Metcalf v. Fitzgerald

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JONATHAN S. METCALF v. MICHAEL
FITZGERALD ET AL.
(SC 20227)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Kahn and Ecker, Js.
Syllabus
The plaintiff brought an action in Superior Court, seeking to recover damages
from the defendants under state law. The plaintiff, who had previously
filed a bankruptcy petition in the United States Bankruptcy Court,
asserted claims of vexatious litigation and violation of the Connecticut
Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) in connection
with the defendants’ actions during the bankruptcy proceeding. The
plaintiff claimed, inter alia, that, after he filed his bankruptcy petition,
one of the defendants initiated an adversary proceeding in the Bank-
ruptcy Court on the basis of certain alleged improprieties that the plain-
tiff had committed in connection with the bankruptcy proceeding. After
the plaintiff presented evidence to contradict the allegations against
him, the Bankruptcy Court dismissed the adversary proceeding. In the
present action, the trial court dismissed the plaintiff’s state law vexatious
litigation and CUTPA claims, concluding that it lacked subject matter
jurisdiction over those claims because they were preempted by federal
bankruptcy law. The trial court rendered judgment dismissing the plain-
tiff’s action, from which the plaintiff appealed. Held that the trial court
properly dismissed the plaintiff’s state law vexatious litigation and
CUTPA claims for lack of subject matter jurisdiction, those claims having
been preempted by federal Bankruptcy Code provisions relating to sanc-
tions for abuse of process: although there was no provision in the
Bankruptcy Code that explicitly precluded the plaintiff’s vexatious litiga-
tion and CUTPA claims and, thus, those claims were not expressly
preempted by the Bankruptcy Code, the plaintiff’s claims were implicitly
preempted, as Congress enacted a comprehensive bankruptcy scheme,
inclusive of provisions for sanctions and remedies for abuse of the
bankruptcy process, so as to occupy the entire field of penalties and
sanctions, leaving no room for state law to supplement federal bank-
ruptcy law, and the federal interest in uniformity was so dominant that
federal law was assumed to preclude enforcement of state laws that
threaten the uniformity and finality of the bankruptcy process for both
debtors and creditors; moreover, the plaintiff could not prevail on his
claim that, because a successful cause of action for vexatious litigation
or unfair trade practices under state law affords relief that potentially
is more extensive than that contemplated under the Bankruptcy Code
and the Federal Rules of Bankruptcy Procedure, such a cause of action
falls outside of the field that Congress intended to occupy, as the differ-
ence in remedies did not warrant an inference that Congress intended
to permit independent abuse of process actions outside the bankruptcy
process; furthermore, although compliance with both the Bankruptcy
Code and state law would not be impossible, permitting parties to bring
abuse of process actions in state court would hinder Congress’ objective
of uniformly defining the scope and availability of remedies for abuse
of the bankruptcy process.
Argued March 29—officially released September 3, 2019
Procedural History
Action to recover damages for, inter alia, vexatious
litigation, and for other relief, brought to the Superior
Court in the judicial district of Waterbury, where the
court, Roraback, J., granted the motion to dismiss filed
by the defendant Myles H. Alderman, Jr., et al. and
rendered judgment for the defendants, from which the
plaintiff appealed. Affirmed.
Bruce L. Elstein, with whom was John J. Ribas, for
the appellant (plaintiff).
Joshua A. Yahwak, for the appellees (named defen-
dant et al.).
Cristin E. Sheehan, with whom were Timothy J.
Holzman and, on the brief, Robert W. Cassot, for the
appellees (defendant Alderman & Alderman, LLC, et
al.).
Opinion
D’AURIA, J. In this appeal, we are asked to determine
whether the United States Bankruptcy Code provisions
permitting bankruptcy courts to assess penalties and
sanctions preempt state law claims for vexatious litiga-
tion and violation of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.
The plaintiff, Jonathan S. Metcalf, brought state law
claims against the defendants, Michael Fitzgerald, Ion
Bank (bank), Myles H. Alderman, Jr., and Alderman &
Alderman, LLC (law firm), for alleged vexatious litiga-
tion and for unfair and deceptive business acts or prac-
tices during the plaintiff’s underlying bankruptcy pro-
ceeding. The plaintiff appeals from the trial court’s
granting of the motion to dismiss filed by Alderman
and the law firm, for lack of subject matter jurisdiction
on the ground that federal bankruptcy law preempts
the claims. The trial court determined that the outcome
of the motion was controlled by the Appellate Court’s
decision in Lewis v. Chelsea G.C.A. Realty Partnership,
L.P., 86 Conn. App. 596, 862 A.2d 368 (2004), cert.
denied, 273 Conn. 909, 870 A.2d 1079 (2005). The court
in Lewis held that the Bankruptcy Code preempted
CUTPA and vexatious litigation claims for alleged abuse
of the bankruptcy process. Id., 605–607. The plaintiff
contends that the court in Lewis did not properly evalu-
ate each of the three types of preemption by which
Congress manifests its intent to preempt state law and
failed to consider the relevant Bankruptcy Code provi-
sions. See 11 U.S.C. § 105 (2012); Fed. R. Bankr. P. 9011.
We disagree and affirm the judgment of the trial court.
The following facts, as set forth in the plaintiff’s com-
plaint, and procedural history are relevant to our review
of the plaintiff’s claim. The plaintiff’s business, Metcalf
Paving Company, filed a chapter 11 bankruptcy petition
in 2009. See 11 U.S.C. § 1101 et seq. (2012). The Metcalf
Paving Company bankruptcy thereafter was converted
to a case under chapter 7 of the Bankruptcy Code. See
11 U.S.C. § 701 (2012). The plaintiff then filed individu-
ally for bankruptcy under chapter 7. The bank, one of
the plaintiff’s creditors in the bankruptcy proceeding,
subsequently commenced an adversary proceeding
against the plaintiff under §§ 523 (a) and 727 (a) (7) of
the Bankruptcy Code. Under these provisions, the bank
objected to the discharge of the plaintiff’s debt,
asserting, among other allegations, that the plaintiff had
failed to deliver a check, failed to provide documents,
failed to disclose a website that he allegedly used for a
new business, took possession of expensive machinery,
unlawfully transferred property, destroyed property of
the estate, defrauded creditors, and fraudulently with-
held information from the chapter 7 trustee. In
response, the plaintiff presented evidence to the Bank-
ruptcy Court to contradict the allegations and moved
for summary judgment. Upon reviewing the plaintiff’s
evidence, the bank moved to dismiss the adversary pro-
ceeding. The Bankruptcy Court granted the motion
to dismiss.
The plaintiff subsequently commenced this action in
the Superior Court. In his complaint, the plaintiff set
forth claims for vexatious litigation against all the defen-
dants, and CUTPA claims against Fitzgerald and the
bank. In support of the vexatious litigation claims, the
plaintiff alleged that the defendants had initiated the
adversary proceeding without probable cause and with
malice, maintained the proceeding without probable
cause and with malice, and, as a result, caused him to
suffer damages. The plaintiff claimed that the defen-
dants knew or should have known that the allegations
they made during the adversary proceeding were with-
out factual merit and were barred by the applicable
statute of limitations. In support of the CUTPA claims,
the plaintiff alleged that Fitzgerald and the bank repeat-
edly engaged in unfair and deceptive acts or practices
during the bankruptcy proceeding, and that their con-
duct had been so frequent as to constitute a general
business practice. The plaintiff claimed damages that
included attorney’s fees, losses from an inability to man-
age his business affairs, emotional distress, expendi-
tures of time, effort and resources, and injuries to his
business and professional reputation. The plaintiff
alleged that he was entitled to damages and costs under
the common law, double damages and treble damages
under Connecticut’s vexatious litigation statute, Gen-
eral Statutes § 52-568, and punitive damages and attor-
ney’s fees under CUTPA. See General Statutes § 42-
110g.
Alderman and the law firm moved to dismiss the
vexatious litigation claims on the ground that the claims
arose from conduct that allegedly had taken place
within a bankruptcy proceeding and were, therefore,
preempted by the Bankruptcy Code. The trial court
agreed, granted the motion to dismiss the vexatious
litigation claims and, on its own motion and for the
same reason, dismissed the remaining counts of the
complaint, including the CUTPA claims, for lack of sub-
ject matter jurisdiction. The trial court cited Lewis v.
Chelsea G.C.A. Realty Partnership, L.P., supra, 86
Conn. App. 596, in support of its decision.
In Lewis, the Appellate Court held that bankruptcy
law preempted state law CUTPA and vexatious litiga-
tion claims. Id., 605–607. The Appellate Court reasoned
that ‘‘[t]he exclusivity of federal jurisdiction over bank-
ruptcy proceedings, the complexity and comprehen-
siveness of Congress’ regulation in the area of bank-
ruptcy law and the existence of federal sanctions for
the filing of frivolous and malicious pleadings in bank-
ruptcy must be read as Congress’ implicit rejection of
alternative remedies such as those the plaintiff seeks.’’
Id., 605. Accordingly, the court in Lewis remanded the
case to the trial court with direction to dismiss the
action. Id., 607.
Upon the trial court’s dismissal of the present action,
the plaintiff timely appealed to the Appellate Court. The
appeal was then transferred from the Appellate Court
to this court. See General Statutes § 51-199 (c); Practice
Book § 65-1.
On appeal, the plaintiff’s sole claim is that the trial
court incorrectly concluded that federal bankruptcy law
preempted his state law claims for vexatious litigation
and violations of CUTPA.1 Specifically, the plaintiff
argues that this court should not follow the holding in
Lewis because that court failed to conduct a proper
preemption analysis. Additionally, the plaintiff argues
that his state law claims are neither expressly nor
implicitly preempted and do not conflict with Congress’
objectives in the Bankruptcy Code. We disagree.
We begin with our well established standard of review
for reviewing a trial court’s decision on a motion to
dismiss: ‘‘A motion to dismiss tests, inter alia, whether,
on the face of the record, the court is without jurisdic-
tion. . . . [O]ur review of the court’s ultimate legal con-
clusion and resulting [determination] of the motion to
dismiss will be de novo. . . . When a . . . court
decides a jurisdictional question raised by a pretrial
motion to dismiss, it must consider the allegations of
the complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . . The motion to dismiss
. . . admits all facts which are well pleaded, invokes
the existing record and must be decided upon that
alone. . . . In undertaking this review, we are mindful
of the well established notion that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Internal quotation marks omitted.) Dorry v. Garden,
313 Conn. 516, 521, 98 A.3d 55 (2014).
Turning to the legal principles at issue, we note that
the supremacy clause of the United States constitution;
see U.S. Const., art. VI, cl. 2; provides that federal law
‘‘shall be the supreme Law of the Land; and the Judges
in every [S]tate shall be bound thereby, any Thing in
the Constitution or Laws of any [S]tate to the Contrary
notwithstanding. . . . Under this principle, Congress
has the power to pre-empt state law.’’ (Citation omitted;
internal quotation marks omitted.) Arizona v. United
States, 567 U.S. 387, 399, 132 S. Ct. 2492, 183 L. Ed. 2d
351 (2012).
The bankruptcy clause of the United States constitu-
tion grants Congress the power ‘‘[t]o establish . . . uni-
form Laws on the subject of Bankruptcies throughout
the United States . . . .’’ U.S. Const., art. I, § 8, cl. 4.
District courts of the United States have ‘‘original and
exclusive jurisdiction of all cases under title 11.’’ 28
U.S.C. § 1334 (a) (2012). Through title 11 of the United
States Code, Congress provided ‘‘a comprehensive fed-
eral system of penalties and protections to govern the
orderly conduct of debtors’ affairs and creditors’
rights.’’ Eastern Equipment & Services Corp. v. Factory
Point National Bank, 236 F.3d 117, 120 (2d Cir. 2001);
see 11 U.S.C. § 101 et seq. (2012). As for sanctions for
abuse of the bankruptcy process, the Bankruptcy Code
provides a variety of remedies. See, e.g., 11 U.S.C. § 105
(a) (2012) (authority to prevent abuse of process);2 11
U.S.C. § 303 (i) (2) (2012) (bad faith filing of involuntary
petitions);3 11 U.S.C. § 930 (a) (2) (2012) (dismissal for
unreasonable delay);4 see also Fed. R. Bankr. P. 9011
(b) and (c) (sanctions for frivolous and harassing fil-
ings).5 The question before this court is whether the
Bankruptcy Code preempts vexatious litigation and
CUTPA actions brought in state court that provide for
penalties and sanctions, as well as damages for abuse
of process.
This court has explained that there are three types of
preemption: (1) express preemption, whereby Congress
has through clear statutory language manifested its
intent to preempt state law; (2) implied preemption,
whereby Congress has legislated so comprehensively
that federal law occupies an entire field of regulation
and leaves no room for state law (occupy the field
preemption); and (3) conflict preemption, whereby
state law conflicts with federal law such that it is impos-
sible for a party to comply with both or the local law
is an obstacle to the achievement of federal objectives.
See, e.g., Sarrazin v. Coastal, Inc., 311 Conn. 581, 592–
93, 89 A.3d 841 (2014); see also English v. General
Electric Co., 496 U.S. 72, 78–79, 110 S. Ct. 2270, 110
L. Ed. 2d 65 (1990). The plaintiff contends that the
Bankruptcy Code does not preclude his state court
claims under express, implied, or conflict preemption.
He further argues that this court should overrule the
Appellate Court’s holding in Lewis that the Bankruptcy
Code preempts these claims because the Appellate
Court failed to properly address the three types of pre-
emption. Had it done so, according to the plaintiff, the
court would have concluded that federal bankruptcy
law does not preempt the state law claims at issue.
Before addressing the three types of preemption in
turn, it is important to note that the question of preemp-
tion turns on Congress’ intent. We therefore ‘‘begin as
we do in any exercise of statutory [construction] with
the text of the provision in question, and move on, as
need be, to the structure and purpose of the [federal
law] in which it occurs.’’ (Internal quotation marks omit-
ted.) Air Transport Assn. of America, Inc. v. Cuomo,
520 F.3d 218, 221 (2d Cir. 2008).
I
Regarding express preemption, the plaintiff argues
that the Bankruptcy Code does not contain an express
provision preempting the causes of action brought in
this case. We agree. ‘‘Express preemption occurs when
‘Congress . . . withdraw[s] specified powers from the
[s]tates by enacting a statute containing an express
preemption provision.’ ’’ Trikona Advisers Ltd. v.
Chugh, 846 F.3d 22, 35 (2d Cir. 2017); accord Arizona
v. United States, supra, 567 U.S. 399. An express pre-
emption provision ‘‘expressly directs that state law be
ousted to some degree from a certain field.’’ Assn. of
International Automobile Manufacturers, Inc. v.
Abrams, 84 F.3d 602, 607 (2d Cir. 1996). We find no
provision of the Bankruptcy Code that explicitly pre-
cludes a state law CUTPA or vexatious litigation claim.6
This conclusion is not at odds with the conclusion
the Appellate Court reached in Lewis.7 The court in
Lewis did not evaluate express preemption because the
parties did not raise the issue. The defendant in Lewis
argued that bankruptcy law preempted vexatious litiga-
tion and CUTPA claims under the theory of implied
preemption (occupy the field). See Lewis v. Chelsea
G.C.A. Realty Partnership, L.P., supra, 86 Conn. App.
600. The court, therefore, did not reach the issue of
express preemption.8 ‘‘It is well settled that [o]ur case
law and rules of practice generally limit [an appellate]
court’s review to issues that are distinctly raised at trial.’’
Southport Congregational Church-United Church of
Christ v. Hadley, 320 Conn. 103, 119 n.21, 128 A.3d 478
(2016); see id. (declining to address risk of loss provi-
sion raised for first time in brief).
Express preemption is not the only method by which
Congress can address the role that state law plays in
bankruptcy—it can affirmatively utilize state law and
has done so. For example, § 522 of the Bankruptcy
Code expressly permits debtors to choose either the
bankruptcy property exemption scheme under federal
law or the nonbankruptcy property exemption schemes
available under state law. See 11 U.S.C. § 522 (b) (2012);
see also In re Pruitt, 401 B.R. 546, 554 (Bankr. D. Conn.
2009). The plaintiff interprets Congress’ utilization of
state law as evidence that Congress ‘‘clearly intended
for the bankruptcy courts to abstain from hearing cer-
tain matters involving state law and interests.’’ We agree
that when Congress affirmatively permits the operation
of state law, state law can play a role. However, the
operation of state law is conditional upon Congress’
inclusion of state law. ‘‘State [l]aw has a role to play
in bankruptcy only if Congress affirmatively permits
it.’’ In re Pruitt, supra, 554. Here, Congress did not
affirmatively permit state law actions for abuse of the
bankruptcy process, and, consequently, we conclude
that the plaintiff’s argument fails.
II
Second, the plaintiff argues that Congress did not
intend to occupy the field of sanctions and remedies
for abuse of the bankruptcy process. The plaintiff states
that, by enacting the Bankruptcy Code, Congress
intended only to provide a uniform and orderly adminis-
tration of bankruptcy estates and payments to creditors.
As to his claims for vexatious litigation, specifically, he
contends that permitting such state law claims would
not affect the equitable distribution of a debtor’s assets,
and, therefore, they are not preempted. We disagree.
To determine whether Congress has occupied a field,
we look to the overriding purpose of bankruptcy law
to infer Congress’ intent. ‘‘[A]bsent an explicit state-
ment that Congress intends to preempt state law, courts
should infer such intent where Congress has legislated
comprehensively to occupy an entire field of regulation,
leaving no room for the [s]tates to supplement federal
law . . . .’’ (Internal quotation marks omitted.) Bar-
bieri v. United Technologies Corp., 255 Conn. 708, 717,
771 A.2d 915 (2001). ‘‘[O]ften, an [a]ct of Congress may
touch a field of law in which the federal interest is so
dominant that the federal system will be assumed to
preclude enforcement of state laws on the same sub-
ject.’’ Eastern Equipment & Services Corp. v. Factory
Point National Bank, supra, 236 F.3d 120.
We conclude that the Bankruptcy Code impliedly pre-
empts the plaintiff’s state law CUTPA and vexatious
litigation claims for two main reasons: (1) Congress
legislated so comprehensively as to occupy the entire
field of penalties and sanctions for abuse of the bank-
ruptcy process, leaving no room for state law to supple-
ment; and (2) the federal interest in uniformity is so
dominant that we assume it precludes enforcement of
state laws that threaten the uniformity and finality of
the bankruptcy process for debtors and creditors alike.
A
We agree with the defendants that Congress has occu-
pied the field of penalties and sanctions for abuse of
the bankruptcy process, thereby implicitly preempting
state law CUTPA and vexatious litigation claims. Our
conclusion is consistent with the majority of federal as
well as state courts that have analyzed whether the
Bankruptcy Code occupies the field of penalties and
sanctions. These courts have concluded that, because
Congress has enacted such a comprehensive statutory
scheme, inclusive of provisions for sanctions and reme-
dies for abuse of the bankruptcy process, Congress has
implicitly occupied the field, leaving no room for state
law. See id., 121 (concluding that preemption precludes
state law damages claims for violating automatic stay
provision of Bankruptcy Code because Congress cre-
ated lengthy, complex and detailed Bankruptcy Code
to achieve uniformity); MSR Exploration, Ltd. v. Merid-
ian Oil, Inc., 74 F.3d 910, 914 (9th Cir. 1996) (precluding
state law claim for malicious prosecution because ‘‘the
adjustment of rights and duties within the bankruptcy
process itself is uniquely and exclusively federal’’);
Astor Holdings, Inc. v. Roski, 325 F. Supp. 2d 251,
262 (S.D.N.Y. 2003) (barring state law claims for filing
papers in bankruptcy proceeding in bad faith or for
improper purpose because Bankruptcy Code contains
remedies for misuse of process, and ‘‘thus such misuse
is governed exclusively by that Code’’); Glannon v. Gar-
rett & Associates, Inc., 261 B.R. 259, 263 (D. Kan. 2001)
(‘‘the Bankruptcy Code permits no state law remedies
for abuse of the bankruptcy provisions’’); Raymark
Industries, Inc. v. Baron, Docket No. CIV 96-7625, 1997
WL 359333, *10 (E.D. Pa. June 23, 1997) (justifying pre-
emption on ground that Congress expressed intent that
bankruptcy matters be handled in federal forum by
placing bankruptcy jurisdiction exclusively in district
courts); Koffman v. Osteoimplant Technology, Inc., 182
B.R. 115, 125 (D. Md. 1995) (holding that state law tort
actions are preempted by Bankruptcy Code); Idell v.
Goodman, 224 Cal. App. 3d 262, 271, 273 Cal. Rptr. 605
(1990) (holding that malicious prosecution action was
preempted by federal law because ‘‘[t]he existence of
federal sanctions for the filing of frivolous and mali-
cious bankruptcy pleadings must be read as an implicit
rejection of state court remedies’’); Smith v. Mitchell
Construction Co., 225 Ga. App. 383, 386, 481 S.E.2d 558
(1997) (‘‘ ‘state tort suits are preempted by the federal
Bankruptcy Code’ ’’), cert. denied, Docket No.
597C1344, 1997 Ga. LEXIS 858 (Ga. October 3, 1997);
Sarno v. Thermen, 239 Ill. App. 3d 1034, 1047, 608 N.E.2d
11 (1992) (precluding state law conspiracy claim arising
out of involuntary bankruptcy proceeding); Longnecker
v. Deutsche Bank National Trust Co., Docket No. 12-
2304, 2013 WL 6700312, *4 (Iowa App. December 18,
2013) (‘‘we conclude the federal bankruptcy code pre-
empts Iowa tort claims premised on litigants’ conduct
in bankruptcy court’’); Mason v. Smith, 140 N.H. 696,
701, 672 A.2d 705 (1996) (holding that plaintiff’s state
law tort claims based on allegedly wrongful filing of
involuntary bankruptcy petition were impliedly pre-
empted by Bankruptcy Code); Stone Crushed Partner-
ship v. Kassab Archbold Jackson & O’Brien, 589 Pa.
296, 314, 908 A.2d 875 (2006) (concluding that sanctions
in Bankruptcy Code provide inference that Congress
intended to preempt state law remedies for frivolous
claims in field of bankruptcy).
For example, in Eastern Equipment & Services
Corp., the plaintiff-debtor brought state law claims in
the United States District Court alleging that, during
the bankruptcy proceeding, creditors wilfully violated
the automatic stay provision of the Bankruptcy Code
by pursuing foreclosure actions in state court. Eastern
Equipment & Services Corp. v. Factory Point National
Bank, supra, 236 F.3d 119. The District Court granted
the creditors’ motion for judgment on the pleadings,
concluding that the Bankruptcy Code preempted the
state law claims, which should have been brought in
the Bankruptcy Court. Id. On appeal, the United States
Court of Appeals for the Second Circuit explained that
a conclusion of preemption was compelled by (1) Con-
gress’ establishment of bankruptcy jurisdiction exclu-
sively in the district courts under 28 U.S.C. § 1334 (a),
(2) Congress’ creation of a lengthy, complex and
detailed Bankruptcy Code to achieve uniformity, (3)
the constitution’s grant to Congress of exclusive power
over bankruptcy law, and (4) the Bankruptcy Code’s
provision of several remedies designed to deter the
misuse of the bankruptcy process. Id., 121.
In a case that is directly on point with the present
case, the United States Court of Appeals for the Ninth
Circuit in MSR Exploration, Ltd., addressed the ques-
tion of whether federal law preempts state law mali-
cious prosecution actions for events that had occurred
in connection with Bankruptcy Court proceedings. MSR
Exploration, Ltd. v. Meridian Oil, Inc., supra, 74 F.3d
912. In MSR Exploration, Ltd., the plaintiff debtor filed
a chapter 11 bankruptcy proceeding. Id. In response,
the defendant creditors filed claims against the debtor,
to which the debtor objected. Id. The Bankruptcy Court
entered an order disallowing the creditors’ claims. The
debtor did not pursue abuse of process sanctions or
penalties in the Bankruptcy Court. Id. Instead, the
debtor brought a state law malicious prosecution action
in the United States District Court. Id.
The Ninth Circuit concluded that the Bankruptcy
Code preempted the state law action for two main rea-
sons. Id., 913. ‘‘First, Congress has expressed its intent
that bankruptcy matters be handled in a federal forum
by placing bankruptcy jurisdiction exclusively in the
district courts . . . .’’ Id. Second, the complex,
detailed, and comprehensive Bankruptcy Code demon-
strates Congress’ intent to provide uniform and central-
ized adjudication of all of the rights and duties of debt-
ors and creditors alike. Id., 914. ‘‘It is very unlikely that
Congress intended to permit the superimposition of
state remedies on the many activities that might be
undertaken in the management of the bankruptcy pro-
cess. . . . [T]he highly complex laws needed to consti-
tute the bankruptcy courts and regulate the rights of
debtors and creditors also underscore the need to jeal-
ously guard the bankruptcy process from even slight
incursions and disruptions brought about by state mali-
cious prosecution actions.’’ (Citations omitted.) Id.
Accordingly, the Ninth Circuit concluded that the mali-
cious prosecution action should have been brought in
the Bankruptcy Court and upheld the District Court’s
determination that it lacked subject matter jurisdiction
over the action. Id., 916.
We agree with the holdings of the majority of courts
that have analyzed the issue and concluded that the
Bankruptcy Code occupies the field of penalties and
sanctions for abuse of the bankruptcy process. The
plaintiff, however, disputes our conclusion and argues
that a closer analysis of the Bankruptcy Code provisions
that permit penalties and sanctions reveals that Con-
gress did not intend to preempt his state law claims.
Performing the analysis the plaintiff advocates for only
further supports our conclusion that Congress occupied
the field of penalties and sanctions.
We first examine 11 U.S.C. § 105,9 which grants bank-
ruptcy courts broad equitable powers to ‘‘implement
the provisions of Title 11 and to prevent an abuse of
the bankruptcy process.’’ In re Volpert, 110 F.3d 494,
500 (7th Cir. 1997), citing In re Rainbow Magazine,
Inc., 77 F.3d 278, 284 (9th Cir. 1996), and In re Courtesy
Inns, Ltd., Inc., 40 F.3d 1084, 1089 (10th Cir. 1994). The
grant of equitable powers under § 105 broadly autho-
rizes bankruptcy courts to issue any process, order, or
judgment necessary to prevent abuse of the bankruptcy
process. Congress did not limit or carve out from this
broad grant a vexatious litigation exception for the
states to legislate within. In practice, bankruptcy courts
have sanctioned parties for vexatious litigation under
that very provision. In In re Volpert, supra, 497, for
example, the United States Court of Appeals for the
Seventh Circuit upheld a Bankruptcy Court’s imposition
of a $1000 sanction against an attorney who had
‘‘abuse[d] the judicial process.’’ Id., 501. In re Volpert
illustrates that bankruptcy courts have the authority,
and in practice use that authority under § 105, to achieve
a purpose similar to that of a state law remedy. In re
Volpert supports our conclusion that Congress intended
to occupy the field of penalties and sanctions for abuse
of the bankruptcy process and left no room for state
law to operate. Additionally, we are reassured by the
fact that the Bankruptcy Code provides remedies for
the kind of abuse of process of which the plaintiff com-
plains. The plaintiff is not left without a remedy, even
after the bankruptcy proceeding concludes.10
The plaintiff argues that, because a cause of action
for vexatious litigation under Connecticut law provides
relief that is different from the sanctions contemplated
under 11 U.S.C. § 105, it falls outside the field that Con-
gress intended to occupy. We agree that the penalties
and damages available under a successful state law
claim for vexatious litigation are potentially more exten-
sive than those available under the Bankruptcy Code.
In Connecticut, a plaintiff can recover double damages
for an action brought without probable cause, and tre-
ble damages for an action brought with malicious intent
to vex and trouble. General Statutes § 52-568. Similarly,
CUTPA permits a plaintiff to recover actual and punitive
damages. General Statutes § 42-110g (a).
In contrast, 11 U.S.C. § 105 grants bankruptcy courts
the discretion to issue any judgment necessary to pre-
vent abuse of the bankruptcy process. Although Con-
gress’ grant of such discretion is broad, the practical
effects of it may be that bankruptcy courts impose
sanctions less frequently, and for lesser dollar amounts,
than if the bankruptcy provisions more closely mirrored
the language of the Connecticut statutes. But this poten-
tial distinction in frequency and in kind does not war-
rant an inference that Congress did not contemplate
penalties and sanctions. Rather, § 105 indicates that
Congress indeed considered penalties and sanctions,
and adopted a statutory scheme. ‘‘[I]t is for Congress
and the federal courts, not the state courts, to decide
what incentives and penalties are appropriate for use
in connection with the bankruptcy process and when
those incentives or penalties shall be utilized.’’ Gonzales
v. Parks, 830 F.2d 1033, 1036 (9th Cir. 1987).
Another provision furnishing bankruptcy courts with
authority to issue penalties and sanctions is rule 9011
of the Federal Rules of Bankruptcy Procedure. See foot-
note 5 of this opinion. Under rule 9011 (b) and (c), a
court may sanction parties who file documents in bad
faith or for an ‘‘improper purpose, such as to harass or
to cause unnecessary delay or . . . cost . . . .’’ Fed.
R. Bankr. P. 9011 (b) (1). The plaintiff analogizes rule
9011 to rule 11 of the Federal Rules of Civil Procedure11
and argues that, on the basis of their similarity, rule
9011 does not preempt a state law vexatious litigation
action. And it is true that the language of the two rules
is nearly identical. The plaintiff correctly points out that
the 1993 advisory committee notes to rule 11 provide
that the rule ‘‘does not preclude a party from initiating
an independent action for malicious prosecution or
abuse of process.’’ Fed. R. Civ. P. 11, advisory commit-
tee notes, 28 U.S.C. app., p. 783 (2012). Additionally,
the 1983 advisory committee notes to rule 7001 of the
Federal Rules of Bankruptcy Procedure, which pertains
to adversary proceedings, provide that the bankruptcy
rules ‘‘either incorporate or are adaptations of most of
the Federal Rules of Civil Procedure.’’ Fed. R. Bankr.
P. 7001, advisory committee notes, 11 U.S.C. app., p.
723 (2012). The plaintiff therefore argues that, because
the rules are similar, this court should conclude that
rule 9011 incorporates the advisory committee notes
from rule 11, permitting a party to bring an independent
vexatious litigation or abuse of process action. We
are unpersuaded.
Although courts often look to advisory committee
notes for interpretive guidance; e.g., In re Old Carco,
LLC, 406 B.R. 180, 209 n.40 (Bankr. S.D.N.Y. 2009); they
do not constitute binding authority. In re Bressler, 600
B.R. 739, 744 (S.D.N.Y. 2019) (discussing advisory com-
mittee notes to rules 4004 and 4007 of the Federal Rules
of Bankruptcy Procedure). Committee notes are a prod-
uct of the rules advisory committee, not Congress.
United States v. Vonn, 535 U.S. 55, 64 n.6, 122 S. Ct.
1043, 152 L. Ed. 2d 90 (2002). And while advisory com-
mittee notes can be ‘‘a reliable source of insight into
the meaning of a rule’’; (internal quotation marks omit-
ted) Hall v. Hall, U.S. , 138 S. Ct. 1118, 1130,
200 L. Ed. 2d 399 (2018); the insight here speaks to rule
11, not rule 9011. Rule 9011 is silent as to the application
or inclusion of the advisory committee note. ‘‘An infer-
ence drawn from congressional silence certainly cannot
be credited when it is contrary to all other textual and
contextual evidence of congressional intent.’’ Burns v.
United States, 501 U.S. 129, 136, 111 S. Ct. 2182, 115 L.
Ed. 2d 123 (1991). Here, in the context of the Bank-
ruptcy Code, congressional intent is clear—the creation
of ‘‘a comprehensive federal system of penalties and
protections to govern the orderly conduct of debtors’
affairs and creditors’ rights.’’ Eastern Equipment &
Services Corp. v. Factory Point National Bank, supra,
236 F.3d 120; see 11 U.S.C. § 101 et seq. (2012). Given
this clear intent, it would be contrary to textual and
contextual evidence that Congress intended to permit
independent abuse of process actions outside the bank-
ruptcy process.
In view of the provisions that address penalties and
sanctions for abuse of the bankruptcy process, namely,
11 U.S.C. § 105 and rule 9011, it is clear that Congress
occupied the field by legislating comprehensively as
to penalties and sanctions for abuse of that process.
Accordingly, we conclude that Congress impliedly pre-
empted state law CUTPA and vexatious litigation
claims.
The Appellate Court in Lewis came to the same con-
clusion, and we agree with Judge DiPentima’s cogent
analysis in that case. The Appellate Court explained
that ‘‘[t]he code contains remedies for the misuse of the
[bankruptcy] process . . . .’’ (Internal quotation marks
omitted.) Lewis v. Chelsea G.C.A. Realty Partnership,
L.P., supra, 86 Conn. App. 602. ‘‘Although it is true that
the federal remedies provided for in the bankruptcy
context do not offer the substantial damages available
under Connecticut’s vexatious litigation statute and
CUTPA, that is an insufficient basis on which to pre-
clude preemption.’’ Id., 603–604. ‘‘The exclusivity of
federal jurisdiction over bankruptcy proceedings, the
complexity and comprehensiveness of Congress’ regu-
lation in the area of bankruptcy law and the existence
of federal sanctions for the filing of frivolous and mali-
cious pleadings in bankruptcy must be read as Con-
gress’ implicit rejection of alternative remedies . . . .’’
Id., 605.
B
In addition to concluding that Congress implicitly
preempted state law actions by occupying the field of
bankruptcy law, we conclude that, in that field of law,
the federal interest is so dominant that federal law is
assumed to preclude enforcement of state laws on the
subject. E.g., Eastern Equipment & Services Corp. v.
Factory Point National Bank, supra, 236 F.3d 120.
Nothing less than the constitution of the United States
persuades us that Congress’ interest in uniformity in
the bankruptcy process is so dominant as to preempt
collateral attacks through state law vexatious litigation
and CUTPA claims. The constitution grants Congress
the authority to establish ‘‘uniform Laws on the subject
of Bankruptcies throughout the United States . . . .’’
U.S. Const., art. I, § 8, cl. 4. As described by Justice
Joseph Story, the reasons for conferring bankruptcy
power upon the United States ‘‘result from the impor-
tance of preserving harmony, promoting justice, and
securing equality of rights and remedies among the
citizens of all the states. It is obvious, that if the power
is exclusively vested in the states, each one will be at
liberty to frame such a system of legislation upon the
subject of bankruptcy and insolvency, as best suits its
own local interests and pursuits. Under such circum-
stances no uniformity of system or operations can be
expected. . . . There can be no other adequate remedy
than giving a power to the general government to intro-
duce and perpetuate a uniform system.’’ 2 J. Story, Com-
mentaries on the Constitution of the United States (2d
Ed. 1851) § 1107.
We approach the question of uniformity within the
bankruptcy process cognizant of the fact that state
courts can be hesitant to conclude that federal law
preempts state law claims. On this point, the United
States Supreme Court has stated that federal regulation
‘‘should not be deemed preemptive of state regulatory
power in the absence of persuasive reasons—either
that the nature of the regulated matter permits no other
conclusion, or that the Congress has unmistakably so
ordained.’’ Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142, 83 S. Ct. 1210, 10 L. Ed. 2d 248
(1968). Yet, against this backdrop, state courts have
concluded, as we do, that permitting state law claims
for abuse of the bankruptcy process threatens the uni-
formity of the bankruptcy system. See, e.g., Smith v.
Mitchell Construction Co., supra, 225 Ga. App. 386
(‘‘[a]llowing state tort actions based on allegedly bad
faith bankruptcy filings . . . would have the effect of
permitting state law standards to modify the incentive
structure of the Bankruptcy Code and its remedial
scheme . . . threaten[ing] the uniformity of federal
bankruptcy law’’); Mason v. Smith, supra, 140 N.H. 700
(‘‘[a]llowing plaintiffs to pursue alternative remedies in
state courts for wrongful filings would frustrate the
uniformity of bankruptcy law intended by Congress by
allowing each [s]tate to establish its own definition of
‘bad faith’ with regard to the filing of involuntary
petitions’’).
Our concerns with respect to the uniformity of bank-
ruptcy law are twofold. First, state courts evaluating
claims that involve abuse of the bankruptcy process
would need to develop adjudication standards for mat-
ters such as probable cause, bad faith, and malicious
prosecution, to name a few. Those standards may be
different from, and at odds with, the standards that
have developed in the bankruptcy courts. See Sarno v.
Thermen, supra, 239 Ill. App. 3d 1044 (explaining that
it would be inconsistent with Congress’ intent for state
courts to develop different, more liberal tradition of
bad faith for malicious prosecution purposes than that
developed in federal system). It is foreseeable that
states might disagree over the extent of an available
remedy for abuse of process and the standard to be met.
‘‘State courts are not authorized to determine whether
a person’s claim for relief under a federal law, in a
federal court, and within that court’s exclusive jurisdic-
tion, is an appropriate one. Such an exercise of authority
would be inconsistent with and subvert the exclusive
jurisdiction of the federal courts by allowing state
courts to create their own standards as to when persons
may properly seek relief in cases Congress has specifi-
cally precluded those courts from adjudicating.’’ Gon-
zales v. Parks, supra, 830 F.2d 1035. Varying standards
for recovery from state to state would serve to under-
mine the federal interest in uniformity.
Second, permitting state law actions would allow par-
ties to collaterally attack the bankruptcy process,
threatening the finality of the proceedings as well as
the ability of the parties—debtors and creditors alike—
to make a fresh start once the bankruptcy proceeding
concludes. One of the overriding purposes of the Bank-
ruptcy Code is to provide debtors with a fresh start.
‘‘It is the purpose of the Bankrupt Act to convert the
assets of the bankrupt into cash for distribution among
creditors and then to relieve the honest debtor from
the weight of oppressive indebtedness and permit him
to start afresh free from the obligations and responsibili-
ties consequent upon business misfortunes.’’ Williams
v. United States Fidelity & Guaranty Co., 236 U.S. 549,
554–55, 35 S. Ct. 289, 59 L. Ed. 713 (1915); accord In
re Renshaw, 222 F.3d 82, 86 (2d Cir. 2000).
Creditors benefit as well by having ‘‘a single forum
where debts and priorities can be determined in an
orderly manner, a forum where those debts can be
collected in whole or (more likely) in part.’’ MSR Explo-
ration, Ltd. v. Meridian Oil, Inc., supra, 74 F.3d 916.
The potential threat of state court actions following on
the heels of a bankruptcy proceeding may well interfere
with the necessary actions that creditors take within
the bankruptcy process. Id. ‘‘[T]he mere threat of state
tort actions could prevent individuals from exercising
their rights in bankruptcy, thereby disrupting the bank-
ruptcy process.’’ Eastern Equipment & Services Corp.
v. Factory Point National Bank, supra, 236 F.3d 121,
citing MSR Exploration, Ltd. v. Meridian Oil, Inc.,
supra, 913–16. For example, the threat of a state law
action could deter a creditor from filing an adversary
proceeding in the Bankruptcy Court challenging the
discharge of a debt. We face that exact circumstance
in the present case. The threat is then compounded
when the state law action provides for substantial dam-
age awards, as is also the case at hand. See, e.g., Idell v.
Goodman, supra, 224 Cal. App. 3d 269 (‘‘[t]he additional
risk that substantial damage awards in state courts
would create a material disincentive to those seeking to
use the bankruptcy laws only exacerbates the problem’’
[internal quotation marks omitted]). Both of these uni-
formity concerns fortify our conclusion that the Bank-
ruptcy Code impliedly preempts state law CUTPA and
vexatious litigation claims. The Bankruptcy Code pro-
vides the forum, incentives, penalties, and sanctions
that apply uniformly to debtors and creditors
nationwide.
In response, the plaintiff urges this court to adopt the
minority approach for evaluating implied preemption
articulated by the Supreme Court of Texas in Graber
v. Fuqua, 279 S.W.3d 608 (Tex.), cert. denied, 558 U.S.
880, 130 S. Ct. 288, 175 L. Ed. 2d 136 (2009). In Graber,
the court considered whether the Bankruptcy Code pre-
empted a state law malicious prosecution claim that
arose out of an adversary action in a bankruptcy pro-
ceeding. Id., 609–10. Similar to the facts of this case,
in Graber, a law firm had initiated an adversary proceed-
ing against a debtor who had filed a voluntary chapter
7 petition in the Bankruptcy Court. Id. The petition
resulted in a criminal investigation, an indictment for
bank fraud and tax fraud, and then ultimately a trial in
state court in which a jury found the debtor not guilty
on all charges. Id., 610. The debtor then sued the law
firm in state court, alleging civil malicious prosecution.
Id. The law firm argued that the court lacked subject
matter jurisdiction because federal bankruptcy law pre-
empted the state law claim. The trial court agreed and
granted the motion to dismiss the action. Id. On appeal,
the Texas Supreme Court held that Congress did not
intend for the Bankruptcy Code to preempt a state law
malicious prosecution claim. Id., 620.
The Texas Supreme Court in Graber approached the
preemption issue by analyzing each provision in the
Bankruptcy Code to determine whether Congress
intended to occupy the field of sanctions and penalties.
The court reasoned that where Congress ‘‘custom-built’’
certain provisions of the Bankruptcy Code—unique pro-
visions without analogues in general federal litigation—
those provisions are more likely to preempt state law
causes of action because Congress ‘‘built’’ or created
a unique remedial provision. Id., 612–13. Conversely, the
court reasoned, where Congress imported provisions
from existing federal law without any significant
changes, preemption of state law causes of action is
‘‘improbable,’’ and those provisions should incorporate
common practices under those existing federal laws.
Id., 613. The court concluded that 11 U.S.C. § 105 and
rule 9011 do not preempt state law claims for malicious
prosecution because they are imported from existing
federal law and represent Congress’ implicit acceptance
of state law malicious prosecution claims.12 Id. Although
that is still a minority view, some courts, in light of
Graber, similarly have held that the Bankruptcy Code
does not preempt state law causes of action providing
damages for abuse of the bankruptcy process. See, e.g.,
U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 393
(3d Cir. 2002) (holding that state law claim for malicious
prosecution was not preempted); R.L. LaRoche, Inc. v.
Barnett Bank of South Florida, N.A., 661 So. 2d 855,
857 (Fla. App. 1995) (concluding that federal bank-
ruptcy law did not preempt state law abuse of process
and malicious prosecution claims).
We disagree with the minority approach to the pre-
emption analysis. Notably, the court in Graber did not
cite any case law as authority for categorizing provi-
sions of federal law as either ‘‘custom-built’’ or imported
when determining whether those provisions are more
or less likely to preempt state law causes of action.
Rather, the court effectively adopted its own ‘‘custom-
built’’ method to analyze individual provisions of the
Bankruptcy Code. By adopting this analysis, the court
failed to consider the structure and purpose of the Bank-
ruptcy Code and, consequently, failed to recognize that
Congress legislated so comprehensively as to occupy
the entire field of regulation. See, e.g., Longnecker v.
Deutsche Bank National Trust Co., supra, 2013 WL
6700312, *6 (rejecting Graber approach and determin-
ing that state court did not err in ‘‘ruling, consistently
with the majority of state and federal courts, that it
lacked subject matter jurisdiction over claims alleging
abuse of bankruptcy proceedings’’); PNH, Inc. v. Alfa
Laval Flow, Inc., 130 Ohio St. 3d 278, 285, 958 N.E.2d
120 (2011) (rejecting Graber approach and concluding
that federal law preempts state law causes of action
for misconduct of litigants in bankruptcy proceedings),
cert. denied, 565 U.S. 1262, 132 S. Ct. 1764, 182 L. Ed.
2d 533 (2012).
Like the substantial majority of federal and state
courts that have concluded that the Bankruptcy Code
preempts state law claims for abuse of process, we
conclude that Congress clearly has ‘‘considered the
need to deter misuse of the process and has not merely
overlooked the creation of additional deterrents.’’ MSR
Exploration, Ltd. v. Meridian Oil, Inc., supra, 74 F.3d
915. As previously stated, Congress decides what penal-
ties are appropriate within the bankruptcy process, not
state courts. Gonzales v. Parks, supra, 830 F.2d 1036.
Accordingly, we interpret Congress’ grant of exclusive
jurisdiction over bankruptcy petitions to the district
courts, and the federal interest in uniform laws on bank-
ruptcy, as occupying the field and implicitly rejecting
state law claims for abuse of process.
III
Finally, the plaintiff argues that there is little similar-
ity between the penalties, sanctions, and damages avail-
able under Connecticut law for his CUTPA and vexa-
tious litigation claims, and the sanctions for abuse of
process available under the Bankruptcy Code. The
plaintiff asks this court to conclude that, because the
remedies are different, there is no conflict, and, there-
fore, his claims are not preempted.13 We agree with the
plaintiff that state law actions are not in conflict with
bankruptcy law because a party can comply with both
state and federal law. However, we conclude that those
actions are still preempted under a conflict preemption
analysis because they are an obstacle to accomplishing
Congress’ purpose within the Bankruptcy Code.
‘‘Conflict preemption exists when compliance with
both state and federal law is impossible, and a subset
of conflict preemption referred to as obstacle preemp-
tion applies when the state law stands as an obstacle
to the accomplishment and execution of the full pur-
poses and objectives of Congress. . . . State law is in
irreconcilable conflict with federal law, and hence pre-
empted by federal law, when compliance with the state
statute would frustrate the purposes of the federal
scheme.’’ (Internal quotation marks omitted.) Sarrazin
v. Coastal, Inc., supra, 311 Conn. 593, quoting Sosnowy
v. A. Perri Farms, Inc., 764 F. Supp. 2d 457, 464
(E.D.N.Y. 2011). Therefore, we must determine whether
compliance with state and federal law would be impos-
sible and then consider whether the plaintiff’s vexatious
litigation and CUTPA claims would be an obstacle to
Congress’ objectives.
We agree with the plaintiff that compliance with both
the Bankruptcy Code and Connecticut law would not
be impossible. ‘‘The test of whether both federal and
state regulations may operate, or the state regulation
must give way, is whether both regulations can be
enforced without impairing the federal superintendence
of the field, not whether they are aimed at similar or
different objectives.’’ Florida Lime & Avocado Grow-
ers, Inc. v. Paul, supra, 373 U.S. 142. Connecticut’s
vexatious litigation statute strives to deter parties from
bringing claims without probable cause and with mali-
cious intent. See General Statutes § 52-568. CUTPA pro-
hibits unfair methods of competition and unfair or
deceptive acts or practices in the conduct of trade or
commerce. See General Statutes § 42-110b (a). To com-
ply with Connecticut law, a party need only refrain from
bringing claims without probable cause, and compete
fairly and without deception. Obviously, no provision
in the Bankruptcy Code mandates that a party bring
claims without probable cause or compete unfairly or
deceptively. Connecticut law can be enforced without
impairing the federal superintendence. Therefore, the
state statutes do not conflict with the Bankruptcy Code
such that it would be impossible to comply with both.
However, our obstacle preemption analysis impli-
cates many of the same factors that drove our implied
(or occupy the field) preemption analysis and leads us
to conclude that the plaintiff’s state law abuse of pro-
cess actions are preempted. Congress enacted the
Bankruptcy Code inclusive of penalties and protections
to govern the orderly conduct of debtors’ affairs and
creditors’ rights. Permitting parties to bring abuse of
process actions in state court hinders Congress’ objec-
tive of uniformly defining the scope and availability of
remedies for abuse of the bankruptcy process.
We can imagine a myriad of claims that would lend
themselves to vexatious litigation actions, including
debtors’ petitions, creditors’ claims, disputes over reor-
ganization plans, and disputes over pending discharges,
to name a few. If such claims were not preempted by
federal law, redress for them would depend on the law
of the state in which the plaintiff brought the action.
MSR Exploration, Ltd. v. Meridian Oil, Inc., supra, 74
F.3d 914. ‘‘Permitting assertion of a host of state law
causes of action to redress wrongs under the Bank-
ruptcy Code would undermine the uniformity the Code
endeavors to preserve and would [stand] as an obstacle
to the accomplishment and execution of the full pur-
poses and objectives of Congress.’’ (Internal quotation
marks omitted.) Pertuso v. Ford Motor Credit Co., 233
F.3d 417, 426 (6th Cir. 2000). Accordingly, the plaintiff’s
state law CUTPA and vexatious litigation claims are in
conflict with the Bankruptcy Code provisions regarding
sanctions for abuse of process and, thus, are preempted.
The trial court properly dismissed these claims for lack
of subject matter jurisdiction.
The judgment is affirmed.
In this opinion the other justices concurred.
1
Count seven of the plaintiff’s complaint alleged that Fitzgerald and the
bank violated CUTPA. Fitzgerald and the bank moved to dismiss counts
eight through thirteen of the complaint, which alleged vexatious litigation.
On its own motion, the trial court dismissed the CUTPA claim on the same
ground as it dismissed the vexatious litigations claims—lack of subject
matter jurisdiction.
In his brief to this court, the plaintiff did not specifically identify or analyze
the CUTPA claim but, rather, referred to it only generally by stating that
the ‘‘vexatious litigation claims and the like were not intended to be pre-
empted by the Bankruptcy Code and its rules’’ and that, ‘‘[a]ccordingly, it
should be held that no claim brought here was preempted or intended to
be preempted by the federal rules applicable.’’ (Emphasis added.) Although
the plaintiff’s brief is imprecise, because the defendants have not argued
that the plaintiff has waived the CUTPA claims, we consider the plaintiff’s
argument as applying to both the vexatious litigation claims and the
CUTPA claims.
2
Section 105 (a) of title 11 of the 2012 edition of the United States Code
provides: ‘‘The court may issue any order, process, or judgment that is
necessary or appropriate to carry out the provisions of this title. No provision
of this title providing for the raising of an issue by a party in interest shall
be construed to preclude the court from, sua sponte, taking any action or
making any determination necessary or appropriate to enforce or implement
court orders or rules, or to prevent an abuse of process.’’
3
Section 303 (i) of title 11 of the 2012 edition of the United States Code
provides in relevant part: ‘‘If the court dismisses a petition under this section
other than on consent of all petitioners and the debtor . . . the court may
grant judgment . . . (2) against any petitioner that filed the petition in bad
faith for . . . (A) . . . any damages proximately caused by such filing; or
(B) punitive damages.’’
4
Section 930 (a) of title 11 of the 2012 edition of the United States Code
provides in relevant part: ‘‘After notice and a hearing, the court may dismiss
a case under this chapter for cause, including . . . (2) unreasonable delay
by the debtor that is prejudicial to the creditors . . . .’’
5
Rule 9011 of the Federal Rules of Bankruptcy Procedure provides in
relevant part: ‘‘(b) By presenting to the court (whether by signing, filing,
submitting, or later advocating) a petition, pleading, written motion, or other
paper, an attorney or unrepresented party is certifying that to the best of
the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances . . . (1) it is not being presented for
any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation . . . . (c) If, after notice and a
reasonable opportunity to respond, the court determines that subdivision
(b) has been violated, the court may, subject to the conditions stated below,
impose an appropriate sanction upon the attorneys, law firms, or parties
that have violated subdivision (b) or are responsible for the violation. . . .’’
6
As an example of express preemption, the Medical Device Amendments
of 1976, 21 U.S.C. § 360c et seq. (2012), provides in relevant part that,
‘‘[e]xcept as provided in subsection (b) of this section, no State or political
subdivision of a State may establish or continue in effect with respect to a
device intended for human use any requirement—(1) which is different
from, or in addition to, any requirement applicable under this chapter to
the device, and (2) which relates to the safety or effectiveness of the device
or to any other matter included in a requirement applicable to the device
under this chapter.’’ 21 U.S.C. § 360k (a) (2012); see also Mullin v. Guidant
Corp., 114 Conn. App. 279, 285, 970 A.2d 733, cert. denied, 292 Conn. 921,
974 A.2d 722 (2009).
7
Having determined that Congress impliedly preempted the state law
claims by occupying the field, the court in Lewis did not need to analyze
express preemption. See Resolution Trust Corp. v. Diamond, 18 F.3d 111,
125 (2d Cir.) (not addressing conflict preemption after holding that express
preemption applied), vacated on other grounds sub nom. Pattullo v. Resolu-
tion Trust Corp., 513 U.S. 801, 115 S. Ct. 43, 44, 130 L. Ed. 2d 5 (1994);
Depot, Inc. v. Caring for Montanans, Inc., Docket No. 16-74-M-DLC, 2017
WL 3687339, *5 (D. Mont. February 14, 2017) (not reaching issue of conflict
preemption because plaintiffs’ claims were expressly preempted). In the
present case, we analyze all three types of preemption to add clarity and
because the parties addressed each of them on appeal in this court.
8
Neither the parties nor the trial court in Lewis performed a separate
analysis of the three types of preemption. The defendant in Lewis argued
generally, in its motion for summary judgment, that bankruptcy law pre-
empted state law claims. The trial court granted the defendant’s motion for
summary judgment, stating that ‘‘[the] court is preempted by federal law
from acting on a claim intended to sanction a party for its participation in
a bankruptcy proceeding.’’ Lewis v. Chelsea G.C.A. Realty Partnership,
L.P., Superior Court, judicial district of Waterbury, Docket No. X06-CV-96-
0154801-S (January 22, 2003) (34 Conn. L. Rptr. 5, 7), rev’d, 86 Conn. App.
596, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005).
9
Section 105 (a) of title 11 of the 2012 edition of the United States Code
provides: ‘‘The court may issue any order, process, or judgment that is
necessary or appropriate to carry out the provisions of this title. No provision
of this title providing for the raising of an issue by a party in interest shall
be construed to preclude the court from, sua sponte, taking any action or
making any determination necessary or appropriate to enforce or implement
court orders or rules, or to prevent an abuse of process.’’
10
Bankruptcy policy provides for cases to be ‘‘reopened on motion of the
debtor . . . .’’ Fed. R. Bankr. P. 5010. By opening the case, the Bankruptcy
Court has discretion to ‘‘administer assets [and] to accord relief to the debtor
. . . .’’ 11 U.S.C. § 350 (b) (2012).
11
Rule 11 (b) of the Federal Rules of Civil Procedure provides in relevant
part: ‘‘By presenting to the court a pleading, written motion, or other paper—
whether by signing, filing, submitting, or later advocating it—an attorney
or unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circum-
stances: (1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litiga-
tion . . . .’’
12
The Texas Supreme Court decided Graber by a five to four margin. The
dissenters concluded, as we have and as the Appellate Court did in Lewis,
that federal law occupied the field and that permitting state law actions for
malicious prosecution would undermine the uniformity of bankruptcy law
mandated by the United States constitution. See Graber v. Fuqua, supra,
279 S.W.3d 620–21 (Wainwright, J., dissenting).
13
Courts addressing the issue of preemption that we are faced with in
the present case often combine the analysis for occupy the field preemption
and conflict preemption, both of which are types of implied preemption,
without significant distinction. See, e.g., Eastern Equipment & Services
Corp. v. Factory Point National Bank, supra, 236 F.3d 120–21; MSR Explora-
tion, Ltd. v. Meridian Oil, Inc., supra, 77 F.3d 913–15, Lewis v. Chelsea
G.C.A. Realty Partnership, L.P., supra, 86 Conn. App. 601–605. As a practical
matter, it often will be the case that, when Congress has occupied the field,
a state law cause of action likely will obstruct Congress’ purpose, resulting
in conflict preemption. We note that courts often have held that if one kind
of preemption exists, the others need not be addressed. See, e.g., Resolution
Trust Corp. v. Diamond, 18 F.3d 111, 125 (2d Cir.) (not addressing conflict
preemption after holding that express preemption applied), vacated on other
grounds sub nom. Pattullo v. Resolution Trust Corp., 513 U.S. 801, 115 S.
Ct. 43, 44, 130 L. Ed. 2d 5 (1994); Depot, Inc. v. Caring for Montanans, Inc.,
Docket No. 16-74-M-DLC, 2017 WL 3687339, *5 (D. Mont. February 14, 2017)
(not reaching issue of conflict preemption because plaintiffs’ claims were
expressly preempted). Because the plaintiff in the present case sets forth
arguments unique to conflict preemption that warrant separate analysis, we
have not combined our analysis of these two types of implied preemption.