Opinion
No. CV 06 5000711
March 15, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#101)
On September 25, 2006, the plaintiff, Darlene A. Chapdelaine, proceeding pro se, filed a complaint against the defendant, Joseph L. Vinagro, alleging unjust enrichment, breach of contract, sexual harassment, copyright infringement and violations of the Connecticut Unfair Trade Practices Act (CUTPA). This action arises out of the former relationship between the plaintiff and two Rhode Island corporations, the Patriot Hauling Company, Inc. and the Patriot Disposal Company, Inc., of whom the defendant's son, Joseph R. Vinagro, is the president.
In a companion case, Chapdelaine v. Vinagro, Superior Court, judicial district of Windham, Docket No. CV 06 4004751, the plaintiff filed suit against the defendant, Joseph R. Vinagro, the Patriot Disposal Company, Inc. and the Patriot Hauling Company, Inc.
On November 1, 2006, the defendant filed a motion to dismiss the complaint on the grounds that: (1) the court lacks personal jurisdiction over the defendant because the plaintiff failed to have the writ of summons signed by the clerk, a judge or a commissioner of the court; (2) the court lacks subject matter jurisdiction over the plaintiff's claim for sexual harassment as the plaintiff has failed to exhaust her administrative remedies; (3) the court lacks subject matter jurisdiction to hear the plaintiff's copyright infringement claim, which falls within the exclusive jurisdiction of the federal district courts pursuant to 28 U.S.C. § 1338(a); and (4) the court lacks subject matter jurisdiction over the plaintiff's CUTPA claim as the plaintiff lacks standing to pursue the claims of third parties. The defendant has submitted a memorandum of law in support of his motion. On November 14, 2006, the plaintiff filed a memorandum in opposition.
Personal Jurisdiction
In support of his motion to dismiss the plaintiff's complaint for lack of personal jurisdiction, the defendant argues that the plaintiff's failure to have the summons signed by a commissioner of the Superior Court, a judge or a clerk of the court in accordance with General Statutes § 52-45a and Practice Book § 8-1 deprives this court of personal jurisdiction over the defendant. In response, the plaintiff argues that her failure to attain the required signature on the summons amounts to a "circumstantial defect" under General Statutes § 52-123 that as evidenced by the appearance of counsel for the defendant in the present action, did not prejudice the defendant.
"A defendant may contest the personal jurisdiction of the court even after having entered a general appearance . . . but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778, 900 A.2d 1 (2006). "The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 . . . Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d. 797 (1999). In the present case, the defendant filed his appearance on September 29, 2006, and filed his motion to dismiss on November 1, 2006. Therefore, the defendant has failed to file his motion to dismiss contesting personal jurisdiction within thirty days after having entered his appearance. Accordingly, the defendant has waived any claim challenging personal jurisdiction.
Practice Book § 10-30 states in relevant part: "Any defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Although the defendant's motion was untimely, the other grounds for dismissal challenge the court's subject matter jurisdiction over this case, which may not be waived. See Practice Book § 10-33. Therefore, the court will consider the remaining grounds set forth in the defendant's motion to dismiss.
Failure to Exhaust Administrative Remedies
The defendant moves to dismiss the plaintiff's claim of sexual harassment on the ground that the plaintiff failed to exhaust her administrative remedies in accordance with Title VII of the United States Code and the Rhode Island Fair Employment Practices Act. In response, the plaintiff notes that "the complaint has been amended with particular causes being removed with respect to the causes that have not exhausted all `Administrative Remedies' therefore the matter is `Moot.'" Although a review of the file in the present case reveals that no amended complaint has been filed, the court will construe the plaintiff's representations as an independent and voluntary withdrawal of her claim of sexual harassment against the defendant. Accordingly, the court need not consider whether the plaintiff has failed to exhaust her administrative remedies.
The court notes that the plaintiff did, however, on October 5, 2005, file a motion for leave to file a second amended complaint in the companion case, Chapdelaine v. Vinagro, supra, Superior Court, Docket No. CV 06 4004751.
Even if the plaintiff had not withdrawn her claim of sexual harassment, the complaint contains no allegations that any administrative remedies were obtained from the federal Equal Employment Opportunity Commission, the Connecticut Commission On Human Rights and Opportunities or the Rhode Island commission for human rights, or, alternatively, that the plaintiff secured a right to sue letter from the any of these administrative bodies. To the contrary, the plaintiff concedes in her memorandum that she has only recently filed complaints "in proper jurisdictions with respect to the administrative bodies of government." Moreover, the complaint fails to allege facts that would implicate any of the recognized exceptions to the exhaustion doctrine. Accordingly, as these statutes all require a plaintiff to exhaust her administrative remedies prior to commencing a civil action, the court would lack subject matter jurisdiction over the plaintiff's claim of sexual harassment. See Hayes v. Yale-New Haven Hospital, 82 Conn.App. 58, 59 n. 2, 842 A.2d 616 (2004); Williams v. New York Housing Authority, 458 F.3d 67, 71 (2d Cir. 2006); Ward v. City of Pawtucket Police Department, 639 A.2d 1379, 1382 (R.I. 1994).
Copyright Infringement
The defendant further moves to dismiss the plaintiff's copyright infringement claim on the ground that the court does not have subject matter jurisdiction over the matter. Specifically, the defendant maintains that the matter is within the exclusive jurisdiction of the federal district court pursuant to 28 U.S.C. § 1338(a).
In relevant part, § 1338 provides: "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases." In her complaint, the plaintiff alleges that the defendant "has actual and potential economic value due to the compilation of design for current and future use of the solid waste facility" and "that the plaintiff . . . designed and copyrighted [this plan] with the United States copyright office." "There is no question that under 17 U.S.C. § 102(a)(8) architectural plans fall within the ambit of the Copyright Act." R.D. Wolf, Inc. v. Brancard, Superior Court, judicial district of New Britain, Docket No. CV 01 0507650 (March 8, 2004, Cohn, J.) [36 Conn. L. Rptr. 791]; see also Sturdza v. United Arab Emirates, 281 F.3d 1287, 1304 (D.C. Cir. 2002). Accordingly, the court lacks subject matter jurisdiction over the plaintiff's copyright claim.
Standing
In support of his motion, the defendant next argues that the plaintiff does not have standing to assert a claim for a CUTPA violation. The defendant contends that the plaintiff has failed to allege "that she was a victim of the alleged unfair trade practices or that she was damaged by Mr. Vinagro's alleged conduct."
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003). "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 11, 901 A.2d 649 (2006). "[T]he plaintiff ultimately bears the burden of establishing standing." Seymour v. Region One Board of Education, 274 Conn. 92, 104, CT Page 9810 874 A.2d 742, cert. denied 126 S.Ct. 659, 163 L.Ed.2d 526 (2005). "Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).
"A CUTPA claim may be brought in the Superior Court by [a]ny person who suffers any 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." (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005). "CUTPA claims, like other statutory and common-law claims, [are] subject to the remoteness doctrine as a limitation on standing." (Internal quotation marks omitted.) Connecticut State Medical Society v. Oxford Health Plans (CT,), Inc., 272 Conn. 469, 475, 863 A.2d 645 (2005). Where "the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them." Ganim v. Smith Wesson Corp., 258 Conn. 313, 347-48, 780 A.2d 98 (2001); see also Vacco v. Microsoft Corp., 260 Conn. 59, 90-91, 793 A.2d 1048 (2002) (standing denied under CUTPA to consumer who sued computer manufacturer because manufacturer allegedly overcharged retailer, who then allegedly "passed on either the whole overcharge or a part thereof to the plaintiff and other consumers"); Median v. Antonio, Superior Court, judicial district of New London, Docket No. CV 01 0560156 (June 12, 2003, Hurley, J.T.R.) (holding that a plaintiff may not assert a CUTPA claim based upon unfair or deceptive business practices "perpetrated by his [or her] employer upon a third party with whom the employer was engaged in trade or commerce").
General Statutes § 42-110g(a) provides in part that "[a]ny person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages."
In the present case, in support of her CUTPA claim, the plaintiff alleges that the defendant "made it a habit to break deals, promises, and commitments with respect to his business dealings . . ." Specifically, the plaintiff alleges that the defendant breached agreements with four companies, ATR Trucking Company, Inc., Tri-State Trucking Company, Inc., "Pawtucket Transfer Operations" and "REMCO." The plaintiff has not alleged an ownership interest in any of these companies. Instead, the plaintiff alleges that the defendant "relied upon the expertise of the plaintiff . . . to perform such tasks for him" and "benefitted from each and every breach of the agreements as a direct result of the plaintiff's skills and services provided." These allegations, construed in a manner most favorable to the plaintiff, merely establish that, with the plaintiff's assistance, the defendant allegedly breached agreements with third parties with whom the defendant had a business relationship. The plaintiff has not alleged that she maintained an independent business relationship with any of these companies that was adversely affected by the defendant's conduct. Thus, any harm caused by the defendant's alleged unfair or deceptive trade practices was necessarily sustained by third parties not involved in the present action. Therefore, because the plaintiff has not alleged that she has "suffer[ed] [an] ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b," the court lacks subject matter jurisdiction over the plaintiff's CUTPA claim.
Moreover, although the plaintiff's precise relationship with the defendant is unclear, the court notes that "the actual employment relationship is not itself trade or commerce for the purpose of CUTPA." (Internal quotation marks omitted.) Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 670, 613 A.2d 838 (1992), overruled in part on other grounds, Hart v. Carruthers, 77 Conn.App. 610, 618-19, 823 A.2d 1284 (2003); see also Reynolds, Pearson Co., LLC v. Miglietta, Superior Court, judicial district of Hartford, Docket No. CV 00 0801247 (March 27, 2001, Berger, J.) [29 Conn. L. Rptr. 481] (enumerating Superior Court cases where courts "ha[d] stricken CUTPA claims [where] the allegations [arose] out of or [were] closely related to an employer-employee relationship").
Accordingly, the defendant's motion to dismiss the plaintiff's claims seeking relief for copyright infringement and CUTPA violations is granted.