Opinion
LLICV146010928S
11-13-2015
Cadco, Ltd. v. Doctor's Associates, Inc
UNPUBLISHED OPINION
RULING RE THE DEFENDANT'S MOTION TO STRIKE (#106)
Honorable John D. Moore, J.
The plaintiff, Cadco, Ltd., has brought a five-count complaint against the defendant Doctor's Associates, Inc., alleging in counts one through four violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and unjust enrichment in count five. The defendant has moved to strike (#106) each of the five counts of the plaintiff's revised complaint for the following reasons:
(1) Counts one through four, based on a claim that CUTPA only applies to the defendant's primary business, and the allegations of the revised complaint posit claims pertaining to an enterprise incidental to the defendant's primary business, which is selling Subway franchises;
(2) Counts one through two, because the plaintiff has not alleged facts that constitute a violation of the cigarette rule, the test for unfair acts or practices under CUTPA;
(3) Counts three through four, because the plaintiff has not alleged sufficient facts to prove deceptive acts or practices under CUTPA;
(4) The punitive damage claims set forth in the second and fourth counts, because the plaintiff has not sufficiently alleged facts to support a claim for punitive damages; and
(5) The fifth count, because the revised complaint does not allege facts sufficient to show that the defendant was unjustly enriched.
For the reasons set forth below, the court disagrees and denies the defendant's motion to strike.
LEGAL STANDARD FOR MOTION TO STRIKE
The motion to strike is used " 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). In determining whether or not a pleading's allegations are sufficient, all well-pleaded facts and those facts necessarily implied from the allegations " are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). Stated a different way, the court should view the facts " in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them." (Internal quotation marks omitted.) Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). However, a " motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). As a result, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotations marks omitted). Fort Trumbull Conservancy, LLC v. Alves, supra, 498. However, the court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [and] [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). In other words, the court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Citations omitted; internal quotation marks omitted.) Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).
THE PLAINTIFF HAS ALLEGED THAT THE DEFENDANT WAS ENGAGING IN A PRIMARY BUSINESS ACTIVITY
As a threshold matter, the defendant argues that CUTPA applies only to a party's primary business activity and not to activities incidental thereto. While this statement is true as a general proposition, McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, 890 A.2d 140 (" [A] CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce"), cert. denied, 277 Conn. 928, 895 A.2d 798 (2006), the court finds that the plaintiff's allegations reflect a primary business activity.
The defendant argues that its only primary business activity was the sale and distribution of Subway franchises. For purposes of considering a motion to strike, however, the court must review, as discussed supra, all well-pleaded facts and those facts necessarily implied from the allegations of the pleading attacked. Gazo v. Stamford, supra, 255 Conn. at 260, as opposed to the movant's characterization of the allegations. In other words, the court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, supra, 12 Conn.App. at 577.
In the present case, the plaintiff's allegations include not only that the defendant advertised for sale, offered for sale, and sold and distributed Subway restaurant franchises, revised complaint December 18, 2014, para. 4. (1), but also that the defendant engaged in the trade or commerce of providing services associated with such restaurant franchises, id., and offered to purchase; purchased; offered for sale, rent, or lease; and sold, rented, or leased equipment used in Subway restaurants by its franchisees. Id., para. 4. (2). Moreover, as further detailed in the allegations, the defendant: (1) considered adding a new flatbread product, called the " Flatizza, " to the line of products sold in its franchisees' restaurants, id. , para. 6; (2) decided to proceed with a national rollout of the Flatizza through its franchisees' restaurants, id., para. 33; (3) had numerous discussions with the plaintiff pertaining to technical and other requirements of a heat plate needed to cook the Flatizza, id., para.7, 17 and 19; (4) conducted tests of the plaintiff's product in the defendant's own test kitchen, in local Connecticut Subway restaurants and in other test markets, id., para. 12; (5) worked cooperatively with the plaintiff to refine and improve the plaintiff's product for use by all three models of ovens used in Subway restaurants, id., para. 16(2), 18, 19, 20, 21, 22, and 24; and (6) inquired about whether the plaintiff's heat plate comported with international safety standards, what materials were included in the base material of the product and what the plaintiff's production capabilities for this product were, id., para. 30. Necessary implications that flow from these factual allegations include that the defendant: (1) makes decisions on a national level about the introduction of new products at its franchisees' facilities; (2) becomes intimately involved in the design, production, operation, and cleaning of food preparation devices that will cook these new products; (3) attempts to insure that the new food products sold at Subways comply with applicable standards; (4) attempts to insure, even to the extent of maintaining its own test kitchen, and being willing to test new products at its franchisees' restaurants, that its food will cook properly and will be palatable to consumers; and (5) limits the kinds of ovens used by its franchisees to three.
From all of the facts alleged by the plaintiff, as well as facts necessarily implied and fairly provable under them, the court concludes that the defendant's primary business was not limited to handing out franchises, but included, as well, hands-on, detailed involvement with all aspects of the preparation of safe, palatable, and profitable food products, including devices used in the production thereof. In short, the defendant does not simply pass out franchises and then abandon the franchisees to their own devices; rather, the defendant stays actively involved, in the ways alleged and set forth above, in the food business.
While a determination of whether a defendant has violated CUTPA is a matter of fact, " [w]hether the defendant is subject to CUTPA is a question of law, not fact." (Emphasis omitted; internal quotation marks omitted.) McCann Real Estate Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn.App. at 521.
These allegations sharply distinguish this case from the line of cases cited in the defendant's brief concerning primary business. In Dinardo Seaside Tower, Ltd. v. Sikorsky Aircraft Corp., 153 Conn.App. 10, 26-27, 100 A.3d 413, cert. denied, 314 Conn. 947, 103 A.3d 976 (2014), for example, the defendant Sikorsky Aircraft Corporation was being sued for alleged malfeasance as a tenant, such as destroying pipes, dismantling security systems, and vandalizing the leased premises. Under those circumstances, which arose in the context of a directed verdict ruling after trial, it was obvious that the defendant's primary business was manufacturing helicopters, and that renting space large enough in which to do so was only incidental to that primary business. Similarly, in Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1252-53 (D.Conn. 1992), the court held that the act of leasing property from the plaintiff was incidental to the defendant's true business, namely the repair and servicing of aircraft engines and parts. See also McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn.App. 523 (sale of real property incidental to primary business of selling and servicing automobiles), Longo v. Longo, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6003946-S (May 15, 2012, Genuario, J.) (granting of personal loan not the primary trade of commerce of defendant company engaged in the excavation, paving, and landscaping business).
Unlike all of these cases, in the present case, as alleged by the plaintiff, the defendant's primary business involves staying involved in the food production business after the initial sale of franchises. As a matter of law, therefore, the court finds that the allegations of counts one through four of the complaint encompass a primary business of the defendant for purposes of CUTPA.
THE PLAINTIFF HAS ALLEGED UNFAIR ACTS OR PRACTICES IN COUNTS ONE AND TWO UNDER CUTPA
ADDITIONALLY, THE PLAINTIFF HAS ALLEGED DECEPTIVE ACTS UNDER CUTPA IN COUNTS THREE AND FOUR
In the second section of the defendant's motion to strike, it argues that the plaintiff has not sufficiently alleged, in the first and second counts, unfair acts or practices under CUTPA. In the third section of the defendant's motion to strike, it argues that the plaintiff has not sufficiently pleaded deceptive acts under CUTPA in the third and fourth count. To analyze the defendant's claims in these sections, the court must review CUTPA and the case law construing it carefully.
CUTPA
CUTPA claims arise under § 42-110g of the Connecticut General Statutes. General Statutes § 42-110b(a) provides: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
" 'CUTPA is, on its face, a remedial statute that broadly prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . To give effect to its provisions, [General Statutes] § 42-110g(a) of [CUTPA] establishes a private cause of action, available to [a]ny person who suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act, or practice prohibited by [General Statutes § ]42-110b . . .' . . . Marinos v. Poirot, 308 Conn. 706, 712-13, 66 A.3d 860 (2013)." Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 623, 119 A.3d 1139 (2015). " CUTPA imposes no requirement of a consumer relationship. In McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 473 A.2d 1185 (1984), [our Supreme Court] concluded that 'CUTPA is not limited to conduct involving consumer injury' and that 'a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury.' Id., 566; see Della Construction, Inc. v. Lane Construction, Inc., 42 Conn.Supp. 202, 612 A.2d 147 (1991)." Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 496, 656 A.2d 1009 (1995). " Because CUTPA is a self-avowed 'remedial' measure, General Statutes § 42-110b(d), it is construed liberally in an effort to effectuate public policy goals. See Hinchliffe v. American Motors Corp., [184 Conn. 607, 617, 440 A.2d 810 (1981)], see also Kintner, A Primer on the Law of Deceptive Practices, pp. 30-31 (1971); Ormstedt & Langer, 'The Connecticut Unfair Trade Practices Act, ' 52 Conn. B.J. 116 (1978)." Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 756, 474 A.2d 780 (1984), superseded in part by statute as stated in Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988).
" A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 569 n.7, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
UNFAIR ACTS OR PRACTICES UNDER CUTPA
To determine if commercial acts or practices sufficiently allege unfair acts or practices under CUTPA, our courts have turned to the Federal Trade Commission. " '[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.' . . . Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350-51, 994 A.2d 153 (2010)." Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 317 Conn. 609 n.9.
Although the continued applicability of the cigarette rule has been questioned in light of the fact that the Federal Trade Commission no longer uses this test, our Supreme Court has declined to abandon the cigarette rule in favor of the Federal Trade Commission's substantial unjustified injury test. Artie's Auto Body, Inc. v. Hartford Fire Ins Co., supra, 317 Conn. 622 n.13; see also Glazer v. Dress Barn, Inc., 274 Conn. 33, 82 n.34, 873 A.2d 929 (2005).
Other Supreme Court and Appellate Court cases have put a finer point on the requirement of proving unfair acts or practices in the conduct of trade or commerce.
In Ulbrich v. Groth, 310 Conn. 375, 78 A.3d 76 (2013), our Supreme Court gave a gloss on the first prong of the cigarette rule, a violation offending public policy. Ulbrich held that the jury could have reasonably found that the mortgagee's failure to ensure that a buyer at a foreclosure sale was warned that certain personal property was leased, and therefore would not be conveyed as part of the sale, " was not merely negligent or incompetent, but involved a conscious departure from known, standard business norms and was therefore unscrupulous, within at least the penumbra of some . . . statutory, or other established concept of fairness . . . and resulted in an ascertainable loss to the plaintiffs." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 436-47.
Our caselaw has also commented on the second tine of the cigarette rule, proof of immoral, unethical, oppressive, or unscrupulous behavior. " A trade practice that is undertaken to maximize the defendant's profit at the expense of the plaintiff's rights comes under the second prong of the cigarette rule. See Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 357, 805 A.2d 735 (defendant general contractor held liable for CUTPA violation under second prong of cigarette rule after listing plaintiff subcontractor as successful bidder but failing to honor contract), cert. denied, 262 Conn. 922, 812 A.2d 864 (2002)." Votto v. American Car Rental, Inc., 273 Conn. 478, 485, 871 A.2d 981 (2005) (unfair trade practice for rental car company to charge customer's credit card for damages to rental vehicle when customer did not authorize company to charge his credit card for damages and the amount charged exceeded the estimated cost to repair damages prepared by company).
A plaintiff must also plead and prove that it sustained a substantial injury. To satisfy this prong, a plaintiff must show not only that the injury was substantial, but also that it was not outweighed by countervailing benefits to consumers or competition and that the plaintiff could not have reasonably avoided the injury. Hartford Elec. Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 368, 736 A.2d 824 (1999); see also Calandro v. Allstate Ins. Co., 63 Conn.App. 602, 608, 778 A.2d 212 (2001).
In sum, to sufficiently plead an unfair act or practice under CUTPA, a CUTPA complaint brought by a consumer or a person who is not a competitor of the defendant must plead (1) an unfair act or practice in the conduct of trade or commerce, an element that may be satisfied by alleging (a) a violation of public policy as established under statutes, common law, or otherwise, within, at least, some penumbra of unfairness as set forth in a statute, under common law, or otherwise; (b) an immoral, unethical, oppressive, or unscrupulous act or practice; or (c) an act or practice that causes substantial injury to consumers, and (2) that the plaintiff sustained a " substantial injury, " as defined in the preceding paragraph.
DECEPTIVE ACTS UNDER CUTPA
Our courts have also provided guidance as to when a commercial act or practice is deceptive under CUTPA. " [A] party need not prove an intent to deceive to prevail under CUTPA.' . . . Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 522-23, 646 A.2d 1289 (1994)." Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43, 717 A.2d 77 (1998). Although " [a] violation of CUTPA may be shown by proof of deceptive conduct . . . [i]t is not necessary to prove that the defendant intended to deceive. Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 363, 525 A.2d 57 (1987). An act or practice is deceptive if three requirements are met. 'First, there must be a representation, omission, or other practice likely to mislead consumers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material--that is, likely to affect consumer decisions or conduct.' . . . Caldor, Inc. v. Heslin, 215 Conn. 590, 597, 577 A.2d 1009 (1990), cert. denied, 498 U.S. 1088, 111 S.Ct. 966, 112 L.Ed.2d 1053 (1991), citing Figgie International, Inc., 107 F.T.C. 313, 374 (1986)." Freeman v. A Better Way Wholesale Autos, Inc., Superior Court, judicial district of Hartford, Docket No. CV-13-6045900-S (April 1, 2015, Huddleston, J.) (failure of auto dealer to disclose financing terms before requiring a nonrefundable deposit was deceptive act that additionally violated all three prongs of cigarette rule).
Under the cases cited above, " a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., supra, 274 Conn. 82-83.
In sum, to sufficiently plead a deceptive act under CUTPA, a complaint must allege a deceptive act or practice, meaning a material representation, omission, or other practice likely to mislead consumers, which such communication a consumer must have interpreted reasonably under the circumstances. CUTPA also applies to claims between two businesses. Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 497.
In the present case, the plaintiff has made the following allegations that are relevant both to claims that the defendant committed unfair acts or practices in its trade or business and that it committed deceptive acts in the context of its trade or business.
In early 2012, the defendant was considering adding a flatbread pizza product, called the " Flatizza, " to the line of products sold in Subway restaurants. Revised Complaint, Para. 6 (all references are to both the first and second counts). The defendant approached the plaintiff to discuss having the plaintiff supply heat plates used to prepare the Flatizza. Id., para. 9. The defendant led the plaintiff to believe that if Subway rolled out the Flatizza nationally, the defendant would buy more than 20, 000 heat plates from the plaintiff, and several thousand more if the product were sold in Canada. Id., Para. 10. In reliance on this, the plaintiff agreed to supply samples of its heat plates to Subway for testing and test marketing of the Flatizza. Id., Para. 11. The defendant tested the plaintiff's product in its test kitchen, and in restaurants, both locally and in other states. Id., Para. 12. In June 2012, the defendant told the plaintiff that it was anticipating distributing heat plates to its stores nationally in March 2013 and that if it did so, the plaintiff would begin full production of the heat plates in October 2012. Id., Para. 13. This discussion was confirmed by the plaintiff by email; the email solicited a response if anything had been left out or incorrectly stated; no response was received from the defendant. Id., Para. 14. In reliance on the defendant, the plaintiff developed a reasonable expectation that if Subway launched the Flatizza, the plaintiff would be the supplier of heat plates used in the vast majority of Subway's kitchens in the United States, and the plaintiff continued to work with the defendant on the testing, evaluation, and development of the heat plate product for this use. Id., Para. 16. The defendant made the plaintiff aware of issues that arose in the testing and the plaintiff made modifications to its product as a result. Id., Para. 17, 18. The specific changes made related to size, bending, discoloration, and a raised design. Id., Para. 19. As a result of these changes, the plates became custom designed for the defendant's stated use. Id., Para. 20. The defendant ultimately approved the custom design of the heat plates. Id., Para. 21. Testing and modification of the product took place over a year and a half. Id., Para. 22. Throughout this process, the defendant continued to act as though the plaintiff would be the supplier of these products if the defendant launched Flatizzas nationally. Id., Para. 23. The plaintiff provided to the defendant all of the technical information needed to manufacture these heat plates. Id., Para. 24. The defendant solicited from the plaintiff, and the plaintiff provided to the defendant, the number of plates that could be made per week and month, a detailed production schedule, and shipping costs. Id., Para. 25. In July 2013, the plaintiff told the defendant it was ready to make these heat plates and the defendant acknowledged that the plaintiff was ready to go and was simply waiting for the " go ahead" from the defendant, indicating, by necessary implication, the national rollout of the Flatizza. Id., Para. 27. In August of 2013, the plaintiff provided a cost per unit to the defendant. Id., Para. 28. In September 2013, the defendant continued to ask about the plaintiff's product, including whether it had approval from an international approving agency for health and safety, a copy of the data sheet, food safe approval data, and the plaintiff's production capabilities. Id., Para. 29. The plaintiff had already arranged for procurement of materials to build the heat plates for the defendant. Id., Para. 32. On or about October 10, 2013, the defendant told the plaintiff that it had decided to go with another supplier. Id., Para. 31. The defendant rolled out the Flatizza nationally in early 2014. Id., Para. 33. The defendant is presently using a heat plate " substantially identical" to that of the plaintiff. Id., Para. 34. The defendant provided the plaintiff's design and technical information to another supplier and the other supplier made the plates using the plaintiff's design and technical information. Id., Para. 35.
In sum, the plaintiff makes the following allegations. The defendant, over many months, engaged the plaintiff in lengthy discussions concerning the heat plate product, which caused the plaintiff to manufacture and in conjunction with the defendant, test and modify the heat plate until the defendant was satisfied with it. Until one month before the defendant told the plaintiff that it intended to have the heat plates made by another company, the defendant was making detailed inquiry about the plaintiff's product. The defendant handed over the plaintiff's design and specifications to another manufacturer and that manufacturer is now making a product " substantially identical" to that of the plaintiffs for the defendant.
The court finds that these allegations constitute, at the least, unscrupulous behavior in a trade or business so as to satisfy the second prong of the cigarette rule. The court also finds that these allegations constitute a deceptive act or practice designed to mislead the plaintiff and that the plaintiff, in the context of all of these allegations, interpreted the defendant's communications reasonably.
Further, the plaintiff has alleged substantial injury. At the very least, the plaintiff alleged significant injury by its claims of investing substantial research, testing, and development time, energy, and resources while working with the defendant over more than one year on the heat plate. Further, until the very moment on or about October 10, 2013, when the defendant told the plaintiff it intended to have the product made elsewhere, while, in the vernacular, the defendant was leading the plaintiff down the " primrose path, " the plaintiff could not have reasonably avoided the injury. The court also finds that the use of the plaintiff's custom design by another supplier could not have been reasonably anticipated, and therefore reasonably avoided, because the defendant, according to the allegations, gave the plaintiff every indication that it would use the plaintiff's product and then handed over this design to another manufacturer.
Therefore, the court denies the second and third sections of the defendant's motion to strike.
THE PLAINTIFF HAS SUFFICIENTLY ALLEGED CLAIMS THAT MAY GIVE RISE TO PUNITIVE DAMAGES UNDER CUTPA
In the fourth section of its motion to strike, the defendant argues that the plaintiff has not sufficiently alleged facts in the second and fourth counts of the revised complaint that could give rise to the plaintiff's claim for punitive damages under CUTPA. " 'Awarding punitive damages and attorneys fees under CUTPA is discretionary; General Statutes § 42-110g(a) and (d) . . . In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.' . . . Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987)." (Footnote omitted.) Ulbrich v. Groth, supra, 310 Conn. 446. The court finds that the allegations set forth in the previous section of this memorandum constitute a reckless indifference to the rights of others. Specifically, the plaintiff alleges that the defendant led the plaintiff to believe that it would purchase heat plates from the plaintiff, causing the plaintiff to expend time and money to customize the heat plate for the defendant's requirements and prepare for production, while the plaintiff was simultaneously, unbeknownst to the plaintiff, providing the heat plate specifications developed by the plaintiff to another supplier to produce the heat plate for the defendant. Therefore the court denies the defendant's motion to strike the plaintiff's claim for punitive damages.
THE PLAINTIFF HAS ALLEGED SUFFICIENTLY A CLAIM FOR UNJUST ENRICHMENT IN THE FIFTH COUNT
The defendant argues in the last section of its motion to strike that the plaintiff has not sufficiently alleged a claim for unjust enrichment.
As our Supreme Court has pointed out, " [c]ourts and commentators have used disparate nomenclature to describe the restitutionary claim that is [unjust enrichment]." Meaney v. Connecticut Hospital Ass'n, Inc., 250 Conn. 500, 510-11, 735 A.2d 813 (1999). Sometimes denominated as an " implied in law [contractual] claim or [a] quasi-contract claim, " Vertex, Inc. v. Waterbury, supra, 278 Conn. at 574, " it is more descriptive to call it what it is, a claim in restitution whose basis is the alleged unjust enrichment of one person at the expense of another. . . . However denominated, a claim for unjust enrichment has broad dimensions." (Citation omitted; footnote omitted.) Meaney v. Connecticut Hospital Ass'n, Inc., supra, 511.
Unjust enrichment is a common-law principle of restitution; it is a noncontractual means of recovery without a valid contract, Sidney v. DeVries, 215 Conn. 350, 351-52, n.1, 575 A.2d 228 (1990), one that has been applied in circumstances where no contract exists. Meaney v. Connecticut Hospital Ass'n, Inc., supra, 250 Conn. 508-12. Meaney applied the doctrine of unjust enrichment to a case where the plaintiff sought incentive compensation where there was no express contractual provision, no implied in fact contractual provision, and, in fact, no promissory obligation at all governing incentive pay. Id., 510-12. " Unjust enrichment applies whenever 'justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . .' 12 S. Williston, Contracts (3d.Ed. 1970) § 1479, p. 272 . . . [Unjust enrichment] is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff. See National CSS, Inc. v Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985)." Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001), on appeal after remand, 80 Conn.App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004).
" [E]quitable remedies, " such as unjust enrichment, " are not bound by formula but are molded to the needs of justice . . . Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine . . . [E]quitable determinations . . . depend on the balancing of many factors . . ." (Citations omitted; internal quotation marks omitted.) Jay v. A& A Ventures, LLC, 118 Conn.App. 506, 516-17, 984 A.2d 784 (2009). In fact, " [i]n an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done . . ." (Internal quotation marks omitted.) Webster Bank v. Zak, 71 Conn.App. 550, 556, 802 A.2d 916, cert. denied, 261 Conn. 938, 808 A.2d 1135 (2002).
" With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).
Taking the well-pleaded facts as true, as the court must for purposes of a motion to strike, the plaintiff has certainly pleaded a claim for unjust enrichment.
For the reasons stated above, the court denies the defendant's motion to strike.
So ordered.