Opinion
CV116018359S.
11-02-2012
June DUNN v. The UNIVERSITY OF NEW HAVEN, INC.
UNPUBLISHED OPINION
LINDA K. LAGER, Judge.
This action was originally brought by way of a complaint dated February 11, 2011 with a return date of March 15, 2011. The complaint alleged discrimination in hiring based on sexual orientation in violation of General Statutes § 46a-81c (count one) and retaliatory discharge in violation of the same statute and General § 46a-60(a)(4) (count two). On June 22, 2012 the plaintiff June Dunn (Dunn) filed a request for leave to file an amended complaint (# 112) and an amended complaint in five counts was filed on June 28, 2012 (# 113). On July 9, 2012, the defendant The University of New Haven, Inc. (UNH) filed an objection to Dunn's request for leave to amend (# 114). The objection appeared on the October 15, 2012 short calendar. The court will decide the objection based on the arguments set forth in it and the arguments advanced in Dunn's memorandum in support of the request for leave to amend (# 118) which was filed on October 12, 2012.
UNH objects to the addition of count four, alleging defamation, and count five, alleging invasion of privacy; it does not object to the addition of count three alleging breach of contract. UNH sets forth three grounds in support of its objection: (1) the court may deny a request to amend a complaint " to include claims that would be futile, " (Objection, p. 3); (2) the defamation claim is time-barred (Id., at pp. 3-5); (3) the allegations of the invasion of privacy claim are legally insufficient (Id., at pp. 5-7).
Although UNH's objection can be read as also claiming that the invasion of privacy count is time barred, Objection p. 4, the proposed amended complaint was filed within the applicable three-year statute of limitations for that tort. General Statutes § 52-577; Daoust v. McWilliams, 49 Conn.App. 715, 720, 716 A.2d 922 (1998).
The first and third grounds do not provide support for UNH's objection. Connecticut has a liberal policy permitting amendment unless there is a valid ground to deny the request. Contrary to UNH's representation in its memorandum, there is no controlling Connecticut authority that permits a court to deny a request for leave to amend a complaint on the ground that the amendment would be futile. As to the third ground, it is well established that the " proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike, rather than an objection to a motion to amend." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256, 905 A.2d 1165 (2006); Beckenstein v. Reid & Riege, P.C., 113 Conn.App. 428, 438, n. 7, 967 A.2d 513 (2009) (" requests to amend ought not be denied because of the claimed insufficiency of the proposed amended complaint").
The one case UNH has cited for that proposition, Costa v. State, Superior Court, Judicial District of Fairfield, Docket No. 02-395567 (Levin, J. Dec. 9, 2002), is completely inapplicable. In Costa, the plaintiff sought a bill of discovery to permit testing of the office air quality of her workplace which was leased by the state. The state sought to dismiss the bill on the ground of sovereign immunity. In order to avoid the claim of immunity, the plaintiff had withdrawn any claim for monetary relief against the state. In that context, the trial court referred, in a footnote, to its understanding that certain federal courts allow a plaintiff to amend a complaint to avoid dismissal on the ground of sovereign immunity " unless the amendment would be futile." Id., at n. 1. The court went on to conclude that sovereign immunity did not bar the plaintiff's bill of discovery. ---------
Generally, a trial court has wide discretion to permit an amendment to a complaint, see Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008), particularly when, as here, no trial date has even been set. However, amendment is not allowed if the allegations state an entirely new cause of action that does not relate back to the original complaint and would be barred by the applicable statute of limitations if filed independently. Miller v. Fishman, 102 Conn. .App. 286, 298, 925 A.2d 441 (2007) cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). In the original complaint, Dunn claimed that UNH discriminated against her in hiring based on her sexual orientation and retaliated against for complaining about discrimination in hiring. The tort of defamation states a new theory of liability against UNH. UNH claims that the allegations supporting the defamation count do not relate back to the original complaint. Dunn claims that the original factual allegations support the proposed defamation count and that it simply amplifies the claims she has already pleaded. Unless the allegations relate back to the original complaint, the applicable two-year statute of limitations would bar the defamation count because the last publication date alleged in the amended complaint is May 7, 2010. General Statutes § 52-597. See Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 224, 837 A.2d 759 (2004) (" The statute of limitations for a defamation claim begins on the date of publication ... and ... a new cause of action arises with each publication ...").
" A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated." Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001). " If the alternate theory of liability may be supported by the original factual allegations, then the mere fact that the amendment adds a new theory of liability is not a bar to the application of the relation back doctrine ... If, however, the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back." (Citations omitted.) Sherman v. Ronco, 294 Conn. 548, 563, 985 A.2d 1042 (2010).
The operative facts of the original complaint are as follows: In December 2009, Dunn began working as a lecturer in UNH's English Department under a one-year non-tenure track contract (¶ 4). At about the same time, Dunn applied for a full-time tenure track position in English Literature for which she was the top-ranked candidate (¶ ¶ 7-10). On February 22, 2010, Dunn was invited to interview for that tenure track position (¶ 11). Dunn interviewed for the position on March 10, 2010 (¶ ¶ 12-14) but it was offered to another candidate who possessed a doctorate degree in a field other than literature (¶ ¶ 15-16). Shortly thereafter, Dunn spoke to the chair of the English Department, the president of the faculty senate and the chair of grievance committee about her concerns regarding the integrity of the search process and her belief that she was denied the position based on her sexual orientation (¶ ¶ 20-23). On March 29, 2010, Dunn met with the vice-president of human resources who informed Dunn that a contract had not been offered for the literature tenure track position (¶ ¶ 24-25). The vice-president conducted an investigation into the search process and advised Dunn on April 23, 2010 that she had concluded the search was fair and that there had been no discrimination (¶ ¶ 24-30). On April 30, 2010, the chair of the English Department announced the selection for the English Literature position (¶ 31). On the same date, Dunn was notified that her non-tenure track position was not going to be renewed for the 2010-11 academic year (¶ 34). Dunn continued to pursue her concerns about the tenure track appointment with a member of the interview committee, sending some information to her on May 4, 2010 (¶ ¶ 32, 33). On May 5, 2010, the vice-president of human resources informed Dunn " that she was being placed on suspension with pay pending an investigation by University Campus Police of complaints made by two unspecified individuals regarding ‘ threats' that [Dunn] had allegedly made" but Dunn was not told either the identity of the accusers or the nature of their allegations (¶ 36, 37). Dunn " has not ever made threats, direct or otherwise, to anyone at the University." (¶ 38.)
Dunn maintains that the allegations of the amended complaint amplify the facts surrounding the university's process for filling the English Literature tenure track position, the decision to suspend her following accusations that she made unspecified threats to others and the decision not to reappoint her to the non-tenure track position she held. She points to additional facts that are now part of the case regarding the tenure track search and interview process, which were obtained as a result of post-suit discovery in the form of e-mails and the deposition of the chair of the English Department, including specific statements made to the chair of the English Department about Dunn's behavior and communicated by him to others. See amended complaint, third count, ¶ ¶ paragraphs 52, 56, 63, 65, 67 and 69. Similar allegations are made in paragraphs 57, 61, 62, 66, 70 of the third count. She represents that she obtained " statements and a police report in discovery that revealed the nature of the threats that were alleged in paragraph 36 of the original complaint ... as well as the identity of the person(s) making the claims of threats ..." (Memorandum of Law in Support of Request for Leave to Amend, p. 5) and that these specific allegations are now recited in paragraphs 78-82 of the proposed defamation count which also incorporates the referenced allegations of the third count as well as all the allegations of the original complaint.
Liberally construed, the alleged acts and conduct which form the basis of the defamation count are not separate and distinct from alleged acts and conduct which form the basis of the discrimination and retaliation counts of the original complaint. They amplify, albeit in great detail, the impermissible factors including derogatory statements about Dunn's behavior which are alleged to have influenced UNH in its decision making process with respect to Dunn's employment. UNH will not have " to gather different facts, evidence and witnesses to defend the amended complaint." Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991). The " relation. back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims ..." (Internal quotation marks omitted.) Alswanger v. Smego, supra, 257 Conn. at 65. The original complaint gave UNH adequate notice that Dunn was asserting a claim against it arising out of the events which began with the search and interview process for the tenure track position and culminated in her suspension and the non-renewal of her non-tenure track position, including statements made about Dunn's behavior including threats she had made to others. The defamation count arises from that same single group of facts.
When, as here, the proposed amended complaint relates back, " the court should permit the requested supplementation if it will promote the economic and speedy disposition of the controversy between the parties, will not cause undue delay or trial convenience, and will not prejudice the rights of any other party." New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 484, 970 A.2d 592 (2009). These criteria are met in this case.
Accordingly, for the reasons stated above, the objection to the motion for leave to amend the complaint is overruled.