Opinion
No. X04 CV 02 0097138 S
December 16, 2005
MEMORANDUM OF DECISION
The plaintiff Gary Berte has alleged that he was improperly terminated from his employment; he also alleges various other causes of action arising from his employer's conduct. In a complaint comprising eleven counts, he alleges that he had been employed by the Founder's School in East Haddam, Connecticut, prior to 1998 as the director of treatment services. The school's student population consisted of adolescents adjudicated to be juvenile offenders. In May 1998, the corporate defendants bought the facility and intended to continue with the task of educating "adjudicated" adolescent males. The individual defendant Jean Claude Bahrenburg, the new executive director of the school, offered Berte a job. According to the complaint, Bahrenburg made several representations, to be discussed below, regarding the job and Berte accepted the position of quality improvement/training coordinator.
The defendants are several business organizations as well as several named individuals. The instant motions have been signed by attorneys for all the defendants. Because the resolution of the motions does not depend on the nature or identity of particular defendants, the group of people sued and bringing the motion to strike will simply be called "defendants."
Berte had a long history of good relations with the Connecticut Department of Children and Families ("DCF"), and part of his job involved communicating with DCF personnel. He alleges that during the course of his employment he witnessed a number of inappropriate and perhaps illegal acts conducted by other employees of Haddam Hills. As required, professionally and otherwise, he reported such acts to DCF. As a result of his communicating such behaviors to his employers and to DCF, he was demoted to the position of caseworker and ultimately, on December 20, 1999, terminated.
He alleges in the complaint that the termination constituted a breach of contract and that he was wrongfully terminated under the common law. In addition, he alleges breaches of the covenant of good faith and fair dealing, actionable misrepresentation, fraud, theft and conversion (resulting from the misuse of his personal property), negligent and intentional infliction of emotional distress, civil conspiracy and defamation. The defendants have moved to strike a number of the counts. More specific allegations will be discussed within the context of the discussion of each count.
I. Motion to strike breach of contract.
The first count purports to allege a breach of contract. In addition to the general history recited above, the count claims that at the time of hiring, Bahrenburg, the executive director of the new venture, said that Haddam Hills "would adhere to the strictest standards of professionalism" in management, and that Berte "would have complete oversight and control over the quality of treatment services offered at the facility." (¶ 16). He further assured Berte that the new venture "was a large corporation, and that [Berte] need not worry about the long-term financial stability of the corporation." (¶ 17). Finally, Bahrenburg told Berte that "he would have the potential for promotion and professional growth as being an employee of the corporate defendants." (¶ 18). Berte alleges that he turned down other professional opportunities to accept this position. About a year and a half later, because of reports mentioned above, he was terminated "without just cause and in breach of contract." (¶ 29).
The defendants have moved to strike this count on the ground that it does not state facts on which relief can be granted. The standards governing motions to strike are well known and need not be stated in detail here. Suffice it to say that in deciding a motion to strike on the ground of whether a claim has been stated on which relief may be granted, the court must confine itself to the allegations of the pleading, both express and necessarily implied, and must accept as true those allegations. See, e.g., Gazo v. Stamford, 255 Conn. 245, 260 (2001); see also Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990). The pleadings will be construed in favor of the pleader if there is any ambiguity as to whether relief could be granted under the pleading. Doe v. Marselle, 38 Conn.App. 360, 364 (1995). Conclusions which are pled, however, need not be accepted as true for the purpose of ruling on motions to strike. Doe v. Yale University, 252 Conn. 641, 694 (2000).
Both parties agree that there is no express contract; any contract must, then, be implied if there is to be a contract at all.
[T]o prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant[s] to have an employment contract with [her]. "A contract implied in fact, like an express contract, depends on actual agreement. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957).". . . Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on [her breach of contract] claim, "which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that the [defendants] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause . . . D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 212 n. 2; Therrien v. Safeguard Mfg Co., supra, 94-95.". . . Coelho v. Posi-Seal International, Inc., supra, 112. To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant[s] had agreed to some form of contract commitment. Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729-30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).
"A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711 (1923)." Christensen v. Bic Corp., 18 Conn.App. 451, 458, 558 A.2d 273 (1989). In order to support contractual liability, the defendants' representations must be sufficiently definite to manifest a "present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 214-15.
Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 388-89 (1998).
There of course is little doubt as to whether there was some contract of employment. As noted by Chief Justice Peters in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13 (1995), an employee would probably not be working without a bargain of some kind. What matters here is whether a mutual understanding to the effect that Berte could not be terminated without a showing of just cause can logically be implied from the allegations of the complaint. Unless there is an agreement to the contrary, contracts of employment are terminable at will. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1 (1987); Torosyan, supra, 14.
In deciding a motion to strike, one of course accepts as true the allegations of the complaint. It may be helpful to compare the language offered in the complaint with the language used in comparable cases. In Torosyan, supra, the Supreme Court affirmed the trial court's finding of an implied agreement that the employee could be terminated only for cause. The employer represented at the time of hiring that [you] "just do a good job and Boehringer will take care of you" and "hope you stay forever." Further, the employment manual in effect at the time of hiring stated that the company had the right "to hire, discharge for cause, promote, [and] demote . . . employees." These facts supported the trial court's conclusion that there was an implied agreement that the employee could not be terminated without cause, and that the traditional at-will employment had been effectively modified.
Similarly, in Coelho v. Posi-Seal International. Inc., 208 Conn. 106 (1988), the defendant questioned on appeal whether facts introduced at trial supported a jury verdict finding an implied agreement. Evidence at trial was introduced to show that at the time of hiring the plaintiff had been told that "as long as you do your job, you'll . . . have a good future with us." Id., 110. The plaintiff discussed reservations about job security with his prospective employer and he was assured that he would have support in disputes between quality control and manufacturing, that he was not to worry, that he was part of the team and he should just do his job. Id., 110-11. He was assured that he would have job security. With this factual background, the Supreme Court did not decide whether there were grounds to imply an agreement that the plaintiff could not be fired without cause under any circumstances, but did hold that he could not be fired without cause as a result of conflicts between quality control and manufacturing. Id. 113.
In Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725 (1996), the trial court's granting of summary judgment in favor of the defendant was affirmed. There, the employee urged that a for-cause-only term could be inferred from continuous, routine and ordinary use of progressive discipline. Id., 730-31. In effect, a single transgression could not result in termination if progressive discipline were part of the employment contract. Summary judgment was properly granted in favor of the defendant because even if progressive discipline had been routinely utilized, there was no substantial evidence that its use arose from an understanding of the employer that its use was based in contract.
And in Burnham, supra, the Appellate Court held that summary judgment had been appropriately granted by the trial court. The plaintiff had alleged that she had been told at the time of hiring that she would be evaluated on "performance expectations and goals" and that she would be terminated only for cause. Id., 388. The evidence submitted in connection with the summary judgment materials, however, supported the idea only that she successfully completed a probationary period. This factor was not in itself enough to create an issue of fact.
A number of Superior Court decisions appear in the literature. Illustrative, perhaps, is Miller v. United Technologies Corporation, 2001 WL 1420486 (Jones, J.). There, the employee was allegedly told at the time of hiring that he would be working in a new area of business, that his talents made him well suited for the position and that he would fit right in. These statements, the plaintiff alleged, led him to believe that his employment was secure and, in reliance on them, he relocated. He alleged, apparently in a conclusory manner, that the employer agreed not to terminate him without cause. Judge Jones held that a statement by the employer to the effect that his job was secure does not, without more, change the employment from the presumptive at will to one terminable only for cause.
The issue, then, is whether the factual allegations of the first count can support a finding that the usual employment contract was altered. None of the facts alleged specifically suggest that the employment would be terminable only for cause. The closest the allegations come to suggesting such an inference are those that claim the employer said that the plaintiff need not worry about the employer's long-term financial stability, thus, perhaps, suggesting some longevity, and that he (Berte) would have the potential for promotion and for growth. These are considerably different from the representations in Coelho and Torosyan, where the employee was told, in effect, that he was secure so long as he did a good job. The representations as reported in the complaint in the instant case would appear to be a standard sort of salesmanship involved in offering jobs: representing that there is a potential for growth does not yield a logical inference that one is terminable only for cause. On the facts alleged, I find that a modification of the presumption of at-will employment cannot logically be implied, and the motion to strike count one is granted.
II. Motion to strike common-law claim for wrongful termination.
The second count seeks to allege a termination in violation of established public policy. Connecticut recognizes a common-law action in wrongful termination where the employment action is contrary to a strong and well-established public policy of the state, and where no other means exists to vindicate the public policy. See Sheets v. Teddy's Frosted Food, Inc., 179 Conn. 471 (1980); Burnham v. Karl Gelb, P.C., 252 Conn. 153 (2000). The defendants have moved to strike this count.
I consider, in addition to the factual allegations reported above, the following allegations. During his period of employment, Berte was prevented from ensuring the health and welfare of the adjudicated adolescents at the school (¶ 22) and was threatened and abused by the defendants (¶ 23). More critically, he alleges that he "consistently witnessed and objected to the unsafe and inappropriate behavior of other employees of the school . . . whose actions and conduct repeatedly served to threaten the health and welfare of the adolescents . . ." (¶ 24). He witnessed and objected to behaviors of other employees that not only were not accepted as appropriate, but in some cases were illegal and harmful to the students. (¶ 25). During his employment, he relayed this information to DCF, as he was required, "professionally, clinically and legally." As a result of his having raised objections and conveyed information " to both the defendants and DCF," he was demoted and ultimately terminated. (Emphasis added) (¶¶ 27, 28). Berte concludes that the actions taken by the defendants were wrongful, served to endanger the adolescents and constituted a violation of the public policy as stated in General Statutes § 17a-101 et seq. (¶ 31, 32).
There can be little doubt that the protection of children in general and of abused children in particular is a strong public policy of the state. It is so stated in General Statutes § 17a-101(a) and the policy most likely would be appropriately found even without the language of § 17a-101(a). As alleged, and without more, the facts of the complaint certainly do allege a termination in violation of a strong public policy. But that does not end the inquiry.
Section 17a-101(a) reads as follows:
The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.
As noted in Burnham, supra, and developed in cases such as Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643 (1985), our jurisprudence suggests that a common-law action for wrongful termination, in the absence of an employment contract germane to the issue, is, in a sense, a measure of last resort. If a statutory remedy exists to address the malady, then a common-law action is unavailable:
A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated. (Internal quotation marks omitted.) Id., 648.
In Burnham, supra, an employee of a dental practice claimed that she was terminated because she filed an anonymous complaint about the dentists' practices with the Connecticut State Dental Association and claimed that there were violations of the federal Occupational Safety and Health Act. Were the allegation true, there may in a vacuum have been a violation of public policy and an actionable wrongful termination. There were, however, other remedies available which the plaintiff did not pursue. If the plaintiff could have brought an action pursuant to General Statutes § 31-31m, but did not, then she was barred from bringing the common-law action. Id., 161-62. Similarly, OSHA provided that if one were discharged in retaliation for reporting violations of the act one, could complain to the federal secretary of labor. After investigating, the secretary could bring an action in federal court against the employer, and the court could "order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay." Id., 163. The plaintiff's claims that this relief was not the same relief that she would have pursuant to her own action of wrongful discharge, and more specifically that she would be at the mercy of the secretary's discretion as to whether to bring an action at all, were unavailing. The fact that some remedy was available was all that was needed to bar a common-law action. Id., 164-65.
The thrust of Burnham and Atkins seems to be that the availability of the common-law remedy is not determined solely from the point of view of the plaintiff, who may indeed have fewer rights and powers under the alternative statutory remedy than he would have under a common-law action which he could bring himself. Rather, another governing viewpoint seems to be that of society: if a statutory means exists to discourage and, one hopes, to end such improper employer conduct, whether or not such means gives full relief to the plaintiff, then the common-law remedy is trumped.
In the present case, then, it is quite apparent that there is no common-law remedy for retaliation for reporting concerns to DCF. DCF is a public body, and § 31-51m quite clearly provides a remedy for retaliation for such reports. This action is not brought pursuant to § 31-51m. There is no common-law action, then, insofar as the count relies on reporting concerns to DCF.
The more difficult question is whether, on a parsing of the count, a common-law action can be based on retaliation for internal reporting of incidents of inappropriate behavior on the part of other employees The defendants suggest that because the public policy is expressly said to be that stated in General Statutes § 17a-101, and because a statutory remedy exists for violations of § 17a-101 in § 17a-101e(a), then this claim is barred for the same reason that OSHA claims were barred in Burnham. A close reading of the statutory language suggests a somewhat more complex analysis.
Although the broad language of § 17a-101(a) refers to the protection of all children and specifically to children affected by injury and neglect, the sections which it serves to introduce are concerned with "mandated reporters" of suspected child abuse. The plaintiff was quite clearly a mandated reporter pursuant to § 17a-101(b). Various duties and protections are set forth in the next several sections. Mandated reporters have duties to report abuse within twelve hours to a law enforcement agency or to DCF; written reports are to follow within forty-eight hours. Sections 17a-101b, 17a-101c. Section 17a-101e(a) provides that "[n]o employer shall discharge . . . any employee who in good faith makes a report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103 . . . The Attorney General may bring an action in Superior Court against an employer who violates this subsection. The court may assess a civil penalty of not more than two thousand five hundred dollars and may order such other equitable relief as the court deems appropriate."
Because the enforcement section is limited to statutorily mandated reports to law enforcement agencies and to DCF, there would appear at first blush to be no statutory remedy for retaliation for reports made strictly internally. If there is a strong public policy against retaliation for reporting abuses internally, and if reports made to DCF and internal complaints to the school can be segregated, then there would appear to be a common-law action for retaliation based on solely internal complaints.
It is clear that the remedy is sufficient, under Burnham, to bar a common-law action.
But the statutory plot thickens yet again. According to the statutory scheme, DCF will, in turn, notify the school if a report has been made about a student in the school. Section 17a-101b(d). Any complaint made by Berte to DCF would presumably be disclosed to the defendants, even if Berte had not complained directly to the defendants. And it is hard to imagine a matter which is not serious enough to report to DCF, yet is so serious that an employer's retaliation for reporting it to the employer violates an important public policy. There is, as noted, a statutory remedy in place regarding retaliation for matters reportable to DCF.
Because there is a remedy for retaliation for reporting matters of child abuse, I conclude that, as currently pled, there is no viable common-law action for wrongful termination. The complaint alleges reports and complaints made to both DCF and the employer, with no differentiation: it suggests that the same reporting was made to both. If the plaintiff can specifically plead that he reported matters to his employer which were not required to be reported to DCF and were not actually reported to DCF, that as a result of those reports he was terminated or otherwise unfavorably treated, and that those matters in themselves implicate a strong public policy, then such a complaint may pass muster. With that understanding, the motion to strike the second count is granted.
III. Motion to strike breach of covenant of good faith and fair dealing.
The third count alleges a breach of the covenant of good faith and fair dealing. The count assumes by its terms (¶ 31) that there was an underlying contract and that terminating without just cause violated the contract. Because I have found that there was no such agreement modifying the presumption that the employment was terminable at will, I find no actionable bad faith on the pleadings in this case. If the "good faith and fair dealing" covenant could be used to include indirectly in every employment situation an obligation not to terminate without just cause, then no employment would be terminable at will. The motion to strike the third count is granted.
IV. Negligent infliction of emotional distress.
The defendants suggest that there are insufficient allegations of unreasonable behavior in the termination process to support recovery on a claim of negligent infliction of emotional distress. See, e.g., Perodeau v. City of Hartford, 259 Conn. 729 (2002); Olson v. Bristol Burlington Health District, 87 Conn.App. 1, 7 (2005). The standards governing such a claim have been summarized in Olson, supra, at 5:
In general, to prevail on such a claim, a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress. Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003). The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm. Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 446-47, 782 A.2d 87 (2001). In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm. Id. Such a claim in the employment context arises only where it is "based upon unreasonable conduct of the defendant in the termination process" rather than in an ongoing employment relationship. (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). Finally, to prevail on a claim of negligent infliction of emotional distress arising in the employment setting, a plaintiff need not plead or prove that the discharge, itself, was wrongful, but only that the defendant's conduct in the termination process created an unreasonable risk of emotional distress. Id., 88-89.
Although there may still be some controversy as to whether "extreme and outrageous" conduct is necessary to support a claim of negligent infliction of emotional distress; see, e.g., the discussion of the Appellate Court in Olsen, supra, at 7-8; see also Carroll v. Allstate Ins. Co. supra, the trend, and what I believe to be the specifically binding authority of Olsen, suggest that the "extreme and outrageous" character of the conduct is not required to prove a claim of negligent infliction of emotional distress. In this instance, moreover, I believe that facts have been alleged, for example, concerning the intentional destruction of personal property, which could support a finding of outrageousness by a finder of fact. I find that the elements have been pled sufficiently to avoid being stricken. The motion to strike the eighth count is denied.
It is not entirely clear that such destruction, if it in fact happened at all, happened in the termination process. This determination may depend on evidence presented.
IV. Intentional infliction of emotional distress.
The motion to strike the ninth count is granted. For reasons stated above, the "extreme and outrageous" standard has been satisfied. It is true, however, that the plaintiff has not pled that the resulting distress is "severe." See, e.g., Muniz v. Kravis, 59 Conn.App. 704, 708 (2000).
VI. The civil conspiracy claim.
The tenth count purports to allege a civil conspiracy among all of the corporate and individual defendants, formed with the purpose of preventing the plaintiff from "expressing his concerns" to the DCF, as he was required by law to do, and of deceiving and misleading the state of Connecticut. The hiring and firing of the plaintiff were accomplished pursuant to the conspiracy and in furtherance of its objectives. The allegations of count one, the claim regarding breach of implied contract, were incorporated by reference.
The defendants have moved to strike the count on the ground that "civil conspiracy" is not an independent cause of action and that there can be no actionable intra-corporate conspiracy. In their reply brief, the defendants further argue that the civil conspiracy doctrine does not create vicarious liability for breaches of contract, but only for tortious conduct. The plaintiff suggests that the conspiracy is not barred by the intra-corporate doctrine because the individuals were alleged to be acting in an individual rather than a corporate capacity. It was left unclear as to whether the plaintiff agreed that the civil conspiracy theory applied only to underlying tortious conduct.
First, it is clear that civil conspiracy is not a cause of action in itself, but rather is a variant of vicarious liability. See, e.g., Harp v. King, 266 Conn. 747, 779 (2003); Marshak v. Marshak, 226 Conn. 652, 669 (1993). The creation of liability by virtue of the "doctrine" of civil conspiracy appears to be confined to the domain of tort. See, e.g., Harp v. King, supra, 780; Restatement (2d) of Torts, § 876. Ordinarily, one has a contractual duty, and thus is subject to contractual damages, only when one is a party to the contract or is very closely bound to the contract. Duties in tort, on the other hand, extend, as a general proposition, to all those reasonably foreseeably affected by the conduct. It makes sense to allow for a somewhat more remote form of vicarious liability in tort, but not in contract. Because the language defining conspiracies has been couched in language pertaining to tort, and count ten appears to limit itself to the underlying cause of action of breach of contract, I agree that the count should be stricken.
One can, of course, tortiously interfere with a contract, so the distinction may have little practical effect.
Perhaps more critically, I have stricken the first count in any event. Because the tenth count appears to rely on the underlying cause of action set forth in the first count, the tenth count should be stricken for this reason alone.
Finally, the issue of intra-corporate agreements has arisen. It is true that members of a corporation ordinarily may not be held to conspire among themselves, at least when they are pursuing the interests of the corporation. The logical reason is that a corporation can only act through its officers and employees, so such an intra-corporate conspiracy would be tantamount to conspiring with oneself. See, e.g., Harp v. King, supra. The plaintiff claims, however, that the individual defendants were not acting, at least for the purpose of the conspiracy count, in their capacities as corporate officers, employees or agents, but rather in their individual capacities. Compare, e.g., Metcoff v. NCT Group, Inc., 2005 Ct.Sup. 308 (Alander, J.) (2005).
It is not necessary to resolve the individual capacity issue in the circumstances presented here. It should be noted, however, that "for a claim of intracorporate conspiracy to be actionable, the complaint must allege that corporate officials, employees, or other agents acted outside the scope of their employment and engaged in conspiratorial conduct to further their own personal interests and not those of the corporation." Harp v. King, supra, 782. See also Wellington Systems, Inc. v. Redding Group. Inc., 49 Conn.App. 152, 168-69 (1998). If a claim is made that corporate employees have conspired together, the facts supporting a conclusion regarding the individual capacity should be alleged.
The motion to strike is granted as to the tenth count.
VII. Defamation.
The eleventh count alleges rather succinctly that "the individual defendants made repeated statements regarding the plaintiff, which statements were false and malicious, and served to impugn the character and reputation of the plaintiff." (¶ 31). The defendants have moved to strike the count, on the ground that nothing specific has been alleged. The plaintiff responds by arguing that the elements of defamation have been pled, and no appellate authority requires the pleading of specific statements.
I agree with much of the authority cited by the defendants. In order to respond to a claim of defamation, a defendant has to know something about the nature of the statements allegedly made. Notice of course, is an issue; perhaps equally persuasive is the need to frame pleadings appropriately. There are a number of special defenses, for example, that may or may not be appropriate, depending on the nature of the statements alleged to have been made. Among other considerations, the plaintiff may need to prepare responses to defenses. Though there may at times be a fine line between fact pleading and evidence, defamation should be alleged with some degree of specificity. The motion to strike is granted as to the eleventh count.