Opinion
No. CV-06-5005695 S
November 1, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (107)
The defendant has filed a motion to strike the First and Second Counts of the plaintiff's Revised Complaint dated April 30, 2007. The first count sounds in breach of contract and the second count in negligent misrepresentation.
The law regarding the consideration of a motion to strike is well-settled. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
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." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
AS TO FIRST COUNT
The defendant claims that the first count is legally insufficient because the only contract alleged is an at-will employment contract and therefore the plaintiff is without remedy to sue on breach of contract. The plaintiff alleges that there was a 30-day notice of termination required under paragraph 17 of the offer of employment which was accepted by the plaintiff and signed by the defendant. Therefore, construing the plaintiff's complaint in a manner most favorable to sustaining its legal sufficiency, the court denies the Motion to Strike as to the first count.
AS TO THE SECOND COUNT
The plaintiff alleges in his revised complaint that: (1) the defendant knew or shown have known that that the job offered would entail evenings and weekends when it offered a 9-to-5 job to the plaintiff; (2) that the defendant knew or should have known that the position being offered was not the senior editor but that others would also be employed in the same position.
In order to maintain a claim for negligent misrepresentation, the plaintiff must allege and establish the following elements: "1) a false representation was made to the party as a statement of fact, 2) it was made for the guidance of the party, 3) the party making the representation failed to exercise reasonable care in obtaining or communicating the information, and 4) the pleading party justifiably relied on the representation to its detriment." OCWEN Federal Bank v. Rivas, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0368135 (February 21, 2002, Stevens, J.), and Arlie Thompson v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0352686S (January 13, 2003, Wolven, J.).
As to a claim for negligent misrepresentation: "[a]llegations such as misrepresentation and fraud present issues of fact . . . Moreover, [w]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 358, 783 A.2d 28 (2001).
The defendant is claiming hereto an at-will contract which it claims renders any reliance thereon to be unjustified. Therefore the question of whether or not this was an at-will contract is at issue and whether or not the plaintiff's acts relying on same were to his detriment.
Therefore, the Motion to Strike as to the second count is also denied.