Opinion
No. CV06 500378S
June 30, 2008
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (#125)
On January 4, 2006, the plaintiff, Michele Crosby, filed a seventeen-count complaint against the defendants, HSBC North America Holdings, Inc. (HSBC North America), HSBC Finance Corporation (HSBC Finance), Household International, Inc. (Household), and Robert Kuhn, an employee of Household and its successive corporation HSBC Finance. On February 21, 2006, the defendants filed a partial motion to strike count two, negligent misrepresentation of policies and procedures; count three, intentional infliction of emotional distress; count four, negligent investigation; count five, negligent infliction of emotional distress; count eight, negligent misrepresentation regarding entitlement to bonus; count nine, intentional misrepresentation as to entitlement of bonus; count ten, theft by conversion; count eleven, a promissory estoppel; count twelve, breach of the implied covenant of good faith and fair dealing; count thirteen, tortious interference with contract; counts fourteen, fifteen and sixteen, defamation; and count seventeen, wrongful dissemination of personnel file. On May 16, 2007, the court (Robinson, J.) entered an order striking counts two, four, eight, ten, eleven, twelve, fourteen, fifteen, sixteen, and seventeen. On July 13, 2007, the plaintiff attempted to remedy the deficiencies in its original complaint by filing a twenty-two count substitute complaint.
HSBC North America, HSBC Finance and Household are collectively known as "the corporate defendants."
The defendants amended the motion to strike on August 18, 2006, but did not change the counts it was moving to strike.
The numbered counts remained the same except for the defamation claims. The plaintiff decided to reserve her right to appeal the court's decisions regarding counts fourteen, fifteen and sixteen, and attempted to revise her defamation claims under counts twenty, twenty-one and twenty-two.
On August 14, 2007, the defendants filed a motion to strike [with a memorandum in support] counts four, eight, ten, eleven, twenty, twenty-one and twenty-two of the plaintiff's substitute complaint on the grounds that these counts essentially re-plead the same allegations as the original complaint and are therefore legally insufficient. The defendants also requested attorneys fees for being required to file this motion to strike. The plaintiff filed a memorandum n opposition on January 3, 2008 and the matter was assigned as an arguable matter on the May 5, 2008 short calendar.
DISCUSSION CT Page 11107
"The purpose of a motion to strike is 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). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "[W]e construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).I. Count IV — Negligent Investigation
The defendant argues that count four, negligent investigation, should be struck because an employer does not have a duty to undertake an investigation prior to terminating an at-will employee. The plaintiff argues that she has alleged that she is not an at-will employee and therefore the corporate defendants have a duty to investigate.
The defendants are correct that an employer has no duty to investigate with care prior to terminating an at-will employee. See Guarco v. Hartford Gynecological Center, Superior Court, judicial district of Tolland, Docket No. CV 98 68084 (October 10, 2000, Sferrazza, J.) (28 Conn. L. Rptr. 352); see also Daley v. Aetna Life Casualty Ins. Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0533693 (August 3, 1994, Sheldon, J.), aff'd, 249 Conn. 766, 734 A.2d 112 (1999) (holding that "prior to discharging an employee-at-will, an employer does not owe the employee a duty to investigate"). On the other hand, courts have contemplated the possibility of an employment relationship other then an at-will relationship, and have found that such a relationship could create a duty to investigate with care. See Rood v. Canteen Corp., Superior Court, judicial district of Tolland, Docket No. CV 95 0058263 (September 19, 1996, Potter, J.) (17 Conn. L. Rptr. 609, 612) (denying motion to strike because plaintiff's allegations regarding the policies of the employee handbook suggest that the employment relationship was something other then at-will); Menard v. People's Bank, Superior Court, judicial district of New London, Docket No. CV 97 0544627 (April 6, 1998, Kolestsky, J.) (21 Conn. L. Rptr. 597, 599) (holding "absent an allegation of facts that indicate an employment relationship other than an at-will employment relationship, an employer does not have an obligation to investigate alleged misconduct); Daley v. Aetna Life Casualty Ins. Co., supra, Superior Court, Docket No. CV 94 0533693 (holding "[s]ince the facts alleged do not indicate an employment relationship that would take [plaintiff] out of the at-will category, [defendant] did not owe [plaintiff] a duty to investigate prior to discharging her"). If a plaintiff has alleged something other then an at-will relationship with their employer, a claim of negligent investigation is proper.
The plaintiff alleges that "[t]he Corporate Defendants herein employed [the plaintiff] in accordance with a written contract, executed by [the plaintiff] and the Corporate Defendants' predecessor in interest, that provided that she could be terminated only for cause unless she was terminated in writing and she received five days written notice from the Corporate Defendants." (First Substitute Complaint, pg. 11.) Construing the allegation in way most favorable to sustaining its legal sufficiency, Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 294, this allegation suggests that the plaintiff was in some other form of employment relationship with the corporate defendants then an at-will relationship. Consequently, the plaintiff's allegation of negligent investigation is legally sound.
The defendant's motion to strike count four is denied.
II. Count Eight — Negligent Misrepresentation by the Corporate Defendants
The defendant argues that count eight, negligent misrepresentation, should be struck because the plaintiff has failed to plead the necessary allegations of false representation and justifiable reliance. The plaintiff argues that she has alleged false representations and justifiable reliance.
In its ruling regarding the defendants' first motion to strike, the court held that "the plaintiff has alleged that the performance bonus policy at issue was false, but she does not state what representations were made to her by the corporate defendants." Crosby v. HSBC North American Holdings, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5000378 (May 15, 2007, Robinson, J.). The plaintiff rectified this problem by alleging in her substitute complaint that "[the corporate defendants] repeatedly informed and emphasized to her that she would be entitled to her performance bonus based upon her loan closing performance as long as she was employed by the end of the month recision period, which was three business days before the end of the calendar month." (First Substitute Complaint, pg. 18). This allegation specifically states what the false representation was and alleviates the court's concerns on this ssue.
In its decision, however, the issue of whether the plaintiff sufficiently pled justifiable reliance was not addressed. In order to successfully bring a claim of negligent misrepresentation, "the plaintiff must allege and prove that the reliance on the misstatement was justified or reasonable. We have consistently held that reasonableness is a question of fact for he trier to determine based on all of the circumstances." (Emphasis added.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 579-80, 657 A.2d 212 (1995). "[T]he case law in numerous jurisdictions suggest that courts liberally construe pleadings in a way so as to sustain [a claim of negligent misrepresentation], particularly where the allegations in a complaint indicate, on their face, that an employer failed to exercise reasonable care in making representations to an employee on which the employee relied to his detriment." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 219-20, 520 A.2d 217 (1987). Courts have generally held that any allegations of reliance by a party is sufficient to sustain a claim of negligent misrepresentation. See DiMartino v. Ernst Young, Superior Court, judicial district of New Britain, Docket No. CV 970481835 (March 20, 2003, Aurigemma, J.) (denying motion to strike because allegations that plaintiffs relied on defendant's misrepresentations, without specifically naming the nature of the reliance for each plaintiff, was nevertheless sufficient to bring a claim of negligent misrepresentation); Protasewich v. Combustion Engineering, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0552146 (March 3, 1997, Lavine, J.) (denying motion to strike because allegations of reliance on defendant's misrepresentations were sufficient to support a cause of action of negligent misrepresentation). Such claims are only struck when they lack allegations of reliance. See Castellano v. United States Surgical Corp., Superior Court, judicial district of Fairfield, Docket No. CV 05 4008844 (February 27, 2006, Rodriguez, J.) (granting motion to strike because "plaintiff's count does not indicate on its face that the plaintiff relied on the defendant's alleged misrepresentation to his detriment"); Bank of New York v. American Mortgage Services, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0075051 (November 4, 2002, Lager, J.) (granting motion to strike because "[t]here are no allegation[s] in the first, econd or third counts that [plaintiff] relied on [defendant's] disclosure or lack of disclosure and that its reliance was reasonable or justified").
The case of Sanderson v. Isopur Fluid Technologies, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 127378 (April 30, 2004, Harley, J.T.R.) grants the motion to strike because "the defendant, while alleging reliance, fails to allege that this reliance was reasonable or justified." In that case, however, the court specifically distinguished the Protasewich case because it involved an employment relationship that the courts have generally construed more liberally. Id. It is unclear whether the reasoning of this case is too narrow in light of the other cases cited, but even if it were correct, it still supports the proposition that representations and actions that have allegedly occurred in the course of an employment relationship are construed more liberally by the court. Id. It is reasonable in this case to construe the alleged reliance of the plaintiff/employee as reasonable and justified.
This reasoning is in line with the court's general policy of construing the allegations in a way most favorable to sustaining legal sufficiency. Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 294. If a plaintiff were to allege reliance of some sort, it is reasonable to infer that the plaintiff meant justified reliance, especially in light of the fact that the reasonableness of the reliance is a question for the jury. Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 580.
The plaintiff in this case alleges that "[b]ut for the Corporate Defendants' negligent misrepresentations, [the plaintiff] would not have worked for the Corporate Defendants in an extraordinary manner in order to meet the criteria for receipt of the bonus and/or to maximize its amount by ensuring the maximum amount of loans closed before the recision period for every month, including her last month of employment with the Corporate Defendants" and such action "continues to cause her economic and non-economic damages, including emotional distress." (First Substitute Complaint, pgs. 18-19.) Although the plaintiff does not directly say it, the plaintiff has alleged reliance on the corporate defendants' misrepresentations. Having pled reliance, the plaintiff has alleged sufficient facts to bring a claim of negligent misrepresentation.
The defendants' motion to strike count eight is denied.
III. Count Ten — Theft by Conversion
The defendants argue that count ten, theft by conversion, should be struck because the plaintiff failed to solve the deficiency cited by the original decision by adding the word "intentionally" and have failed to allege that the bonus money was owned by the plaintiff The plaintiff argues that she has solved the deficiency cited by the court and has alleged that rights to the bonus money have vested in the plaintiff
In its decision on the first motion to strike, the court was concerned that the plaintiff had not alleged intentional action on the part of the plaintiff; "[i]n the present case, the plaintiff has not alleged facts sufficient to support a claim for statutory theft under [General Statutes] § 52-564 . . . Specifically, she has not alleged that the corporate defendants intentionally deprived her of her property." Crosby v. HSBC North American Holdings, Inc., supra, Superior Court, Docket No. CV 06 5000378. The court cited to the Deming case holding that "statutory theft requires an intent to deprive another of his property; . . . conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). Although adding the word "intentionally" may seem like an over simplified change to the plaintiff's allegations, it does solve the problems of the original complaint. The plaintiff has alleged an intentional withholding by the corporate defendants.
The court's original decision, however, did not address the issue of whether the withheld money was the property of the plaintiff. "[A][n action for conversion of funds may not be maintained to satisfy a mere obligation to pay money . . . It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use . . . Thus, [t]he requirement that the money be identified as a specific chattel does not permit as a subject of conversion an indebtedness which may be discharged by the payment of money generally . . . A mere obligation to pay money may not be enforced by a conversion action . . . and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied . . . Consistent with this rule, in our case law sustaining a cause of action wherein money was the subject of the conversion or theft, the plaintiffs in those cases at one time had possession of, or legal title to, the money." (Citations omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 772. Consistent with this finding, courts have generally held that bonuses are contractual obligations that plaintiffs do not have possession of. See Fiume v. The Wiremold, Co., Superior Court, judicial district of Hartford, Docket No. CV 05 4014882 (September 29, 2006, Tanzer, J.) (42 Conn. L. Rptr. 94) (granting the motion to strike because "plaintiff has failed to allege anymore than that the defendant has not paid him monies that he was expecting under a bonus plan"); Miller v. Wiremold Co., Superior Court, judicial district of Hartford, Docket No. CV 04 4001913 (March 10, 2006, Keller, J.) (granting motion for summary judgment because the plaintiff could not claim legal ownership of deferred bonus money withheld by his employer).
In this case, the plaintiff alleges that "[t]he Corporate Defendants wrongfully and intentionally withheld and deprived [the plaintiff] of property, in the form of bonuses due to [the plaintiff], and thereby harmed [the plaintiff] by converting this property to their own benefit . . ." (Emphasis added.) (First Substitute Complaint, pg. 20.) The only money that the plaintiff claims was converted was the bonus money that the corporate defendants were obligated to pay. The plaintiff has not alleged that she had legal ownership or possession of the money. Therefore, the plaintiff has not alleged sufficient facts to bring an action of conversion and statutory theft under § 52-564.
The defendants' motion to strike count ten is granted.
IV Count Eleven — Promissory Estoppel
The defendants argue that count eleven alleging promissory estoppel, should be struck because the plaintiff has alleged a contract breach that covers the same subject matter and has failed to allege a clear and definite promise. The plaintiff argues that the decision regarding the original motion to strike allowed her to plead alternate claims, and that the new allegations in the substitute complaint sufficiently clarify the promises made by the corporate defendants.
In the earlier decision in this matter, the court held that "in the absence of a finding that there is a valid contract governing the same subject matter, it is proper to consider the substance of the promissory estoppel claim." Crosby v. HSBC North American Holdings, Inc., supra, Superior Court, Docket No. CV 06 5000378. As there has been no further finding regarding the status of the contractual claim in this case, the court can still consider the promissory estoppel claim. The only question, then, is whether the plaintiff has sufficiently clarified the alleged promises made by the corporate defendants.
"A fundamental element of promissory estoppel . . . is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003). "Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future . . . [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance . . . and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion." (Citations omitted; internal quotation marks omitted.) Id., 105-06.
In its substitute complaint, the plaintiff alleges that "[t]he Corporate Defendants made promissory representations to [the plaintiff] that if she worked through the recision period for the month, which was a date three working days before the last calendar day of the month, that she would receive a performance bonus based, in part, upon the value of loans that closed before the recision period of the month," and that "[t]hese representations included repeated representations of the importance of maximizing loan value closings before the end of recision period and giving [the plaintiff] on multiple occasions calendars with the recision date listed on them." (First Substitute Complaint, pg. 21.) This is much more specific then the plaintiff's original claim that the corporate defendants "made promissory representations to [her] that if she met certain performance criteria that she would receive a performance bonus." (Original Complaint, pg. 21). The allegations that the corporate defendants emphasized the importance of maximizing the value of loan closings before the recisions period, emphasized the recision period with calendars and ultimately promised bonuses based on the value of loan closings at the recision period all express a commitment on the part of the corporate defendants to pay the bonus if the work was done. It was reasonable for the plaintiff to rely on such statements when she decided to work hard to achieve the bonus, as she so alleges. As such, the allegations are sufficiently clear and definite to bring a claim of promissory estoppel.
The defendant's motion to strike count eleven is denied.
V. Counts Twenty, Twenty-one and Twenty-Two — Defamation
The defendants argue that counts twenty, twenty-one and twenty-two, alleging defamation, should be struck because they are essentially identical to the deficient counts struck in the court's prior ruling. The plaintiff argues that she has pled defamation claims with sufficient specificity according to the standard outlined by the court in its previous decision.
That decision outlined the relevant case law and standard of review. "`To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement.' (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2005)." Crosby v. HSBC North American Holdings, Inc., supra, Superior Court, Docket No. CV 06 5000378. "When claiming defamation, `[c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made.' Forgione v. Belle, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001099 (June 2, 2005, Gallagher, J.). `A complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom.' Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003). See also 2500 SS Limited Partnership v. White, Superior Court, judicial district of Fairfield, Docket No. CV 95 0328934 (August 19, 1996, Levin, J.) (17 Conn. L. Rptr. 449) (granting a motion for nonsuit, stating that `[a]lthough the complaint alleges the substance of the allegedly defamatory remarks . . . the complaint fails to specifically allege when, where and to whom each remark was allegedly made')." Id.
The plaintiff's allegations in the first substitute complaint have the same failings as the allegations in her original complaint. Count twenty of the plaintiff's substitute complaint alleges that "Khun told Will Mello that Crosby had unclipped her bra and exposed her chest to the entire bar at Tuxedo's while being on a stage at the bar" (First Substitute Complaint, pg. 30). This allegation fails to specifically allege when and where the statement was made. Count twenty-one of the plaintiff's substitute complaint alleges that "Khun orally told the Corporate Defendants by informing one or more employees of the Corporate Defendants that [the plaintiff], while customers were present in a branch office, changed her clothing in the branch office of Household into `fish-net stockings' and an extremely revealing top, and then proceeded to lean over the manager's desk such that everyone in the branch `could see everything.'" (First Substitute Complaint pgs 31-32.). These allegations fail to specifically allege where, when, and to whom the statements were made. Count twenty-two of the plaintiff's substitute complaint alleges that "Khun told the Corporate Defendants herein by informing one or more employees of the Corporate Defendants that [the plaintiff] followed him to a pool hall, where he was playing in a league, and proceeded to talk about the `hot body she used to have,' despite him trying to stop." (First Substitute Complaint, pg. 33.) This allegation fails to specifically allege where, when and to whom the statements were made.
The defendant's motion to strike counts twenty, twenty-one and twenty-two is granted.
CT Page 11115
VI. Request for Attorneys Fees
In their motion to strike, the defendants also argue that it should be entitled to attorneys fees and costs for having to move to strike the plaintiff's first substitute complaint because the plaintiff failed to make appropriate substantive changes from its original complaint. The fact is the plaintiff did so. Additionally, the defendant has failed to cite any authority holding a party liable for attorneys fees and costs in proceedings such as this.The defendant's request for attorneys fees is denied.
For the foregoing reasons, the motion to strike is denied as to counts four, eight and eleven, and granted as to counts ten, twenty, twenty-one and twenty-two.