. Wash. 2018), , 945 F.3d 1096 (9th Cir. 2019) statutory changes, because a statutory change is usually enough to render a case moot, policy

changes may or may not render a case moot, depending on whether the challenged [conduct] can be reasonably expected to re ; , 466 F. Supp. 3d 1095, 1098-99 (E.D. Cal. 2020) (denying claims for declaratory a California statutes [authorizing the deduction of agency fees] is not a requirement for this court to , 386 F. Supp. 3d

statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to ; Seidemann v. Prof. Staff Congress Local 2334, 432 F. Supp. 3d 367, 380 (S.D.N.Y. 2020)

as the legislature retains a problematic statute on the books. As has already been noted [in that case] and by numerous other district courts, Janus fundamentally changed the law of the land, and by virtue of the Supremacy Clause, Janus (citing, inter alia, U.S. Const. art. VI; Cooper v. Aaron, 358 U.S. 1, 18 (1958)) (other internal

citations omitted)). 3

3 Though Plaintiff argues that cases such as Seidemann in part because these actions were in some cases filed after Janus Plaintiffs do not exp particularly as Defendants have taken many steps to reiterate that they will not continue to collect agency fees as

prohibited by Janus.

The cases now relied upon by Plaintiffs for this argument particularly Teachers Local No. 1 v. Hudson, 475 U.S. 292 (1986) and , 567 U.S. 298 (2012) do not require the opposite conclusion. See at 6-8. In policy, but

rather, as Plaintiffs concede, MTD at 6; see, e.g., Hudson, 475 U.S. at 305 n. 1 applicability where a defendant union had changed its procedures to cure alleged defects after

being sued in federal court); Knox, 567 U.S. at 307 (declining to find case as moot where the defendant union had, after a petition for certiorari was filed, sent a notice offering a full refund to . Similarly, in City of

Mesquite, also relied upon by Plaintiffs, the Supreme Court declined to find a case as moot where a certain provision of an ordinance had been repealed, finding that it would be possible even after for the city to re 455 U.S. at 289.

Here, however, - Janus actions aimed at ceasing agency fee collection policies were motivated not by voluntary Janus And, given Janus City of Mesquite, not now be possible

for Defendants to enforce or attempt to enforce agency fee collection. See 455 U.S. at 489; see also Gabriele, 466 F. Supp. 3d at 1098- that the union defendants will resume withholding agency fees in contravention of Janus Case 3:15-cv-00378-VAB Document 238 Filed 03/26/21 Page 22 of 35 Janus

Therefore, given Janus arguments that

see -9 id. at 9, and Defendants retain agency fees, id. at 7, all are unavailing. As was true at su

-Janus , , an event that

would be expressly prohi . Janus -Janus, as

those are not addressed here, all of will be dismissed as moot.

2. Eleventh Amendment Immunity a suit against state officials when the state is the real, substantial party in interest. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (internal quotation marks omitted); Alabama v. Pugh, 438 U.S. 781, 781 (1978) (per curiam) sovereignty than . . . a federal court instruct[ing] state officials on how to conform their conduct

Pennhurst, 465 U.S. at 106.

In Ex parte Young, 209 U.S. 123 (1908), however, the United States Supreme Court t of sovereign immunity from suit to permit a plaintiff to sue a state official acting in an official capacity for prospective injunctive relief for continuing violations of federal law. Id. at 155-56; In re Dairy Mart Convenience Stores, Inc., 411 F.3d 36 acting in his official capacity not[]withstanding the Eleventh Amendment for prospective

injunctive relief In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (internal quotation marks omitted). Eleventh Amendment immunity may also be waived by Congress, see Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001), or by the state, see College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).

Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges Verizon , 535 U.S. 635, 645 (2002) (internal quotation marks omitted); see also State Empls. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 96 (2d Cir. 2007) Ex parte Young to examine whether there exists an ongoing violation of federal law. ; Myers v. Semple, No. 3:18-cv-505, 2018 Ex parte Young exception does not apply to declaratory relief against state officials in their official capacities when the relief relates only to .

Both the State Defendants and the Union argue that, under the Eleventh Amendment, the Connecticut statute because there is no ongoing violation of federal law. See Union MTD at 12- -4. As they argue, because, since Janus defendants will start to recover fair-

see also Union MTD at 12-13.

perly

MTD at 7-8. osts can, under Supreme Court and Second Circuit precedent, be awarded against state officials notwithstanding Eleventh Amendment immunity. Id.

The Court disagrees. are inapposite for several reasons. First, this line of cases holds that Missouri v. Jenkins by Agyei, 491 U.S. 274, 284 (1989); see

also Gagne v. Maher, 594 F.2d 336, 342 (2d Cir. 1979), Class v. Norton, 505 F.2d 123, 127 (2d Cir. 1974)

prospective relief: a multiple injunctive order to issue certain regulations, withdraw specified departmental directives, and make designated re an inevitable consequence of the principle announced in Ex parte Young Case 3:15-cv-00378-VAB Document 238 Filed 03/26/21 Page 25 of 35 ; Hutto v. Finney, 437 U.S. 678, 684 (1978) (noting that . Here,

however, the Court has not, and will not, issue any judgment granting prospective relief against

prospective decree. 4

due to bad faith by defendants. See, e.g., Hutto, 437 U.S. at 684-85 (noting that the district court Class, 505 F.2d at 127 (after finding that

-

inary measure, but is warranted where bringing of the action should have been unnecessary and was compelled by unreasonable, obdurate that Defendants have unduly delayed the proceedings or have otherwise acted in bad faith, nor

1988. See Fee Mot.; Mot.

for Reconsideration.

Accordingly, because Plaintiffs have set forth no ongoing violation of federal law, the See, e.g., Diamond v.

4 Any claims for money damages against the State Defendants in their official capacities are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985).

, 399 F. Supp. 3d 361, 379 (W.D. Pa. 2019), , 972 F.3d 262 (3d Cir. 2020) aintiffs sue Commonwealth Defendants without alleging that those Defendants claims . . . because there is no allegation of an ongoing violation of federal law, and the Eleventh

3. Good Faith Immunity

precedent in collecting fair-share fees cannot be held liable for monetary damages under § - Wholean, 955 F.3d at 334, 334. In Wholean, the Second Circuit

held that the defendant union who, before Janus, collected fair-share fees, but after Janus, ceased

whether, when, and how Abood controlling Supre Id. at 336.

The Union argues that under Wholean, it could not be held liable for monetary judgments for agency fees collected before Janus, nor could it be held liable for any future claim for additional

Union MTD at 14. Wholean Wholean fees in accordance with . . . Abood, and before the Supreme Court issued its decision in Janus Id. The State Defendants also argue that good faith immunity applies to the Union under Wholean.

4-5.

Plaintiffs argue that the good faith arguments raised by Defendants are untimely, as the -6.

vant Wholean

t opportunity for such a defense to be Id. Both the State Defendants and the Union also argue that issues of subject matter jurisdiction are never waived and can be asserted at any time. Id.; see also Union MTD Reply at 2. Finally, the Union argues that the Wholean decision supports a conclusion that Plaintiffs cannot state a claim, an affirmative defense the Union set forth in its Answer. Id. The Court agrees.

Though the Court is aware of no precedent discussing Wholean jurisdictional challenges under Rule 12(b)(1) or challenges for failure to state a claim under Rule 12(b)(6), the Court finds that the defense would, in either case, effectively immunize the Union from liability judgments for monetary fees collected before Janus.

To the extent that the good-faith defense articulated in Wholean goes to an argument that Plaintiffs have failed to state a claim under Rule 12(b)(6), several district courts have concluded that Wholean applies in this context. See, e.g., Pellegrino v. N. Y. State United Teachers, No. 18- CV-3439 (NGG) (RML), 2020 WL 2079386, at *2 (E.D.N.Y. Apr. 30, 2020) (finding where Wholean is nearly identical to the case Mattos v. Am. Fed. of State, Cty. and Mun. Empls., AFL-CIO, Council 3, No. GLR-19-2539, 2020 WL 2027365, at *2 (D. Md. Apr. 27, 2020) (granting Rule 12(b)(6) motion to dismiss on the ground that the good faith defense applied, finding t -members was consistent with both state law and Supreme Court jurisprudence at it existed at the time, AFSCME

is entitled to the good-faith defense under § based on Pl Union Answer I at 7; Union Answer II at 10.

To the extent that the good- -matter jurisdiction over the case, similar to Eleventh Amendment immunity, the Court retains the ability to address those claims at any time. See Turner v. Boyle, 116 F. Supp. 3d 58, 73 (D. Conn. 2015) monetary damages brought against the State, or against a state employee in his official

capacity. . . (citing Graham, 473 U.S. at 169)); Williams v. Marinelli, 987 F.3d 188, 196 (2d Cir. relief sought by [Plaintiff] would violate (citing Atlantic Healthcare Benefits Tr. v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) (raising Eleventh

Amendment immunity sua sponte

Janus and -Janus also concludes that the good-faith defense provides an additional against the Union. 5

6

5 Plaintiffs also argue that the Wholean good-faith defense does not apply to the State Defendants, as they are public concede that the Wholean Instead, the State Defendants argue that the doctrine of qualified immunity bars liability for those Defendants, to the See id. As the Court does not findings as to mootness, the Court need not, and does not, address the qualified immunity issue. 6 lief to [them] here would virtually read out the obligations of the [f]ederal courts (citing , 509 U.S. 86, 97 (1993)). As the Second Circuit observed in Wholean, however,

The Court therefore 7

B. Motion for Reconsideration s of prior- but rather, were made under terms negotiated at settlement, which the Court allegedly overlooked

in its order, Mot. for Reconsideration at 4-5; and (2) the C will disincentivize parties from participating in settlement and/or from accepting complete substantive relief in settlement negotiations, 1988, id. at 5-7.

Plaintiffs attach to their motion an e-mail from Magistrate Judge Holly Fitzsimmons, see ECF No. 203- -mail from State see ECF No. 203-

directly citing Harper Janus suggests that the Supreme Court intended its ruling to be Janus -sector unions may no longer extract agency fees from Janus, 138 S. Ct. at 2486 . . ., and the Supreme Court reversed and remanded for further Even if this Court were to, as some others have, urt in Janus Diamond, 972 F.3d at 268 n.1; see also Danielson the right delineated in Janus nonetheless would con -Janus Janus Diamond, 972 F.3d at 269 n.1. 7 Uzuegbunam v. Preczewski, 592 U.S. __, (2021), 2021 WL 850106, as supplemental authority in support of their opposition to the motions to dismiss. See Uzuegbunam, the Supreme Court held that a request for nominal damages satisfies the based on a completed violation of a legal right. See 592 U.S. ___. Uzuegbunam, however, is distinguishable: as the Court explained in its summary gency -settled that plaintiffs are not entitled to nominal damages where they have also rece -16 (citing Gentile v. Cty. of Suffolk, 926 F.2d 142, 155 (2d Cir. 1991)); see also Johnson v. City of Saginaw, No. 17-cv-13174, 2021 WL 927371, at *5 n.3 (E.D. Mich. Mar. 11, 2021) (slip op.) (observing that in Uzuegbunam for the plaintiff who pleads, but fails to prove, Uzuegbunam, 2021 WL 850106, at *6-7))

W. James Young, see No. 203- As Plaintiffs argue, the e-mails from Magistrate

Judge Fitzsimmons and Mr. Sponzo, as well as the substance of their settlement negotiations, led

emaining dispute was over the proper amount of their -7; Young Decl. ¶ 3.

Both sets of Defendants object to the motion for reconsideration. See Union Obj. deration. Defendants argue that Plaintiffs have failed to set forth any legal evidence of any controlling decisions or data that the Court overlooked and instead reiterate arguments that have already been considered by the Court. See Union Obj. Reconsideration at 1; see also -2. Defendants also argue that event, that this information does not suffice to w See

Reconsideration at 2-4 (ar that Plaintiffs omitted the context of the settlement discussions, and that their participation in

settlement negotiations -mail communication, did not constitute

The Court agrees. Federal Rule of Evidence 408 provides, in relevant part:

(a) Prohibited uses. Evidence of the following is not admissible on

behalf of any party, when offered to prove liability for, invalidity

of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting

or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations

regarding the claim....

concessions in settlement negotia Master-Halco, Inc. v. Scillia, Dowling & Natarelli, LLC,

739 F. Supp. 2d 125, 129 (D. Conn. 2010) (quoting Jamahiriya, 568 F.3d 345, 351 (2d Cir. 2009)). ce regarding settlement negotiations is admissible if used for a purpose other than one of

id. (citing , id. (citing Pierce v. F.R. Tripler & Co., 955

F.2d 820 (2d Cir. 1992)). Here, Plaintiffs seek to introduce settlement-related communications to prove the validity

-withheld agency fees and issuing guidance as to post-Janus protocols, under Janus and not with the purpose of mooting the claim. See, e.g., Mot. for Reconsideration at 4- [T]he Court appears to have overlooked this they were not, because they came out of the commendable settlement efforts of Magistrate Judge

id. [s] e[-]mail to

counsel, [Plaint Rule 408, then, bars consideration of these communications for purposes of

. 8

Even if these statements were admissible, however, the communications relied upon by Shrader, 70 F.3d at 257.

The were not prevailing parties under § 1988. See Fee Order at 2, 10-17. As the Court concluded, its

Janus had the effect of mooting t Janus, was on their claim for actual damages for the

previously- Id. at 11. As the Court held, § not provide relief for plaintiffs when their actions had no bearing on the intervening Supreme Court

Id. judgment the merits or court-ordered consent decree, . . . the ruling provided nothing of value to

id. at 16 under § id. at 17.

bility of new evidence, or Virgin Atl. Airways, Ltd., 956 F.2d

8 see, e.g., Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011), these cases have for such fees, as is the case here.

at 1255. Specifically, nothing conclusion that, given t

parties under § 1988. SJ Order at 17 see supra, finding Plaintiffs to be prevailing parties would be an absurd result.

Furthermore, to the extent Plaintiffs rely on policy-oriented arguments to assert that this

substantive relief or from participating in Court-ordered settlement, the Court notes that finding the opposite way namely, permitting communication undertaken as part of settlement on whether Defendants may be fees also likely would have significant consequences. See, e.g., Master- Halco, Inc, 739 F. Supp. 2d at 1 compromise and settlement of disputes, by taking into account the reality that permitting the consideration of settlement offers as reflecting an admission of liability would discourage parties from d A. Berger, § 408.02[1] (Joseph M. McLaughlin ed., 2d ed.))).

9

and, for the same reasons,

9 lacks jurisdiction over this action, it also lacks -15. As the Court previously after denying summary judgment on mootness grounds, however, and absent support from the Union for its proposition that granting dismissal would deprive the Court of jurisdiction to decide the motion for reconsideration, the Court addresses the motion on the merits.

IV. CONCLUSION For the reasons explained above, the Court GRANTS the State and the State Police motions to dismiss.

The Court also DENIES motions for reconsideration and to modify their request for fees to include additional fees incurred since last filing.

The Clerk of Court is respectfully directed to enter judgment for Defendants and close this case.

SO ORDERED at Bridgeport, Connecticut, this 26th day of March, 2021.

/s/ Victor A. Bolden Victor A. Bolden United States District Judge

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

MARC LAMBERTY, JOSEPH MERCER, CARSON KONOW, and COLLIN KONOW, Plaintiffs,

v. CONNECTICUT STATE POLICE UNION, KEVIN LEMBO, Comptroller, State of Connecticut, MELISSA McCAW, Secretary of Office of Policy and Management, State of Connecticut, and SANDRA FAE BROWN-BREWTON, Undersecretary of Labor Relations for the Office of Labor Relations, State of Connecticut,

Defendants.

No. 3:15-cv-00378 (VAB)

RULING AND ORDER ON MOTIONS Current and former Connecticut state troopers Marc Lamberty, Joseph Mercer, Carson Konow, and Collin , Kevin Lembo, Benjamin Barnes, Lisa Grasso Egan, 1

and Sandra Fae Brown-Brewton (collectively, the , and together with the State Police Union, . Compl., ECF No. 1 (Mar. 14, 2015). Plaintiffs alleged that Defendants injured -collection notice and procedural safeguards that had been, at that time, articulated by the United States Supreme Court,

1 On October 19, 2018, the Court ordered that, as Lisa Grasso Egan had become a judge in the Bridgeport Judicial Brown-Brewton be named as a defendant in her official capacity. See Order, ECF No. 181 (Oct. 19, 2018). On September 6, 2019, the Court ordered that the caption be further amended to reflect that Melissa McCaw be automatically substituted for Benjamin Barnes. See Order to Am. Case Caption, ECF No. 201 (Sept. 6, 2019). The fer to Ms. McCaw and Ms. Brown-Brewton.

in violation of their rights under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Id.

On June 27, 2018, the U.S. Supreme Court decided Janus v. AFSCME, overturning Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and holding that any state withholding of fair share fees from public employees covered by collective bargaining agreements was impermissible under the First Amendment. See Janus v. AFSCME, 138 S. Ct. 2448 (2018).

On August 9, 2018, Plaintiffs moved for summary judgment, arguing that there was no longer any dispute of material fact in light of the holding in Janus No. 162 (Aug. 9, 2018) . On August 30, 2018, the State Defendants and State Police

case should be dismissed as moot. See

On October 19, 2018, the Court concluded that because Janus had resolved the question of whether public sector unions could collect agency fees, and Defendants did not dispute that the law of the land had changed and ended their collection of agency fees, and agreed to return all of the agency fees Mot. for Summ. J., ECF No. 182 (Oct. 19, 20 effort to reintroduce agency fees and to the extent Plaintiffs were not adequately reimbursed for

past agency fees already imposed. Id. at 3. The Court also permitted Plaintiffs to file a post- Id.

under 42 U.S.C. § Expenses Pursuant to 42 U.S.C. § 0

and 31, 2019, both sets of Defendants opposed the motion. See State Mem. of L. in to Fee Mot., ECF No. 195 (May 30, 2019) Fee On September 6, 2019, the Court

denied the motion, finding Plaintiffs were not prevailing parties under § 1988. Ruling on Mot. for

(ECF No. 202) Denying Their Petition for Attys 202) Denying Their Petition for Attys Fees and Expenses, ECF No. 203-

motion. See , ECF No. 204 (Sept.

ons for See Notice of Appeal, ECF No. 206 (Oct. 4, 2019).

On for lack of jurisdiction, Lamberty v.

Conn. State Police Union remanded the case to this Court for further proceedings. Id. at 51-52.

On remand, the State Defendants and the State Police Union now move to dismiss the case. See Mot. to Dismiss and to Enter J. Against Pls., ECF No. 226 (Jan. 15, 2021); Mem. of L. in Supp. of

- See to Dismiss on Remand, ECF No. 217

For the reasons explained below, the Court GRANTS the State and State Police motions to dismiss.

The Court also DENIES motions for reconsideration and to modify their request for fees to include additional fees incurred since last filing.

I. FACTUAL AND PROCEDURAL BACKGROUND October 19, 2018 Ruling and Order, is assumed. 2

See SJ Order.

2 In relevant part, the pre-2018 filings referred to in this opinion include the Answer of Defendant Connecticut State r of Defendant Connecticut State Police Union to the Second Amended Complaint, ECF No. 61 (Apr. 20, 2016)

On August 9, 2018, Plaintiffs moved for summary judgment, arguing that there was no longer any dispute of material fact in light of the holding of Janus. See Pls. . At that time, Plaintiffs also requested See id. at 8 10.

On August 21, 2018, the State Police Union filed a status report informing the Court that it had, after Janus monetary demands (dues/fees that had been withheld plus claimed in conference with the Court to discuss the pending motion. See Status Report, ECF No. 165 (Aug. 21, 2018).

On August 29, 2018, the Court held a telephonic status conference with the parties. Min. Entry, ECF No. 169 (Aug. 29, 2018). During that call, Plaintiffs did not challenge the sufficiency of the reimbursements, but instead suggested other remaining injunctive relief rendered the case not moot. SJ Order at 6.

On August 30, 2018, the State Defendants and the State Police Union opposed summary judgment, arguing that any relief available to Plaintiffs was rendered

moot in light of (1) the holding of Janus all fair share fees post-Janus -

withheld fair share fees, plus interest, to Plaintiffs. SJ Order at 6 (citing at 2-4). The State Police Union argued that because the collective bargaining agreement at issue

expired on June 30, 2018, the challenge to the indemnification provision was moot, and also included in its opposition papers images of reimbursement checks it claims it sent to Plaintiffs. Id. -1 (Aug. 20, 2018)).

On October 19, 2018, the Court denied motion for summary judgment, holding that all of claims had become moot. See SJ Order at 18 In the end, there is nothing for this Court to order Defendants to do now. The Court held that the State Police reimbursement of their previously-withheld agency fees, plus interest, mooted Mr. Lamberty and Mr. claims. See id. at 13-14 Mr. Lamberty retired from state service shortly after this lawsuit began, on April 1, 2015, and Mr. Mercer retired on January 1, 2017 . . . . Their injury is their claim for the agency fees that had previously been withheld during their employment. But that injury appears to have been addressed in its entirety when the Union reimbursed Mr. Lamberty and Mr. Mercer for their previously-withheld fees, plus interest. The Court also found that Carson and Collin claims for retrospective relief similarly were mooted by the State Police reimbursement of their previously-withheld agency fees, plus interest, while their claims for declaratory and injunctive relief were mooted by the Supreme broad, unequivocal holding in Janus invalidating all state laws requiring the withholding of agency fees from nonconsenting employees, and the State immediate compliance with that holding. Id. at 16-19.

The denial was without prejudice to renewal in the event there was an effort to re-introduce agency fees, and to the extent the Plaintiffs had not been adequately reimbursed for past agency fees already imposed. Id. at 18-19 By denying the motion without prejudice, the Court permits Plaintiffs Carson and Collin Konow the ability to return to federal court if Defendants were to resume their collection of agency fees. . . . To the extent that Plaintiffs can actually demonstrate, with evidence, that the State Police Union still owes them additional fees, they may move to re-open this case for reconsideration of that issue alone. The Court accordingly directed the Clerk of the Court to administratively close the case. Id. at 19. The Court

also held that, to the extent that Plaintiffs believed they were within the meaning of 42 U.S.C. § 1988, they were required to file a motion with the appropriate supporting documentation, consistent with Second Circuit law, by November 16, 2018. Id.

On November 16, 2018, Plaintiffs moved for an award of fees and costs under 42 U.S.C. § 1988. Fee Mot.

On November 19, 2018, the Court referred the parties to United States Magistrate Judge Holly B. Fitzsimmons to determine whether the fee motion could be resolved without further litigation. Order Referring Case, ECF No. 185 (Nov. 19, 2018).

On April 10, 2019, after a period of delay and a stay of the briefing schedule for the motion, the Court set new deadlines for the State Defendants and the State Police Union to respond to the motion. Scheduling Order, ECF No. 194 (Apr. 10, 2019).

On May 30, 2019, the State Defendants opposed the motion for fees and expenses. State Fee Obj.

On May 31, 2019, the State Police Union opposed the motion. Union Fee Obj. On June 20, 2019, Plaintiffs filed a reply in support of the motion. Mem. Replying to to Their Petition for Fees and Expenses Pursuant to 42 U.S.C. § 1998, ECF No. 197 (June 20, 2019)

On September 6, 2019, the Court denied motion for fees and expenses, finding that Plaintiffs were not prevailing parties under § 1988. See Fee Order.

On September 13, 2019, Plaintiffs moved for reconsideration of the denial of their motion for fees. Mot. for Reconsideration.

On September 20, 2019, the State Police Union objected to the motion for reconsideration. Union Obj. Reconsideration.

On September 23, 2019, the State Defendants objected to the motion for reconsideration. State Obj. Reconsideration.

On October 4, 2019, Plaintiffs appealed the denial of summary judgment and denial of their motion for fees to the Second Circuit. Notice of Appeal.

On October 1, 2020, the Second Circuit dismissed the appeal for lack of jurisdiction and remanded the case to this Court. See Lamberty,

On October 29, 2020, the State Defendants moved to dismiss the action on remand. State

On November 20, 2020, the State Police Union moved for a telephonic status conference with the Court. Mot. for Telephonic Status Conf., ECF No. 219 (Nov. 20, 2020). On November 22, 2020, the Court granted the motion and scheduled a status conference for December 3, 2020. Order, ECF No. 220 (Nov. 22, 2020).

On December 1, 2020, the State Defendants filed a r motion to dismiss the action on remand. Reply Br. in Supp. of Mot. to Dismiss on Remand, ECF

On December 3, 2020, the Court held a telephonic status conference with the parties. Min. Entry, ECF No. 223 (Dec. 3, 2020). That same day, the Court issued an order providing the State Police Union until January 15, 2021 to file its motion to dismiss, and all parties until January 15, 2021 to file briefing on any jurisdictional issues pertaining to the pending motion for reconsideration. Order, ECF No. 224 (Dec. 3, 2020).

On January 15, 2021, the State Police Union moved to dismiss the action on remand. Union MTD.

their motion to dismiss and supplemental brief No. 228 (Feb. 18, 2021)

On February 19, 2021, the State Police Union replied

On March 11, 2021, Plaintiffs filed a supplemental memorandum in opposition to the Remand, ECF No. 234 (Mar. 11

On March 17, 2021, the Court held oral argument on the motions to dismiss and the motion for reconsideration by videoconference. Min. Entry, ECF No. 236 (Mar. 18, 2021). During oral argument, Plaintiffs moved to modify their request for fees to include additional fees incurred since last filing. Oral Mot., ECF No. 237 (Mar. 17, 2021).

II. STANDARD OF REVIEW

A. Motion to Dismiss In every case, a court must determine whether it has subject matter jurisdiction. In evaluating a motion under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the Court accept as true all material factual allegations in the complaint, but need not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). A case is properly dismissed under Rule 12(b)(1) where the district court the statutory or constitutional power to adjudicate the Morrison v. Austl. Bank. Ltd., 547 F.3d 167, 170 (2d Cir. 2008).

The burden to prove subject matter jurisdiction generally falls on the plaintiff, but where a official or government entity asserts the Eleventh Amendment as the basis of the 12(b)(1) motion, the burden falls to that entity to prove its entitlement to dismissal on the grounds of immunity from Pawlow v. of Emergency Servs. & Pub. Prot., 172 F. Supp. 3d 568, 573 (D. Conn. 2016) (internal quotation marks omitted) (citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 239 (2d Cir. 2006)).

Mootness also is a threshold issue that courts must address when changes in circumstances occur that may moot a case. See United States v. Juvenile Male, 564 U.S. 932, 935-36 (2011). This review is required because ticle III, Section 2 of the Constitution limits the jurisdiction of the federal courts to the resolution of cases and controversies. Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (internal quotation marks omitted); see also Already, LLC v. Nike, Inc., 568 no business deciding legal disputes or expounding on law in the absence of . . . a case or controversy [under Article III, Section 2] DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)); Genesis

Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)); DeFunis v. Odegaard, 416 U.S. 312, 316 requirement of Art. III of the Constitution under which exercise of judicial power depends upon the existence (internal quotation marks omitted)). When a case becomes moot, the federal courts lack subject matter jurisdiction over the action. Fox v. Bd. of Tr. of the State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994) (internal quotation marks omitted).

A case becomes moot when there is no longer an ongoing injury that can be redressed through judicial action because the es presented are no longer or the parties lack a legally cognizable interest in the Already, 568 U.S. at 91 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute no longer embedded in any actual controversy about the particular legal Id. (quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009)). Thus, an intervening circumstance deprives the plaintiff of a stake in the outcome of the at any point during litigation, the action can no longer proceed and must be dismissed as Genesis Healthcare, 569 U.S. at 72 (quoting Lewis v. Cont. Bank Corp., 494 U.S. 472, 477 78 (1990)).

However, case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing Knox v. Serv. Empls. Union, 567 U.S. 298, 307 (2012) (internal quotation marks omitted) (finding that offer to refund past fees plus interest to class members did not moot case where a controversy remained as to the adequacy of refund notice). As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot. Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox, 567 U.S. at 307 08).

It is well-settled that significant changes in law are one type of intervening circumstance that can moot a claim or case. See Bigelow v. Virginia, 421 U.S. 809, 817-18 (1975) (affirming finding that statutory amendment mooted the issue of overbreadth, as amendment effectively repealed its prior application such that there was no possibility that its previous form would be applied again to the appellant or chill rights of others); Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 377 79 (2d Cir. 2004) (affirming finding that certain claims directed at town ordinance were rendered moot through amendments); Granite State v. Town of Orange, Conn., 303 F.3d 450, 451 52 (2d Cir. 2002) (per curiam) (affirming denial of injunctive relief as moot where town revised its regulations through proper and had no of returning to the prior regulatory It is also well-settled that where a cessatio of injury-causing conduct is alleged to have mooted a case, the case is not automatically deemed moot; rather, the defendant must show that the conduct is unlikely to reoccur with respect to the plaintiffs before the court. See City of Mesquite v. Aladd Castle, Inc., 455 U.S. 283, 289 (1982) (declining to find case moot where repeal of objectionable language would not preclude it from reenacting precisely the same provision in the future if district court judgment was vacated as moot, and where city had announced its intention to do so); United States v. W.T. Grant Co., 345 U.S. 629, 632 cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the where defendant free to return to his old

The defendant bears a burden in such cases and must show that is no reasonable expectation that the wrong will be Id. at 633; see also Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000) heavy burden of persuading the court that the challenged [voluntarily ceased] conduct cannot reasonably be expected to start up again

lies with the party asserting (internal quotation marks and alteration omitted)). This requirement ensures that defendants cannot simply insulate themselves from binding judicial review of conduct that is likely to reoccur. Id. at 632 courts have rightly refused to grant defendants such a powerful weapon against public law enfo United States v. Oreg. State Med. Soc., 343 U.S. 326, 333 (1952) defendants are shown to have settled into a continuing practice . . ., courts will not assume that it has been abandoned without clear proof. It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of (internal citations omitted)). Finally, while the Supreme Court has held that an unaccepted offer of settlement that has expired, such as a Rule 68 offer, does not moot a case, it also has indicated that that, in individual actions, a decision to fully pay plaintiffs the amount in controversy, and acceptance of those payments, will extinguish those monetary claims. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 162-66 (2016) (contrasting unaccepted Rule 68 offer cases with earlier cases where the Court found actual tender of full amounts in controversy to plaintiffs had mooted claims for actual damages).

B. Motion for Reconsideration

amend a judgment . . . no later than 28 days after the entry of the judgment. Fed. R. Civ. P. 59(e). Courts consider a motion made under Rule 59(e) to be a motion for reconsideration. See Krohn v. , 341 F.3d 177, 179 (2d Cir. 2003) (noting that a party timely filed for reconsideration under Fed R. Civ. P. 59(e) and 60(b)).

The standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd grounds justifying reconsideration are an intervening change of controlling law, the availability of

new evidence, or the need to correct a clear error or prevent manifest injustice. quotation marks to reconsider should not be granted where the moving party seeks Shrader, 70 F.3d at 257.

Under Rule 60(b), the Court may relieve a party from a final judgment, order, or proceeding for, inter alia Fed. R. Civ. P. 60(b)(1); newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) Fed. R. Civ. P. 60(b)(2); . . ., misrepresentation, or misconduct by Fed. R. Civ. P. 60(b)(3) decision whether is committed to the sound discretion of the

district court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) (internal quotation marks omitted).

Rule 60(b) provides extraordinary relief, and a motion under Rule 60 should be granted Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1993); Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009) (Rule 60(b) if the moving party demonstrates exceptional circumstances, and relief under the rule is

(alteration in original)). The Court, however, may assess a pro se party's motion

under Rule 60(b) any pro se pleading. Matura v. United States, 189 F.R.D. 86, 89 (S.D.N.Y. 1999).

Nygren v. Greater N.Y. Mut. Ins. Co., No. 3:07-cv-462 (DJS), 2010 WL 3023892, at *2 (D. Conn. Aug. 2, 2010); see also Lesch v. United States , 182 review of a district court order granting or denying a motion for [reconsideration under both Rule

Devlin v. ion, 175 F.3d 121, 132 (2d Cir. 1999))).

III. DISCUSSION The State Defendants and the Union both move Union MTD. Plaintiffs move expenses. Mot. for Reconsideration.

The Court addresses the motions in turn.

A. Motions to Dismiss The t 2-4. As

Id. at 2. The State Defendants also

Janus

constituted and substituted for the dec Connecticut General Statutes § 5-280, the state statute authorizing agency fees. Id. at 3.

Defendants, for both liabilit see 3-5; and (2) qualified immunity, see id. at 4-5; and also argue that Wholean v. CSEA SEIU Local 2001, 955 F.3d 332 (2d Cir. 2020), cert.

petition pending, U.S. Dkt. No. 20-605, see 4-5.

, claims seeking declaratory and injunctive relief. Union MTD at 7. As the Union argues, dismissal

is warranted because post-Janus Id. at 7; id. at 8-11 (collecting cases). The Union also argues that conduct that violates Janus Id. at 11.

The Union also argue declaratory judgment invalidating the Connecticut statute because there is no ongoing violation of

id. at 12-e good faith Wholean, id. at 13-14.

Plaintiffs argue that entry of judgment is not appropriate at this time because (1) their motion for reconsideration remains pending and (2) the Plaintiffs anticipate the filing of a -2 (also requesting that the Court

exercise its discretion under Federal Rule of Civil Procedure 58 to extend the time for filing a notice of appeal until thirty (30) days after final disposition of a timely-filed supplemental petition

Plaintiffs also raise several arguments as to why their claims are not moot, including that (1) Janus does not moot the case id. voluntarily cessation does not moot the case because Defendants remain free to resume their challenged activity, particularly as the Connecticut statute authorizing agency fees remains on the books, id. at 4-8; (3) the case remains live because the Plaintiffs seek declaratory relief, id. at 8-9; and (4) the case remains live because Defendants did not give Plaintiffs all that they sought with their lawsuit, id. at 9-10. With respect to the arguments raised by the Union, Plaintiffs argue that id. at 4-5.

Id. at 5-8.

The Court addresses each argument in turn.

1. Mootness Given Janus and Post-Janus Actions As the Court described, after the Supreme Janus,

Defendants took a number of responsive steps, including issuing notice that the state would - announcing that new procedures to agencies would be introduced in light of Janus; publicly stating

that withholding of agency fees would end effective with July 2018 paychecks; and issuing legal guidance on implementation of Janus. Id. at 5-6. The Court also observed that Plaintiffs did not dispute that Union reimbursements of past agency fees occurred, or continue to assert a claim for actual damages, though the Court noted in a footnote that Plaintiffs claimed at oral argument that the fees may not have been properly calculated and invited Plaintiffs to reopen the case on that issue alone should they maintain the Union owed them additional fees. Id. at 11 & n.2.

to possess legally cognizable interests in spite of the change in circumstances that is claimed to

id. at 12 (citing Already they have suffered, are suffering, or will be threatened with an injury in fact that is fairly traceable to id. (citing Allen v. Wright, 468 U.S. 737, 751 (1984)) continue[d] to exist in light of the relevant change in circu Janus and

Janus, for each set of Plaintiffs, id. at 13.

The Court concluded that the claims of retired Plaintiffs Mr. Lamberty and Mr. Mercer were moot for several reasons, including that Id. at 13-14.

The Court also concluded that the claims of currently employed Plaintiffs Carson and Collin Janus efendants Id. at 17.

The Court, however, also Id. at 18. It did so for two reasons: first, to

efendants - the State Police Union still owes them

Id. at 18-19.

Plaintiffs do not allege that either event has occurred here: that Defendants have resumed their collection of agency fees or that the calculation of fee reimbursements was erroneous. Instead, Plaintiffs seek to relitigate the question of mootness, setting forth arguments each of which was considered and addressed by the Court in its order denying summary judgment.

t [in] each and every statutory or regulatory regime -6. Janus Id. at 6.

The Court, however, thoroughly addressed this issue in its order denying summary judgment. The Court - uded

[] their collection of agency Id. at 17. Instead, the Court observed Janus . . . not because but because Janus. Id. Plaintiffs have set forth insufficient support for their present claim that this conclusion was incorrect or that the ul examination of its cited cases bears the opposite conclusion. Even if true that settlement informed the calculation of agency fees repaid to Plaintiffs, as Plaintiffs suggest, see - conclusion that Janus fees as Janus requires.

The Court also at summary judgment current claim that the case is not moot becau (1) Janus; (2) an injunction

preventing the State Defendants from enforcing the agency fee statute; and (3) an injunction SJ Orderat 11-12. judgment stage, Janus ic sector unions

Id. at 17.

explicitly finds that relief, are moot in light of Janus. Indeed, as the Court observed at summary judgment, several

cases to have considered this question post-Janus have concluded that repeal of state agency-fee statutes is not required to render a case moot. See, e.g., Yohn v. , No. SACV 17-202-JLS-DFM, 2018 WL 5264076, at *4 (C.D. Cal. Sept. 28 change would certainly render this case moot, a policy change can as well, depending on whether

the challenged conduct can be reasonably expected to recur. Accordingly, because the challenged

(internal quotation marks and citations omitted)); Danielson v. Inslee, 345 F. Supp. 3d 1336, 1340 (W.D. Wash. 2018), , 945 F.3d 1096 (9th Cir. 2019) statutory changes, because a statutory change is usually enough to render a case moot, policy

changes may or may not render a case moot, depending on whether the challenged [conduct] can be reasonably expected to re ; , 466 F. Supp. 3d 1095, 1098-99 (E.D. Cal. 2020) (denying claims for declaratory a California statutes [authorizing the deduction of agency fees] is not a requirement for this court to , 386 F. Supp. 3d

statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to ; Seidemann v. Prof. Staff Congress Local 2334, 432 F. Supp. 3d 367, 380 (S.D.N.Y. 2020)

as the legislature retains a problematic statute on the books. As has already been noted [in that case] and by numerous other district courts, Janus fundamentally changed the law of the land, and by virtue of the Supremacy Clause, Janus (citing, inter alia, U.S. Const. art. VI; Cooper v. Aaron, 358 U.S. 1, 18 (1958)) (other internal

citations omitted)). 3

3 Though Plaintiff argues that cases such as Seidemann in part because these actions were in some cases filed after Janus Plaintiffs do not exp particularly as Defendants have taken many steps to reiterate that they will not continue to collect agency fees as

prohibited by Janus.

The cases now relied upon by Plaintiffs for this argument particularly Teachers Local No. 1 v. Hudson, 475 U.S. 292 (1986) and , 567 U.S. 298 (2012) do not require the opposite conclusion. See at 6-8. In policy, but

rather, as Plaintiffs concede, MTD at 6; see, e.g., Hudson, 475 U.S. at 305 n. 1 applicability where a defendant union had changed its procedures to cure alleged defects after

being sued in federal court); Knox, 567 U.S. at 307 (declining to find case as moot where the defendant union had, after a petition for certiorari was filed, sent a notice offering a full refund to . Similarly, in City of

Mesquite, also relied upon by Plaintiffs, the Supreme Court declined to find a case as moot where a certain provision of an ordinance had been repealed, finding that it would be possible even after for the city to re 455 U.S. at 289.

Here, however, - Janus actions aimed at ceasing agency fee collection policies were motivated not by voluntary Janus And, given Janus City of Mesquite, not now be possible

for Defendants to enforce or attempt to enforce agency fee collection. See 455 U.S. at 489; see also Gabriele, 466 F. Supp. 3d at 1098- that the union defendants will resume withholding agency fees in contravention of Janus Case 3:15-cv-00378-VAB Document 238 Filed 03/26/21 Page 22 of 35 Janus

Therefore, given Janus arguments that

see -9 id. at 9, and Defendants retain agency fees, id. at 7, all are unavailing. As was true at su

-Janus , , an event that

would be expressly prohi . Janus -Janus, as

those are not addressed here, all of will be dismissed as moot.

2. Eleventh Amendment Immunity a suit against state officials when the state is the real, substantial party in interest. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (internal quotation marks omitted); Alabama v. Pugh, 438 U.S. 781, 781 (1978) (per curiam) sovereignty than . . . a federal court instruct[ing] state officials on how to conform their conduct

Pennhurst, 465 U.S. at 106.

In Ex parte Young, 209 U.S. 123 (1908), however, the United States Supreme Court t of sovereign immunity from suit to permit a plaintiff to sue a state official acting in an official capacity for prospective injunctive relief for continuing violations of federal law. Id. at 155-56; In re Dairy Mart Convenience Stores, Inc., 411 F.3d 36 acting in his official capacity not[]withstanding the Eleventh Amendment for prospective

injunctive relief In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (internal quotation marks omitted). Eleventh Amendment immunity may also be waived by Congress, see Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001), or by the state, see College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).

Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges Verizon , 535 U.S. 635, 645 (2002) (internal quotation marks omitted); see also State Empls. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 96 (2d Cir. 2007) Ex parte Young to examine whether there exists an ongoing violation of federal law. ; Myers v. Semple, No. 3:18-cv-505, 2018 Ex parte Young exception does not apply to declaratory relief against state officials in their official capacities when the relief relates only to .

Both the State Defendants and the Union argue that, under the Eleventh Amendment, the Connecticut statute because there is no ongoing violation of federal law. See Union MTD at 12- -4. As they argue, because, since Janus defendants will start to recover fair-

see also Union MTD at 12-13.

perly

MTD at 7-8. osts can, under Supreme Court and Second Circuit precedent, be awarded against state officials notwithstanding Eleventh Amendment immunity. Id.

The Court disagrees. are inapposite for several reasons. First, this line of cases holds that Missouri v. Jenkins by Agyei, 491 U.S. 274, 284 (1989); see

also Gagne v. Maher, 594 F.2d 336, 342 (2d Cir. 1979), Class v. Norton, 505 F.2d 123, 127 (2d Cir. 1974)

prospective relief: a multiple injunctive order to issue certain regulations, withdraw specified departmental directives, and make designated re an inevitable consequence of the principle announced in Ex parte Young Case 3:15-cv-00378-VAB Document 238 Filed 03/26/21 Page 25 of 35 ; Hutto v. Finney, 437 U.S. 678, 684 (1978) (noting that . Here,

however, the Court has not, and will not, issue any judgment granting prospective relief against

prospective decree. 4

due to bad faith by defendants. See, e.g., Hutto, 437 U.S. at 684-85 (noting that the district court Class, 505 F.2d at 127 (after finding that

-

inary measure, but is warranted where bringing of the action should have been unnecessary and was compelled by unreasonable, obdurate that Defendants have unduly delayed the proceedings or have otherwise acted in bad faith, nor

1988. See Fee Mot.; Mot.

for Reconsideration.

Accordingly, because Plaintiffs have set forth no ongoing violation of federal law, the See, e.g., Diamond v.

4 Any claims for money damages against the State Defendants in their official capacities are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985).

, 399 F. Supp. 3d 361, 379 (W.D. Pa. 2019), , 972 F.3d 262 (3d Cir. 2020) aintiffs sue Commonwealth Defendants without alleging that those Defendants claims . . . because there is no allegation of an ongoing violation of federal law, and the Eleventh

3. Good Faith Immunity

precedent in collecting fair-share fees cannot be held liable for monetary damages under § - Wholean, 955 F.3d at 334, 334. In Wholean, the Second Circuit

held that the defendant union who, before Janus, collected fair-share fees, but after Janus, ceased

whether, when, and how Abood controlling Supre Id. at 336.

The Union argues that under Wholean, it could not be held liable for monetary judgments for agency fees collected before Janus, nor could it be held liable for any future claim for additional

Union MTD at 14. Wholean Wholean fees in accordance with . . . Abood, and before the Supreme Court issued its decision in Janus Id. The State Defendants also argue that good faith immunity applies to the Union under Wholean.

4-5.

Plaintiffs argue that the good faith arguments raised by Defendants are untimely, as the -6.

vant Wholean

t opportunity for such a defense to be Id. Both the State Defendants and the Union also argue that issues of subject matter jurisdiction are never waived and can be asserted at any time. Id.; see also Union MTD Reply at 2. Finally, the Union argues that the Wholean decision supports a conclusion that Plaintiffs cannot state a claim, an affirmative defense the Union set forth in its Answer. Id. The Court agrees.

Though the Court is aware of no precedent discussing Wholean jurisdictional challenges under Rule 12(b)(1) or challenges for failure to state a claim under Rule 12(b)(6), the Court finds that the defense would, in either case, effectively immunize the Union from liability judgments for monetary fees collected before Janus.

To the extent that the good-faith defense articulated in Wholean goes to an argument that Plaintiffs have failed to state a claim under Rule 12(b)(6), several district courts have concluded that Wholean applies in this context. See, e.g., Pellegrino v. N. Y. State United Teachers, No. 18- CV-3439 (NGG) (RML), 2020 WL 2079386, at *2 (E.D.N.Y. Apr. 30, 2020) (finding where Wholean is nearly identical to the case Mattos v. Am. Fed. of State, Cty. and Mun. Empls., AFL-CIO, Council 3, No. GLR-19-2539, 2020 WL 2027365, at *2 (D. Md. Apr. 27, 2020) (granting Rule 12(b)(6) motion to dismiss on the ground that the good faith defense applied, finding t -members was consistent with both state law and Supreme Court jurisprudence at it existed at the time, AFSCME

is entitled to the good-faith defense under § based on Pl Union Answer I at 7; Union Answer II at 10.

To the extent that the good- -matter jurisdiction over the case, similar to Eleventh Amendment immunity, the Court retains the ability to address those claims at any time. See Turner v. Boyle, 116 F. Supp. 3d 58, 73 (D. Conn. 2015) monetary damages brought against the State, or against a state employee in his official

capacity. . . (citing Graham, 473 U.S. at 169)); Williams v. Marinelli, 987 F.3d 188, 196 (2d Cir. relief sought by [Plaintiff] would violate (citing Atlantic Healthcare Benefits Tr. v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) (raising Eleventh

Amendment immunity sua sponte

Janus and -Janus also concludes that the good-faith defense provides an additional against the Union. 5

6

5 Plaintiffs also argue that the Wholean good-faith defense does not apply to the State Defendants, as they are public concede that the Wholean Instead, the State Defendants argue that the doctrine of qualified immunity bars liability for those Defendants, to the See id. As the Court does not findings as to mootness, the Court need not, and does not, address the qualified immunity issue. 6 lief to [them] here would virtually read out the obligations of the [f]ederal courts (citing , 509 U.S. 86, 97 (1993)). As the Second Circuit observed in Wholean, however,

The Court therefore 7

B. Motion for Reconsideration s of prior- but rather, were made under terms negotiated at settlement, which the Court allegedly overlooked

in its order, Mot. for Reconsideration at 4-5; and (2) the C will disincentivize parties from participating in settlement and/or from accepting complete substantive relief in settlement negotiations, 1988, id. at 5-7.

Plaintiffs attach to their motion an e-mail from Magistrate Judge Holly Fitzsimmons, see ECF No. 203- -mail from State see ECF No. 203-

directly citing Harper Janus suggests that the Supreme Court intended its ruling to be Janus -sector unions may no longer extract agency fees from Janus, 138 S. Ct. at 2486 . . ., and the Supreme Court reversed and remanded for further Even if this Court were to, as some others have, urt in Janus Diamond, 972 F.3d at 268 n.1; see also Danielson the right delineated in Janus nonetheless would con -Janus Janus Diamond, 972 F.3d at 269 n.1. 7 Uzuegbunam v. Preczewski, 592 U.S. __, (2021), 2021 WL 850106, as supplemental authority in support of their opposition to the motions to dismiss. See Uzuegbunam, the Supreme Court held that a request for nominal damages satisfies the based on a completed violation of a legal right. See 592 U.S. ___. Uzuegbunam, however, is distinguishable: as the Court explained in its summary gency -settled that plaintiffs are not entitled to nominal damages where they have also rece -16 (citing Gentile v. Cty. of Suffolk, 926 F.2d 142, 155 (2d Cir. 1991)); see also Johnson v. City of Saginaw, No. 17-cv-13174, 2021 WL 927371, at *5 n.3 (E.D. Mich. Mar. 11, 2021) (slip op.) (observing that in Uzuegbunam for the plaintiff who pleads, but fails to prove, Uzuegbunam, 2021 WL 850106, at *6-7))

W. James Young, see No. 203- As Plaintiffs argue, the e-mails from Magistrate

Judge Fitzsimmons and Mr. Sponzo, as well as the substance of their settlement negotiations, led

emaining dispute was over the proper amount of their -7; Young Decl. ¶ 3.

Both sets of Defendants object to the motion for reconsideration. See Union Obj. deration. Defendants argue that Plaintiffs have failed to set forth any legal evidence of any controlling decisions or data that the Court overlooked and instead reiterate arguments that have already been considered by the Court. See Union Obj. Reconsideration at 1; see also -2. Defendants also argue that event, that this information does not suffice to w See

Reconsideration at 2-4 (ar that Plaintiffs omitted the context of the settlement discussions, and that their participation in

settlement negotiations -mail communication, did not constitute

The Court agrees. Federal Rule of Evidence 408 provides, in relevant part:

(a) Prohibited uses. Evidence of the following is not admissible on

behalf of any party, when offered to prove liability for, invalidity

of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting

or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations

regarding the claim....

concessions in settlement negotia Master-Halco, Inc. v. Scillia, Dowling & Natarelli, LLC,

739 F. Supp. 2d 125, 129 (D. Conn. 2010) (quoting Jamahiriya, 568 F.3d 345, 351 (2d Cir. 2009)). ce regarding settlement negotiations is admissible if used for a purpose other than one of

id. (citing , id. (citing Pierce v. F.R. Tripler & Co., 955

F.2d 820 (2d Cir. 1992)). Here, Plaintiffs seek to introduce settlement-related communications to prove the validity

-withheld agency fees and issuing guidance as to post-Janus protocols, under Janus and not with the purpose of mooting the claim. See, e.g., Mot. for Reconsideration at 4- [T]he Court appears to have overlooked this they were not, because they came out of the commendable settlement efforts of Magistrate Judge

id. [s] e[-]mail to

counsel, [Plaint Rule 408, then, bars consideration of these communications for purposes of

. 8

Even if these statements were admissible, however, the communications relied upon by Shrader, 70 F.3d at 257.

The were not prevailing parties under § 1988. See Fee Order at 2, 10-17. As the Court concluded, its

Janus had the effect of mooting t Janus, was on their claim for actual damages for the

previously- Id. at 11. As the Court held, § not provide relief for plaintiffs when their actions had no bearing on the intervening Supreme Court

Id. judgment the merits or court-ordered consent decree, . . . the ruling provided nothing of value to

id. at 16 under § id. at 17.

bility of new evidence, or Virgin Atl. Airways, Ltd., 956 F.2d

8 see, e.g., Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011), these cases have for such fees, as is the case here.

at 1255. Specifically, nothing conclusion that, given t

parties under § 1988. SJ Order at 17 see supra, finding Plaintiffs to be prevailing parties would be an absurd result.

Furthermore, to the extent Plaintiffs rely on policy-oriented arguments to assert that this

substantive relief or from participating in Court-ordered settlement, the Court notes that finding the opposite way namely, permitting communication undertaken as part of settlement on whether Defendants may be fees also likely would have significant consequences. See, e.g., Master- Halco, Inc, 739 F. Supp. 2d at 1 compromise and settlement of disputes, by taking into account the reality that permitting the consideration of settlement offers as reflecting an admission of liability would discourage parties from d A. Berger, § 408.02[1] (Joseph M. McLaughlin ed., 2d ed.))).

9

and, for the same reasons,

9 lacks jurisdiction over this action, it also lacks -15. As the Court previously after denying summary judgment on mootness grounds, however, and absent support from the Union for its proposition that granting dismissal would deprive the Court of jurisdiction to decide the motion for reconsideration, the Court addresses the motion on the merits.

IV. CONCLUSION For the reasons explained above, the Court GRANTS the State and the State Police motions to dismiss.

The Court also DENIES motions for reconsideration and to modify their request for fees to include additional fees incurred since last filing.

The Clerk of Court is respectfully directed to enter judgment for Defendants and close this case.

SO ORDERED at Bridgeport, Connecticut, this 26th day of March, 2021.

/s/ Victor A. Bolden Victor A. Bolden United States District Judge

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