Opinion
HHDCV186101599S
07-25-2019
CORE VENTURES, LLC v. IGNITE FITNESS, LLC et al.
UNPUBLISHED OPINION
OPINION
MATTHEW DALLAS GORDON, J.
The defendants, Ignite Fitness, LLC, Kimberly Zengerle, and Alex Boscarino have moved to strike the claims filed against them by the plaintiff, Core Ventures, LLC, for tortious interference with business expectancies and breach of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b(a) et seq. For the reasons explained in this decision, the defendants’ motion to strike is denied.
Facts and Procedural History
On October 10, 2018, CORE filed a complaint against the defendants alleging that it is a Connecticut limited liability company providing fitness and exercise services at a franchised location of a national chain of fitness studios known as Anytime Fitness. CORE provides its customers with fitness consultations, individual training sessions and group training sessions. CORE also offers its customers the use of a mobile device-based application to monitor their exercise and general health progress, and to access exercise plans.
Internally, CORE utilizes a computer system known as ClubReady to manage class schedules, customer payments, customer lists, mailing lists and confidential customer personal information. CORE uses its ClubReady customer list to engage with and market its services to existing customers, and to identify potential new members. CORE employees have access to ClubReady by entering an individualized username and password.
Zengerle began working at CORE as a fitness coach in 2010 and eventually became an Area Fitness Director. Boscarino began working at CORE as a fitness coach in 2013. As CORE employees, Zengerle and Boscarino had access to ClubReady and were entrusted with CORE’s confidential information, including customer lists and training manuals.
CORE alleges that Zengerle left CORE on or about August 1, 2018, and that within three weeks of her departure, filed articles of organization for Ignite Fitness with the Connecticut Secretary of State. CORE also alleges that Zengerle subsequently accessed ClubReady on eight separate occasions to obtain customer lists and information, and that she then used the information in connection with her operation of Ignite Fitness, including sending emails and text messages to CORE customers and soliciting them to join Ignite Fitness.
CORE makes many of these allegations based upon "information and belief."
Zengerle allegedly recruited Boscarino to work at Ignite Fitness while Boscarino was still employed by CORE, and despite knowing that Boscarino’s employment agreement with CORE contained a non-competition provision. Zengerle also allegedly hired Boscarino to recruit CORE customers to Ignite Fitness using CORE’s confidential information.
Counts one, two and three of CORE’s complaint allege tortious interference with business expectancies against Ignite Fitness, Zengerle, and Boscarino. These counts allege that the defendants tortiously interfered with CORE’s business expectations by intentionally, maliciously, and without justification acting to deprive CORE of its business relationships by misappropriating and misusing CORE’s confidential and proprietary information and trade secrets. These counts further allege that CORE has and will continue to be damaged as a result of the defendants’ actions.
The fourth count of the plaintiff’s complaint is directed against Ignite Fitness and alleges that the acts and practices committed by Zengerle and Boscarino violate the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq. More specifically, the complaint alleges that Ignite Fitness is engaged in trade or commerce within the meaning of CUTPA by virtue of its advertising and offering of fitness and exercise services and instruction; that Ignite Fitness, through Zengerle and Boscarino, obtained CORE’s confidential client lists and training manuals for the purpose of soliciting CORE’s customers; and that these actions were the proximate cause of CORE’s damages.
Applicable Legal Standard
Pursuant to Practice Book § 10-39(a), "A motion to strike shall be used whenever, any party wishes to contest: (1) "the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ..." In analyzing a motion to strike, 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 ... A motion to strike admits all facts well pleaded ... A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact ... If facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Strano v. Azzinaro, 188 Conn.App. 183, 187, 204 A.3d 705 (2019). "It is well settled, however, that [t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint ..." (Internal quotation marks omitted.) Restaurant Supply, LLC v. Giardi Ltd. Partnership, 330 Conn. 642, 648, 200 A.3d 182 (2019).
Discussion
I. Counts One, Two, and Three (Tortious Interference with Business Expectancies)
"It is well established that the elements of a claim for tortious interference with business expectancies 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 ... The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough ... A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously ... It is also true, however, that not every act that disturbs a contract or business expectancy is actionable ... A defendant is guilty of tortious interference if he has engaged in improper conduct ... [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means." (Citations omitted; internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 709-10, 138 A.3d 951 (2016).
Having carefully analyzed the plaintiff’s complaint, and taking the facts alleged in the complaint as true, and construing the complaint in the manner most favorable to sustaining its legal sufficiency, the court concludes that the plaintiff has sufficiently alleged a viable cause of action for tortious interference with a business relationship. Whether the plaintiff will ultimately prevail on this theory is an issue for another day. For now, the court simply concludes that the plaintiff’s complaint is legally sufficient and that the defendants’ motion to strike must therefore be denied. See Desrosier of Greenwich v. Shumway Capital Partners, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4004621-S (May 30, 2006, Lewis, J.T.R.) ("The allegation that the defendant encouraged [the plaintiff’s former employee] to breach his employment contract and subsequently hired him as a permanent employee sufficiently alleges intentional interference without justification"); Klewin v. Highland Hills Apartments, LLC, Superior Court, judicial district of New London, Docket No. CV-16-6026603-S (March 15, 2018, Calmar, J.) ("Soliciting a plaintiff’s employees to use confidential information in breach of an agreement and soliciting those employees to recruit other employees in breach of the agreement are also acts that constitute tortious interference").
II. Count Four (CUTPA)
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." "It is well settled that in 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 businesspersons] ... 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." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 227-28, 990 A.2d 326 (2010).
Construing the plaintiff’s complaint broadly and in the manlier most favorable to sustaining its legal sufficiency, the court concludes that the plaintiff has sufficiently alleged a viable cause of action under CUTPA. See Northeast Double Disc Grind, LLC v. Pietrowicz, Superior Court, judicial district of New Britain, Docket No. CV-12-6018053-S (May 7, 2014, Abrams, J.) "The same evidence that supports proof of tortious interference of the defendants with ... contractual and business relations can support proof of a violation of CUTPA. The tort of interference with business relations can overlap an unfair trade practice, since as to the former the plaintiff must prove a malicious or deliberate interference to a competitor’s business relations and under the latter it need only prove that the defendants engaged in unfair competition or in an unfair or deceptive act. The use of confidential contact information to poach customers during a period in which there was a contractual prohibition on doing so can fit either the tort or the statutory claim." Id., quoting Direct Mail Jobs, LLC v. Hughes, Superior Court, judicial district of New Britain, Docket No. CV-08-5009794 (July 29, 2011, Pittman, J.) "The complaint summarily claims that the facts alleged in the previous counts also amount to a CUTPA violation ... the alleged CUTPA violation would therefore be encouraging former employees of the plaintiff to break the Agreement and misappropriating confidential information. These actions are sufficient to be tortious interference, therefore they are sufficient to be a CUTPA violation as well." Double Disc Grind, LLC v. Pietrowicz, supra, Superior Court, Docket No. CV-12-6018053-S, quoting Precision Computer Services v. Zones, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-12-6031688-S (April 11, 2013, Sommer, J.).
Conclusion
Taking all of the facts alleged in the plaintiff’s complaint as true, and mindful that "[w]hat is necessarily implied [in an allegation] need not be expressly alleged." Strano v. Azzinaro, 188 Conn.App. 183, 187, 204 A.3d 705 (2019), the court concludes that the plaintiff has sufficiently alleged a viable cause of action against the defendants for tortious interference with business expectancies, and a viable cause of action against Ignite Fitness under CUTPA. The defendants’ motion to strike is therefore denied.