CT Resrc Recovery v. Murtha Cullina LLP

United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-20219
_______________
MARK NEWBY, ET AL.,
Plaintiffs,
VERSUS
ENRON CORPORATION, ET AL.,
Defendants.
* * * * * * * * * * * * * * *
CONNECTICUT RESOURCES RECOVERY AUTHORITY,
Plaintiff-Appellee,
VERSUS
MURTHA CULLINA LLP, ET AL.,
Defendants,
HAWKINS, DELAFIELD & WOOD,
Defendant-Appellant.

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_________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________
Before JOLLY, SMITH, and GARZA,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The law firm of Hawkins, Delafield &
Wood (“Hawkins”) appeals an order of re-
mand to state court. Finding no error, we
affirm.
I.
In late 2000, the Connecticut Resources
Recovery Authority (“CRRA”) agreed to pay
Enron Corporation (“Enron”) $220 million in
exchange for Enron’s promise to make a series
of payments to CRRA for power to be pro-
duced by CRRA over the next eleven years.
Hawkins represented CRRA in the negotia-
tions. Enron stopped making payments when
it entered bankruptcy in December 2001, at
which time CRRA was still owed approxi-
mately $200 million.
In 2002, CRRA filed two lawsuits in Con-
necticut state court seeking recovery of that
sum. One suit named a litany of Enron-related
defendants; the other alleged legal malpractice
against the attorneys who had represented
CRRA, including Hawkins. According to
CRRA, Hawkins issued a legal opinion stating
that CRRA had the statutory authority to enter
into the deal, that the deal did not threaten
CRRA’s tax exempt status, and that CRRA’s
bondholders did not need to consent to the
deal. All of this, alleges CRRA, was false.
While both suits were pending in state
court, Hawkins used a Connecticut procedural
device known as an “apportionment com-
plaint” to bring some of the Enron-related de-
fendants (“the apportionment defendants”) in-
to the lawsuit against Hawkins. An apportion-
ment complaint impleads new defendants and
allows the court to divide the plaintiff’s dam-
ages among multiple defendants based on the
extent to which each defendant’s negligence
caused the damages. After being made parties
to the malpractice suit, the apportionment de-
fendants removed the case to federal court as
a matter related to the Enron bankruptcy. Be-
cause of the connection to Enron-related mat-
ters, the case was transferred from the District
of Connecticut to the Southern District of
Texas.
The district court accepted jurisdiction of
the malpractice suit in its post-apportionment
form. The court found, and we agree, that the
inclusion of the apportionment defendants in
the malpractice suit is the sole source of feder-
al jurisdiction over the malpractice suit.
CRRA moved to strike Hawkins’s apportion-
ment complaint for failure to state a claim un-
der Connecticut law, and the district court
granted the motion, thereby removing the ap-
portionment defendants from the malpractice
suit.
Because removal of the apportionment de-
fendants destroyed the basis for federal juris-
diction, the district court remanded the mal-

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practice suit to state court. Hawkins argues
on appeal that the court erred in striking the
apportionment complaint and that the case
should be allowed to continue in federal court
with the apportionment defendants in tow.
II.
The remand order relies on the district
court’s interpretation of the Connecticut law
on apportionment. We review a district
court’s interpretation of state law de novo.
See Hart v. Bayer Corp., 199 F.3d 239, 243
(5th Cir. 2000).
In Connecticut, a motion to strike a com-
plaint admits well-pleaded facts and implica-
tions therefrom as true but does not admit le-
gal conclusions or the truth or accuracy of
opinions stated in the pleadings. Emerick v.
Kuhn, 737 A.2d 456, 461 (Conn. App. 1999).
The court should grant a motion to strike only
if it asserts conclusions of law that the facts
alleged do not support. Mora v. Aetna Life &
Cas. Ins. Co., 535 A.2d 390, 392 (Conn. App.
1988).
CRRA argues that the apportionment com-
plaint is legally insufficient because, on its
face, it does not meet the requirements of
Connecticut law. Apportionment complaints
are specifically authorized by Connecticut
General Statutes §§ 52-102b and 52-572h.
Section 52-572h establishes a system of
comparative negligence whereby defendants
are entitled to have damages apportioned
among all parties whose negligence contrib-
uted to the plaintiff’s injury. The statute limits
this comparative negligence regime to negli-
gence actions involving “personal injury,
wrongful death or damage to property.”
CONN. GEN. STAT. § 52-572h(b). Section 52-
572h thus creates a right of apportionment in
certain cases. Section 52-102b outlines the
procedures used to file an apportionment com-
plaint. See Lostritto v. Cmty. Action Agency,
848 A.2d 418, 427 (Conn. 2004).
The parties agree on appeal that Hawkins’s
apportionment complaint is not proper under
§§ 52-572h and 52-102b. Because the under-
lying legal malpractice suit does not involve
personal injury, wrongful death, or damage to
property, the statutory right to apportionment
is inapplicable. Hawkins argues, however, that
Connecticut common law establishes an ex-
tra-statutory right to file an apportionment
claim in negligence cases that do not involve
personal injury, wrongful death, or damage to
property.
The district court held that the common law
of Connecticut does not create such a right.
The court also struck the apportionment com-
plaint on two other grounds.
First, the underlying suit alleges legal mal-
practice, and § 52-572h forbids apportionment
in breach of fiduciary duty claims. Second, by
bringing Enron defendants into the case, the
apportionment complaint resulted in a mixture
of negligence and intentional tort claims,
which is forbidden under Connecticut appor-
tionment law. Each of these grounds is suffi-
cient to defeat the apportionment complaint,
so Hawkins must overcome all of them to pre-
vail on appeal. If the apportionment complaint
fails, it follows that the remand order is prop-
er, because inclusion of the apportionment
defendants is the sole basis of federal jurisdic-
tion.
III.
Hawkins contends that, as a matter of Con-
necticut law, a common law right to file an ap-
portionment complaint in negligence cases not

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involving personal injury, wrongful death, or
property damage was recognized in Williams
Ford, Inc. v. Hartford Courant Co., 657 A.2d
212 (Conn. 1995). Williams Ford eliminated
the contributory negligence defense in negli-
gence cases not already covered by § 52-572h,
replacing it with a comparative negligence
scheme that assigns fault between plaintiff and
defendant. The stated objective in so holding
was to “assure that the body of the lawSSboth
common and statutorySSremains coherent and
consistent.” Williams Ford, 657 A.2d at 225
(internal quotations omitted).
Williams Ford nowhere mentions appor-
tionment or any similar concept. Hawkins ar-
gues, however, that because Williams Ford
extended the comparative negligence regime to
all negligence cases, it follows that the related
right of apportionment was likewise extended,
via the common law, to negligence cases not
covered by § 52-572h.
The Connecticut courts since Williams
Ford have not read the case to stand for that
proposition. Only one unpublished trial court
opinion supports Hawkins’s theory. See Vona
v. Lerner, 1998 WL 437337, at *2 (Conn. Su-
per. 1998). The majority of Connecticut de-
cisions, including more persuasive appellate
authority, have not recognized any link be-
tween Williams Ford and apportionment.
Connecticut courts typically refuse to allow
apportionment claims in legal malpractice ac-
tions such as the one here, because legal mal-
practice claims do not meet the § 52-572h re-
quirement that personal injury, wrongful death,
or property damage be alleged.1
Thus for the majority of Connecticut
courts, the fact that legal malpractice actions
plainly fall outside the bounds of § 52-572h
has been the dispositive factor in rejecting ap-
portionment claims in such cases. Hawkins’s
theory of the common law apportionment
claim is unsupported by the bulk of state law
authority. We agree with the district court
that there is no right to file a common law
apportionment claim in Connecticut.2
IV.
The district court struck the apportionment
complaint also because § 52-572h states that
1 See, e.g., Carpenter v. Law Offices of Dress-
ler & Assocs., LLC, 858 A.2d 820, 823-24 (Conn.
App.) (holding that in a legal malpractice case,
(continued...)
1(...continued)
“the court lacked subject matter jurisdiction over
the apportionment action because § 52-102b(a)
limits apportionment to . . . ‘causes of action based
on negligence . . . to recover damages resulting
from personal injury, wrongful death or damage to
property’”), cert. denied, 863 A.2d 700 (Conn.
2004). See also Gauthier v. Kearns, 2000 WL
727185, at *4-*5 (Conn. Super. 2000) (holding
that the availability of an apportionment claim in a
legal malpractice action depends on whether such
a claim alleges personal injury, wrongful death, or
property damage); Shevlin v. Shafran, 2001 WL
1468629, at *3 (Conn. Super. 2001) (reasoning
that “the plaintiff claims only economic loss and
not physical damage to or loss of use of property,”
apportionment was unavailable in a legal malprac-
tice case); Anderson v. Bitondo, 1998 WL
279810, at *1 (Conn. Super. 1998) (explaining that
“[s]ince the claims for which apportionment is
sought are not within the scope of the apportion-
ment statute, the motion to strike all counts of the
apportionment complaint is granted”).
2 Hawkins’ apportionment complaint was ex-
plicitly filed under §§ 52-572h and 52-102b, not
under a common law theory. Hawkins apparently
urged the common law basis for its claim only after
discovering that the statutes bar apportionment in
legal malpractice cases.

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“[t]his section shall not apply to breaches of
trust or of other fiduciary obligation.” CONN.
GEN. STAT. § 52-572h(k). Connecticut case-
law indicates that legal malpractice claims
qualify as breach of fiduciary duty claims for
purposes of the statute. See Andrews v. Gor-
by, 675 A.2d 449, 453 (Conn. 1996) (citing
Matza v. Matza, 627 A.2d 414, 423-24 (Conn.
1993).3 Hawkins makes no meaningful objec-
tion to the notion that its apportionment claim
runs afoul of § 52-572h(k). Because the un-
derlying legal malpractice claim is properly
characterized as a claim for breach of fiduciary
obligation, the district court correctly deter-
mined that apportionment is not appropriate.
V.
The district court’s final justification is that
the incorporation of the apportionment com-
plaint into the case resulted in the co-mingling
of negligence and non-negligence claims,
which is prohibited by statute. Section
52-572h(o) states that “there shall be no ap-
portionment of liability or damages between
parties liable for negligence and parties liable
on any basis other than negligence.”
CRRA alleged both negligence and non-
negligence claims against the apportionment
defendants, but Hawkins argues that its appor-
tionment complaint incorporates only the neg-
ligence claims. A plain reading of the appor-
tionment complaint, however, does not sup-
port this contention.
Nowhere does the apportionment complaint
state that Hawkins disavows the intentional
tort claims against the apportionment defen-
dants or that it is incorporating only the negli-
gence claims. The complaint mentions
CRRA’s Enron-related lawsuit a number of
times, and it is never evident that Hawkins
wished to incorporate only some of the claims
from that suit. The apportionment complaint
is vague as to exactly what it alleges, and the
district court was correct to reject Hawkins’s
contention that its complaint incorporated only
negligence claims.
Moreover, the apportionment complaint
specifically incorporates allegations of aiding
and abetting against the apportionment defen-
dants. As the district court noted, aiding and
abetting liability arises from an active aware-
ness of the tortious conduct of the principal
actor and does not sound in negligence.4
Thus, by the complaint’s own terms, the ap-
portionment defendants are “parties liable on
any basis other than negligence.”
Hawkins offers no response to this point on
appeal. Accordingly, § 52-572h(o) forbids
Hawkins’s attempt to bring the apportionment
defendants into the legal malpractice suit.5
3 See also Whitaker v. Erdos & Maddox, 2000
WL 1862127, at *4 (Conn Super. 2000) (holding
that apportionment was unavailable for a legal
malpractice claim because by definition the claim
involved a breach of fiduciary obligations); Shevlin
v. Shafran, 2001 WL 1468629, at *3 (Conn.
Super. 2001).
4 The district court also noted that CRRA’s
original complaint against Hawkins alleges breach
of contract as well as negligence. Hawkins is
therefore potentially liable for both negligent and
non-negligent activity. Because Hawkins is “liable
on any basis other than negligence,” apportionment
is not appropriate under § 52-572h(o). Hawkins
makes no response to this point on appeal.
5 Hawkins contends that even if its apportion-
ment complaint is improper because it makes
non-negligence allegations, the remedy is not to
strike the entire complaint but to strike only the
(continued...)

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For the foregoing reasons, the district court
did not err in striking Hawkins’s apportion-
ment complaint, and the remand order was
proper. The judgment is AFFIRMED.
5(...continued)
improper portions of it. Even assuming that this
were possible given the nature of the allegations,
Hawkins cites no authority indicating that such a
remedy is appropriate. In any event, Hawkins did
not suggest such a remedy to the district court.

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