RULING ON MOTION TO STRIKE (#114)

LINDA K. LAGER, JUDGE.

On May 19, 2008, the plaintiff Vernon Stancuna (Stancuna) filed his third revised complaint in three counts against the defendant Andrew I. Schaffer (Schaffer). On September 19, 2008, Schaffer filed a motion to strike the third revised complaint in its entirety.

"[A] motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000); see also Practice Book § 10-39. The court "must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn 480, 498, 815 A.2d 1188 (2003).

The third revised complaint alleges the following facts common to all three counts: Stancuna was the plaintiff in a lawsuit entitled Stancuna v. Stancuna, Docket No. FA-05-4010965 (¶ 1) (hereafter referred to as "the family lawsuit"). Schaffer, an attorney with a law office in Hamden, Connecticut, was appointed guardian ad litem of the minor children in the family lawsuit but on December 8, 2005 he withdrew his appearance with the court's permission and had no further involvement in the litigation (¶¶ 2, 3). Judge Stephen Frazzini had heard the family lawsuit on many occasions and had issued many rulings in the case (¶ 4). On October 17, 2007, Schaffer had a conversation with Judge Frazzini alone in his chambers and the judge "reported the fact of the conversation publicly in open court and announced that as a result of such statements he felt he was constrained to recuse himself from the case" which he did later that day (¶¶ 5, 6). As a result of the recusal, Stancuna had to relitigate matters before another judge(¶ 7).

I.

In count one, based on the foregoing factual allegations, Stancuna has alleged that Schaffer engaged in "tortious interference with his litigation relationship to the defendant in [the family lawsuit] and with his professional relationship with his attorneys in [the family lawsuit]." Schaffer has moved to strike count one claiming it fails to allege interference with a business relationship between the plaintiff and a third party and it fails to allege tortious conduct.

The essential elements which must be pleaded to state a cause of action for tortious interference with a business relationship are: "(1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).

Schaffer first asserts that tortious interference requires that a third party adversely affect the business relationship of two other parties and that neither of the asserted relationships, a litigation relationship with a defendant in a pending lawsuit or a professional relationship with one's own attorneys in a pending lawsuit, satisfy that requirement. At a minimum, a cause of action for tortious interference requires that the facts alleged demonstrate "the existence of a contractual or beneficial relationship." See Rumbin v. Baez, 52 Conn.App. 487, 492, 727 A.2d 744 (1999). With respect to his claim of interference with a litigation relationship, Stancuna has presented no authority to the court that the adversarial relationship between two parties in a lawsuit is a "beneficial relationship," and such a conclusion would defy common sense. Moreover, unless Schaffer himself was a party to the family lawsuit and Stancuna was the prevailing party, the controlling law in Connecticut appears to preclude Stancuna from pursuing his alleged claim of interference with "a litigation relationship" as a matter of policy. See Blake v. Levy, 191 Conn. 257, 264-65, 464 A.2d 52 (1983) (Tortious interference action predicated upon previous litigation cannot be maintained unless the previous litigation has terminated in the plaintiff's favor).

On the other hand, Stancuna's professional relationship with his attorneys in the family lawsuit presumably was a contractual relationship that potentially could be subject to tortious interference. See 4 Restatement (Second), torts § 766A, comment c (1979). In that regard, however, the word "tortious" is operative. The second element of the tort requires "intentional interference without justification," Blake v. Levy, supra, 191 Conn. 261, and a plaintiff must "plead and prove at least some improper motive or improper means." American Diamond Exchange, Inc. v. Alpert, 101 Conn. 83, 90, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007). The second element requires factual allegations of wrongful conduct beyond the fact of the interference itself. Kakadelis v. DeFabritis, 191 Conn. 276, 280, 464 A.2d 57 (1983). In order to "raise an allegation of wilful conduct, the plaintiff must clearly plead that the [harm] was caused by the wilful and malicious conduct of the defendants . . . [The court] cannot look beyond the complaint for facts not alleged." (Internal quotation marks omitted; citations omitted.) Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 537, 546 A.2d 216 (1988).

Schaffer maintains that the complaint fails to allege any facts that directly or by inference amount to wrongful conduct on his part. Viewing the complaint in the light most favorable to sustaining its legal sufficiency, as required, the court agrees. All that the complaint alleges is that Schaffer spoke to Judge Frazzini about an unknown subject and that immediately thereafter Judge Frazzini recused himself from handling any further proceedings involving Stancuna. The court cannot infer from these facts that Schaffer acted maliciously or was "guilty of fraud, misrepresentation, intimidation or molestation," Blake v. Levy, supra, 191 Conn. 261, when he spoke to Judge Frazzini. In the absence of factual allegations that Schaffer's conversation was in any way motivated by bad faith, the first count must be stricken.

II.

In count two, Stancuna has claimed negligent infliction of emotional distress. Schaffer maintains the second count is insufficient in a number of respects. The essential elements of a cause of action for negligent infliction of emotional distress are: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).

With respect to the first element, the plaintiff's distress must be reasonable in light of the defendant's alleged conduct. "Conversely, if the [distress is] unreasonable . . . the [defendant] would not have recognized that [his] conduct could cause this distress and, therefore . . . would not be liable." Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995). Schaffer's alleged conduct is that he met alone with a single Superior Court judge and made certain statements to that judge which led the judge to recuse himself from presiding over any further matters in the family lawsuit. Without reaching the question of whether this conduct was negligent, any distress that may have resulted from Schaffer's conduct cannot be considered reasonable. Under the master assignment calendar system used in Connecticut, no litigant is guaranteed that a single judge will preside over that litigant's case from beginning to end. Any number of events, including a judge's illness, elevation, reassignment or an acquired conflict of interest, may result in a matter being transferred from one judge to another. While Stancuna alleges that he was obliged to relitigate certain issues before another judge as result of Judge Frazzini's decision to recuse himself, his right of access to the court remained intact and his opportunity to fully present his case remained unimpaired.

With respect to the second element, "the plaintiff must plead that the actor should have foreseen that [his] behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (Appeal withdrawn May 25, 2005). Participation in litigation by itself may result in the litigant experiencing some emotional distress; more is required to allege negligent infliction of emotional distress. See Wilson v. Jefferson, 98 Conn.App. 147, 163, 908 A.2d 13 (2006); Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 713-14, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000). Other than a conclusory allegation that he suffered "severe emotional distress," Stancuna has failed to allege any facts that describe the specific emotional distress he suffered as a result of Schaffer's alleged conversation with Judge Frazzini. The facts alleged in the second count are insufficient, either directly or by implication, to establish that Schaffer acted unreasonably in speaking to Judge Frazzini and thus created a foreseeable risk of causing Stancuna to suffer emotional distress which was likely to lead to illness or bodily harm. Accordingly, the second count must be stricken.

III.

In count three, Stancuna has claimed intentional infliction of emotional distress. There are four elements which a plaintiff must plead and prove to prevail on a claim of intentional infliction of emotional distress. "It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Citations omitted, internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Schaffer has moved to strike the third count on the grounds that Stancuna has failed to allege any facts to support the second and fourth elements.

Liability for intentional infliction of emotional distress requires allegations of "conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Emphasis in original; internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 254, n. 5, 510 A.2d 1337 (1986) quoting W. Prosser W. Keeton, Torts (5th ed. 1984) § 12, p. 60. "Whether the defendant's conduct and the plaintiff's resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance, for [the] court." (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., supra, 56 Conn.App. 712. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965)." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., supra, 262 Conn. 443.

The conduct alleged in this case must be measured against these standards. It is impossible to conclude that a lawyer's conversation with a Superior Court judge, even a conversation that resulted in the judge recusing himself from further involvement in an ongoing lawsuit, is either outrageous or transgresses the bounds of socially tolerable behavior. Indeed, the court is mindful that there may be occasions when a lawyer is ethically bound to have just such a conversation with a judge, see e.g., Rules of Professional Conduct 1.6(b), 1.6(c)(1), 3.3(b), 4.1(2), and any other conclusion could "have a chilling and inhibiting effect." See Heim v. California Federal Bank, 78 Conn.App. 351, 370, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 90 (2003).

With respect to the fourth element, emotional distress is severe only when it reaches a level "which no reasonable [person] could be expected to endure." 1 Restatement (Second), Torts § 46, comment (j) (1965). Other than a conclusory allegation that he suffered "severe emotional distress," Stancuna has failed to allege any facts that describe the specific characteristics of the emotional distress he actually suffered. The facts alleged in the third count are insufficient, directly or by implication, to establish that Schaffer's conduct was extreme and outrageous or that Stancuna suffered severe emotional distress. Accordingly, the third count must be stricken.

IV.

For all the reasons stated above, the defendant's motion to strike the third revised complaint in its entirety is granted.