Opinion
CV176068382S
01-23-2019
Michael FLEMING v. Bruce BEMER
UNPUBLISHED OPINION
OPINION
BELLIS, J.
This action, filed by the plaintiff, Michael Fleming, stems from the alleged depraved and corrupt business activity of the defendant, Bruce Bemer. In the first count of the plaintiff’s operative complaint, the revised complaint filed on January 8, 2018, the plaintiff alleges, inter alia, the following relevant facts. The defendant "engaged in a continuous course of depraved and corrupt business activity over many years, targeting drug addicted and mentally disabled boys and young men for sexual exploitation, and willingly engaged in a conspiracy to sexually traffic individuals, including Plaintiff, throughout the State of Connecticut, for financial gain and/or sexual gratification in lieu of or in addition to financial gain." (Revised complaint, ¶ 4.) Robert King supplied the plaintiff with drugs, and the plaintiff became financially indebted to King. While the plaintiff was suffering from drug addiction, and was in need of money to pay his drug debts owed to King, King frequently brought the plaintiff to the defendant and William Trefzger, who paid the plaintiff to perform sexual acts for King’s financial gain or as compensation for those debts. The defendant engaged in an illegal racketeering conspiracy in violation of the Connecticut Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53-393 et seq., in several ways, "including committing, attempting to commit, conspiring to commit, or intentionally aiding, soliciting, coercing, or intimidating the Plaintiff and others to commit extortion, drug offenses, assault, prostitution ... and/or coercion ..." (Revised complaint, ¶ 37.) The defendant was engaged in a trade or commerce, as defined in the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and those activities "were oppressive, immoral, unscrupulous and in violation of public policy, including that set forth in CORA and [General Statutes § 53a-83(c)(2)(A) ], amounting to an unfair trade practice in violation of CUTPA." (Revised complaint, ¶ 40.) Those activities "have resulted in ascertainable loss to the Plaintiff, including bodily invasion, sexual abuse, drug provision and addiction and exploitation of his pre-existing mental and emotional disabilities and drug dependency that left him susceptible to and a target of the Defendant’s criminal racketeering scheme." (Revised complaint, ¶ 41.)
Robert King was originally named as a defendant, along with William Trefzger. On November 7, 2017, the plaintiff withdrew the action as to those defendants.
Presently before the court is the defendant’s motion to dismiss, filed June 27, 2018. The defendant moves to dismiss count one of the revised complaint, sounding in a violation of CUTPA, on the ground that it seeks recovery for violations of CORA, which does not authorize a private cause of action. The defendant also moves to dismiss this count on the ground that the plaintiff does not have standing to bring an action under CUTPA, thus depriving this court of subject matter jurisdiction, for two reasons: (1) the plaintiff does not fit within a category of plaintiffs permitted to recover thereunder and (2) he has not suffered an ascertainable loss. The plaintiff filed a memorandum in opposition on September 17, 2018. The court heard oral arguments on this motion on October 1, 2018.
The plaintiff’s revised complaint consists of four counts: (1) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; (2) assault and battery; (3) reckless and wanton conduct; and (4) intentional infliction of emotional distress. The motion to dismiss is directed only at the first count.
DISCUSSION
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"[B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). "The proper procedural vehicle for disputing a party’s standing is a motion to dismiss." (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). "If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
The defendant argues that the court is barred from adjudicating count one because the plaintiff does not have standing under CUTPA. The defendant first argues that the plaintiff does not belong to the class of persons protected by CUTPA and that the plaintiff is attempting to "manufacture standing" under CORA by alleging a CUTPA violation. He argues that granting the plaintiff relief based upon CORA violations would create a private right of action where the legislature declined to do so. Even if the plaintiff’s claim based on CORA is proper, the defendant argues, the plaintiff lacks standing because he does not belong to a class of individuals who can recover under CUTPA because the plaintiff is not alleged to be a consumer of any goods offered by the defendant through a trade or commerce. The defendant argues that he is merely alleged to have been an individual who patronized the plaintiff as a prostitute. In response, the plaintiff argues that the defendant has misconstrued the plaintiff’s cause of action, and that alleging CORA violations can properly provide a basis for alleging practices that violate public policy under CUTPA.
The court first addresses the issue of whether the plaintiff has improperly attempted to assert a claim pursuant to CORA because CORA does not provide a private cause of action. Although the defendant correctly notes that CORA does not provide a private cause of action, a review of the allegations in count one reveals that the alleged violations of CORA are merely included to support the plaintiff’s CUTPA claim, specifically to support the allegations of violations of public policy. Such allegations may properly support a CUTPA claim. "[I]n determining whether a practice violates CUTPA, [the Supreme Court is] guided by the criteria set out in the Federal Trade Commission’s so-called cigarette rule: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]." (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 378-79 n.11, 949 A.2d 1084 (2008). Our Supreme Court has held that all criteria do not need to be met in order to satisfy the requirements of a CUTPA violation. Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68, 736 A.2d 824 (1999).
Because CUTPA is nonformulaic, a CUTPA violation "may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 82-83, 873 A.2d 929 (2005). There is a dearth of case law providing guidance on the use of a CORA violation to support a CUTPA claim. Nevertheless, courts have held that a violation of the Connecticut Unfair Insurance Practices Act (CUIPA), which also lacks a civil action provision, can be used as a basis for a CUTPA claim. Mead v. Burns, 199 Conn. 651, 662-63, 509 A.2d 11 (1986). Similarly, CORA also can be used for that purpose, as CORA provides a statutory basis for a claim that a practice offends public policy. Additionally, our Supreme Court has provided guidance on the parameters of CUTPA application. In Fink v. Golenbock, 238 Conn. 183, 680 A.2d 1243 (1996), our Supreme Court held that the act "must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Id., 213; see also id., 212-13 ("trade or commerce ... is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible" [internal quotation marks omitted]); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995) ("CUTPA ... applies to a broad spectrum of commercial activity").
The defendant argues that CUTPA should not be construed to allow a claim based on a CORA violation because the legislature has declined to provide a private cause of action for violations of CORA. This argument is unavailing. Regardless of whether the legislature chose to provide a private cause of action for the violation of a criminal statute such as CORA, the well established case law provides that the violation of a statute can form the basis of a claim under CUTPA, which clearly provides a private cause of action. See Zulick v. Patrons Mutual Ins. Co., supra, 287 Conn. 378-79 n.11.
With regard to the defendant’s first standing argument, the court notes that the issue of whether the plaintiff belongs to a class of persons protected by CUTPA is not an issue of standing, as this court previously held in Soto v. Bushmaster Firearms International, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6048103 (April 14, 2016) . "Although frequently discussed in terms of standing, the issue of whether the plaintiff has a legally protected interest that the defendant’s action has invaded, if the contention is at least arguable, goes to the merits rather than to whether the persons whose standing is challenged is a proper party to request an adjudication of the issue ... R. Langer, J. Morgan, & D. Belt, 12 Connecticut Practices Series: Unfair Trade Practices (2015-2016 Ed.) § 3.6, p. 177. [I]n Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 [ (1970) ], the [United States] Supreme Court ... distinguished the concepts of standing and legal interest, noting that [t]he legal interest test goes to the merits. The question of standing is different. It concerns, apart from the case or controversy test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971). The question of who-consumer, competitor, business relation, and/or an additional class of persons-has a protectable interest pursuant to CUTPA reflects a challenge to the [plaintiff’s] legal interests, not standing, and thus does not affect the court’s subject matter jurisdiction over the [plaintiff’s] ... claims." (Internal quotation marks omitted.) Soto v. Bushmaster Firearms International, LLC, supra, Superior Court, Docket No. CV-15-6048103. Accordingly, the defendant’s motions to dismiss cannot be granted on the ground that the plaintiff does not belong to the class of persons protected by CUTPA.
Moreover, even if this issue were to implicate the court’s jurisdiction, the plaintiff has alleged a sufficient relationship to satisfy the requirements of CUTPA; he alleges that the defendant and others were involved in the conduct of a trade or commerce, specifically an illegal racketeering scheme, and that the plaintiff was a victim of that scheme. The plaintiff also alleges several illicit business transactions to which both the plaintiff and defendant were a party, which contributed to the alleged losses suffered by the plaintiff. Moreover, a person does not have to be a consumer to bring a CUTPA claim. See Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 496 ("application of CUTPA does not depend upon a consumer relationship"). "[I]t is not the type of relationship between the two parties but rather the defendant’s actual conduct that is dispositive of whether the actions took place in the course of trade or business." Nastro v. D’Onofria, 263 F.Supp.2d 446, 457 (D.Conn. 2003), citing Fink v. Golenbock, supra, 213-15. Accordingly, the plaintiff has alleged a business relationship that is sufficient to meet the requirements of a CUTPA claim.
Alternatively, the defendant argues that the plaintiff lacks standing under CUTPA because the plaintiff has not suffered an ascertainable loss. CUTPA prohibits engagement in unfair methods of competition, deceptive acts, or practices in the conduct "of any trade or commerce." General Statutes § 42-110b(a). CUTPA supplies a private cause of action, providing "[a]ny person who suffers any ascertainable loss of money or property, real or personal ... may bring an action ..." General Statues § 42-110g(a). "[T]o be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation." (Internal quotation marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d 320 (2008). "An ascertainable loss is a loss that is capable of being discovered, observed, or established ... The term loss ... has been held synonymous with deprivation, detriment and injury." (Citation omitted; internal quotation marks omitted.) Id.
The plaintiff has alleged that the defendant’s acts "have resulted in ascertainable loss to the Plaintiff, including bodily invasion, sexual abuse, drug provision and addiction and exploitation of his pre-existing mental and emotional disabilities and drug dependency that left him susceptible to and a target of the Defendant’s criminal racketeering scheme." (Revised complaint, ¶ 41.) Unlike in Di Teresi v. Stamford Health System, Inc., 149 Conn.App. 502, 88 A.3d 1280 (2014), the plaintiff’s alleged losses constitute "actual monetary or physical loss." See id., 509 (holding that, in absence of claim of any actual monetary or physical loss, plaintiff patient’s claim "to have a reasonable expectation that she would be safe from harm and that the hospital would properly care for her" was not measurable for purposes of sustaining CUTPA violation [internal quotation marks omitted]). Moreover, although research reveals no appellate authority on this issue, courts have interpreted and applied CUTPA broadly, and the Superior Court has held that CUTPA can apply to personal injury claims. See Doe v. Boy Scouts of America Corp., 323 Conn. 303, 341-42 n. 26, 147 A.3d 104 (2016), citing Simms v. Candela, 45 Conn.Supp. 267, 268, 711 A.2d 778 (1998) . In Simms, the court, Blue, J., reasoned "that the touchstone for a legally sufficient CUTPA claim is the implication that the acts complained of have ‘an entrepreneurial or business aspect.’" (Internal quotation marks omitted.) Id., 273, quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997). "[The plaintiff], like most personal injury plaintiffs, alleges that he has suffered economic losses, including medical expenses and lost wages ... Assuming this allegation to be true, he is a person who suffers [an] ascertainable loss of money." (Internal quotation marks omitted.) Simms v. Candela, supra, 274. Whether the alleged loss resulted from the alleged CUTPA violation is a factual issue to be decided by the judge or jury hearing the case. Id. In the present case, the plaintiff properly alleges injuries that, if true, amount to an ascertainable loss.
For the foregoing reasons, the defendant’s motion to dismiss is denied.