Opinion
No. CV04-4001099S
June 2, 2005
MEMORANDUM OF DECISION Re MOTION TO STRIKE
Before the court is the defendant's motion to strike the plaintiff's complaint on the grounds that the complaint fails to state a cognizable claim.
The plaintiff, Perry Forgione, an FBI special Agent, filed a six-count complaint dated August 11, 2004, alleging that the defendants, Robert Bette and Donald Nevins, made false, fraudulent, untruthful, malicious and defamatory statements concerning the plaintiff with the intent to impugn his reputation and ability to act as a special agent for the FBI. The plaintiff alleges that he was suspended from his employment as a result of these defamatory statements. The statements in issue were made during the course of a Federal Bureau of Investigation (FBI) investigation into whether Forgione had misused his position. Counts one and two are claims for defamation, counts three through six, incorporating by reference the facts alleged in counts one and two, allege intentional and negligent infliction of emotional distress.
The defendants move to strike the first and second counts on the grounds that they do not set forth the specific statements claimed to be defamatory. Additionally, they contend that any statements they made were absolutely privileged. The defendants move to strike the third through the sixth counts on the grounds that they are derivative and thus are legally insufficient. The defendants also claim that the fifth and sixth counts do not set forth the requisite elements of a cause of action for negligent infliction of emotional distress.
The following additional allegations in the complaint are relevant: The defendants are police officers for the town of Southbury. The plaintiff was notified by the FBI in January of 2002 that he was under investigation for alleged misuse of position in relation to a police investigation conducted by the defendants.
On August 12, 2002, Timothy Egan, an FBI investigator, went to the Southbury police department to conduct part of the FBI investigation into the plaintiff's conduct. On said date and continuing thereafter, Defendant Bette made falsehoods, some of which were defamatory on their face, regarding the plaintiff as set forth in Exhibit A attached to the complaint. On said date and continuing thereafter, Defendant Nevins made falsehoods, some of which were defamatory on their face, regarding the plaintiff as set forth in the attached Exhibit B.
The statements attached to the complaint as Exhibits A and B are detailed in the FBI investigation reports which describe a series of interactions between the defendants and the plaintiff. The reports are redacted in many places and it is not possible to discern with complete certainty who was involved in each incident, or what each person did and said. The defendants' names have been redacted from the bodies of the reports, however, the plaintiff asserts that these reports contain each officer's statements to the investigator. The names of the defendants, Bette and Nevins, appear at the bottom of reports Exhibits A and B respectively. While all of the pages of the reports are numbered, they are not sequentially numbered and therefore, their proper order is unclear.
Exhibit A describes a series of interactions between the parties involving complaints the plaintiff made to the Southbury police department about the treatment of a particular person, presumably the plaintiff's son, by the defendants. The reports indicate that in the course of these interactions the defendants became aware of the fact that the plaintiff was employed by the FBI.
Exhibit B describes interactions between Nevins and Forgione. In November of 2000, Nevins pulled the plaintiff over for speeding, gave him a warning and let him go. Following the stop, the plaintiff went to the Connecticut State Police Troop A to complain about the stop. Nevins later helped conduct an automobile accident investigation regarding the accident that took place in front of the plaintiff's house. Nevins describes the plaintiff's behavior as "condescending and uncooperative" when he went to the plaintiff's door to take statements following the accident. Nevins also states that the plaintiff gave certain details about how the accident occurred but "would not offer any personal information needed for the accident report."
The third attached report page, which does not identify either officer or who gave the statements contained therein, states that later in the course of the police investigation, while the plaintiff was also conducting his own independent investigation of the accident, he "became argumentative, claimed he had all he needed for his investigation, and refused to come to the police station." In that portion of the report one of the officers "stated that he believes SA [Special Agent] Forgione impeded their investigation since he did not come to the police station to assist . . . that he has never had any luck in dealing with SA Forgione . . . that he received a notice of `Intent to Sue' on behalf of SA Forgione . . . [and that he can not] figure out the basis of the suit."
The fourth attached report page, which also does not identify either officer or who gave the statements contained therein, states that when one of the officers told the plaintiff that the accident in front of his house was caused by his pulling over on the wrong side of the road, "Forgione attempted to change his story by claiming he was not the driver of his vehicle." The report goes on to add that, following this exchange, the plaintiff refused to come to the police station to provide a written statement. This report also states that the interviewee "has no opinion relative to SA Forgione's actions in conducting his own investigation" and that he "was not aware if SA Forgione had identified himself as FBI to anyone during the investigation."
Forgione was suspended from his employment on or about June 6, 2003. On October 14, 2003, he learned that his personnel file contained the false and defamatory statements made by Bette and Nevins. He requested a retraction of the defamatory statements pursuant to CGS Section 52-273 on or about May 2, 2004. The defendants refused the request.
DISCUSSION
"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). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003). "Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 258 Conn. 283, 293, 842 A.2d 1124 (2004).
I. COUNTS ONE TWO: DEFAMATION
"Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him . . . Slander is oral defamation . . . Libel . . . is written defamation." Lowe v. Shelton, 83 Conn.App. 750, 775, 851 A.2d 1183 (2004). "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . 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." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004)
"[A] claim of libel must be pled with specificity, as the precise meaning and choice of words employed is a crucial factor in any evaluation of falsity. The allegations should set forth facts stating a claim upon which relief can be granted, and should be sufficient to apprise the defendant of the claim made against him . . . Certainty 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." 50 Am.Jur § 434.
This precise issue has not been addressed by our appellate courts although Judge Berger's decision in Chertkova v. Connecticut General Life Ins. Co., was affirmed by the Appellate Court. In Chertkova, Judge Berger cited 50 Am.Jur § 434, Kloth v. Citibank (South Dakota), N.A., 33 F.Sup.2d 115 (D.Conn. 1998), and Croslan v. Housing Authority, 974 F.Sup. 161, 169-70 (D.Conn. 1997) for the proposition that "[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). In Pro Performance Corporate Services, Inc. v. Goldman, supra, Superior Court, [judicial district of Stamford-Norwalk at Stamford,] Docket No. CV 01 0186618 [(August 25, 2003, Lewis, J.T.R.)], the court, citing Chertkova, supra, found that "[i]n order to sufficiently state a claim for defamation, the specific statements, the exact words, must be alleged." (Italics added). In 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, 450-51), Judge Levin granted a motion for nonsuit finding that the revised complaint did not comply with the court's order to provide more particular statements regarding the claim for defamation: "The allegations in the third count lack the specificity ordered and needed to apprise the defendant of the claims against him and to permit the defendant to file a responsive pleading . . . Although 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. This information cannot be ascertained by the general allegations of the third count." Id.
The issue was discussed in Rice v. Meriden Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV 03 0479556 (March 31, 2004, Skolnick, J.), where the defendants argued in support of their motion to strike that a claim for defamation should fail because the plaintiff had failed to state in the complaint the specific statements and the "exact words" alleged to be defamatory. The statements in issue in Rice consisted of two reports made by Rice's former employer, the Meriden Housing Authority (MHA), documenting an alleged error in connection with Rice's job performance and, apparently, alleged reckless misconduct related to his arrest for driving under the influence. The complaint alleged that MHA had "issued a report on September 20, 2002, that contained numerous false and defamatory statements, and it falsely accused to the complainant of engaging in recklessness and misconduct."
Rice responded to MHA's lack of specificity argument asserting that "he was merely required to provide sufficient notice of the facts claimed and the issues to be tried and that he must not surprise or prejudice the opposing party . . . Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994)." (Internal quotation marks omitted.) Id. Rice argued that since MHA "will not be surprised or prejudiced by any supposed lack of specificity of the allegations in the complaint and that defendants will be able to inquire further regarding these allegations during discovery" MHA's motion to strike should be denied.
The court found that Rice had failed to adequately apprise the defendants of the material facts that the plaintiff intends to prove in his defamation count. "Although the plaintiff alleges when the defamatory statements were made, the plaintiff fails to specifically allege where and to whom each remark was made. Furthermore, the plaintiff has failed to identify the specific subject matter of the alleged defamatory statements" and that the critical information did not properly appear in the pleadings. Id. The court concluded that the defamation count was legally insufficient as pleaded and that the motion to strike should be granted.
In Mendez v. Vonroll Isola U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0462113 (April 8, 2004, Corradino, J.), the defendant argued that a claim for defamation failed because the exact words of the alleged defamation were not set forth in the complaint. The plaintiff in Mendez alleged that defamation took place because of the intentional or reckless reporting to the police "that the plaintiff had committed a larceny." The court disagreed with the defendant, concluding that "We do not have here vague references to `negative' or `false' statements; the complaint explicitly alleges in so many words that the defendant's agents falsely reported to the police that the plaintiff had committed a larceny . . . For motion to strike purposes that is exact enough to determine whether defamation has been sufficiently alleged." Id.
With the exception of Pro Performance, supra, the above-noted superior court cases do not hold that "exact words" must be used, but that defamation must be pleaded with specificity, identifying "what allegedly defamatory statements were made, by whom and to whom." The defendants argue that the complaint does not meet that standard. The court agrees.
In the instant case, the complaint satisfies the requirement that it must apprise the defendants who and to whom the allegedly defamatory statements were made but does not specifically identify the subject matter of the statements. The plaintiff simply attaches copies of the FBI reports containing them to his complaint, stating that they contain the falsehoods made by the defendants "some of which were defamatory on their face."
To the extent that the third and fourth pages of the attachment to the complaint have no names or other identifiers, the complaint does not meet the standard of apprising the defendants regarding the plaintiff's claim of who said what.
Although the court holds that it is not necessary to include the "exact words" used by the defendants, the complaint must apprise the defendants specifically what statements in the reports are alleged to be defamatory. It is not enough to state that the reports contain falsehoods, "some of which were defamatory on their face"; rather, the complaint must state which statements in the reports are alleged to be defamatory.
The reports appear to contain no editorializing by their author. Given the apparent length of the investigator's interviews with the defendants and the level of detail in the reports, it can be assumed that, at minimum, Egan was taking notes during the exchange, documenting the defendants' statements. It would be unreasonable to require a verbatim reproduction of all allegedly defamatory statements made because to do so would bar nearly every claim for defamation, excepting those where the third party to whom the relevant statements are made knows that they are about to hear defamatory statements and is ready with recorder in hand.
The motion is granted as to counts one and two.
II. COUNTS THREE FOUR: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
With regard to counts three and four sounding in intentional infliction of emotional distress as to each defendant, the defendants argue that, absent a cognizable defamation claim, plaintiff's allegations of emotional distress arising therefrom are similarly flawed. The defendants argue that without knowing the exact words of the defendants this Court has no way of determining whether the statements were extreme and outrageous. The court disagrees. A cause of action for intentional infliction of emotional does not depend on specific statements. "In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Appleton v. Board of Education, 254 Conn. 205, 210 (2000); Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986)." (Internal quotation marks omitted.)
The motion is denied as to counts three and four.
III. COUNTS FIVE SIX: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The defendants' argument regarding counts five and six, sounding in negligent infliction of emotional distress, are identical to those regarding intentional infliction of emotional distress. The defendants assert that "[a]bsent factual allegations of the exact statements upon which this cause of actions rests any allegation of resulting emotional distress is inadequate." This argument has no merit. The cause of action for negligent infliction of emotional distress does not depend on the exact language in the reports. "In general, to prevail on such a claim, a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003). The motion to strike is denied on this ground.
The defendants also argue that count five and six should be stricken because the plaintiff has "not sufficiently set forth the requisite elements of [his claim for negligent infliction of emotional distress]." This conclusion alone, without an analysis of the plaintiff's pleading, is insufficient. The defendants cite appropriate case law regarding the legal requirements for a cause of action sounding in negligent infliction of emotional distress but then fail to state the distinct reasons for the claimed insufficiency. "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Construing the complaint in the manner most favorable to sustaining its legal sufficiency, the defendants' motion is denied as to counts five and six on this ground.
IV. PRIVILEGE
Lastly, the defendants move to strike all counts of the complaint on the ground that Forgione's defamation claim is barred by the absolute privilege afforded the defendants' statements under the circumstances alleged. Specifically, the defendants assert that the statements complained of were made in the context of a quasi-judicial proceeding and are therefore absolutely privileged, that an absolute privilege attaches to all statement made in the course of the investigation and that they "are therefore immune from liability for any alleged defamation of plaintiff."
A motion to strike is not the appropriate vehicle for asserting the special defense of privilege and the defendants' motion to strike cannot properly be granted on that basis. See e.g., Meehan v. Yale New Haven Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0320418 (March 12, 1996, Hartmere, J.) ( 16 Conn. L. Rptr. 437). The purpose of a motion to strike is to contest the legal sufficiency of the allegations of a complaint, counterclaim, cross claim or any counts contained therein or a prayer for relief, the joining of two or more causes of action or the legal sufficiency of an answer. Practice Book § 10-39. "[In the] area of defamation it is well-settled that the defense of privilege must be specially [pleaded]." Greco v. Anderson, Superior Court, judicial district of New Britain, Docket No. CV00 0501458 (October 23, 2000, Shortall, J.) (28 Conn. L Rptr. 605). The defendants admit as much in their memorandum of law but then argue that "the allegations of Forgione's complaint accepted as true for the purposes of this motion, make clear that the statements complained of were made in the context of a quasi-judicial proceeding and are therefore absolutely privileged." Whether or not the statements in issue were privileged is a question for the trier of fact to reach upon this issue's proper presentation to the court as a special defense. The motion is therefore denied on this ground.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is granted as to the first and second counts on the grounds that the complaint fails to sufficiently allege a cause of action for defamation. The motion is denied as to counts three through six.
Gallagher, J.