Opinion
No. CV 07 5001139 S
August 30, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS (#102)
On February 26, 2007, the plaintiffs, Darlene A. Chapdelaine and C K Trucking, LLC, filed a complaint against the defendants, Joseph R. Vinagro, Snake Meadow Farm Inc., Patriot Hauling Company, Inc. and Patriot Disposal Company, Inc. alleging breach of contract, equitable estoppel, quasi-estoppel, quasi-contract, unjust enrichment, copyright infringement and violations of the Connecticut Unfair Trade Practices Act. This action arises out of the former relationship between the plaintiffs and two Rhode Island corporations, the Patriot Hauling Company, Inc. and the Patriot Disposal Company, Inc., of whom the defendant Vinagro is the president. Chapdelaine has filed a pro se appearance for the plaintiffs.
Chapdelaine has filed two other lawsuits against one or more of the defendants. In Chapdelaine v. Vinagro, Superior Court, judicial district of Windham, Docket No. CV 06 4004751, the plaintiff sued Vinagro, Vinagro's father (Joseph L. Vinagro), Patriot Hauling and Patriot Disposal for sexual harassment, a Family Medical Leave Act violation, breach of contract and unjust enrichment. In Chapdelaine v. Vinagro, Superior Court, judicial district of Windham, Docket No. CV 06 5000711, Chapdelaine is suing Joseph L. Vinagro for, inter alia, breach of contract, CUTPA violations, sexual harassment, a Whistleblower Protection Act violation, a Family Medical Leave Act violation, an Americans with Disabilities Act violation, promissory estoppel, fraud and unjust enrichment.
On April 18, 2007, the defendants flied a motion to dismiss for lack of subject matter jurisdiction on the grounds that: (1) Chapdelaine does not have standing to assert claims on behalf of C K Trucking, LLC; and (2) the plaintiffs' copyright infringement claim may be raised only in federal court pursuant to 28 U.S.C. § 1338(a). In response, the plaintiffs filed a memorandum in opposition on April 26, 2007, which argues that Chapdelaine, as the sole member of C K Trucking, LLC, has standing to assert claims on the company's behalf. The plaintiffs do not address the copyright infringement ground in their memorandum in opposition.
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Id., 544. "When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
Chapdelaine's Standing to Sue on Behalf of C K Trucking
The defendants assert that all claims made by Chapdelaine on behalf of C K Trucking, LLC should be dismissed because Connecticut law precludes an individual member of a limited liability company ("LLC") from suing on behalf of the company. The defendants base their argument primarily upon General Statutes § 34-134, which states: "A member or manager of [an LLC] is not a proper party to a proceeding by or against [an LLC] solely by reason of being a member or manager of the [LLC] except where the object of the proceeding is to enforce a member's or manager's right against or liability to the [LLC] or as otherwise provided in an operating agreement."
By its plain language, section 34-134 is inapplicable to the defendants' argument. Section 34-134 dictates the circumstances under which "[a] member or manager" can be "a proper party to a proceeding by or against [an LLC] . . ." (Emphasis added.) The defendants, though, have not moved to dismiss a member or manager as a party to this action. Rather, they have moved to dismiss an LLC as a party on the basis that a member cannot sue on the LLC's behalf.
The case under § 34-134 upon which the defendants rely, Zipp v. Florian, Superior Court, judicial district of New Britain, Docket No. CVN 03 101980 (November 13, 2006, Bentivegna, J.), is inapplicable for the same reason. In Zipp, the plaintiff, Thomas Zipp, filed an action to recover damages from a fire that occurred at his premises. Id. The defendants moved to dismiss on the ground that Thomas Zipp did not have standing because he had transferred ownership of the premises to "Zipp, LLC", prior to the fire. Id. Zipp, LLC, which had Thomas Zipp as its sole member, was not a party to the lawsuit. Id. The court held that Thomas Zipp "was not the proper party to bring suit because he had previously transferred his ownership interest to the [LLC]." Id. The court cited § 34-134 for the proposition that "[Thomas] Zipp is not the proper party to bring a lawsuit solely by reason of being a member/manager of the [LLC]." (Emphasis added.) Id. The Zipp court applied § 34-134 where a member's standing as a party was challenged, but that challenge is not before this court.
The defendants' argument is addressed by a different statute, General Statutes § 34-187, which does allow members of an LLC to sue on the company's behalf under the appropriate circumstances. Section 34-187(a)(1) states in relevant part: "Except as otherwise provided in an operating agreement, suit on behalf of the [LLC] may be brought in the name of the [LLC] by: (1) Any member or members of [an LLC] . . . who are authorized to sue by the vote of a majority in interest of the members . . ."
When only one member of an LLC is eligible to vote, courts have held that the member has standing to sue on behalf of the LLC. Block v. Block, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 0078857 (December 10, 2002, Moran, J.) (where the other members were excluded from voting, the sole eligible member had standing); JM Avalon Investments, LLC v. Nischan, Superior Court, judicial district of Fairfield, Docket No. CV 96 0330010 (February 27, 1997, Skolnick, J.) [19 Conn. L. Rptr. 280]. The parties do not dispute that Chapdelaine is the sole member of C K Trucking, LLC, a fact which is sufficiently alleged in the plaintiffs' complaint. As the sole member, Chapdelaine therefore has standing to assert claims on behalf of C K Trucking pursuant to § 34-187. The defendants' motion to dismiss on this ground is denied.
Though Chapdelaine has standing under § 34-187, the court makes no determination at this stage of the proceedings as to whether she can appear pro se on behalf of C K Trucking, LLC. The issue does not implicate this court's subject matter jurisdiction as was the case in Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn.App. 543, 551 n. 10, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). In Expressway Associates II, the court held that a nonlawyer general partner of a partnership could not represent the partnership pro se. Id., 551. The court dismissed the appeal for lack of subject matter jurisdiction because of the substantive requirement that "all interested parties of the general partnership be represented either in their own individual capacities, i.e., pro se or by counsel . . ." Id., 551 n. 10. In the present case, there is no dispute that Chapdelaine is the sole member of C K Trucking, LLC, and therefore this court does have all interested parties before it. When all interested parties are before the court, the issue of pro se representation does not implicate subject matter jurisdiction, but is at the most a curable defect. Lowe v. Shelton, 83 Conn.App. 750, 759-60, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004) (distinguishing Expressway Associates II).
Copyright Infringement
The defendants argue that "to the extent that Plaintiff is making a claim for copyright infringement," this court lacks subject matter jurisdiction because federal courts have exclusive jurisdiction for copyright infringement actions. (Def. Mem. at 6.) The plaintiffs do not explicitly allege in their complaint that they are claiming copyright infringement, but the defendants contend that the plaintiffs' allegations in paragraphs thirteen and sixteen should be construed in that manner. Paragraph thirteen states "[t]hat the Plaintiff has not been paid `Royalties' or Compensated for the Design of all Operating Plans for which the Defendant has been and is currently operating under." Paragraph sixteen states that the plaintiffs "ha[ve] not been afforded any income or profits from any of the operating facilities that the defendant is currently operating under the copyrighted design and implementation of the Plaintiff."
The introduction to the plaintiffs' complaint states that the causes of actions are: "Breach of Contract, Equitable Estoppel, Quasi Estoppel, Quasi Contract, Unjust Enrichment and Violation of the Unfair Trade Practice[s] Act."
When read in isolation, the above paragraphs could be construed as facts pleaded to support the plaintiffs' other claims, such as breach of contract and unjust enrichment, rather than stating a separate cause of action for copyright infringement. In other paragraphs, though, the plaintiffs plead similar facts without referring to royalties or copyrights. Paragraph seventeen, for example, states: "The Plaintiff designed and permitted jointly all facilities with the promise of a percentage of intake and out[put] for all facilities . . . No compensation for any of the facilities took place." Also, in paragraph twenty-one, the plaintiffs allege that "[t]he Defendant has been operating under all plans at all sites without compensation being given to the Plaintiff . . ." Given this context, the court agrees with the defendants that paragraphs thirteen and sixteen plead a separate cause of action for copyright infringement.
As this court held in Chapdelaine v. Vinagro, Superior Court, judicial district of Windham, Docket No. CV 06 5000711 (March 15, 2007, Martin, J.), federal courts have exclusive jurisdiction of copyright infringement claims. Accordingly, the defendants' motion to dismiss the plaintiffs' copyright infringement claims is granted for lack of subject matter jurisdiction.