Opinion
No. CV 07 5004474 S
January 6, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (113.00)
Factual and Procedural Background
The plaintiff, Richard Girouard, commenced this action by service of a complaint dated July 13, 2007, against the defendants, Vincenzo Iannone and R.I. Pools, Inc. (R.I. Pools.) The first five counts of the complaint were directed at R.I. Pools. In counts six through ten of his complaint, the plaintiff set forth claims of negligence, breaches of contract, breach of warranty, and violations of CUTPA by Iannone in his individual capacity.
On December 17, 2007, Iannone moved to strike the five counts against him on the ground that the plaintiff had failed to adequately allege the existence of a contract upon which the plaintiff's claims could be predicated. The court granted the motion in part and struck counts six through nine and denied the motion as to count ten. On April 24, 2008, the plaintiff filed an amended complaint that largely the stricken counts. The defendants filed a subsequent request to revise which led to the plaintiff filing his presently operative "Second Revised Complaint" dated May 19, 2008 and filed on May 20, 2008.
In his Second Revised Complaint, the plaintiff alleges the following relevant facts. On or about May 3, 2005, the plaintiff and defendants entered into a contract for the construction of a pool on the plaintiff's property in accordance with specifications and features set forth and incorporated into the contract. Iannone, the president and sole shareholder of R.I. Pools, made all representations concerning the proposals and contract for the construction of the pool and signed the contract on behalf of the corporation as "President, R.I. Pools, Inc." It is alleged that the defendants failed to properly construct the pool in accordance with the specifications and the price set forth in the contract.
The defendants did not immediately respond to the Second Revised Complaint, and the plaintiff filed a motion for default for failure to plead on August 5, 2008. Iannone then filed the motion to strike now before the court with a supporting memorandum of law on August 12, 2008. In his motion and memorandum, Iannone contends that all counts against him should be stricken because the plaintiff has failed to plead facts that would support the piercing of the corporate veil. With the motion to strike pending in the file, the clerk denied the plaintiff's motion for default. The plaintiff has filed a memorandum in opposition to the motion to strike and the matter was heard at short calendar on September 15, 2008.
Standard of Review
"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 (2003). "A motion to strike challenges the legal sufficiency of a [complaint] . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 111 Conn.App. 197, 203 (2008).
Discussion
A. Timeliness of Motion. As an initial matter, the plaintiff argues that Iannone's motion to strike should be denied as untimely because it was filed after the period of time provided by the Practice Book.
Section 10-8 of the Connecticut Practice Book provides in part that "any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading . . ." The prescribed time period to respond to an amended pleading is, for the purposes of this case, the same. See Practice Book § 10-61. Furthermore, Practice Book § 1-8 states that "[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." (Internal quotation marks omitted.) Blackhawk Security v. Nolan, Superior Court, judicial district of New Haven, Docket No. CV 06 5002138 (February 23, 2007, Holden, J.). Superior Courts in Connecticut have, on a number of occasions, considered and decided motions on their merits even though such motions were not timely filed. "It is well established that the court has discretion as to whether it will consider the merits of an untimely motion. [A]lthough a motion to strike may appear untimely on its face, the court has discretion to permit a late pleading where the parties have both submitted arguments on the merits." (Internal quotation marks omitted.) Longer v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0077564 (March 1, 2004, Upson, J.); [quoting Esdaile v. Hill Health Corp., Superior Court judicial district of New Haven at Meriden, CV 98 0262401 (November 6, 2001, Booth, J.)]; see also Lawrence v. Commodore Commons Condominium Ass'n., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 063281 (September 8, 2000, Curran, J.T.R.) (28 Conn. L. Rptr. 56, 57). Connecticut trial courts have utilized this discretion to consider untimely motions to strike where a judgment of default had not been entered against the moving party, the motion was filed within a reasonable time, and the tardy filing did not work undue prejudice or injustice. For example, in Thompson v. Home Depot, USA., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.), the court rejected the plaintiff's argument that a motion to strike the operative complaint should be denied because it was untimely. In Thompson, the complaint was filed on December 1, 2006, and the motion was filed on February 27, 2007, no judgment of default had been entered, and both parties had made substantive arguments as to the merits of the motion to strike. Id. The court invoked its discretion and decided to proceed to the merits of the motion. Id. Numerous other courts have employed this approach. See, e.g., Paletsky v. Chapulis, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000877 (August 29, 2007, Brunetti, J.) (court overlooked sixty-eight-day lapse between filing of amended complaint and motion to strike where no motion for default had been granted and parties filed memoranda of law); Beck v. New Samaritan Family Housing, Superior Court, judicial district of Waterbury, Docket No. CV 03 0181797 (June 15, 2005, Matasavage, J.) (39 Conn. L. Rptr. 520) (court found no prejudice and reviewed merits of motion to strike filed seven months after last pleading where no judgment of default had entered and parties briefed issues). It should be noted, however, that where the lapse of time between the last pleading and the motion to strike is extreme, courts have denied the motion to strike as untimely. See Kuo v. MIP Lessee, LP, Superior Court, judicial district of Waterbury, Docket No. CV 05 5001409 (March 31, 2008, Scholl, J.) (45 Conn. L. Rptr. 287) (court denied motion to strike as untimely where motion to strike was filed at least fourteen months after the amended complaint); D.A.N Joint Venture v. Salinardi, Superior Court, judicial district of New Haven, Docket No. 403946 (February 23, 2000, Levin, J.) (noting that although the time limit to file an amended pleading provided by Practice Book § 10-61 is merely directory, it "does not, of course, license a party to file an amended pleading years after it should have been filed").
In this case, the plaintiff filed a revised complaint on May 20, 2008. The defendants did not file a responsive pleading until after the plaintiff filed a motion for default for failure to plead on August 5, 2008. On August 12, 2008, Iannone filed the motion to strike now before the court and an accompanying memorandum of law. As a result, the plaintiff's motion for default was denied by the clerk on August 21, 2008. The plaintiff was granted an extension of time to respond to the motion to strike and subsequently filed a memorandum in opposition to the motion to strike. The less than three-month delay between the filing of the amended complaint and the motion to strike was not nearly as extreme as those cases in which the motion was denied as untimely, such as Kuo v. MIP Lessee, LP, supra, 45 Conn. L. Rptr. 287. Rather, it was more akin to the lesser delays that occurred in Thompson v. Home Depot, USA., Inc., supra, Superior Court, Docket No. CV 06 5006389, Paletsky v. Chapulis, supra, Superior Court, Docket No. CV 06-5000877, and Beck v. New Samaritan Family Housing, 39 Conn. L. Rptr. 520, which ranged from sixty-eight days to seven months. Moreover, both parties filed memoranda addressing the merits of the motion to strike and although the plaintiff filed a motion for default, the motion was denied.
In addition, the plaintiff's argument that this issue is controlled by Ayala v. Ginter, Superior Court, judicial district of New Britain, Docket No. CV 99 0498129 (February 13, 2001, Shapiro, J.), and Fedele v. Madison Gardens Condominium Ass'n., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 346365 (July 22, 1998, Stodolink, J.), is not persuasive. First, in Ayala v. Ginter, the court, Gaffney, J.T.R., had sustained the plaintiff's objection to a motion for an extension of time to file a motion to strike because it had been filed beyond the time provided by Practice Book § 10-8 and the corresponding motion to strike would be untimely. Ayala v. Ginter, supra, Superior Court, Docket No. CV 99 0498129. In the decision cited by the plaintiffs, Judge Shapiro merely determined that J.T.R. Gaffney's prior interlocutory ruling should be treated as the law of the case. Id. As the decision to consider an untimely motion to strike is discretionary, Ayala should not be read to diminish the court's discretion to do so under appropriate circumstances. Second, Fedele v. Madison Gardens Condominium Ass'n., Inc., is factually distinguishable. In Fedele, a default was entered against the defendant for failure to respond to the plaintiffs' complaint. Fedele v. Madison Gardens Condominium Assn., Inc., supra, Superior Court, Docket No. CV 97 346365. The court denied the subsequently filed motion to strike the complaint because once a default has been entered against a defendant, Practice Book § 10-8 precludes a defendant from filing anything other than answer. Id. In contrast, the plaintiff's motion for default in this case was denied because this motion to strike was pending in the file. The Practice Book, therefore, permits Iannone to file a motion to strike. See Fischer v. Bella-Vin Development, LLC, Superior Court, judicial district of Danbury, Docket No. CV 07 5003012 (October 10, 2008, Shaban, J.) (rejecting argument that motion to strike should he denied on procedural grounds where motion for default was denied because the motion to strike was pending).
Accordingly, this court exercises its discretion to consider the merits of the motion to strike, despite it having been untimely filed.
B. Assertion of Grounds that Could Have Been Asserted in Prior Motion to Strike. The plaintiff next argues that the present motion to strike is procedurally improper because the grounds asserted therein could have been raised in the previous motion to strike. Specifically, the plaintiff contends that Iannone could have raised the issues relating to piercing the corporate veil in the original motion to strike and to allow him to do so here would improperly give him "a second bite of the apple" and further delay the proceedings in this case.
"Practice Book [ § 10-41] provides that each motion to strike shall set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each claimed insufficiency . . . Practice Book [ § 10-43] provides that a judge deciding a motion to strike in which more than one ground is asserted shall specify the ground relied upon in striking a claim . . . [T]he Practice Book provides for pleading multiple grounds in a single motion to strike and, further, provides that pleadings are to advance after the adjudication of each enumerated pleading, a defendant may not impede the progress of the suit by dividing his grounds and pleading them in consecutive motions to strike. Other Superior Court cases have reached the same conclusion . . . Furthermore, a defendant who has failed to raise all grounds for striking a complaint may not [later] file a second motion to strike asserting additional grounds . . . A second motion to strike may be appropriate in limited circumstances. For example, when a plaintiff, pursuant to Practice Book § 10-44, files a subsequent pleading alleging new facts . . . Additional motions to strike, however, are not allowed when the grounds asserted therein could have been raised in an earlier motion." (Citations omitted; internal quotation marks omitted.) Netzer v. Whitney, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195251 (February 27, 2004, Lewis, J.T.R.) (36 Conn. L. Rptr. 549).
In counts six through ten of the original complaint, the plaintiff alleged that he entered into a contract with the individual defendant, Vincenzo Iannone. This contract was referred to as the document attached to the complaint as "Exhibit A." That document was the same one referenced as the contract between the plaintiff and R.I. Pools. The plaintiff further alleged that Iannone had acted negligently in his performance of the contract between himself and the plaintiff, breached the contract, breached warranties therein, and violated CUTPA. At no point in the original complaint did the plaintiff specifically reference the doctrine of piercing the corporate veil as a theory of holding Iannone personally liable. Instead, the plaintiff repeatedly alleged the existence of a contract between him and Iannone. Somewhat perfunctory allegations, such as the one made in the second paragraph of the sixth count that Iannone was the "president and sole-owner of R.I. Pools," were the only vague indicators that the plaintiff would possibly attempt to advance the piercing the corporate veil theory of liability.
Iannone moved to strike the original complaint on the sole ground that the plaintiff had failed to sufficiently allege the existence of a contract between the plaintiff and him. In his objection, the plaintiff did not argue that a contract existed, but rather contended, for the first identifiable time, that the corporate veil should be pierced and Iannone held personally liable along with R.I. Pools. The court granted the motion as to counts six through nine and denied it as to count ten. Iannone now asks the court to strike the counts against him on the grounds that the plaintiff has failed to allege sufficient facts from which the court could pierce the corporate veil of R.I. Pools and hold him personally liable. The plaintiff contends that this ground should have been raised in the motion to strike the original complaint, and therefore, the defendant should be precluded from raising it in a subsequent motion to strike.
It is true that a defendant is permitted to raise any and all potential grounds for striking a count or an entire complaint in a single motion to strike. Likewise, it is true that neither case law nor the Practice Book require a plaintiff to specially plead piercing the corporate veil. Failing to clearly allege facts that set out the issues to be tried, however, defeats the purpose of the fact-pleading requirements employed in this state and leaves the court and opposing parties to guess and assign meaning to the allegations of the complaint. "The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Internal quotation marks omitted.) Morris v. Cee Dee, LLC, 90 Conn.App. 403, 413 cert. granted on other grounds, 275 Conn. 929 (2005) (appeal withdrawn.) "[T]he interpretation of pleadings is always a question of law for the court . . . We have pointed out that [t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that purpose [the pleaders] were allowed to use their own language. Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties." (Emphasis in original; internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 264 (1996). "As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, [the court] will not conclude that the complaint is insufficient to allow recovery." (Internal quotation marks omitted.) Harris v. Shea, 79 Conn.App. 840, 843, (2003).
In this case it is appropriate to permit Iannone to challenge the sufficiency of the plaintiff's allegations that would form the foundation for piercing the corporate veil in this motion to strike. While Iannone could have raised this ground in his first motion to strike; see, e.g. Evans v. Tiger Claw, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5013346 (May 16, 2008, Licari, J.) (in action against corporation and its officers, defendant officers moved to strike all claims against them on grounds that facts alleged were insufficient to pierce corporate veil despite the fact that plaintiff did not intend to pursue derivative liability based on piercing the corporate veil); the vague allegations contained in the complaint did not provide adequate notice to the defendants that the plaintiff intended to pursue this alternative theory of liability. See Devlin v. Northeast Mortgage Corp., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 03 0178670 (May 2, 2006, Sheedy, J.) (in granting a motion to strike, the court noted that "[t]he instrumentality and/or identity rules are not relevant when the complaint does not put into play the theory upon which the plaintiff seeks to hold these defendants individually liable"). Instead, the plaintiff repeatedly averred that liability was premised on the existence of a contract between the plaintiff and Iannone. Accordingly, Iannone should not suffer prejudice resulting from the plaintiff's failure to clearly aver facts that would allow the opposing party and the court to recognize the factual issues in the case. In the Second Revised Complaint, the plaintiff added new allegations raising the issue of piercing the corporate veil. Specifically, he alleged for the first time that Iannnone "was in complete domination of the finances, policy and business practices of R.I." Sixth Count, ¶ 5. With the plaintiff having raised the issue clearly for the first time in the Second Revised Complaint, Iannone is entitled to move now to strike the claims.
C. Count Six. In the sixth count, the plaintiff asserts a claim for negligence against Iannone. The plaintiff alleges that Iannone acted negligently in the course of entering into and performing the contract. Iannone has moved to strike this count on the grounds that the allegations therein are insufficient to pierce the corporate veil.
"[A] party may be liable in negligence for the breach of a duty that arises out of a contractual relationship . . . Even though there may not be a breach of contract, liability may arise because of injury resulting from negligence occurring in the course of performance of the contract." (Citation omitted; internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 870 (2002). "[A] contract may create a state of things which furnishes the occasion of a tort so that negligent performance of a contract may give rise to an action in tort, if the duty exists independently of the performance of the contract." (Internal quotation marks omitted.) Thompson v. Home Depot, U.S.A., Inc., supra, Superior Court, Docket No. CV 06 5006389.
Taken on its face, the claim asserted in the sixth count sounds in tort. "It is [however] unnecessary to pierce the corporate veil if the individual being sued has allegedly committed a tort." Evans v. Tiger Claw Inc., supra, Superior Court, Docket No. CV 07 5013346. "Where . . . an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby." Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 142 (2005); see also Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, (1991) ("[i]t is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable"). Accordingly, Iannone's argument is inapplicable and the motion to strike the sixth count should be denied.
D. Counts Seven, Eight, Nine and Ten. In the seventh, eighth, ninth and tenth counts, the plaintiff asserts claims of breach of contract, breach of warranty, and violation of CUTPA by Iannone. Iannone has moved to strike these counts on the ground that the facts alleged are insufficient to form the basis for piercing the corporate veil. In opposition, the plaintiff argues that he has pleaded sufficient facts to satisfy the requirements for piercing the corporate veil under two theories, known as the instrumentality rule and the identity rule.
"Our Supreme Court has held that we may disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor . . . Additionally, the court has affirmed judgments disregarding the corporate entity and imposing individual stockholder liability when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock . . .
"Courts will disregard the fiction of separate legal entity when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock . . . Under such circumstances the general rule, which recognizes the individuality of corporate entities and the independent character of each in respect to their corporate transactions, and the obligations incurred by each in the course of such transactions, will be disregarded, where . . . the interests of justice and righteous dealing so demand . . . The circumstance that control is exercised merely through dominating stock ownership, of course, is not enough . . . There must be such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal." (Citations omitted; internal quotation marks omitted.) Mountview Plaza, Inc. v. World Wide Pet Supply, Inc., 76 Conn.App. 627, 632-33 (2003).
"This state recognizes two theories under which it will permit the protection of the corporate structure to be set aside. Those theories also apply to the protection afforded by a limited liability company." Morris v. Cee Dee, LLC, supra, 90 Conn.App. 403, 414, (2005).
"When determining whether piercing the corporate veil is proper, our Supreme Court has endorsed two tests: the instrumentality test and the identity test. The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff's legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of." (Internal quotation marks omitted.) Mouniview Plaza, Inc. v. World Wide Pet Supply, Inc., supra, 76 Conn.App. 633-34.
"The identity rule has been stated as follows: If [a] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise." (Internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., 73 Conn.App. 267, 284 (2002); rev'd on other grounds, 268 Conn. 264 (2004). "The identity rule primarily applies to prevent injustice in the situation where two corporate entities are, in reality, controlled as one enterprise because of the existence of common owners, officers, directors or shareholders and because of the lack of observance of corporate formalities between the two entities." Id. "Although the identity or alter-ego doctrine has been primarily applied to reach beyond the veil to another corporation, it may also be employed to hold an individual liable." (Internal quotation marks omitted.) Klopp v. Thermal-Sash, Inc., 13 Conn.App. 87, 89 n. 3 (1987).
"Although Superior Court decisions differ as to what extent a complaint must allege the elements of the instrumentality rule or the identity rule, the decisions are consistent in holding that, at a minimum, the complaint must allege a sufficient factual basis for a court to pierce the corporate veil." Sekas v. Enginuity PLM, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 75002249 (June 6, 2007, Esposito, J.). To survive the motion to strike, the plaintiff must, therefore, allege sufficient facts to satisfy the required elements to pierce the corporate veil under either the instrumentality rule or the identity rule.
In the fourth, fifth and sixth paragraphs of the sixth count of his second revised complaint, which were incorporated into counts seven through ten, the plaintiff sets forth the allegations that he argues satisfy the necessary elements for piercing the corporate veil. The plaintiff alleges that "Iannone is the president and sole shareholder of R.I. Pools, Inc.," that at all relevant times, "Iannone was in complete domination of the finances, policy and business practices of R.I.," and that "[a]ll representations concerning the proposals and contract for the construction of the pool were made by and through Iannone." These allegations are insufficient to support the piercing of the corporate veil under either theory.
First, an allegation that the individual defendant is a high-ranking official within a company, or even its controlling or sole shareholder, is not sufficient to demonstrate the "complete domination" of the company required to satisfy the first element of the instrumentality test. See Mountview Plaza, Inc. v. World Wide Pet Supply, Inc., supra, 76 Conn.App. 632-34. Applying this rule, several courts have found allegations similar to those in the plaintiff's complaint to be insufficient to satisfy the first element of the instrumentality test. For example, in Traina Enterprises, Inc. v. Manousos, Superior Court, judicial district of Hartford, Docket No. CV 02 0812996 (March 10, 2003, Wagner, J.T.R.), the court determined that the allegations were insufficient where the plaintiff alleged that the individual defendant was president, sole director and sole shareholder of defendant corporation. Thus, the plaintiff's allegation that Iannone is the president and sole shareholder of R.I. Pools is, by itself, insufficient.
At page six of his opposition to the motion to strike, the plaintiff, in support of his argument that Iannone completely dominates R.I. Pools, states: "Iannone was, and upon information and belief still is, in complete control of R.I. Pools. He is the only one to sign contracts, he is the only individual who controls the finances and he is the project manager for his pool construction business. He signed the contract at issue." While these assertions may substantiate the plaintiff's contention, the court must confine its analysis to the allegations actually set forth in the complaint. "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).
In addition, "[a] motion to strike is properly wanted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 111 Conn.App. 197, 203 (2008). Courts have repeatedly denied claims for piercing the corporate veil where the allegations merely set forth legal conclusions that are unsupported by particularized facts. For example, in Traina Enterprises, Inc. v. Manousos, supra, Superior Court, Docket No. CV 02 0812996, the court held that the allegation that the defendant "exerted complete domination of the finances and of its policies and business practices . . . such that the corporate entity . . . as to such matters had at the time no separate mind will or existence of its own" was insufficient. Similarly, in Pompilli v. Pro-Line Painting, LLC, Superior Court, judicial district of New Haven, Docket No. CV 04 4001774 (May 13, 2005, Lopez, J.) (39 Conn. L. Rptr. 347), the court concluded that the allegations were insufficient legal conclusions where the plaintiff did not allege specific facts demonstrating that the defendant actually exercised complete domination over the company with respect to the transaction. Here, as in Traina and Pompilli, the plaintiff's allegation that "Iannone was in complete domination of the finances, policy and business practices of R.I." merely states a legal conclusion that is unsupported by allegations of particular facts.
Likewise, the addition of the plaintiff's third allegation that "[a]ll representations concerning the proposals and contract for the construction of the pool were made by and through Iannone" is inconsequential to the analysis. In Fischer v. Bella-Vin Development, LLC, Superior Court, judicial district of Danbury, Docket No. 07 5003012 (October 10, 2008, Shaban, J.), the court considered allegations that "[a]t all relevant times the defendant . . . was the controlling member of the [LLC] . . . and any act or omission by [the LLC] was done by the defendant . . ." The court held that the first element of the instrumentality rule had not been satisfied because these allegations did not establish that the defendant's control reached the necessary level of complete domination. Id. Consequently, the plaintiff's allegations in the counts directed to Iannone that all contact with R.I. Pools was made through him and that all failures to perform the contract were by him are insufficient to satisfy the first element of the instrumentality rule.
With regard to the identity rule, the plaintiff contends that its allegations that Iannone was the only person who had authority to enter into and perform the contract and that all representations were made by him is sufficient to show "a unity of interest and ownership" such that the line between corporate officer and corporation is so barely visible that piercing the corporate veil is justified. These facts do not rise beyond the level of an agency relationship with R.I. Pools. Moreover, there are no specific facts alleged to demonstrate how Iannone disregarded corporate formalities or failed to maintain separate identities. See Rosenlicht v. Bradley, Superior Court, judicial district of New Britain, Docket No. CV 05 4003001 (December 4, 2006, Shapiro, J.). Accordingly, the allegations are insufficient to satisfy the elements of the identity rule as well and counts seven, eight, nine and ten must be stricken.
CONCLUSION
For the reasons discussed above, the court denies the motion to strike with regard to count six and grants the motion with regard to counts seven through ten.