Opinion
FSTCV165015742S
07-14-2017
Gerald F. Henesy v. Digital Media, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#136.00)
Kenneth B. Povodator, J.
Background/Legal Posture
This proceeding started in small claims court/session, as an attempt by the plaintiff to recover just over $4,900 claimed he was owed by the corporate defendant, based upon an alleged agreement between the parties. The defendant removed the case to the regular session of the Superior Court, asserting a claim for $140,000 in the process. The plaintiff, in turn, has asserted a range of claims against the original defendant and an additional defendant who was added (a claimed principal in the original defendant).
Currently before the court is the motion to strike filed by the defendants, challenging the legal sufficiency of the First Count (CUTPA), the Third Count (Fraudulent Misrepresentation), the Fourth Count (Breach of Contract), the Fifth Count (Breach of Contract), the Sixth Count (Negligent Misrepresentation), the Seventh Count (CUTPA), the Ninth Count (Civil RICO), and the Tenth Count (Negligent Infliction of Emotional Distress) of the operative complaint, claiming each of those counts fail to state a claim upon which relief can be granted.
Prior to filing an objection to the motion, the plaintiff withdrew the Ninth Count claiming a violation of RICO (#154.00). The plaintiff then objected to the remainder of the motion. At the outset, the plaintiff notes that the defendants claim legal insufficiency of the breach of contract counts, but do not present any analysis. The court concurs; the motion must be denied as to those counts.
The plaintiff also claims that the defendants' submission relating to CUTPA and especially the Seventh Count was fatally deficient in that the claims were not adequately presented--no arguments or authorities specifically addressing the claimed deficiencies. The court concludes that there is no requirement of a mechanical repetition or formalized separate incorporation of arguments; it is clear that the defendants' arguments as to the First Count are being utilized with respect to the challenge to the Seventh Count. Therefore, the court will address the CUTPA counts on the merits of the claimed/identified deficiencies, rather than treating part or all as abandoned.
The court will address the attacked counts in the order presented in the defendants' motion. The court will not restate the well-established standards for deciding a motion to strike, except as particularly relevant to an issue being addressed.
Discussion
First and Seventh Counts
The defendants contend that the CUTPA claims in the First and Seventh Counts are legally insufficient, based on claimed pre-emption and other flaws. The court will focus on the contention that " CUTPA is inapplicable, for both Counts One and Seven, because the defendant's alleged actions were not performed in " trade" or " commerce" as defined by § 42-110a(4), " as for the reasons stated, that contention is dispositive.
It is well-established that CUTPA does not apply to the employer-employee relationship (or other internal business relationships), because the relationship does not implicate conduct occurring in a trade or business; see, footnote 13 in Stearns & Wheeler, LLC v. Kowalsky Bros., 289 Conn. 1, 11, 955 A.2d 538, 544 (2008); United Components, Inc. v. Wdowiak, 239 Conn. 259, 264-65, 684 A.2d 693, 696 (1996) (per curiam). The core of the plaintiff's claims--central to them all--is that the defendants improperly characterized him as an independent contractor rather than as an employee. He also claims that the defendants breached an aspect of the agreement for compensation--in his status now known/believed to have been as an employee. The necessary premise of all of the claims, then, is that the plaintiff was an employee. That very premise precludes any CUTPA-based liability arising from that relationship. The defendants specifically invoke Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 669, 613 A.2d 838 (1992) in this regard, which appears to be the earliest appellate decision to make this point, such that the defendants have done more than merely assert a general proposition.
The relationship between the parties does not implicate any conduct in a trade or business. To put it somewhat colloquially, the relationship between the parties and the allegedly improper conduct do not implicate the marketplace or the fairness of the marketplace.
Absent a connection to the conduct of a trade or business, the activity--even if unfair--cannot invoke CUTPA. Therefore, the First and Seventh Counts must be stricken.
Third Count
The Third Count alleges fraudulent misrepresentation. The defendants recite the appropriate elements of such a theory of liability, and then focus on the element relating to the statement made that is alleged to have been fraudulent. The argument is brief enough to be quoted in its entirety:
The entire factual predicate for the fraudulent misrepresentation claim is set forth in paragraphs 41 through 48 of the Complaint, relates to defendants' alleged statements regarding the defendants' classification of the plaintiff as an independent contractor. As explained, supra, the various tests for determining how a worker should be classified proscribe formulas which, arguably, may lead to different reasonable conclusions. Defendant's conclusion was that, given the nature of his employment relationship with the Digital Media, LLC, the parties' employment relationship was that of independent contract. The plaintiff does not plead that defendants knew, in fact, that the classification was incorrect. Nor does the plaintiff plead that he advised the defendants that the classification was incorrect (at least prior to plaintiff contacting the Department of Labor seeking a review of his classification). The defendants' conclusion that the plaintiff should be classified as an independent contractor is, logically, a statement of opinion or judgment and, thus plaintiff cannot maintain an action for intentional misrepresentation for same.
The court must decide the motion on the basis of the arguments advanced, and therefore the court is limited to addressing the contention that characterization of the plaintiff as an independent contractor was a matter of opinion, as a matter of law. This must be done in the context of a requirement that the non-moving party is entitled to have all alleged facts treated as true, and is also entitled to the benefit of all reasonable favorable inferences.
There may well be situations where the status of an individual as an employee or independent contractor is sufficiently close that a decision might be considered, in some sense, to be an opinion. Once a decision is made, and conduct follows based on that chosen " fork in the road, " it is not an opinion in the sense of being " just an opinion" --as distinct from a statement of fact. The various consequences that can result from misidentification of status--identified by the defendants in connection with the claims of pre-emption--are not consequences of mere opinions but rather flow from facts, with the decision to treat an employee as an independent contractor as the fact from which all else flows. From an alternate perspective, a mistaken belief as to a fact, or how the law applies to a known set of circumstances, cannot automatically and totally be discounted as a matter of opinion.
Further, there is an allegation that the defendants " should have known" the correct characterization of the plaintiff's status, and the defendants do not address this aspect of misrepresentation. The defendants have not explained why, as a matter of law, they were not in a position that they should have known of the proper characterization of the plaintiff's status.
Ultimately, the defendants are asking the court to treat a factually-contextless assertion of a mistake in characterization of a worker as an independent contractor rather than as an employee, as a mere matter of opinion, as a matter of law. Never mind what the actual indicia are (factually)--so no matter how blatant the error, it cannot be fraudulent, if the defendant claims it was a (mistaken) matter of opinion.
Based on the contentions of the defendants, the court must deny the motion as to the Third Count.
Sixth Count
The Sixth Count alleges negligent misrepresentation, and as to this claim, the defendants adopt a different approach. Again, the argument can be quoted in its entirety:
The factual predicate for plaintiff's negligent misrepresentation claim is set forth in paragraphs 60 through 67 of the Revised Second Amended Complaint, relates to defendants' alleged representation that the defendants would make in perpetuity payments to the plaintiff for " contributory actions in aiding in any new client service agreements." (RSAC ¶ 60.) Under Connecticut law, the general rule is that misrepresentation must relate to existing or past fact; when fraud or intentional misrepresentation is alleged, however, a promise to do an act in the future, must be coupled with a present content not to fulfill the promise. See Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970). The plaintiff's operative complaint is bereft of any allegations evidencing a present intent (at the time of the alleged representation) not to provide in perpetuity payments to the defendants. Accordingly, the Sixth Count must be stricken.
Again, the defendants correctly state the law, but do not interpret the actual allegations of the complaint in the required manner--giving the plaintiff the benefit of all reasonable favorable inferences. The complaint alleges that the defendants " [warranted] that the in-perpetuity payments were part of 'plaintiff's overall compensation package'" which has a present and ongoing quality in addition to a future component. This is emphasized by the verb " warranted" which has a guarantee-type quality. In the context of a motion to strike, and especially in connection with a self-represented party's allegations, the court cannot conclude that this assertion is deficient as a matter of law. It is not merely a matter of future conduct being predicted, and in any event, for purposes of a motion to strike in connection with a complaint filed by a self-represented party, the court is required to apply a laxer standard as to pleadings, so long as the true intent can be discerned. There is at least a current component to the claim and the court cannot parse the cause of action as between present and future.
Accordingly, based on the claimed deficiencies identified by the defendants, the motion must be denied as to the Sixth Count.
Tenth Count
The plaintiff claims a right to recover based on a claim of negligent infliction of emotional distress. Although often cited for the discussion of when a motion for summary judgment can be utilized to test legal sufficiency, Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522, 532 (2005) also contains a discussion of this very issue:
[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable. (Internal quotation marks and citation, omitted.)
The conduct previously identified is the core of this claim as well. The plaintiff claims that misclassification of the plaintiff as an independent contractor rather than an employee, coupled with a failure to honor a promise relating to in perpetuity benefits, constituted the conduct that resulted in infliction of emotional distress. (He also attempts to include a proposed settlement, which would have required him to waive or release claims of wrongdoing.) The court recognizes the subjectivity of distress, but the court is required to apply a more objective standard, including conduct that foreseeably has an unreasonable risk of causing emotional distress.
Claims of misclassification abound; see, e.g., Evans v. Tiger Claw, Inc., 173 Conn.App. 409 (2017), where for purposes of a decision relating to a wage claim, the plaintiff was treated as an employee even though he had always been treated as an independent contractor; more generally, see, O'Connor v. Uber Technologies, Inc., No. 13-CV-03826-EMC, 2016 WL 3548370 (N.D.Cal. June 30, 2016) (class action against Uber relating to misclassification of drivers as independent contractors). The failure to pay a portion of compensation claimed to be due, likewise, is relatively commonplace; Evans, supra . More to the point, the court can discern no basis for claiming that emotional distress of sufficient severity is foreseeable from such commercial-type interactions.
The court recognizes that the plaintiff may well feel that he was wronged, and his multi-pronged lawsuit reflects that sense of victimhood, but there is nothing in the conduct alleged that can be said to meet the standards relating to foreseeability and reasonableness of distress, especially to the degree that it " might result in illness or bodily harm." The plaintiff claims he was wronged economically in a number of respects, but there is nothing, even giving the plaintiff the benefit of reasonable inferences, supporting this type of legal claim.
The motion to strike is granted as to the Tenth Count.
Conclusion
[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience . . . This rule of construction has limits, however. Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law . . . In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of rational comprehension. (Internal quotation marks and citations, omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712, 735 (2006).See, also, Hill v. Williams, 74 Conn.App. 654, 813 A.2d 130 (2003), an extended per curiam decision relying upon a broad interpretation of the pleadings filed by a self-represented party.
The motion is granted with respect to the claims based on CUTPA and asserting negligent infliction of emotional distress. The count asserting a violation of RICO has been withdrawn. The defendants effectively abandoned their challenge to the breach of contract claims by failing to include any argument in their submission relating to such claims, such that the motion is denied as to those counts. The motion is denied, on the merits, with respect to the misrepresentation claims.