Stein v. Allen

Full title: Fannie STEIN v. Jennifer ALLEN

Court: Superior Court of Connecticut

Date published: Aug 2, 2018

FSTCV176033418S (Conn. Super. Ct. Aug. 2, 2018)

Opinion

FSTCV176033418S

08-02-2018

Fannie STEIN v. Jennifer ALLEN

POVODATOR, JTR.

UNPUBLISHED OPINION

OPINION

POVODATOR, JTR.

Currently before the court is the plaintiff’s motion to strike the counterclaims filed by the defendant, in a case that has unusual if not unique procedural aspects. The plaintiff commenced this proceeding against the defendant whom she characterized as her "teacher, caretaker, and Autism Behavior Interventionist." The relationship between the parties deteriorated substantially, and the lawsuit started by the plaintiff asserts various forms of harassment by the defendant, including efforts to have her arrested and efforts to seek a civil protection order. Her complaint against the defendant asserted an intentional infliction of emotional distress and abuse of process.

This appears to be the 6th legal proceeding between the parties, commenced within a one-year period- all have "CV17" docket numbers.¹ Four of the proceedings were efforts by the defendant to obtain a civil order of protection against the plaintiff, and one was an earlier effort by the plaintiff to pursue claims against the defendant, dismissed due to inadequate service of process. To adapt a trite phrase from sporting events commentators- these parties don’t like each other.

1 There appears to have been an earlier application, in 2016, with some computerized entry confusion as to whether the defendant’s last name (there, as applicant) was Crowhurst or Allen (FSTCV164030033S). In her objection, the defendant also refers to litigation between the parties that had been commenced in U.S. District Court in New York.

Within days of the defendant being served (and well before the return date), the defendant filed a counterclaim (September 29, 2017). After the plaintiff filed a request to revise directed to the counterclaims (objections sustained), the plaintiff filed a motion to strike which is the matter before the court at this time.

In her motion to strike, the plaintiff claims that there has been improper joinder of the defendant’s counterclaims with the plaintiff’s original claims under Practice Book § 10-10. In addition, the plaintiff contends that the claims asserted by the defendant in her second count, alleging intentional infliction of emotional distress, are legally insufficient.

What pushes this case further into the unusual if not unique category is that less than two weeks after the motion to strike was filed, the plaintiff withdrew her complaint. Therefore, the court is left with a claim of improper joinder, when the joinder relates to a withdrawn and therefore legally non-existent complaint.

In Bank of New York Mellon v. Mauro, 177 Conn.App. 295, 172 A.3d 303 (2017), the Appellate Court held that the proper remedy for improper joinder would not be a dismissal in the sense of a judgment on the merits, but rather would be more akin to a motion to strike (the procedural posture here).

This court finds certain language in New York Mellon to be particularly apt:

We further clarify that, where a court determines that the counterclaims at issue fail the transaction test of § 10-10, the appropriate remedy is not a final judgment on the merits of those counterclaims, but rather a judgment dismissing those counterclaims on the ground of improper joinder with the plaintiff’s primary action, without prejudice to the defendants’ right to replead that claim, unless it is otherwise barred, in a separate action. 117 Conn.App. 320.

The intent, then, is not to preclude any further pursuit of the claim by the defendant, but rather to give that party an opportunity to "replead." Here, however, the court believes that it would be form over substance to grant the relief sought (assuming it were appropriate in the first instance), with the understanding that the defendant could plead over, when the net result of any concept of pleading over would be to end up with a lawsuit essentially identical to the lawsuit currently before the court, i.e., a proceeding in which the defendant’s claims were the only claims being considered. In other words, to the extent that the joinder rule is intended to avoid confusion by having unrelated matters tried simultaneously, there is no other possibly "unrelated" matter to be tried with the counterclaims. The court sees no purpose in requiring commencement of a new proceeding, solely for the purpose of having the current defendant being denominated a plaintiff. Whether the motion is granted (with a new action to be started) or denied, the result will be the same- a single pending proceeding, in which Ms. Allen is asserting claims against Ms. Stein.

By analogy, the court notes that appellate authority indicates that the filing of an amended pleading operates as a withdrawal of the prior pleading, such that a motion attacking the earlier pleading must be refiled, to reflect the new reality- a motion attacking a withdrawn pleading cannot accomplish anything of substance. Wilson v. Hryniewicz, 38 Conn.App. 715; cert. denied, 235 Conn. 918, 665 A.2d 610 (1995); Hryniewicz v. Wilson, 51 Conn.App. 440 (1999); Connecticut Bank of Commerce v. Giordano, 67 Conn.App. 79, 81 (2001); cert. denied, 259 Conn. 929, 929, 793 A.2d 253 (2002) and most recently, Rockstone Capital, LLC v. Sanzo, 175 Conn.App. 770, 787-88 (2017). The existence of a superseded (withdrawn) pleading is of historical value, but not of operative consequence. Here, there is a withdrawn pleading without the benefit of a substituted pleading, and the court does not believe it to be appropriate to rely on a currently non-existent pleading as a basis for finding misjoinder (and striking the counterclaim due to misjoinder), given the absence of anything with which the counterclaim currently is joined.

Further, even if the proper benchmark-timeframe were to be deemed the time of filing of the counterclaim, the court would have to conclude that there is a sufficient nexus between the original complaint and the counterclaim, for purposes of Practice Book § 10-10. The complaint identified the extent to which the plaintiff claims to have been harassed- unjustifiably- by the defendant, including applications for civil orders of protection and complaints to the police. Necessarily, that would seem to implicate the relationship and historical interactions between the parties and the possible or likely reasons why the defendant might have sought a civil order of protection or assistance from the police. Claims such as are asserted in the counterclaim- a violent assault followed by additional threats- would seem to be germane to defense of the claims (originally) asserted by the plaintiff as well as the affirmative claims asserted by the defendant.

The plaintiff also contends that the defendant has not alleged a legally sufficient claim of intentional infliction of emotional distress. In this regard, the court must be careful to focus solely on the counterclaim itself, notwithstanding multiple sources of supplementary information including the original complaint filed by the plaintiff as well as information disclosed during argument on various motions. Indeed, the objection filed by the defendant, with respect to this motion to strike, seemingly goes beyond the scope of the counterclaim in identification of facts, including a reference to the caretaker-type relationship that previously had existed between the parties, but is not affirmatively alleged in the counterclaim itself.²

2 Query whether a claim of improper joinder of claims might often require reference to factual matters not of record, since the evaluation of whether claims are sufficiently related may be difficult to discern from the pleadings, depending on the level of detail of allegations of conduct of the parties.

The plaintiff contends that the defendant’s claim of intentional infliction of emotional distress is legally insufficient because it does not allege sufficiently outrageous conduct. The burden on a plaintiff to allege (and eventually prove) intentional infliction of emotional distress is onerous- there is a "high threshold" for such a claim, Gillians v. Vivanco-Small, 128 Conn.App. 207, 211 (2011). See, also, Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 86-89 (2013).

Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ... 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! ... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. (Internal quotation marks and citations, omitted.) Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 527, 43 A.3d 69, 101 (2012).

Here, the plaintiff is alleged to have assaulted the defendant in what is described as a vicious manner- including stabbing her- and then following up with a series of threats to do further harm. The court is required to accept the facts as asserted by the defendant to be true, and to give the defendant the benefit of all (reasonable) favorable inferences. Thus, while a violent physical assault may be presumed to be intended (primarily) to inflict physical injury rather than emotional distress, in this context, a factfinder could find that it was a component of an intent to inflict emotional distress, given the subsequent (alleged) course of conduct.

The issue before the court is not whether the defendant will be able to prove her contentions, but rather whether her allegations meet the threshold for pleading a claim of intentional infliction of emotional distress. Assessing the impact of threats made after an alleged assault must take into account that history of an assault as indicative of a willingness to act on threats, thereby reinforcing the severity of the emotional impact. The court cannot conclude, on this record, that the defendant has not alleged sufficient outrageousness in the conduct of the plaintiff.

Conclusion

Given the withdrawal of the plaintiff’s complaint, there is no existing misjoinder of claims. The court will not apply technical rules to a situation in which the end result would be the same. Further, the relationship between the parties, and especially the verbal and physical interactions would be implicated by the now-withdrawn complaint as well as the counterclaim, thereby ensuring the requisite nexus for proper joinder under Practice Book § 10-10.

Given the gatekeeper function of the court with respect to allegations of intentional infliction of emotional distress, giving the non-moving party the benefit of favorable (reasonable) inferences, the court is compelled to conclude that the complaint alleges sufficiently egregious conduct to preclude striking that claim.

For all of these reasons, the motion to strike is denied.