Opinion
No. FBT-CV-10-6006454S
December 28, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE SPECIAL DEFENSES
This matter involves allegations of discrimination in the work place. In response to the complaint, the defendant filed an answer and several special defenses. The defendant's first special defense states: "Plaintiff fails to state a claim upon which relief can be granted as a matter of law." The second special defense provides: "Without conceding that plaintiff has suffered any damages as a result of any purportedly wrongful act of the Defendant, Plaintiff has failed to mitigate his alleged damages." The plaintiff has filed a motion to strike the first two special defenses on the basis that they merely state conclusions of law and are devoid of any factual allegations in support thereof.
For the reasons set forth below, the motion to strike the first special defense is DENIED. The motion to strike the second special defense is GRANTED.
Standard of Review
The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading. RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994). "[W]hat is reasonably implied [in an allegation] need not be expressly alleged." (citation omitted; internal quotation marks omitted) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).
For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc., supra, at 383 n. 2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).
Discussion
A. The First Special Defense — Legal Insufficiency
The parties acknowledge a difference of opinion among Superior Court judges as to whether "failure to state a claim" is appropriately pled as a special defense. See e.g. Scan Associates, Inc., v. Civitello Building Co., Inc., Judicial District of New Haven, CV 93 0350643 (January 24, 1994) (Hodson, J.) [ 10 Conn. L. Rptr. 646] (holding that the only method by which a defendant can put a plaintiff on notice of such a claim when no motion to strike is filed is by asserting the claim as a special defense), and Savitz v. 03 Pools Technologies, Inc., Judicial District of Stamford/Norwalk, at Stamford, CV 065002709S (May 20, 2009) (Pavia, J.) (holding that the mere legal conclusion is inadequate to state a valid special defense). The plaintiff concedes the possible viability of the special defense but avers that it must be supported by specific factual allegations.
Preliminarily, this court is persuaded by the reasoning in Scan Associates, Inc. and that court's reliance upon Robert S. Weiss Associates, Inc. v. Widerlight, 208 Conn. 525 (1988), in upholding the validity of the special defense. Nonetheless, the plaintiff here argues that the special defense, even if viable, must contain specific facts. The problem with this approach is in the unique nature of the special defense. The proposition that a complaint fails to state a claim upon which relief could be granted accepts as accurate and relies in its entirety on the facts alleged in the complaint. See, RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994). The allegations succeed or fail on their own, independent of any additional allegations. Indeed, the court in Scan Associates, specifically noted that the "first special defense does not state facts that show that the plaintiff has no cause of action, indeed, the first purported special defense contains no facts at all but only the legal claim that the complaint fails to state a cause of action." Id. As the court noted, "where a plaintiff has failed to allege a cognizable cause of action, it is not the burden of the defendant to attempt to correct the deficiency." Id., citing Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 535, 535 n. 5 (1988). The motion to strike the first special defense is DENIED.
B. The Second Special Defense — Mitigation of Damages
Though not addressed by our Appellate Courts, the majority of Superior Court judges have held that a plaintiff's failure to mitigate damages is appropriately pled as a special defense. See, e.g. Profitec, Inc. v. FKI Industries, Inc., Judicial District of New Haven, CV 990427490S (November 24, 2000) (Devlin, J.) [ 28 Conn. L. Rptr. 619] (reasoning that permitting the special defense of failure to mitigate served to clarify that it was the defendant's burden of proof as to the plaintiff's alleged failure to mitigate). See also, Savitz v. 03 Pools Technologies, Inc., supra. Again, the plaintiff does not contest the viability of the special defense, but contests whether an adequate factual basis has been pled in support thereof. Unlike the first special defense, a failure to mitigate damages, is supportable by specific facts distinct from those contained in the plaintiff's complaint.
Special defenses must be supported by adequate factual allegations or they will be stricken as legally insufficient. See, Connecticut v. 239 Orange Street, LLC, 49 Conn. L. Rptr. No. 24, 884 (August 23, 2010) (Abrams, J.). Practice Book § 10-1 provides that "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies.'" Practice Book § 10-50, governing special defenses provides: "Facts which are consistent with [plaintiff's statements] but show, notwithstanding that the plaintiff has no cause of action, must be specially alleged." Further, Practice Book § 10-51, relating to multiple special defenses provides: "Any statement of a matter of defense resting in part upon facts pleaded in any preceding statement, in the same answer may refer to those facts as thus recited without otherwise repeating them." The court sees no reason to afford the pleading of special defenses less stringent requirements than those set for allegations in a complaint.
Here, the special defense does not contain any facts which would support the legal conclusion that the plaintiff failed to mitigate damages. See, Parsons v. Sikorsky Aircraft Division, Judicial District of Fairfield, Dkt. No. CV 91 280394 (July 2, 1998) (Melville, J.) (factual allegations in special defense supported claim that plaintiff failed to mitigate damages); Kimball v. Timothy J. King Builder, Inc., 31 Conn. L. Rptr. 576 (March 12, 2002) (Foley, J.) (same).
For the foregoing reasons, the motion to strike the second special defense is granted.