Opinion
CV166064267S
10-13-2017
John Palmieri v. North Haven Fair Association
UNPUBLISHED OPINION
MOTION TO STRIKE (#123); MOTION TO DISMISS (#125)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, John Palmieri, commenced this action against his former employer and defendant, North Haven Fair Association, on August 3, 2016. The plaintiff filed the operative revised complaint on March 16, 2017 (Docket Entry no. 117), in which he alleges breaches of employment contracts resulting from his termination and the defendant's failure to pay an agreed amount, the factual allegations of which the plaintiff incorporates as the basis for count one sounding in breach of contract; count two sounding in breach of good faith and fair dealing; count three sounding in violation of state unfair trade practice law; count four sounding in negligent misrepresentation; and count five sounding in unjust enrichment. The defendant moves to strike counts one and two to the extent they are based on the plaintiff's at-will employment contract; and counts three, four, and six in their entirety. In the complaint, the plaintiff makes reference to federal disability discrimination within counts one and three, and the defendant moves to dismiss any such claim.
The defendant filed its motion to strike on June 2, 2017 (Docket Entry no. 123), accompanied by a supporting memorandum of law (Docket Entry no. 124). Also on June 2, 2017, the defendant filed its motion to dismiss (Docket Entry no. 125), accompanied by a supporting memorandum of law (Docket Entry no. 126). The plaintiff filed its opposition to the defendant's motions to strike and dismiss forty-three days later on July 17, 2017 (Docket Entry no. 128), to which the defendant replied on the same day (Docket Entry no. 129). The court heard oral argument on the motions at short calendar on July 17, 2017.
Practice Book § § 10-31 and 10-40 provide for thirty days to respond to motions to dismiss and strike, respectively. The defendant opposes consideration of the plaintiff's opposition to its motions on these timeliness grounds. (See Def.'s Reply, p. 1, Docket Entry no. 129.) " There remains no direct appellate authority on this issue. Nonetheless, a majority of [Superior Court] decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike." (Internal quotation marks omitted.) Holt v. Adams, Superior Court, judicial district of Hartford, Docket No. CV-16-6070761-S (April 4, 2017, Dubay, J.) [64 Conn. L. Rptr. 169, ]. Because the defendant's argument rests on mere timeliness rather than actual prejudice, the court, in its discretion, will consider the plaintiff's opposition to the defendant's motions.
DISCUSSION
" 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). " [A] motion to strike . . . requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
" 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 in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
" In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). The Connecticut Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion nor relied upon by the trial court." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987). The trial court, in passing upon a motion to strike, may consider only the grounds specified in the motion. Id.
In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), the court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn. L. Rptr. 296, 298 n.1, ), and quoted parenthetically the following language from that case: " Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action . . . Since 1978, however, the Practice Book has not contained such a constraint." (Internal quotation marks omitted.) Our Supreme Court in Coe determined that the trial court had struck in error allegations of general negligence against two municipal workers because such allegations were legally sufficient, notwithstanding that the trial court had properly struck within the same count allegations of negligence against the town and the board under General Statutes § 52-557n, which was the theory of liability on which the count was based. See Coe v. Board of Education, supra, 301 Conn. 120-21.
" Section 52-557n(a)(1)(A) does not create a new kind of cause of action, but provides that political subdivisions of the state may be held liable for certain common-law negligence claims against them and their employees." (Emphasis in original.) Coe v. Board of Education, supra, 301 Conn. 120.
Since Coe v. Board of Education, trial courts are split as to whether the court may strike individual paragraphs that do not set forth a distinct cause of action. See Aspinwall v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-15-6066535-S (January 17, 2017, Moll, J.) (" The court believes that the plaintiff's position . . . that it is procedurally improper to strike allegations that do not contain all elements of a cause of action . . . [is] inconsistent with . . . Coe v. Board of Education, supra, 301 Conn. 121 n.5"); Maclean v. Perry, Superior Court, judicial district of New London, Docket No. CV-11-6009597-S (February 16, 2012, Martin, J.) (53 Conn. L. Rptr. 497, 498, ) (" [A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense" [internal quotation marks omitted]). See also Tiplady v. Maryles, 158 Conn.App. 680, 702 n.9, 120 A.3d 528, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015) (" No party challenges the court's determination that these paragraphs purported to state a distinct cause of action . . . and, therefore, were properly the subject of a motion to strike").
A
COUNTS ONE AND TWO
The plaintiff has alleged two separate " contracts" in his revised complaint: one founded in his at-will employment (employment contract) and the other in a separate independent construction contract (construction contract), both of which form the bases for all of the plaintiff's claims, including count one sounding in breach of contract and count two sounding in breach of good faith and fair dealing. The defendant moves to strike counts one and two to the extent they are based on the plaintiff's at-will employment. In its supporting memorandum, as well as at oral argument, the defendant concedes that the plaintiff has sufficiently pleaded breach of contract and the covenant of good faith and fair dealing on the basis of the construction contract. The defendant, however, fails to put forth grounds for striking the individual paragraphs related to the plaintiff's at-will employment given its concession with respect to the construction contract. The defendant neither argues that each contract represents a separate cause of action nor that it is proper for the court to strike paragraphs that do not articulate a distinct cause of action. The defendant argues instead that the plaintiff's revised complaint fails to comply with the defendant's request to revise, and that because the court has ordered the defendant to either file a motion to strike or answer in response to the plaintiff's revised complaint, the defendant is constrained to file the present motion to strike rather than the appropriate request to revise. (See Def's Mem. Supp., p. 4 n.2, Docket Entry no. 124.)
The defendant filed a request to revise the plaintiff's original complaint on September 8, 2016. (Docket Entry no. 101.) In response to the request to revise and related court orders, the plaintiff filed two revised complaints, the latter being the operative one (Docket Entry no. 117), and that upon which the defendant moves to strike. On April 18, 2017, the defendant moved for judgment of dismissal on the ground that the operative revised complaint failed to comply with the revisions requested and the court's order for the plaintiff to do so. (Docket Entry no. 119.) The court, however, has already ruled on this argument, denying the defendant's motion for judgment, determining that the plaintiff's revised complaint was sufficient and ordering the defendant to either file a motion to strike or answer. (See Docket Entry no. 119.10.) Moreover, nowhere in the defendant's request to revise did the defendant request the plaintiff to separate the employment contract from the construction contract. (See Docket Entry no. 101.) The defendant overlooks this failure of its own doing when it argues that it has been denied the opportunity to request the plaintiff to separate out the two contracts, instead of supporting its motion to strike portions of counts one and two with substantive legal grounds for doing so. (See Def.'s Mem. Supp., p. 4 n.2, Docket Entry no. 124.) For the foregoing reasons, the defendant's motion to strike counts one and two is denied.
B
COUNT THREE--CUTPA & THE ADA
The defendant moves to dismiss the plaintiff's claim for violation of federal disability discrimination law brought under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. on the ground that the plaintiff has failed to exhaust his administrative remedies within the time permitted. " [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, supra, 308 Conn. 350. " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685 (2014). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
" Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). " Title I [of the ADA] prohibits employers from discriminating against disabled employees, see 42 U.S.C. § 12112(a) . . ." McInerney v. Rensselaer Polytechnic Institute, 505 F.3d 135, 138 (2d Cir. 2007). " Title I incorporates the exhaustion requirement imposed by Title VII of the Civil Rights Act of 1964." Mary Jo C. v. New York State & Local Retirement System, 707 F.3d 144, 170 n.10 (2d Cir. 2013), citing McInerney v. Rensselaer Polytechnic Institute, supra at 138 (" ADA Title I incorporates various provisions from Title VII of the landmark Civil Rights Act of 1964 . . . One of these provisions . . . requires a claimant to file a charge of employment discrimination with the [Equal Employment Opportunity Commission (EEOC)] within 180 days after the discriminatory act").
" The Equal Employment Opportunities Commission (EEOC) [is] the agency responsible for investigating [ADA] claims of discrimination at the federal level . . ." Reddick v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-11-6021301-S, (December 3, 2015, J. Wilson).
The plaintiff concedes that the court lacks subject matter jurisdiction of an ADA claim and forgoes any legal remedy under the ADA. Therefore, the plaintiff's claim for violation of the ADA is dismissed. The plaintiff argues, however, that the public policy behind the ADA supports his claim that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (See Pl.'s Mem. Opp'n, p. 5, Docket Entry no. 128.) Because the plaintiff's argument is addressed by the defendant's ground for striking the plaintiff's CUTPA claim, the court will now analyze such ground.
" [W]hether a business practice violates CUTPA depends on whether the practice . . . offends public policy as it has been established by statutes, the common law, or otherwise . . ." (Internal quotation marks omitted.) State v. Acordia, Inc., 310 Conn. 1, 36-37, 73 A.3d 711 (2013).
The defendant moves to strike the plaintiff's CUTPA claim on the ground that CUTPA does not apply to employer-employee relationships. At oral argument, the plaintiff conceded that its CUTPA claim could not survive to the extent that it relies on an alleged employer-employee relationship, however, it is a viable claim as to the contractual relationship established by the construction contract.
Pursuant to CUTPA, " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." § 42-110b(a). " [T]he employer-employee relationship does not fall within the definition of trade or commerce for the purposes of an action under CUTPA." Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 670, 613 A.2d 838 (1992). The policy behind Title I of the ADA, which " prohibits employers from discriminating against disabled employees " (emphasis added); McInerney v. Rensselaer Polytechnic Institute, supra, 505 F.3d 138; therefore, cannot form the basis of the plaintiff's CUTPA claim. Accordingly, the defendant's motion to strike is granted as to all allegations related to the ADA, including to the extent that they support the plaintiff's CUTPA claim. As to whether the CUTPA claim survives the defendant's motion, the issue thus remains whether the remaining alleged " unfair trade practices" were within the scope of the employment relationship.
" In Quimby, the plaintiff employee contended that her employer, which was self-insured for the purposes of workers' compensation, had administered her claim of injury improperly. Specifically, the plaintiff claimed as CUTPA violations the defendant's failure to pay benefits in a timely manner, to investigate reasonably and promptly the plaintiff's claim and to enter into a reasonable resolution of the plaintiff's claim . . . The Appellate Court, however, rejected this claim: The plaintiff does not allege that the defendant committed these acts in the conduct of any trade or commerce . . . The relationship in this case is not between a consumer and a commercial vendor, but rather between an employer and an employee. There is no allegation in the complaint that the defendant advertised, sold, leased or distributed any services or property to the plaintiff." (Citations omitted; internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 493, 656 A.2d 1009 (1995).
" In [ Larsen Chelsey Realty Co. v. Larsen ], the acts of which the plaintiff complains involve conduct occurring outside the confines of the employer-employee relationship. Unlike the situation in Quimby, [ Larsen Chelsey Realty Co. v. Larsen ] presents a fact pattern that involves a potentially viable cause of action under CUTPA because Larsen's allegedly tortious conduct was outside the scope of his employment relationship with the plaintiff. The plaintiff contends, in short, that Larsen accepted a job with a competing real estate broker and then, acting as a competitor, took actions that harmed the plaintiff. Because these allegations lie outside the narrow confines of the employer-employee relationship and may constitute a violation of CUTPA, the trial court should not have set aside the jury verdict for the plaintiff on this basis." Id., 493-94.
In the present case, aside from the alleged failure of the defendant to fully compensate the plaintiff pursuant to the terms of the construction contract, the plaintiff's alleged " unfair practices" are all within the confines of the plaintiff's employment agreement and termination thereof, which does not support a CUTPA claim. " Although the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation"; Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992); a majority of Superior Court cases have held that " a plaintiff's CUTPA count should be stricken if it alleges merely a breach of contract absent any fraud, or unfair or deceptive conduct." Production Equipment Co. v. Blakeslee Arpaia Chapman, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV-94-0247485-S (January 3, 1996, Silbert, J.) (15 Conn. L. Rptr. 558, 559, ), citing Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 41 Conn.Supp. 575, 580, 595 A.2d 951 (1991). See also Cap Maintenance Solutions, LLC v. Wallingford Autopark, Inc., Superior Court, judicial district of New Haven, Docket No. CV-16-6060392-S (September 6, 2016, Wilson, J.) (63 Conn. L. Rptr. 10, 13, ); Webber v. Able Coil & Electric, Superior Court, judicial district of Hartford, Docket No. CV-97-0576018-S (September 16, 1998, Hennessy, J.) (22 Conn. L. Rptr. 644, 645-46, ). For the foregoing reasons, the defendant's motion to strike count three is granted.
C
COUNT FOUR
The defendant moves to strike count four sounding in negligent misrepresentation on the ground that the plaintiff failed to allege that he relied on the defendant's misrepresentations to his detriment. " Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). In its opposition to the motion, the plaintiff points to nothing but conclusory language in the complaint. (See Pl.'s. Mem. Opp'n, pp. 8-9, Docket Entry no. 128) (" The Plaintiff reasonably relied . . . As such, the Reliance element is present . . . In addition, the Defendant also made efforts to conceal certain and material information . . . to the detriment of Plaintiff . . ."). The court, like the defendant, is unable to find a single factual allegation indicating that the plaintiff relied on some misrepresentation made by the defendant. The plaintiff fails to allege that he forwent alternative employment opportunities on the basis of a misrepresentation. Even had the plaintiff alleged that he would have sought alternative employment had he known that the defendant did not intend to extend his at-will employment ad infinitum, or for whatever term the plaintiff understood he should have been employed for, this is insufficient to support reasonable reliance within the context of at-will employment. See Colebaugh v. Yale New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV-15-6057999-S, (June 12, 2017, Wilson, J.).
Although it goes unchallenged by the defendant, the court would be remiss not to point out that it is altogether unclear what " misstatement" the plaintiff alleges he relied upon. Certainly he did not remain under the employment of the defendant based on " misstatements as to the so-called grounds and/or basis for [his] Termination" (Pl.'s Mem. Opp'n, p. 9, Docket Entry no. 128); because that was the point at which he was terminated . Without alleging any actual statements on the part of the defendant, the plaintiff baldly alleges that the defendant " made this Plaintiff believe that he had a secure and long-term future with the [defendant], when in reality, they knew all along that they planned to terminate Plaintiff. At the very least, and upon information and belief, the Plaintiff was always under the impression that a Severance package would be issued here, that is, for the long-time and faithful service to the [defendant]." (Revised Compl., ¶ 24, Docket Entry no. 117.) Although unnecessary for resolution of this motion, such conclusory statements do not render the plaintiff's impressions nor his misgivings sufficient to allege an actual misstatement.
As to the construction contract, the plaintiff alleges that the defendant " knew and/or should have known that they owed the Contractor certain funds--as a result of certain Projects(s)/Job(s)--at the very time when they terminated the Contractor." If the plaintiff is alleging that the defendant misrepresented its intention to pay under the construction contract, " [t]he correct standard is whether [the defendant] knew, or should have known, [its] statements were untrue at the time they were made " (emphasis in original); Bellsite Dev., LLC v. Town of Monroe, 155 Conn.App. 131, 152, 107 A.3d 1028, cert. denied, 318 Conn. 901, 122 A.3d 1279 (2015); not some years later. Otherwise, the court remains baffled as to where the misrepresentation exists in this statement, and moreover, how the plaintiff relied on it during his employment with the defendant since it wasn't made until he was terminated . For the foregoing reasons, the defendant's motion to strike count four is granted.
D
COUNT SIX
The defendant moves to strike count six sounding in promissory estoppel on the ground that the plaintiff has failed to allege any representations that were sufficiently promissory or definite to support liability under the doctrine. In D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 214, 520 A.2d 217 (1987), our Supreme Court held that representations made to the plaintiff teacher that " everything looked fine for her rehire for the next year, and that she should continue her planning for the exchange program" were " neither sufficiently promissory nor sufficiently definite to support" the teacher's claim for promissory estoppel.
With respect to the plaintiff's at-will employment, the plaintiff, again, fails to point to any actual promises made by the defendant, and even his " impressions" pale in comparison to the vagueness of those in D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 214. With respect to the construction contract, however, the plaintiff points to the $28,000 promised in exchange for services provided thereunder. (See Pl.'s Mem. Opp'n, pp. 9-10, Docket Entry no. 128.) Because such promise is sufficiently definite, the defendant's motion to strike count six is denied.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike counts one, two, and six is denied. The defendant's motion to strike counts three and four is granted, and the defendant's motion to dismiss the plaintiff's claim for violation of federal disability discrimination law is granted.