Opinion
No. CV 09 5013143
October 28, 2010
MEMORANDUM OF DECISION Motion to Strike No. 114
FACTS
On September 14, 2009, the twelve plaintiffs in this case filed a nine-count complaint against the defendant, Illinois Mutual Life Ins. Co. This court denied the defendant's motion to dismiss for lack of personal jurisdiction over the claims made by the six plaintiffs who are not Connecticut residents on February 4, 2010. Following this court's granting in part and denying in part the defendant's request to revise the complaint on April 8, 2010, the plaintiffs filed their revised complaint on April 21, 2010. Thereafter, on May 7, 2010, the defendant filed a motion for an order for compliance with the court's ruling on the defendant's request to revise, which this court granted in part and denied in part on June 7, 2010.
As a result, the plaintiffs filed a twenty-count second revised complaint on July 2, 2010 alleging the following facts. The individually named plaintiffs are insurance salesmen and agents who are all associated as a group organized under Financial Consulting, LLC. Five plaintiffs are Connecticut residents, while the six others reside in the states of Illinois, Texas, North Carolina and California. The plaintiff Financial Consulting, LLC was appointed as a general agent of the defendant, while the individually named plaintiffs were appointed as selling agents. As a result, all the plaintiffs actively and successfully commenced the marketing and selling of the defendant's life insurance products. On August 5, 2009, the defendant terminated its business and agency relationship with the plaintiffs, including the agency contracts and appointments between the parties. In effectuating the termination, the defendant, by itself and its officers, employees, representatives, agents and servants, falsely and maliciously stated, wrote, printed and published statements about and concerning the plaintiffs' conduct as insurance salesmen. These statements implied dishonesty, incompetency and criminality, resulting in damage to the plaintiffs' reputations and loss of business. The first three counts allege defamation. Counts four and five allege breach of contract. Counts six through sixteen allege negligent infliction of emotional distress. Count seventeen alleges unjust enrichment. Count eighteen alleges tortious interference with a business relationship. Finally, counts nineteen and twenty allege violations of CUTPA and CUIPA, respectively.
On July 14, 2010, the defendant filed a motion to strike all counts of the plaintiffs' second revised complaint on the ground of improper joinder and, additionally, counts one through three on the ground that the alleged defamation is not pleaded with the requisite specificity. The defendant filed a memorandum of law in support of the motion. The plaintiffs filed an objection to the motion to strike, accompanied by a memorandum of law, on August 6, 2010.
STANDARD OF REVIEW
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Practice Book § 10-39(a) provides in relevant part: "Whenever any party wishes to contest . . . the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Further, "[t]he exclusive remedy for misjoinder of parties is by motion to strike." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723 n. 23, 661 A.2d 973 (1995); see also Practice Book § 11-3. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
DISCUSSION
In the present case, the defendant argues that there are no common questions of law or fact as to the claims of the various plaintiffs; the plaintiffs' common facts are tangential, and the crucial facts differ for each plaintiff. Also, because the plaintiffs reside in different states, Connecticut's choice of law test will result in different states' law being applied for certain plaintiffs. In addition, the defendant argues that the plaintiffs' first three counts alleging defamation are not pleaded with the requisite specificity required by Connecticut courts.
In response, the plaintiffs argue that they were all injured by the defendant in the same transaction, i.e. their termination as agents of the defendant. Each of their claims is based on the same set of facts and circumstances and the same defamatory allegations were imputed equally to all the plaintiffs. Also, the plaintiffs argue that this court has already ruled that this forum is appropriate to press their claims in the court's memorandum of its decision denying the defendant's motion to dismiss. Finally, the plaintiffs dispute the existence of a heightened pleading standard for defamation claims.
A.
"All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise . . ." General Statutes § 52-104. Practice Book § 10-21 provides in relevant part: "[I]f several causes of action are united in the same complaint, they shall all be brought to recover . . . upon claims . . . arising out of the same transaction or transactions connected with the same subject of the action." Practice Book § 10-22 provides in relevant part: "Transactions connected with the same subject of action . . . may include any transactions which grew out of the subject matter in regard to which the controversy has arisen . . ."
Different causes of action are properly joined in one complaint "if both arose out of the same transaction, or if, while one arose out of one transaction and the other out of another, both these transactions were connected with the same subject of action." (Internal quotation marks omitted.) Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 560, 29 A. 76 (1893). "[P]laintiffs [are] permitted to join in one action if their respective rights of relief arose out of the same transaction or series of transactions and if any common question of law or fact was involved." Fairfield Lumber Supply Co. v. Herman, 139 Conn. 141, 143-44, 90 A.2d 884 (1952). The purpose of joinder is to "enable parties to settle all their controversies in a single action . . ." Veits v. Hartford, 134 Conn. 428, 436, 58 A.2d 389 (1948). "Historically, the Connecticut Supreme Court has taken a liberal approach to permissive joinder." Balog v. Shelton Restaurant, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 0084313 (August 2, 2004, Lager, J.) ( 37 Conn. L. Rptr. 659, 660). Joinder of closely related occurrences is allowed in order to serve the commonsense purposes of judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action . . ." Jackson v. Conland, 171 Conn. 161, 167, 368 A.2d 3 (1976).
"One of the purposes of joinder is to enable parties to settle all their controversies in a single action . . . and it also furthers the general policy of our law which favors as far as possible the litigation of related controversies in a single action . . . Trial courts . . . should always consider the interests of judicial economy and practicality in applying joinder rules." (Citation omitted; internal quotation marks omitted.) Thomas v. State, Superior Court, judicial district of Hartford, Docket No. CV 07 5014849 (March 17, 2009, Mulcahy, J.).
In McCart v. Shelton, 81 Conn.App. 58, 62, 837 A.2d 872 (2004), the Appellate Court held that the plaintiffs were not properly joined because each plaintiff would have to present individual evidence with respect to the issues of the case, reasoning that "[t]he plaintiffs' common facts are tangential, and the crucial facts differ for each plaintiff. There is no common question of fact or law."
In the present case, however, there are common questions of crucial facts on the liability issues. The named plaintiff alleges it was appointed a general agent of the defendant. Pursuant to its authority under the general agency it alleges that it appointed the individual plaintiffs as selling agents. The complaint alleges that the plaintiffs' relationships with the defendant were terminated for cause in the same time period. The gravamen of the plaintiffs' complaint is the facts and circumstances leading up to and surrounding their termination by the defendant. Requiring the plaintiffs each to bring a separate action that involves the same defendant and relates to the same employment and agency relationship and the same termination process does not promote judicial economy. See Gammo v. Truck Drivers Local Union, Superior Court, judicial district of Hartford, Docket No. CV 92 0518182 (February 2, 1994, Aurigemma J.). For trial purposes, the plaintiffs' claims here are not severable without necessarily being duplicative, as the trial of one plaintiff will certainly require all of the testimony and evidence needed in the other plaintiffs' trials. See Madero v. People's Bank, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 03 0185488 (February 22, 2005, Sheedy, J.). In sum, the testimony giving rise to each claim would essentially be the same for each plaintiff and given by the same people. It may be that some issues of damages will be distinct for each of the plaintiffs but this issue can be dealt with at a later date.
In Balog v. Shelton Restaurant, LLC, supra, 37 Conn. L. Rptr. 660, the court denied the defendant's motion to strike on the ground of misjoinder of parties after concluding that "[t]he gravamen of each plaintiffs' claims against the defendants is the existence of a hostile work environment during a specific period of time." "The complaint alleges facts that describe a common wrongdoer involved in a pattern of discriminatory conduct. The claims of all the plaintiffs involve common questions of fact." Id., 661.
The present case is factually similar to Balog. Because each plaintiffs' claims arose from the same common questions of fact and would essentially involve the same evidence and testimony at trial to establish the defendant's liability, the motion to strike on the ground that there exist no common questions of fact is denied.
B.
The defendant also seeks to strike the plaintiffs' complaint based on the argument that each plaintiff's claims invoke different questions of law because of Connecticut's choice of law test. Nevertheless, courts have refused to address choice of law issues in a motion to strike because it is premature to conduct the requisite "searching case-by-case contextual inquiry into the significance of the interests that the law of competing jurisdictions may assert in [the] particular controversy." O'Connor v. O'Connor, 201 Conn. 632, 658, 519 A.2d 13 (1986). "Where a choice of law issue is present on a motion to strike . . . it is unusual to determine the issue at this procedural stage." Dimauro v. Aiardo, Superior Court, judicial district of New Haven, Docket No. CV 97 0401576 (April 20, 1998, Hartmere, J.). "In light of the `searching case-by-case contextual inquiry' that is encouraged under the Restatement, it would be inappropriate to decide the choice of law issue at this stage in the proceedings in the absence of a more complete set of facts." Ffolkes v. Pasko, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0154395 (May 13, 1997, Karazin, J.) ( 19 Conn. L. Rptr. 442, 443). See also Pursuit Partners, LLC v. UBS AG, Superior Court, complex litigation docket at Stamford-Norwalk, Docket No. X05 CV 08 4013452 (July 8, 2009, Blawie, J.); Noble v. Moore, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148207 (January 7, 2002, Pittman, J.).
In the present case, there appear to be additional facts outside the pleadings that would provide a more complete analysis of whether Connecticut law, or that of another jurisdiction, would apply to the plaintiffs' claims. Therefore, consistent with other courts addressing this issue, this court is not prepared to strike the plaintiffs' entire complaint at this early stage in the proceedings based on the defendant's assertions that this state's choice of law test would result in different questions of law for each claim.
C.
Finally, the defendant moves to strike the defamation claims in counts one through three on the ground that the counts are not alleged with the required specificity to withstand a motion to strike. The plaintiffs respond by casting doubt on the authority upon which the defendant bases its argument and contend that the evidentiary details of their claims can be "flushed out" during discovery.
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009). The defendant argues that the plaintiffs have failed to specify the third prong, publication to a third person, in their complaint and that mere references to "various persons," "diverse persons" and "various parties" are insufficient to state a claim for defamation. This court must agree.
"Although our appellate courts have not addressed this issue, several trial courts . . . have required that claims of defamation be pleaded with specificity, identifying what allegedly defamatory statements were made, by whom and to whom." D'Agostino v. Broccoli, Superior Court, judicial district of Hartford, Docket No. CV 05 5001595 (January 12, 2007, Scholl, J.). Moreover, Judge Berger, in Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003), held that "a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom." His decision was affirmed by the Appellate Court.
"Connecticut courts require that a plaintiff must plead a defamation case with specificity because there are a number of special defenses . . . that may be appropriate, depending on the nature of the statements alleged to have been made . . . If the plaintiff's pleadings are nebulous as to the identity of the speaker, audience and the type of statements made, it may be difficult for the defendants to plead any appropriate special defenses." (Citation omitted; internal quotation marks omitted.) Avitable v. 1 Burr Road Operating Co. II, LLC, Superior Court, judicial' district of Stamford-Norwalk at Stamford, Docket No. CV 09 5012806 (June 4, 2010, Adams, J.). "Without knowledge of to whom the defendants allegedly spoke these words, the defendants would be unable to appropriately frame their response and raise any possible special defenses such as privilege." Maisano v. Congregation Or Shalom, Superior Court, judicial district of New Haven, Docket No. CV 07 4027175 (January 26, 2009, Holden, J.) [ 47 Conn. L. Rptr. 152]. "[W]hile the court is sympathetic to the plaintiff's argument that these details are best flushed out during discovery, that concern is superseded by the admonition that a plaintiff's complaint must put the defendant on notice of the claims made against him so that an effective defense can be advanced." Parnoff v. Mooney, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 4001683 (April 8, 2008, Frankel, J.). See also Jenkins v. American Chiropractic Board of Nutrition, Superior Court, judicial district of Litchfield, Docket No. CV 4005786 (August 19, 2008, Marano, J.) (holding plaintiff failed to allege legally sufficient defamation claim "because he has not pleaded to whom the defamatory statements were made with specificity"); Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 02 0097138 (December 16, 2005, Beach, J.) ( 40 Conn. L. Rptr. 565, 570) ("Though there may at times be a fine line between fact pleading and evidence, defamation should be alleged with some degree of specificity").
In the present case, the plaintiffs allege in count one that the defamatory statements were published to "various persons, some known and some unknown, including some customers of the plaintiffs." In count two, the alleged statements were made "within hearing of diverse persons." The third count alleges the defendant published defamatory statements "in various letters addressed to various parties." Even construing the complaint in a manner most consistent with sustaining its legal sufficiency, the plaintiffs' defamation claims are too vague in alleging to whom the defamatory statements were made. Indeed, consistent with previous courts' rationale for requiring specificity in pleading defamation, the defendant here should be able to know to whom the statements were published before filing an answer or asserting a special defense.
Therefore, this court grants the defendant's motion to strike counts one through three on the ground that the plaintiffs' defamation claims have not been pleaded withsufficient specificity required by Connecticut trial courts to withstand a motion to strike.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is granted in part, limited to counts one through three.