Opinion
No. CV 10 6012228 S
November 3, 2011
MEMORANDUM OF DECISION
This action stems from a dispute over social security disability benefits awarded to the plaintiff, whose former employer, the defendant, allegedly retained the social security disability funds in payment for a standing money judgment against the plaintiff. On June 21, 2010, the plaintiff, Naomi Odell, filed a three-count complaint for conversion, civil theft and a violation of CUTPA against the defendant, Wallingford Municipal Federal Credit Union. In her third amended complaint, the plaintiff alleges the following facts. In 2007, the defendant fired the plaintiff when she became unable to work because of multiple sclerosis after which the plaintiff closed her checking account with the defendant. The plaintiff was awarded social security disability benefits. Upon learning of the award, the plaintiff informed the defendant's CEO that funds might be coming to the plaintiff's closed account and should not be deposited but should be returned to the U.S. Treasury. In June 2008, the defendant received a direct deposit of social security disability funds (SSD) directed to the closed checking account. The defendant deposited the SSD to a different dormant share account in the plaintiff's name. The plaintiff did not authorize the defendant to apply the SSD to the different share account nor did the defendant notify the plaintiff that it deposited the SSD to a different share account. The defendant had a money judgment against plaintiff and unilaterally applied the SSD to partial satisfaction of its judgment. The defendant did not avail itself of any postjudgment proceedings to enforce the judgment. The defendant's actions in taking plaintiff's exempt funds caused the plaintiff to lose her home and the use of the funds as well as causing her to suffer anxiety and distress.
The plaintiff's third amended complaint, which was filed on June 20, 2011 will be referred to as "the complaint."
On August 17, 2011, the plaintiff moved to strike parts of the defendant's answer and have the corresponding allegations of the complaint deemed admitted because the paragraphs where sham denials or evasive and improper denials. On September 26, 2011, the defendant filed a memorandum in opposition. Oral argument was heard on September 26, 2011. The plaintiff filed a reply memorandum on October 3, 2011.
The plaintiff is moving to strike parts of the defendant's second answer which was filed on August 11, 2011. This August 11 answer will be referred to as "the answer." The answer was filed in response to the plaintiff's third amended complaint.
The plaintiff cites no legal authority for the proposition that the allegations should be deemed admitted. Consequently, the court will strike the improper responses in the answer, but it will not deem the corresponding allegations admitted.
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . 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 challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court takes] the facts to be those alleged in the [pleading] . . . and [the court construes] the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . 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, 268-69 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).
The plaintiff seeks to strike paragraphs three, five through seven, nine, eleven, twelve, fourteen, twenty-six and paragraph thirty of counts one and two of the answer as "sham" denials. The plaintiff claims that the defendant's answer repeatedly denied "knowledge or information sufficient to form a belief" as to matters in its own records. The plaintiff also moves to strike paragraphs seventeen, nineteen, twenty-one through twenty-five, twenty-seven through twenty-nine and paragraphs thirty of counts one and two and thirty-three of count three of the answer on the ground that they are evasive. The plaintiff posits that these parts of the defendant's answer are unresponsive, evasive or improper and violate the pleading rules.
The defendant counters that its responses to the allegations have fully complied with its good faith pleading obligations by admitting facts it knows to be true, denying those facts it controverts and responding that it lacks information to either admit or deny certain other facts. The defendant argues that the plaintiff has failed to cite any legal authority that supports the relief she seeks and has gravely misconstrued the holdings of the cases to which she does cite. At oral argument, the defendant argued that the plaintiff is utilizing facts outside the pleadings.
"The defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations." Practice Book § 10-46. "If the defendant is in doubt, he should plead `insufficient information.'" W. Horton K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2011) § 10-46, authors' comments, p. 542. The Supreme Court has held that "[t]he pleading of no knowledge or information to . . . allegations is in effect a denial." Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963). The Appellate Court has noted that information within the knowledge of the defendant, such as whether the defendant had signed a promissory note, is information that requires an admission or denial. Tolland Bank v. Larson, 28 Conn.App. 332, 336, 610 A.3d 720 (1992). This reasoning from Tolland Bank v. Larson, supra, 28 Conn.App. 336, was interpreted in Cabala v. JP Morgan Chase Bank, Superior Court, judicial district of New Haven, Docket No. CV 10 6008853 (August 5, 2010, Zoarski, J.). The Cabala decision found that "[t]he Appellate Court has held that it is improper to answer `insufficient knowledge' to an allegation in a complaint if the truth or falsity of the allegation should be within the personal knowledge of the defendant." Id.
Practice Book § 10-46 provides: "The defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally."
The courts appear to use the words "insufficient information," "insufficient knowledge" or "no knowledge" interchangeably.
In Cabala, the defendant bank pleaded insufficient knowledge regarding deposits alleged to have been made to the plaintiff's bank account and insufficient knowledge regarding the plaintiff's balance. The plaintiff moved to strike these paragraphs of the answer because they were evasive due to the fact that the defendant necessarily had "sufficient knowledge as to facts in its own records." The court determined that it was "reasonable to conclude that deposits to and the balance in an account held by a bank's customer are within a bank's knowledge. Furthermore, the defendant does not claim that this information is unavailable to its attorney. Therefore, an admission or denial as to each allegation [was] warranted." Cabala v. JP Morgan Chase Bank, supra, Superior Court, Docket No. CV 10 6008853. As a result, the court granted the plaintiff's motion to strike the paragraphs of the answer at issue.
In reaching this result, the Cabala court rejected the defendant's argument that the motion to strike contained a statement of facts not alleged in the pleadings. The fact allegedly outside the pleadings was the existence of bank statements. While the court noted the rule that it is limited to a consideration of the facts alleged in the complaint, the court explained that "[n]othing in our cases suggests . . . that every argument in a motion to strike is rendered defective by the moving party's allegation of some fact not contained in the pleadings, regardless of whether that fact is relevant for each argument in the motion. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348-49, 576 A.2d 149 (1990)."(Internal quotation marks omitted.) Cabala v. JP Morgan Chase Bank, supra, Superior Court, Docket No. CV 10 6008853. The Cabala court went on to find that "[t]he facts alleged in the complaint support the plaintiff's argument that the defendant necessarily has sufficient knowledge regarding an account held by one of its own customers and does not really lack both the necessary information and reasonable access to such information. Therefore, the defendant's allegation that the plaintiff's motion speaks to facts outside the pleadings does not affect the court's decision to strike" the paragraphs of the answer at issue. Id.
Here, in accordance with Cabala and Tolland Bank, the plaintiff's motion to strike a paragraph of the answer for improperly claiming insufficient knowledge will be granted if the truth or falsity of an allegation should be within the personal knowledge of the defendant. In terms of facts not alleged in the complaint, only those facts of which the defendant necessarily has sufficient knowledge, such as information regarding an account held by one of its own customers, shall be considered. In other words, the court will only consider those facts which the defendant does not really lack both the necessary information and reasonable access to such information.
In paragraph three, the plaintiff alleges that the "Defendant's records show that defendant terminated Plaintiff in 2007 when she became unable to work full time because of a degenerative condition, multiple sclerosis." In its answer, the defendant admitted that the plaintiff was terminated after the plaintiff informed the defendant that she was not able to work full time. The defendant then claimed it lacked knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph three. The plaintiff argues that paragraph three should be deemed admitted because everyone at the deposition testified and the documents produced before and after the deposition show the allegations of paragraph three to be true.
The court cannot examine this documentary and deposition evidence when considering a motion to strike because these facts are outside the pleadings The Cabala court only used the existence of the bank statements to determine that the defendant had knowledge sufficient to either admit or deny the allegation; the court did not examine the documents themselves. While the court can conclude from the allegation that the defendant would have knowledge about the termination, the defendant has already admitted this fact. To utilize these records to determine whether the defendant had knowledge of the plaintiff's condition would require the court consider external documents, which is prohibited at the motion to strike stage. Without examining the documents, the court cannot determine whether it is necessarily within the personal knowledge of the defendant that the plaintiff could not work full time because of multiple sclerosis. Accordingly, the plaintiff's motion to strike paragraph three is denied.
The plaintiff also failed to include these documents when filing the motion to strike.
In paragraphs five and six of the answer, the defendant claims that it lacks knowledge as to the truth of the allegations. The plaintiff argues that these paragraphs should be deemed admitted because the plaintiff provided the documentation to prove the truth of these allegations in response to discovery. These records, however, were within the plaintiff's possession, so the court cannot conclude that the defendant has personal knowledge. Moreover, the fact that the plaintiff produced this evidence is not alleged in the pleadings. Accordingly, the plaintiff's motion to strike paragraphs five and six is denied.
In paragraphs five and six of the complaint the plaintiff alleges that "5. Plaintiff applied for social security disability. 6. In May 2008, Plaintiff was awarded lump sum social security disability benefits, retroactive to October 2006."
Next, the plaintiff moves to strike paragraph nine of the answer. Paragraph nine of the complaint alleges that "[o]n June 2, 2008, defendant received a direct deposit of social security disability funds ("SSD") in the amount of $13,801 directed to the closed checking account." In its answer, the defendant admitted "that in June of 2008, it received a direct deposit from the U.S. Treasury in the amount of $13,801 directed to the Plaintiff's checking sub-account." The defendant then stated that it "lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 9 and, therefore, leaves the Plaintiff to her proof." The defendant maintains that its employees only had second-hand, not personal, knowledge about the source of the funds. The defendant may not have reasonable access to the information necessary to determine if the direct deposit from the U.S. Treasury was for social security disability. Therefore, the motion to strike paragraph nine is denied.
In paragraph fourteen of the complaint, the plaintiff alleges that her "attorney notified defendant by letter dated June 9, 2008, of plaintiff's position that the funds belonged to plaintiff and the interception was wrongful." The defendant claims that it lacked "knowledge sufficient to form a belief as to the truth of the allegations contained in Paragraph 14." The defendant reasonably should have personal knowledge of whether it received such a letter because the letter would be in its possession or in its records. Accordingly, the plaintiff's motion to strike paragraph fourteen is granted.
The plaintiff seeks to strike paragraph seven of the answer because the defendant's CEO allegedly testified in his deposition to the truth of the corresponding paragraph of the complaint. Additionally, the plaintiff seeks to strike paragraphs eleven and twelve of the answer based on the depositions of the defendant's representatives. In these paragraphs, the defendant denied the allegation contained in the complaint. It does not appear that the issue of improper explicit denials can be resolved on a motion to strike under Cabala and Tolland Bank. These cases only addressed answers pleading "insufficient knowledge," not actual denials. If the evidence obtained by the plaintiff does show these denials to be improper, a motion pursuant to Practice Book § 10-5 would be the appropriate remedy. See Herrington v. Sweetbriar, Ltd, Superior Court, judicial district of Litchfield, Docket No. 09 5007173 (July 13, 2010, Danaher, III, J.) [ 50 Conn. L. Rptr. 284] (finding that "[t]he sanctions of Practice Book § 10-5 apply when a denial made without reasonable cause and found to be untrue causes the opponent to have incurred `reasonable expenses' by reason of the untrue pleading").
Practice Book § 10-5 provides in relevant part: "Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding $500 for any one offense."
Paragraphs seven, eleven and twelve of the answer comport with Practice Book § 10-46 as they deny "such allegations of the complaint as the defendant . . . intends to controvert." The answer is not "evasive" as proscribed by Practice Book § 10-47 as the denial "fairly [met] the substance of the allegations denied." Furthermore, the denials are "direct, precise and specific, and [are] not argumentative, hypothetical or in the alternative." Practice Book § 10-48. Accordingly, the plaintiff's motion to strike paragraphs seven, eleven and twelve of the answer is denied.
Practice Book § 10-47 provides: "Denials must fairly meet the substance of the allegations denied. Thus, when the payment of a certain sum is alleged, and in fact a lesser sum was paid, the defendant cannot simply deny the payment generally, but must set forth how much was paid to the defendant; and where any matter of fact is alleged with divers circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied."
Practice Book § 10-48 provides: "Express admissions and denials must be direct, precise and specific, and not argumentative, hypothetical or in the alternative. Accordingly, any pleader wishing expressly to admit or deny a portion only of a paragraph must recite that portion; except that where a recited portion of a paragraph has been either admitted or denied, the remainder of the paragraph may be denied or admitted without recital. Admissions or denials of allegations identified only by a summary or generalization thereof, or by describing the facts alleged as `consistent' or `inconsistent' with other facts recited or referred to, are improper."
In paragraph twenty-six of the answer, the defendant "admits that it applied the direct deposit from the U.S. Treasury to partially satisfy its judgment against" the plaintiff, but denies that the defendant did not provide the "plaintiff with notice or an opportunity to be heard." The plaintiff claims that the employees of the defendant testified at their depositions that the defendant did not give notice or the opportunity to be heard to the plaintiff because it was not their practice. Similar to paragraphs seven, eleven and twelve, paragraph twenty-six of the answer is a proper denial pursuant Practice Book §§ 10-46 through 48. Additionally, it would be improper for the court to consider facts that surfaced during a deposition because, when deciding a motion to strike, the court can only consider facts alleged in the complaint. The complaint makes no allegations regarding the defendant's practices, or lack thereof, of providing notice and opportunities to be heard. Accordingly, the plaintiff's motion to strike paragraph twenty-six of the answer is denied.
As noted above, an improper denial is likely better dealt with via a motion pursuant to Practice Book § 10-5.
Similarly, the defendant denies the allegation contained in paragraph thirty of counts one and two of the complaint that the defendant "intended to deprive plaintiff of her SSD funds." The plaintiff claims that the defendant's documents, acts and testimony support this allegation. Moreover, the plaintiff argues that the deprivation is ongoing to this date, under a claim of right, so it could hardly be unintended. While the plaintiff may be right that the evidence supports this allegation, paragraph thirty of the answer in response to counts one and two comports with Practice Book § 10-46 as it specially denies "such allegations of the complaint as the defendant . . . intends to controvert." The answer is not "evasive" as proscribed by Practice Book § 10-47 as the denial "fairly [met] the substance of the allegations denied." Therefore, the motion to strike paragraph thirty of counts one and two of the answer is denied.
Practice Book § 10-47 precludes evasive denials; "[d]enials must fairly meet the substance of the allegations denied." Practice Book § 10-48 requires express denials to be "direct, precise and specific, and not argumentative, hypothetical, or in the alternative." "A defendant's failure to file an answer in accordance with the dictates of Practice Book §§ [10-46 and 10-48] . . . results in the pleading being stricken." Savings Institute v. Data Train Institute, Inc., Superior Court, judicial district of Windham, Docket No. CV 02 0069064 (May 19, 2003, Foley, J.).
The plaintiff moves to strike paragraphs seventeen, nineteen and twenty-one through twenty-five of the answer on the ground that documents do not speak. Paragraph seventeen of the complaint alleges that the "Plaintiff's attorney sought to open the judgment on the basis that defendant had wrongfully seized plaintiff's exempt SSD." In paragraph seventeen of the answer, the defendant admits "that plaintiff, through her counsel, filed a motion to open judgment dated June 12, 2008, which the court denied." As to the remaining portion of the allegation in paragraph seventeen, the defendant states that the terms of the plaintiff's motion speak for themselves. The plaintiff argues that the defendant's documents and testimony confirm this allegation and that documents cannot speak.
The Practice Book only allows three types of responses in the answer: admit, deny or insufficient knowledge. Practice Book §§ 10-46 through 48; see also Export Development Canada v. T. Keefe Son, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 5032894 (June 2, 2011, Woods, J.) (noting that these sections of the Practice Book "require that the answer to a complaint address the allegations of the complaint and must either admit, deny or plead insufficient information as to each paragraph or specific portion of a paragraph"). Accordingly, the motion to strike paragraph seventeen is granted because the defendant's response that the terms of the motion speak for themselves is improper under the Practice Book.
Paragraphs nineteen and twenty-one through twenty-five of the answer correspond with paragraphs in the complaint in which the plaintiff cites statutory law. The defendant responded to these paragraphs by stating that "[t]he statements in [the paragraphs] consist solely of legal conclusions for which no responsive pleading is required. To the extent a responsive pleading is required, [the defendant] neither admits nor denies the allegations contained in [these paragraphs] as [the statutes] speaks for [themselves]."
The complaint states:
21. Pursuant to Conn. Gen. State. § 52-350f, a money judgment may be enforced only against non-exempt property of the judgment debtor.
22. SSD is exempt from the claims of creditors. Conn. Gen. Stat. § 52-350f.
23. Pursuant to Conn. Gen. Stat. § 52-367b, a judgment creditor may execute against debts due a banking institution, unless the funds on deposit are exempt.
24. Pursuant to Conn. Gen. Stat. § 52-352b(g), SSD is exempt property.
25. Pursuant to 28 U.S.C. § 407(a), SSD is not transferable or assignable at law or in equity, and SSD is not subject to execution, levy, attachment, garnishment, or other legal process.
The plaintiff argues these responses are improper because "documents cannot speak and there is no known pleading exemption for responding to an allegation solely because it contains legal conclusions." The defendant counters that it "has properly responded to these paragraphs because they do not contain a plain and concise statement of material facts on which the pleader relies." As noted above, only three types of responses are proper in the answer: admit, deny or claim insufficient knowledge. Accordingly, because the defendant failed to answer as prescribed by the Practice Book, the motion to strike paragraphs seventeen, nineteen and twenty-one through twenty-five of the answer is granted.
To support this proposition, the plaintiff cites State Farm Mutual Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D.Ill. 2001) (noting that the court "has been attempting to listen to . . . written materials for years (in the forlorn hope that one will indeed give voice) — but until some such writing does break its silence, this Court will continue to require pleaders to employ one of the three alternatives that are permitted by Rule 8(b) in response to all allegations about the contents of documents (or statutes or regulations)").
The plaintiff moves to strike paragraphs twenty-seven and twenty-eight of the answer. In paragraphs twenty-seven and twenty-eight of the complaint, the plaintiff alleges that the "Defendant was not entitled to intercept plaintiff's SSD" and the "Defendant was not entitled to extra-judicial self-help as a means of enforcing a judgment." The defendant answered by denying "that it intercepted the Plaintiff's SSD deposit" and denying "that it utilized extra-judicial self-help as a means of enforcing a judgment." The plaintiff claims that the defendant's responses are not "direct, precise and specific" but, instead, were argumentative. The defendant maintains that its responses were proper.
The allegations contained in paragraphs twenty-seven and twenty-eight allege that the defendant is "not entitled" to do these actions. The defendant denies that it performed these actions. Even construing the answer in the manner most favorable to sustaining its legal sufficiency, the defendant's responses are evasive. They fail to meet the substance of the allegations because the issue is whether the defendant is entitled to do these things, not whether it performed these actions. Practice Book § 10-47 ("Denials must fairly meet the substance of the allegations denied"). Consequently, the motion to strike paragraphs twenty-seven and twenty-eight of the answer is granted.
The plaintiff moves to strike paragraph twenty-nine of the answer. Paragraph twenty-nine of the complaint alleges that the "Defendant refused, and persists in refusing, to return plaintiff's SSD." The defendant responded by admitting that it had "not returned the funds deposited to plaintiff's account as such funds were applied to partially satisfy a judgment plaintiff owed to [the defendant] in accordance with the terms and conditions of plaintiff's account agreement with [the defendant] and federal law." The plaintiff contends that this response is not "direct, precise and specific" but is instead argumentative. The admission contained in paragraph twenty-nine of the answer is "direct, precise and specific, and not argumentative, hypothetical or in the alternative." Practice Book § 10-48. The defendant directly answers the plaintiff's allegation by explaining that it has not returned the funds then goes on to explain why the funds have not been returned. Accordingly, the motion to strike paragraph twenty-nine of the answer is denied.
The plaintiff moves to strike paragraph thirty of counts one and two of the answer. In paragraph thirty of counts one and two of the complaint, the plaintiff alleges that the "Defendant intended to deprive plaintiff of her SSD funds." The defendant denied this allegation. The plaintiff argues that the deprivation is ongoing to this date, under a claim of right, so it could hardly be unintended. While the plaintiff may be right that the evidence supports this allegation, paragraph thirty of the answer in response to counts one and two comports with Practice Book § 10-46 as it specially denies "such allegations of the complaint as the defendant . . . intends to controvert." The answer is not "evasive" as proscribed by Practice Book § 10-47 as the denial "fairly [met] the substance of the allegations denied." Consequently, the motion to strike the answer's paragraph thirty in response to counts one and two of the complaint is denied.
The plaintiff finally moves to strike paragraph thirty-three of count three of the answer. In paragraph thirty-three of count three of the complaint, the plaintiff alleges that "[t]he injury to the plaintiff was not outweighed by any countervailing benefits to consumers." The defendant answered that "Paragraph 33 is nonsensical and, therefore, [the defendant] neither admits nor denies the same."
The defendant's answer is improper because it is not a denial, admission or pleading of insufficient knowledge. If the defendant was unsure what the plaintiff was alleging then the defendant should have filed a request to revise as authorized by Practice Book § 10-35. Accordingly, the plaintiff's motion to strike paragraph thirty-three is granted.
For the foregoing reasons, the plaintiff's motion to strike paragraphs three, five, six, seven, nine, eleven, twelve, twenty-six, twenty-nine as well as paragraph thirty in response to counts one and two of the second answer filed on August 11, 2011 is denied. The court grants the plaintiff's motion to strike paragraphs fourteen, seventeen, nineteen, twenty-one through twenty-five, twenty-seven, twenty-eight and thirty-three of the second answer filed on August 11, 2011.