Opinion
No. CV 07 5003291
May 27, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Before the court are two motions, a motion to strike defendants' special defenses, filed by the plaintiff, Amberlie Hoydic, and a motion for summary judgment, filed by the defendants, Genesco, Inc. (Genesco) and Steven Lunn. For the following reasons, the plaintiff's motion to strike is denied. As is explained in more detail below, the court declines the opportunity to rule upon the defendants' motion for summary judgment at this time.
An additional party identified as "Journeys" was originally named as a defendant. However, the plaintiff has acknowledged that "Journeys" is merely a trade name used by Genesco to operate its business, and that it therefore cannot be added as a defendant.
I. Background
This action was commenced on May 24, 2007. The operative complaint at this juncture, the plaintiff's second revised complaint (complaint), was filed on April 24, 2008. The plaintiff makes the following allegations in the complaint. On September 17, 2003, the plaintiff began working as a sales associate at a retail footwear store known as Journeys, which is located in the Connecticut Post Mall in Milford, Connecticut and is owned by Genesco. At that time, Lunn, who was then eighteen years of age, was employed by Genesco as a manager at the same store, and was the plaintiff's direct supervisor.
On September 24, 2003, the plaintiff reported to work for her shift at approximately 5 p.m. The only other employee working in the store that evening was Lunn. During her shift, "Lunn repeatedly physically assaulted [the plaintiff] when [he] was in close proximity to her" and verbally harassed her as well. The plaintiff rebuffed this behavior and asked Lunn to stop, but the behavior continued and eventually became sexual in nature. "At one point during the [s]hift, Lunn sat in a chair, spread his legs, and requested oral sex from [the plaintiff]." He also "repeatedly asked [the plaintiff] to go to the back of the [s]tore . . . so that he could `show [her] a good time.' In addition, Lunn bragged . . . about the size of his penis." Although the plaintiff verbally objected to this behavior, Lunn's conduct continued. At one point he "grabbed [the plaintiff] by her waist and also put his hands around her shoulders and neck." Eventually, Lunn took the plaintiff's cell phone from her hand and, when the plaintiff asked him to return it, "threw the phone to the ground." He then "tackled [the plaintiff] and knocked her to the ground" at which point he "sat on top of [her] and began punching her leg profusely until her leg was numb." The plaintiff tried but was unable to force Lunn off her. He eventually "got up off of [her] and stepped on [her] cell phone," damaging it in the process. The plaintiff then left the store and took her cell phone to another store in the mall so that it could be repaired.
The plaintiff eventually returned to work and demanded that Lunn pay for the repairs necessary to fix her phone. In response, he "threw [the plaintiff] against the wall . . . and pinned her [there], put his hands on her, and pressed his body against hers." He told her "to `drop it, it's not a big deal' and to `stop being a fucking bitch.'" He then released her from the pinned position, and she immediately called her family for help. Thereafter, the plaintiff's father arrived at the store and "told Lunn to remove [the plaintiff] from the schedule." "A few days later, [the plaintiff] filed a report with the Milford Police Department," and on September 26, 2009, at the request of the police, Lunn provided them with his own statement, which he also faxed to the Genesco regional manager responsible for the Milford store. "Genesco never contacted or interviewed [the plaintiff] in connection with her allegations of harassment."
From these general allegations, the plaintiff's complaint sets forth eleven counts, including several causes of action made pursuant to the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq., and others that rely on Connecticut tort law. On October 23, 2009, the defendants filed a motion for summary judgment, seeking judgment as a matter of law on counts one through seven, nine, and eleven. The motion for summary judgment is, in part, premised upon the res judicata and collateral estoppel effects of a prior action the plaintiff commenced in the United States District Court for the District of Connecticut (the federal action) that was resolved in favor of the defendants by summary judgment. See Hoydic v. Genesco, Inc., United States District Court, Docket No. 3:04 CV 1703 (RNC) (D.Conn. March 31, 2007).
The parties agree that the federal action involved the same CFEPA claims relevant to this action, as well as federal claims for the creation of a hostile work environment, constructive discharge and retaliation, all made pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. They also agree that on March 31, 2007, the defendants were granted summary judgment with regard to each Title VII claim, and that the District Court then declined to exercise its supplemental jurisdiction over the remaining state law claims, dismissing them without prejudice. They disagree, however, with regard to how the District Court's order affects the CFEPA claims currently pending before this court. In their motion for summary judgment, the defendants argue that the doctrines of res judicata and collateral estoppel bar the plaintiff from relitigating its CFEPA claims in this action.
At the time the defendants filed their motion for summary judgment, however, they had not specifically pleaded the affirmative defenses of res judicata and collateral estoppel in their answer and special defenses. On January 19, 2010, the plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment, noting this deficiency and arguing that the defendants had waived these defenses as a result. In response, on February 9, 2010, the defendants filed a request for leave to amend their answer and special defenses, which was accompanied by each defendant's proposed amended pleading. Each of these proposed amended answers contained, for the first time, an additional special defense alleging that the "[p]laintiff's claims are barred by collateral estoppel and/or res judicata as the Federal District Court for the District of Connecticut has previously issued a decision granting summary judgment on related federal claims."
The plaintiff objected to this request for leave to amend on February 17, 2010, arguing again that the defendants waived the affirmative defenses of res judicata and collateral estoppel by filing a motion for summary judgment asserting the defenses before pleading them. In her objection, the plaintiff argued that, if the request for leave to amend were granted, it would "unfairly delay the proceedings . . . and allow the [d]efendants to benefit from their negligence in failing to properly plead a special defense of collateral estoppel or res judicata in their [a]nswer."
On March 1, 2010, Judge Radcliffe overruled the plaintiff's objection and granted the defendants' request for leave to amend. On March 15, 2010, in response to the plaintiff's request to revise, Lunn and Genesco each filed a "revised amended answer and special defenses." Both of these pleadings have separated the assertion of res judicata and collateral estoppel into distinct special defenses, and both allege the doctrines' applicability in light of the District Court's entry of summary judgment in their favor on the plaintiff's Title VII claims in the federal action.
On March 16, 2010 the parties appeared before this court to present argument on the defendants' motion for summary judgment. At that time, counsel for the plaintiff indicated his intent to file a motion to strike the defendants' res judicata and collateral estoppel special defenses. That motion was filed on March 29, 2010, and was accompanied by a memorandum of law. On April 6, 2010, the defendants filed an "objection to the plaintiff's motion to strike defendants' special defense[s]," and the parties appeared before the court on April 12, 2010 to present argument on the motion to strike. Thus, currently before the court are the defendants' motion for summary judgment, filed on October 23, 2009, and the plaintiff's motion to strike the defendants' special defenses, filed on April 6, 2010. Because the plaintiff's motion seeks to strike two of the special defenses that the defendants' motion for summary judgment is, in part, premised upon, the court will first consider the motion to strike.
II. The Plaintiff's Motion to Strike the Defendants' Special Defenses
The plaintiff argues that the defendants' res judicata and collateral estoppel special defenses must be stricken for two reasons. First, the plaintiff once again argues that the defendants waived these affirmative defenses by filing their motion for summary judgment before specially pleading them. Second, the plaintiff argues that the special defenses are inapplicable because the District Court "declined to exercise jurisdiction over the [state law] claims as a matter of discretion in the previous federal . . . action," meaning "[t]here has been no final determination made on the factual merits of the" state law claims and issues.
"Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999); see also Practice Book § 10-50. "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." (Internal quotation marks omitted.) Barasso v. Rear Still Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). "A motion to strike is properly granted if the [special defense] alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). In ruling on a motion to strike special defenses, a trial court must "take the facts to be those alleged in the special defenses and . . . construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Nevertheless, "[t]he burden of alleging recognizable special defenses . . . rests upon the defendant." Cowart v. Grimaldi, 46 Conn.Sup. 248, 250, 746 A.2d 833 [ 18 Conn. L. Rptr. 682] (1997).
Practice Book § 10-50 provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own."
The plaintiff first argues that the defendants waived the defenses of res judicata and collateral estoppel by failing to specifically plead them before filing their motion for summary judgment. There are two problems with this argument. First, such an argument is not properly raised in a motion to strike. Again, a motion to strike challenges the legal sufficiency of the special defense; Practice Book § 10-39(a)(5); and "is properly granted if the [special defense] alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215. Here, the plaintiff does not contend that the special defenses in question are legally insufficient; rather, she contends that those defenses, even if sufficiently pleaded, have been waived. A motion to strike is not the appropriate vehicle for making such an assertion.
Second, and in any event, the defendants have specifically pleaded collateral estoppel and res judicata. This was made possible when Judge Radcliffe previously granted the defendants' request for leave to amend their answer to add the special defenses. The court has reviewed the objection the plaintiff filed to the request for leave to amend, and notes that it was premised upon her contention that the defendants waived the affirmative defenses because they failed to plead them in a more timely manner, and because she objected on the ground that their delayed inclusion in the pleadings would cause her prejudice. Although he granted the defendants' request for leave to amend and denied the plaintiff's objection without further explanation, implicit in Judge Radcliffe's ruling is that he rejected the plaintiff's waiver argument. That decision is now the law of the case, and this court cannot say the issue was incorrectly decided. See General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009) (articulating the law of the case doctrine). As such, the affirmative defenses of collateral estoppel and res judicata have been specifically pleaded, and have not been waived.
In both her objection to the defendants' request for leave to amend their answer and in her memorandum of law in support of the present motion to strike, the plaintiff relies on Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992) for the proposition that a defendant waives the defenses of collateral estoppel and res judicata when, before pleading them, it moves for summary judgment and the opposing party objects. The court finds no such rule in Carnese. In that case, the Appellate Court did acknowledge that res judicata and collateral estoppel are affirmative defenses that must be specifically pleaded. Id. The Appellate Court articulated an exception to this general rule, which is that a defendant's "failure to file a special defense may be treated as waived where the plaintiff fails to make appropriate objection to the evidence and argument offered in support of that defense." Id. Nothing in Carnese, however, suggests that a defendant is prohibited from amending its answer to specifically plead res judicata and collateral estoppel when the amendment would cause the plaintiff no prejudice.
The plaintiff next argues that, in the federal action, the District Court never ruled upon the factual merits of the state law claims and issues, and that the defendants' res judicata and collateral estoppel special defenses should therefore be stricken because they are not applicable. To the extent that this argument asks the court to determine the validity of these defenses in light of the District Court's ruling, it clearly requires the court to cast its attention beyond the four corners of the pleadings, which is impermissible for purposes of a motion to strike. "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . [The court is] limited . . . to a consideration of the facts alleged in the complaint [or special defense]. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).
To the extent that this argument asserts that the defendants have not sufficiently pleaded the affirmative defenses of collateral estoppel and res judicata, the court disagrees. "Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Emphasis omitted; internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001).
In the present case, Lunn and Genesco have pleaded collateral estoppel in identical fashion. They each allege that the plaintiff previously filed a similar action in federal court; that included among the claims in the federal action were the same CFEPA claims raised in this action, as well as Title VII claims for hostile work environment, constructive discharge and retaliation; that the District Court granted summary judgment on the Title VII claims in favor of the defendants; that the "[p]laintiff's claims were actually litigated and the District Court's findings were necessary to the determination of [the] [p]laintiff's Title VII claims"; and that Title VII precedent guides resolution of CFEPA claims in Connecticut. Thus, the defendants have alleged that the same parties to this action were parties to the federal action; that certain issues fully and fairly litigated in the federal action are also relevant to the claims in this action; that the District Court's ruling on these issues was necessary for the entry of summary judgment in the defendants' favor; and that the Title VII claims in the federal action were decided on the merits. The court finds that these allegations sufficiently set forth the affirmative defense of collateral estoppel. Whether the defendants can prove that the defense actually applies to the facts ultimately found by the trier of fact in this case is a question more appropriately resolved upon a motion for summary judgment or at trial.
Res judicata, although similar to collateral estoppel, is a distinct defense. "[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . . . [or any claim based on the same operative facts that] might have been made." (Emphasis omitted; internal quotation marks omitted.) Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 594 726 A.2d 502 (1999). The doctrine of res judicata prevents a claimant not only from relitigating those claims actually raised and adjudicated in a prior proceeding, but also those which arise out of the same transaction or occurrence and could have been raised, litigated and adjudicated in the prior proceeding. Daoust v. McWilliams, 49 Conn.App. 715, 726, 716 A.2d 922 (1998). "A plaintiff cannot, under the doctrine of res judicata, withhold certain claims from one action and then raise those claims in a later action when an adequate opportunity existed to raise all claims in one action." Id.
Lunn and Genesco have pleaded the special defense of res judicata in identical fashion. They first incorporate all of the allegations found in their collateral estoppel defense, and then add the following allegation: "[The] [p]laintiff has failed to allege any new facts or raise any legal theories that could not have been raised in the District Court action." The import of this allegation, considered in conjunction with the others, is that any new facts or legal theories presented for the first time in this action could have been raised in the federal action, and are therefore barred by res judicata. The court finds that, as pleaded, the defendants' res judicata special defense is legally sufficient. Again, whether the defendants can actually prove this defense's applicability to the facts found in this proceeding is a question more appropriately resolved upon a motion for summary judgment or at trial.
For the foregoing reasons, the plaintiff's motion to strike is denied.
CT Page 13032
III. The Defendants' Motion for Summary Judgment
The defendants' motion for summary judgment remains before the court. However, the court declines the opportunity to rule upon it at this time. When the plaintiff filed her memorandum of law in opposition to the motion for summary judgment on January 19, 2010, the defendants had not yet requested and been granted leave to amend their answers so as to include the special defenses of collateral estoppel and res judicata. Nor had this court resolved the plaintiff's subsequent motion to strike those special defenses, which is of course denied by this memorandum of decision. It is not surprising, then, that, in her memorandum of law, the plaintiff continues to dispute the defendants' reliance on the doctrines of collateral estoppel and res judicata by presenting the same waiver argument rejected first by Judge Radcliffe's March 1, 2010 order, and again by the instant memorandum of decision. This is the only argument made by the plaintiff with regard to the defendants' contention that collateral estoppel and res judicata bar her CFEPA claims in this action. Now that the special defenses of collateral estoppel and res judicata are firmly within the pleadings, and due to the rather unusual procedural course this case has traversed, this court is of the opinion that the plaintiff should be afforded an opportunity to submit an additional memorandum of law addressing the merits of the defendants' collateral estoppel and res judicata defenses before the motion for summary judgment is resolved.IV. Conclusion
For the foregoing reasons, the plaintiff's motion to strike the defendants' special defenses is denied. The court declines to rule upon the defendants' motion for summary judgment at this time. The plaintiff may, at her discretion, submit an additional memorandum of law addressing the applicability of the doctrines of collateral estoppel and res judicata to this case. This memorandum of law must be filed within fifteen days of the date this memorandum of decision is published. If no such memorandum is filed within fifteen days, the court will consider the evidence and pleadings currently before it and proceed accordingly. If such a memorandum is filed by the plaintiff, the defendants, within fifteen days, may file a reply memorandum of law. Upon its receipt or the expiration of this fifteen-day period, the court will proceed to a determination of the motion for summary judgment.