Opinion
No. CV 01 0186618
August 25, 2003
MEMORANDUM OF DECISION
The plaintiff, Pro Performance Corporate Services, Inc. (Pro Performance), filed a five-count complaint against the defendant, Frank Goldman, alleging various claims arising out of an unpaid debt. According to the complaint, Goldman contacted Pro Performance on or about January 18, 2001, for the purpose of undertaking a search for premium tickets to Superbowl XXXV, and related social events and hotel accommodations. Pro Performance was successful in finding a total of eight tickets, hotel rooms and Superbowl party passes. Goldman agreed to purchase those tickets for $42,200 by executing a written agreement on January 27, 2001. Subsequently, Goldman accepted the tickets and went to the Superbowl, but allegedly failed to pay for any of the tickets.
This Superbowl was played in Tampa between the New York Giants and the Baltimore Ravens on January 25, 2001.
On November 16, 2002, Goldman filed a counterclaim against Pro Performance that included a claim for defamation (count three). According to the counterclaim, prior to contacting Pro Performance, the defendant secured five tickets to Superbowl XXXV from a source other than Pro Performance. Then, on January 16, 2001, Goldman engaged Pro Performance's services in an effort to obtain additional tickets to the Superbowl. The defendant agreed to have Pro Performance act as his agent in order to "pick up," presumably finance, and "hold" the previously purchased tickets. Goldman's stated intention was to either acquire three additional tickets or swap his five tickets for eight premium tickets. Furthermore, Pro Performance "promised" Goldman that he could "trade-in" or "exchange" his five tickets as credit toward the more expensive seats if they became available.
In his counterclaim, the defendant further alleges that Goldman traveled to Florida expecting to either pick up the five tickets being held by Pro Performance or purchase additional tickets. However, on January 26, 2001, Pro Performance informed Goldman that no additional tickets had been located and that it sold Goldman's five tickets.
Finally, Goldman alleges that, without permission, Pro Performance's agents secretly recorded various telephone conversations between Pro Performance and Goldman. Those recordings were "taken out of context and contained negative information regarding the defendant." Then, knowing the tapes contained false information about Goldman, Pro Performance's agents played the recordings to Goldman's clients and business associates, thus harming the defendant's reputation.
Pro Performance filed a motion to strike (#112) count three of the defendant's counterclaim for failure to state a claim upon which relief can be granted because it lacks allegations sufficient to prove the "publication" requirement in a defamation action. "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). Further, a motion to strike "may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romanos Auto Service, 4 Conn. App. 495, 496, 495 A.2d 286 (1985). Deciding a motion to strike "requires no factual findings by the trial court . . . Thus, if facts provable in the [counterclaim] would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). A trial court must "take the facts to be those alleged in the [counterclaim] . . . and construe [it] in the manner most favorable to sustaining its legal sufficiency . . ." Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
In addition plaintiff's motion to strike was also directed at: (1) count six of the counterclaim; (2) portions of count seven, specifically ¶¶ 37-38, of the counterclaim; (3) defendant's seventh special defense; and (4) defendant's set-offs. The defendant subsequently conceded that all of those claims should be stricken.
A review of count three reveals that it contains a combination of two causes of action: defamation (¶¶ 1-8, 12) and false light (¶¶ 1-6, 9-12). Pro Performance's motion to strike, however, is directed solely at the claim for defamation and does not address any specific paragraphs stating that claim or the claim for false light.
In order to sufficiently state a claim for defamation, the specific statements, the exact words, must be alleged. Chertkova v. Connecticut General Life Insurance, Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.) ("a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom . . ."); 2500 SS Limited Partnership v. White, Superior Court, judicial district of Fairfield, Docket No. 95 328934 (August 19, 1996, Levin, J.) ( 17 Conn.L.Rptr. 449) ("[i]n defamation actions especially, words count, and a premium is placed on the precise words employed"). In this case, count three does not specifically state what statement or statements were defamatory.
Moreover, this court cannot strike multiple paragraphs that state one cause of action in a count that contains a second cause of action, particularly when both causes of action are joined in certain paragraphs. "Where individual paragraphs standing alone do not purport to state a cause of action, a motion to strike cannot be used to attack the legal sufficiency of those paragraphs . . . A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated." Moss Ledge Associates, LLC v. Firestone Building Products, Company, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0170167 (October 27, 1999, Karazin, J.). Thus, in order for this court to strike the defamation claim, it would have to have been set forth either in a separate count or contained entirely within one single paragraph within a count containing more than one cause of action. Therefore, Pro Performance's motion to strike is denied.
So Ordered.
Dated at Stamford, Connecticut, this 25th day of August 2003.
William B. Lewis, Judge