Opinion
No. CV07-5004381S
January 18, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
FACTS
On April 12, 2007, the plaintiff, Shane Kelly, brought a four-count complaint against the defendant, Sally McIntosh. The plaintiff filed an amended complaint on August 7, 2007, which is the operative complaint. The plaintiff alleges the following facts in his amended complaint. The parties were married on June 26, 1992. At the time of the marriage and throughout its duration, the plaintiff was employed by Del-Tron, a company owned by the defendant's brother. The defendant was a member of the board of directors of Del-Tron. As part of the plaintiff's compensation from Del-Tron, Del-Tron issued him a company vehicle for his personal use, a fact known by the defendant.
The amended complaint is exactly the same as the original complaint, except that the plaintiff now refers to the defendant as Sally Kelly, as opposed to Sally McIntosh. The plaintiff had discovered that the defendant had not changed her name back to her maiden name following the parties' divorce.
On April 1, 2004, the defendant filed for divorce from the plaintiff. Three days later, the defendant contacted the state police and told them that the plaintiff, who was still employed by Del-Tron, was going to wrongfully take the company vehicle, even though the plaintiff never indicated that he was going to do so and even if had, the defendant knew he had a right to use the vehicle. When the police arrived at the parties' home, the defendant then informed them that the plaintiff used marijuana and crack cocaine. As evidence of the plaintiff's illegal drug use, the defendant supplied the police with what she claimed to be the plaintiff's drug paraphernalia. These actions caused the police to arrest the plaintiff for possession of drug paraphernalia. After several court proceedings, the charges against the plaintiff were eventually dropped.
The plaintiff alleges the following causes of action in counts one through four of his amended complaint: malicious prosecution, abuse of process, false imprisonment and arrest and intentional infliction of emotional distress, respectively. On July 12, 2007, the defendant filed a motion to strike counts one, two, three and four of the defendant's complaint on the ground that all four fail to set forth sufficient facts to support the causes of action alleged therein. The defendant filed a memorandum of law in support. On October 3, 2007, the plaintiff filed a memorandum in opposition to the defendant's motion to strike. The defendant filed a memorandum in reply on October 23, 2007. The court heard argument on this matter on October 29, 2007.
As the parties conceded at the hearing on the defendant's motion to strike, it is of no moment that the defendant's motion to strike addresses the original complaint, as opposed to the amended complaint, because the amended complaint makes no substantive changes to the original complaint. See footnote one.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006). "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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, 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, 698 A.2d 859 (1997). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotations marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . Indeed, pleadings must be construed broadly and realistically, rather than narrow and technically." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization, Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
I. Malicious Prosecution
The defendant moves to strike count one of the plaintiff's complaint on the basis that the plaintiff failed to plead facts to support the third element of a malicious prosecution claim, namely, that the defendant acted without probable cause in initiating a criminal action against him. In his objection to the defendant's motion to strike, the plaintiff counters that he has pleaded sufficient facts indicating that the defendant acted without probable cause, as he has alleged that the defendant knowingly made false statements against him.
"An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982); see also QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 360 n. 16, 773 A.2d 906 (2001). "The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).
"Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he [or she] has reasonable grounds for prosecuting an action . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable." (Citation omitted; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 739, 643 A.2d 1226 (1994); see also Heussner v. Day, Berry Howard, LLP, 94 Conn.App. 569, 893 A.2d 486 (2006), cert. denied, 278 Conn. 912, 899 A.2d 38 (2006). "Malice may be inferred from lack of probable cause . . . The want of probable cause, however, cannot be inferred from the fact that malice was proven." (Citation omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 912 A.2d 1019 (2007). "[E]ven if a person files or maintains [an action] with express ill will towards his adversary, the proven existence of malice does not establish a lack of probable cause, for probable cause itself depends uniquely upon the sufficiency of the actor's factual basis for concluding that he has a meritorious [action]." Abramowitz v. Pogacnik, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4005128 (November 29, 2005, Lewis, J.T.R.).
"The determination whether or not a defendant had probable cause to pursue a particular claim or cause of action, though by definition objective, is of necessity highly personalized. Plainly, it depends on the particular state of the defendant's knowledge and belief at the time he brought or joined in the underlying action. Whether or not the defendant was correct in his belief that the plaintiff had engaged in actionable conduct is not the proper test for determining if he acted with probable cause when he pursued the underlying action. What matters instead is the kind and quality of information on which he personally relied when he subjected the plaintiff to that action . . . The sufficiency of a defendant's information to justify pursuing a particular claim depends not only of what he then knew or believed, but on how he had come to know or believe it. The objective reasonableness of a person's belief in the probable existence of particular facts — here, the essential elements of a valid cause of action — depends upon the totality of the circumstances in which his basis for that belief is developed." (Citation omitted; emphasis in original.) Spear v. Summit Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 92 0525939 (April 27, 1998, Sheldon, J.); see also Abramowitz v. Pogacnik, Superior Court, Docket No. CV 05 4005128.
In the present matter, in count one of his amended complaint, the plaintiff alleges the following: "[The defendant] then proceeded to provide the [p]olice with false evidence which she convinced the [s]tate [p]olice indicated that [the plaintiff] was currently using illegal drugs, and which evidence appeared to be drug paraphernalia. [The defendant] then proceeded to make a false statement to the Connecticut State Police authenticating this false evidence of drug use and further claiming that [the plaintiff] was currently utilizing illegal drugs including marijuana and crack cocaine. [The defendant's] actions caused the [s]tate [p]olice to charge and arrest [the plaintiff] for [p]ossession of [d]rug [p]araphernalia . . . [The defendant], in causing these charges to be brought, lacked probable cause that [the plaintiff] had in fact committed any crime."
The court will not consider any of the plaintiff's allegations in connection with the defendant's complaint to the police that he was going to wrongfully use the company car, as the plaintiff was never prosecuted for anything in relation to this particular complaint.
Nowhere within these allegations does the plaintiff set forth any facts that reflect on the kind and quality of information upon which the defendant relied on in making her complaint to the police that the defendant was using illegal drugs. Merely alleging that the defendant's statements to the police were false, without providing facts that show how and why they were false, or that the defendant knew they were false, is insufficient. Consequently, the plaintiff has failed to show that the defendant lacked a sufficient factual basis for concluding that she was making a meritorious complaint to the police. As such, the plaintiff has not sufficiently alleged facts to establish that the defendant acted without probable cause. The defendant's motion to strike count one is granted.
The court will note that in paragraph 8 of the amended complaint, the plaintiff does set forth facts that reflect on the kind and quality of information upon which the defendant relied on in making her complaint to the police that the plaintiff was going to wrongfully take the company car. In paragraph 8, the plaintiff provides that the statement the defendant gave to police in regards to the company vehicle was false and malicious in that: "(a) [he] did not intend to take the vehicle at that time, and had not given any indication to [the defendant] that he was going to do so; and further (b) [he], as an employee of Del-Tron, assigned that vehicle for his personal use, had a right to use that vehicle if he had wanted — a fact known to [the defendant], as [his] then wife, and as a member of the Board of Directors for Del-Tron." Nevertheless, as previously mentioned in footnote three, the court is not concerned with the complaint the defendant made in relation to the company car because the plaintiff was not prosecuted for anything in regards to it.
Although the plaintiff claims that he has alleged that the defendant knew her statements to the police about his alleged illegal drug use were false, the court can find no such allegation in the amended complaint.
II. Abuse of Process
The defendant moves to strike count two of the plaintiff's complaint on the ground that the plaintiff has failed to allege sufficient facts to support an abuse of process claim because a private party's act of making a complaint to a police officer does not constitute use of the legal process. In his objection to the defendant's motion to strike, the plaintiff counters that an abuse of process claim can, in fact, lie from a complaint to police.
"Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose. The gravamen of the complaint is the use of process for a purpose not justified by law. The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process but in its abuse." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., supra, 256 Conn. 360 n. 16. As further explained by the court in Barbiero v. Chiocca, Superior Court, judicial district of New Haven, Docket No. CV 05 40139295 (January 31, 2006, Corradino, J.) (40 Conn. L. Rptr. 694, 695): "Abuse of process differs from malicious prosecution in that the gist of the tort is not . . . causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish." (Internal quotation marks omitted.)
In Schaefer v. O.K. Tool, Inc., 110 Conn. 528, 533, 148 A. 330 (1930), the plaintiff brought an abuse of process claim against the defendant, alleging that the defendant brought civil suit against him without justification and for the sole purpose of harassment. The court held: "This does not set up a cause of action for abuse of process. The defendant's complaint is of the issue of the process, not the abuse of it. The only action of the plaintiff which is complained of, is that he instituted a suit by summons and complaint . . . [Thus] [t]he counterclaim charges the plaintiff with the bringing of a vexatious suit [not an abuse of process suit]." Id., 533-34. See also Paint Products Co. v. Miniwax Co., 448 F.Sup. 656, 659 (D.Conn. 1978).
In Barbiero v. Chiocca, supra, 40 Conn. L. Rptr. 694, the plaintiff brought a claim against the defendant for abuse of process on the basis that the defendant knowingly made a false claim to the police that a bad check, completed by the defendant, had in fact been completed by the plaintiff. The defendant moved to strike the plaintiff's claim on the ground that it was legally insufficient because "[i]f anything a malicious prosecution claim is being advanced . . ." Id. The court held that based on the definitions of abuse of process, the defendant was correct in his argument that the plaintiff was truly asserting a malicious prosecution claim. Id., 695. The court stated: "Here the claim is that the very initiation of the proceeding was unjustified . . . [S]o the court will regard it as lying in malicious prosecution not as claimed, abuse of process." Id. See also Shelton Yacht Cabana Club v. Voccola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0075380 (February 2, 2007, Stevens, J.) (court held that plaintiff's claim was not for abuse of process because it concerned the defendant's initiation of a public nuisance action without justification, not the improper use of process after the action was commenced).
The same definitions previously provided in this decision.
In the present case, the plaintiff, in his amended complaint, alleges that the defendant abused the criminal justice system by making a complaint to the police that resulted in his criminal prosecution for drug paraphernalia. The plaintiff does not allege that the defendant misused the legal process at any time after that. Therefore, the plaintiff has failed to plead facts that support a claim for abuse of process. The defendant's motion to strike count two is granted.
III. False Arrest and Imprisonment
The defendant moves to strike count three of the plaintiff's complaint on the ground that the plaintiff failed "to set forth sufficient facts to support a cause of action for false arrest and imprisonment for the following reasons: (1) the plaintiff failed to allege in his complaint that the defendant, or her agents, arrested him; (2) a cause of action for false arrest or imprisonment can not be brought against a private individual on the basis of registering a complaint with the police." In his objection to the defendant's motion to strike, the plaintiff argues that because the defendant procured his arrest by giving false statements to the police, she is liable to him for false arrest and imprisonment.
"False imprisonment is the unlawful restraint by one person of the physical liberty of another . . . Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability . . . To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly." (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992) ; see also Davis v. United States, 430 F.Sup.2d 67, 79 (D.Conn. 2006) ("To prove a claim of false arrest, Connecticut law requires [the] [p]laintiff to show that [the] [d]efendant . . . personally restrained her against her will").
In LoSacco v. Young, 20 Conn.App. 6, 21, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989), the plaintiff brought a cause of action sounding in false arrest or imprisonment against the defendant, alleging that he was arrested by the police based on the defendant's filing a false complaint against him. The court stated that "[i]f the defendant complies with the formal requirements of the law . . . so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of law and the state, and not to be imputed to him. He is therefore, liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose." Id., 20. The court held, therefore, that "the allegations of the plaintiff's complaint are insufficient to set up a cause of action for false imprisonment." Id., 21. See also Kahn v. Sofro Fabrics, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0131125 (January 23, 1995, Nigro, J.) (court granted defendant's motion to strike plaintiff's false arrest claim on the ground that the only allegation against the defendant was that its employee made a complaint to the police against the plaintiff); Vargas v. Labella, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001941 (August 30, 2007, Matasavage, J.) (44 Conn. L. Rptr. 129, 133) (court granted defendant's motion to strike plaintiff's false arrest claim on the basis that the plaintiff's arrest could not be imputed to the defendants, since plaintiff only alleged that the defendants filed a false police report).
In the present case, the plaintiff, in his amended complaint, alleges that the defendant committed the tort of false arrest and imprisonment by filing a false complaint against him to the police, which caused him to be wrongfully arrested, detained, imprisoned and confined by the police. The plaintiff does not allege facts that show the defendant personally restrained him against his will. Additionally, the plaintiff fails to allege that his arrest was made without proper legal authority. Therefore, the defendant's motion to strike count three of the plaintiff's amended complaint is granted.
IV. Intentional Infliction of Emotional Distress
The defendant moves to strike count four of the plaintiff's complaint on the ground that the plaintiff has failed to set forth sufficient facts to support a cause of action for intentional infliction of emotional distress, as he has failed to allege facts to suggest that the defendant's conduct was extreme and outrageous. In his objection to the defendant's motion to strike, the plaintiff counters that he has supplied sufficient facts that illustrate outrageous conduct on the part of the defendant.
"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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
In count four of the amended complaint, the plaintiff alleges that the defendant engaged in extreme and outrageous conduct when she made false and malicious statements to the police. More specifically, the plaintiff alleges that the outrageous conduct consisted of the defendant informing police that: "(a) [he] intended to take [the company] vehicle, which was in fact assigned to him; (b) that [he] was doing illegal drugs; and (c) that [he] was in possession of drug paraphernalia; and by furnishing the [s]tate [p]olice with false evidence that [he] possessed drug paraphernalia." The plaintiff maintains that these actions caused him to be arrested, detained, charged and prosecuted for possession of drug paraphernalia, although he was eventually exonerated.
In Barbiero v. Chiocca, supra, 40 Conn. L. Rptr. 697, the plaintiff, in his claim for intentional infliction of emotional distress, alleged that the defendant knowingly made a false claim to the police that a bad check, completed by the defendant, had in fact been completed by the plaintiff. The plaintiff alleged that he was arrested as a result of this complaint. Id. The defendant moved to strike the plaintiff's claim on the ground that the allegations did not rise to the level of extreme and outrageous conduct. Id. The court held that "[w]hether such conduct, is proven, is extreme and outrageous is properly a juror question." Id.
Moreover, in Deblasi v. Duclos, Superior Court, judicial district of New Haven, Docket No. CV 05 4011860 (February 16, 2006, Thompson, J.), the plaintiff brought a cause of action for intentional infliction of emotional distress, alleging that the defendant filed false complaints with the police, which resulted in him being arrested and being required to appear in court. The defendant moved to strike the claim on the ground that this behavior was not extreme and outrageous. Id. The court held that such conduct, if proven true, could be found by a reasonable fact finder to be extreme and outrageous. Id. Therefore, the court held that the allegations were sufficient to withstand a motion to strike. Id.
In Jezierny v. Brown, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 084755 (August 24, 2005, Moran, J.T.R.), the plaintiff brought a cause of action for intentional infliction of emotional distress, in which she alleged that the defendant's extreme and outrageous conduct consisted of the defendant making false complaints to police that she was harassing him. The plaintiff claimed that this resulted in her being arrested and being required to appear in court several times. Id. The defendant moved to strike the claim, on the ground that the facts did not constitute extreme and outrageous conduct. Id. In denying the motion to strike, the court held as follows: "The court finds that to bring the weight of a criminal prosecution on the shoulders of the plaintiff and to use the criminal justice system to achieve a vindictive goal rises to the level of extreme and outrageous conduct by the defendant." Id.
Finally, in Cummings v. D'Oyen, Superior Court, judicial district of Fairfield, Docket No. CV 94 318310 (May 3, 1996, Ballen, J.), the plaintiff brought an intentional infliction of emotional distress claim against the defendant, alleging that he was arrested because the defendant filed false accusations against him with the police. The defendant moved to strike the cause of action on the ground that this behavior was not outrageous and extreme. Id. The court denied the motion, holding that: "The court cannot rule as a matter of law that an arrest made, upon an allegedly false and malicious complaint filed by the defendant, as alleged in the present case, cannot constitute extreme and outrageous conduct sufficient to cause the plaintiff to suffer severe emotional distress." Id.
In the present case, considering the alleged facts in the light most favorable to the defendant and the rulings in the aforementioned cases, the court concludes that reasonable minds could disagree as to whether the actions of the defendant, as alleged by the plaintiff, constitute extreme and outrageous conduct. Therefore, the defendant's motion to strike count four of the plaintiff's amended complaint is denied.