Opinion
No. CV-05-4005624
November 8, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( #102)
INTRODUCTION
On May 16, 2005, the Plaintiff, JTL Services, Inc. (JTL), filed a two-count complaint against the Defendant, David Ronge. In the complaint the Plaintiff alleges that on or about November 22, 2004, the Defendant contracted with the Plaintiff for the Defendant to be provided with employment placement services. Pursuant to the contract, the Plaintiff was to locate and screen potential employers to aid in the Defendant's job search and to refer the Defendant to vacated employment positions. The complaint alleges that pursuant to the contract the Plaintiff referred the Defendant to a position that he accepted. Pursuant to the terms of the contract, the Plaintiff was to be paid the sum of twenty-seven thousand twenty-five dollars upon the Defendant's acceptance of the position from the Defendant's prospective employer, but if the Defendant willfully left the employer's company, the Defendant would be responsible for this payment. The complaint alleges that upon accepting the position the Defendant willfully terminated his agreement for employment with the company. The Plaintiff claims that the Defendant has refused to pay the Plaintiff pursuant to the contract. In the Second Count of the complaint the Plaintiff claims, based on the same facts, that the Defendant has been unjustly enriched in that the Defendant has benefitted from the Plaintiff's acts in furtherance of the contract without compensation.
On August 15, 2005, the Defendant filed a counterclaim against the Plaintiff, alleging that the Plaintiff engaged in unfair or deceptive acts resulting in an ascertainable loss in violation of General Statutes §§ 42-110a et seq. On the same date, the Defendant filed a motion to strike both counts of the complaint, accompanied by a memorandum in support.
The Defendant did not file an answer at that time and the Plaintiff has not raised the issue of whether by filing the counterclaim the Defendant has waived his right to file the motion to strike, see, Practice Book §§ 10-6 and 10-54. Therefore the court will address the motion to strike on its merits.
DISCUSSION CT Page 14064-el
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [cause of action] . . . 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). "The standard of review for granting a motion to strike is well settled . . . [The court] must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn.App. 351, 359, cert. denied, 266 Conn. 911 (2003).The Defendant moves to strike counts one and two of the complaint on the grounds that the contract at issue is void and unenforceable in either law or equity, and that the Plaintiff, as an employment agency as defined by General Statutes § 31-129(b), has failed to allege that it is either licensed by the Connecticut Department of Labor or exempt from the statutory requirement to do so. In support of the motion, the Defendant argues that, as an "employment agency" defined by § 31-129(b) the Plaintiff is required to be licensed with the Connecticut Department of Labor pursuant to General Statutes § 31-130(a). Failure to be licensed or exempt from the licensing requirement renders the contract void and unenforceable pursuant to General Statutes § 31-131(b). Further, the Defendant argues that the agreement fails to comply with various statutory requirements of General Statutes §§ 31-129 to 31-131c, namely that the agreement impermissibly extends the time period within which the Defendant would be required to pay the Plaintiff its fee, that the agreement impermissibly provides that the ninety-day time period during which the Defendant was required to remain employed began at the time of his signing of the acceptance letter, and that the Plaintiff has failed to allege that the Defendant received any remuneration, that the Labor Commissioner approved the contract at issue, or that the Defendant was given a duplicate copy of the agreement. The Defendant argues that failure to comply with any of these requirements would render the contract void as well.
Section 31-129(b) provides: "`Employment Agency' includes the business of procuring or offering to procure work or employment for persons seeking employment, or acting as agent for procuring such work or employment where a fee or other valuable thing is exacted, charged or received for procuring or assisting to procure employment, work or a situation of any kind or for procuring or providing help for any person."
Section 31-130(a) provides in relevant part: "No person shall open, keep or carry on any employment agency unless he procures a license from the Labor Commissioner authorizing the licensee to open, keep or CT Page 14064-ep carry on such agency at a designated place."
Section 31-131(b) provides in relevant part: "any document, agreement or paper made or executed contrary to the provisions of [General Statutes §§ 31-129 to 31-131c] shall be void and unenforceable both in law and equity."
In opposition to the motion, the Plaintiff argues that it is exempt from the statutory requirements referenced by the Defendant pursuant to § 31-130(c). The Plaintiff argues that, under the agreement, the fee at issue was to be paid by the employer, not the Defendant. Only after the Defendant revoked his acceptance of employment did he become liable for the fee. The Plaintiff claims that it qualifies as an "employer" fee based company, and that it has never been an "employee" fee based company. Therefore, under § 31-130(c), the Plaintiff alleges that it is neither required to be licensed nor to comply with the various statutory requirements referenced by the Defendant. CT Page 14064-em
Section 31-130(c) provides in relevant part: "The provisions of this chapter shall not apply . . . to any person engaged in the business of procuring or offering to procure employees for persons seeking the services of employees or supplying employees to render services where a fee or other valuable thing is exacted, charged or received from the employer . . ." (Emphasis added.)
In Monaco v. Turbomotive, Inc., 68 Conn.App. 61 (2002), the Appellate Court held that § 31-130(i) did not bar the plaintiff's recovery from the defendants of a fee for placement of an employee with the Defendant Turbomotive, Inc. because it found that "the employee did not pay a fee and the plaintiff did not solicit the public at large." Id. 67. In finding that the plaintiff did not fall within the definition of "employment agency" under the statute, the court applied the reasoning of Dorr-Oliver, Inc. v. Webster Computer Corp., 30 Conn.Supp. 544 (1972), which held "the defendant did not fall within the definition of an `employment agency' under the statutes because (1) no fee was paid from the employee to the defendant, (2) procuring employees was incidental to the defendant's main service of providing computer systems, (3) the defendant never solicited the public at large or advertised concerning employment placement and (4) the policy behind General Statutes §§ 31-129 to 31-131c is to protect individual applicants (prospective employees) from unscrupulous employment agencies. Dorr-Oliver, Inc. v. Webster Computer Corp., supra, 550-51." Monaco v. Turbomotive, Inc., 68 Conn.App. 61, 65-66 (2002).
From a review of the allegations of the complaint it cannot be said that such is the case here. Pursuant to General Statutes §§ 31-129(b), an "employment agency" "includes the business of procuring or offering to procure work or employment for persons seeking employment, or acting as agent for procuring such work or employment where a fee or other valuable thing is exacted, charged or received for procuring or assisting to procure employment, work or a situation of any kind or for procuring or providing help for any person." Section 31-130 requires that: "No person shall open, keep or carry on any employment agency unless he procures a license from the Labor Commissioner authorizing the licensee to open, keep or carry on such agency at a designated place." The complaint here alleges that "the Defendant, David Ronge, contracted with the Plaintiff, JTL Services, Inc., for the Defendant to be provided with employment placement services." The complaint then alleges that: "Pursuant to the terms of said contract, the Plaintiff, JTL Services, Inc., was to locate and screen potential employers to aid in the Defendant's job search, and to refer the Defendant to vacated employment positions for his consideration and placement." The Plaintiff also claims that: "Pursuant to the terms of said contract, the Plaintiff, JTL Services, Inc., referred the Defendant, David Ronge, to a vacated position as Controller, which the Plaintiff (sic) accepted on February 24, 2005." Thus the facts alleged by the Plaintiff indicate that it was "procuring or offering to procure work or employment for [the Defendant who was] seeking employment, or acting as agent for procuring such work or employment," and, therefore, as regards the Defendant, was acting as an CT Page 14064-en employment agency. The complaint also does not allege that it was licensed to do so. The complaint further alleges that "[p]ursuant to the terms of said contract, the Plaintiff, JTL Services, Inc., was to be paid the sum of Twenty Seven Thousand Twenty Five 00/100 Dollars ($27,025.00) upon the Defendant's acceptance of a position of employment. Said payment was to be paid by the Defendant's prospective employer. The contract further stated that the Defendant would be responsible for said payment should he willfully leave the employer's company." Thus the complaint alleges that "a fee or other valuable thing [was] exacted, charged or received for procuring or assisting to procure employment, work or a situation of any kind or for procuring or providing help for any person" in the form of the promise of the Defendant to the Plaintiff that he would pay the fee if he willfully left the employer's company. The complaint then alleges that: "Upon accepting the position of Controller, the Defendant, David Ronge, willfully terminated his agreement for employment with said company." Once again, the allegations of the complaint that the Defendant would be liable for the fee if he willfully left the employer's company indicate that the Defendant, rather than the employer, may be liable for a fee to the Plaintiff and thus the Plaintiff was operating as an "employment agency." Although the Plaintiff claims the fee was to be paid by the employer, the Plaintiff is attempting to do just what the statute was designed to cover, that is, collect a fee from an employee. In addition, General Statutes § 31-131 limits the circumstances under which a person who has accepted a position and fails to remain in the position, as alleged here, is required to pay an employment agency its full fee. It provides: "If an applicant does not obtain or accept a situation or employment through the agency of a licensed person, such licensed person shall not be entitled to collect a fee from such applicant. If an applicant obtains or accepts a situation or employment through the agency of a licensed person but does not remain in the situation or employment for longer than ten weeks, the applicant shall then be entitled to a refund or adjustment of that part of the fee paid or owing which is greater than ten per cent of the amount he has received as remuneration for that employment." Thus only after ten weeks is an employee obligated to pay the full fee, and, prior to that time, he must only pay a percentage of the fee charged if he leaves the employment secured through the employment agency. The statute does not delineate any restrictions on the reasons for failing to remain in the employment secured and would include a willful termination as alleged here.
Pursuant to General Statutes § 31-131(b): "any document, agreement or paper made or executed contrary to the provisions of [General Statutes §§ 31-129 to 31-131c] shall be void and unenforceable both in law and equity." The allegations of the complaint, without more, indicate that the contract referenced here is contrary to the provisions of the statute CT Page 14064-eo and therefore unenforceable.
The Plaintiff claims that it is exempt from the statutory requirements because it is an "employer" not an "employee" fee based company. However, the allegation of the complaint simply that the contract payment was to be paid by the Defendant's prospective employer, in light of the other allegations of the complaint, are insufficient to support a determination that the Plaintiff is exempt from the statutory provisions of §§ 31-129 to 31-131c. Even viewed in the light most favorable to the plaintiff, the First Count of the complaint must fail because the Plaintiff acted as an employment agency here, and therefore the contract at issue is void and unenforceable both in law and equity pursuant to § 31-131(b).
Similarly, since the statutes prohibit equitable relief for the breach of a contract not in compliance with their terms, the Second Count of the complaint sounding in unjust enrichment must also fail. "A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another." (Citation omitted; internal quotation marks omitted.) Jo-Ann Stores v. Property Operating Co., 91 Conn.App. 179, 194 (2005).
CONCLUSION
Accordingly, the motion to strike is granted.