Opinion
WWMCV146007875S
12-24-2015
Russell E. Lavigne, II v. Town of Killingly, CT
UNPUBLISHED OPINION
MEMORANDUM OF DECISION (MOTION TO STRIKE #120)
Harry E. Calmar, J.
The defendants, Town of Killingly (Town), Bruce Chimento, and Bruce Benway move to strike counts three (D), four, five, and six of the plaintiff's amended complaint on the ground that the four counts are insufficient as a matter of law, in that: (1) a municipality may not be sued for intentional torts such as tortious interference with contractual relations, (2) the conspiracy claim fails because all parties were acting as agents for the Town of Killingly, (3) the Connecticut Unfair Trade Practices Act (CUTPA) claim fails as a matter of law, and (4) the plaintiff's claim for unjust enrichment is barred by governmental immunity.
FACTS
On May 28, 2015, the plaintiff, Russell Lavigne, II, filed an amended complaint against the Town, Bruce Chimento, Bruce Benway, and William St. Onge. In the amended complaint, the plaintiff alleges the following facts. The plaintiff and the Town entered into a business arrangement in 2002, most of which was reduced to writing. The contracts between the plaintiff and the Town called for the plaintiff to: (1) operate the Town's recycling plant from 2002 to 2008, which included an oral agreement to consider renewal (first agreement), and (2) create, construct, and manage a processing plant (second agreement). The processing plant was to be constructed on a six-acre tract of land belonging to the Town. The particular location of the plant was to be determined after a survey of the land by the plaintiff; however, at the request of the Town, that survey was put on hold. The processing plant was nevertheless constructed and operated by the plaintiff. The plaintiff alleges that the first agreement was terminated by unlawful and dishonest means and for improper and unconscionable purposes. Moreover, the plaintiff asserts that the second agreement was prematurely terminated because the Town successfully filed an eviction suit that was based on " trumped up" allegations of lease violations.
This motion to strike was brought by the Town, Chimento, and Benway, who will be referred to collectively as the defendants in this memorandum. The defendant St. Onge filed a motion for summary judgment (#113) on June 24, 2015, as to all counts directed towards him. In a separate decision the court treated St. Onge's motion as to count three (C) as a motion to strike, and granted it. The court denied St. Onge's motion for summary judgment as to count four (C), and granted it as to count five (C).
The six-count amended complaint alleges, in relevant part, tortious interference, civil conspiracy, CUTPA violations, and unjust enrichment. In count three (D) of the amended complaint, the plaintiff alleges tortious interference with the plaintiff's contractual right to operate the recycling center, in that Chimento and other town employees entered into a scheme, plan, or compact to characterize every action made by the plaintiff as a complaint about the plaintiff's actions, whether or not the plaintiff's actions were a violation of the first agreement. The plaintiff's contractual right to operate the recycling center was subsequently terminated. Further, the plaintiff alleges that the Town and Chimento created an environment that was so hostile it gave him " no chance" of having his factually low bid considered when the operation of the recycling center was put out for public bid. Specifically, the plaintiff alleges that no town board or official took steps to stop or reverse the employee's actions.
The contract for the recycling center was subsequently awarded to Willimantic Waste, Inc. The plaintiff claims that Chimento took Willimantic Waste's bid from his jacket pocket and that it was Chimento that filed the bid on behalf of Willimantic Waste, Inc. while concurrently declaring that it was the lowest bid.
Count four of the plaintiff's amended complaint alleges civil conspiracy against the defendants. Specifically, the plaintiff alleges that St. Onge, Chimento, Benway, and other servants/agents of the Town conspired amongst themselves, and " with or not with" Willimantic Waste, Inc., to ensure that the plaintiff would not be reappointed as the transfer station operator. The plaintiff further alleges that the Town wrongfully terminated the first agreement and the plaintiff's right to occupy the area containing the processing plant under the second agreement. The plaintiff asserts that the termination was achieved by alleging that a hazard or environmental problem had been created, when the Town and St. Onge were aware that, at the time the eviction suit was filed, the State of Connecticut had certified that no such problem existed.
The amended complaint is unclear as to whether the plaintiff is referring to the recycling plant, which is the subject of the first agreement, or the processing plant, which is the subject of the second agreement.
Count five of the amended complaint alleges violation of CUTPA, in that the Town wrongfully evicted the plaintiff from the buildings that the plaintiff constructed at his cost with the understanding that he was entitled to occupancy throughout the duration of the twenty-year lease period. The plaintiff alleges that in order to facilitate its unfair, deceptive, and false eviction plan, the Town constructed a deceptive map. The plaintiff further alleges that the unlawful acts of Benway and Chimento thwarted the Plaintiff's ability to comply with the terms of the contract.
Count six, brought specifically against the Town, alleges unjust enrichment. The plaintiff alleges that the language in the 2002 agreement establishes that the plaintiff's permission to use the processing area was not intended to terminate if the lease was prematurely terminated. In reliance upon the language, the plaintiff incurred costs in excess of one million dollars in order to construct offices, a garage, living quarters, vehicle parking, storage bins, and other improvements to the processing area. The plaintiff further alleges that the processing area provides an enormous benefit to the Town and that the Town has " taken over" the processing plant and the surrounding area developed by the plaintiff. As a result, the plaintiff alleges that the Town has been unjustly enriched by an amount not less than one million dollars.
On June 29, 2015, the Town, Benway, and Chimento filed a motion to strike counts three (D), four, five, and six of the amended complaint. The defendants submitted a memorandum of law in support of this motion. The plaintiff filed an objection to the motion to strike on August 31, 2015. The plaintiff submitted a memorandum in support of his objection. On September 4, 2015, the defendants submitted a reply to the plaintiff's objection to the motion to strike. This matter was heard at short calendar on September 8, 2015.
(May 27, 2010, Wilson, J.) (" a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike" [internal quotation marks omitted]). The plaintiff's objection appears to be untimely filed, pursuant to Practice Book § 10-40(a), which provides, in part, that " [a]ny adverse party shall have thirty days from the filing of the motion to strike to respond to a motion to strike . . ." However, the plaintiff filed a motion for extension of time to respond to the motion to strike that was not ruled upon by the court. The defendant did not object to any potential untimely filing of the motion or claim that it was prejudiced. The court will, in its discretion, consider the plaintiff's objection. See McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5024230-S,
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or any one or more counts thereof, to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " 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, 693 A.2d 293 (1997). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Id., 588.
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . ." Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " 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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
I. Count Three (D)--Tortious Interference Against the Town
In count three of the amended complaint, the plaintiff alleges tortious interference with contractual relations. " This court has long recognized a cause of action for tortious interference with contract rights or other business relations . . . While our cases have not focused with particularity on what acts of interference are tortious, we have made it clear that not every act that disturbs a contract or business expectancy is actionable . . ." Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 166, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). " A claim for intentional interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant's knowledge of that relationship; (3) the defendant's intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the defendant's tortious conduct." Metcoff v. Lebovics, 123 Conn.App. 512, 521, 2 A.3d 942 (2010).
The Town moves to strike count three (D) of the amended complaint on the ground that tortious interference with contractual relations is an intentional tort, for which the Town is protected by governmental immunity. As a threshold matter, the appropriateness of raising a governmental immunity argument in a motion to strike must be addressed. Generally, the defense of governmental immunity cannot be addressed in a motion to strike because governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway." Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
Nonetheless, " there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011); see Elliott v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998) (establishing that, " [g]overnmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . ."). In paragraph 22 of the amended complaint, the plaintiff states: " Subsequently, the Town purported to terminate Plaintiff's contractual rights and again put the [recycling] operation out to public bid." The plaintiff's amended complaint complains of conduct that transpired in the context of the Town carrying out a governmental function. The Town sought to solicit bids to complete recycling duties that would directly benefit the Town's residents. Therefore, the Town appropriately raised governmental immunity in its motion to strike.
The next inquiry is whether the plaintiff's claim of tortious interference with contractual relations is rendered insufficient by the Town's claim of governmental immunity. General Statutes § 52-557n(a)(2)(A) states, " [e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . ." It must be noted that, " [t]here is no dispute that the city is a political division, and our Supreme Court has held that the term 'wilfulness' is synonymous with 'intentional' . . . [U]nder our case law, a municipality cannot be held liable for the intentional torts of its employees." (Internal citation omitted.) Avoletta v. City of Torrington, 133 Conn.App. 215, 224, 34 A.3d 445 (2012); see also Pane v. City of Danbury, 267 Conn. 669, 685, 841 A.2d 684, overruled on other grounds by 294 Conn. 324, 984 A.2d 684 (2009).
While " [s]ection 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property . . . [t]he section goes on to exclude liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . ." Tyron v. North Branford, 58 Conn.App. 702, 721, 755 A.2d 317 (2000); see also Avoletta v. Torrington, 133 Conn.App. 215, 224, 34 A.3d 445 (2012).
A claim for tortious interference with contractual relations is premised upon the presence of intentional conduct. In the present case, the plaintiff alleges that town employees Benway and Chimento demonstrated personal or professional bias against the plaintiff and that the aforementioned employees had personal inclinations to see that the plaintiff's contracts with the Town were terminated. The complaint further alleges that Town employees " entered into a scheme, plan, or compact in which every action taken by the plaintiff was characterized as 'a complaint about the actions of the [plaintiff]' whether or not [the plaintiff's actions] constituted a violation of the [lease agreement]." It is clear, on the face of the complaint, that the plaintiff is alleging that the actions of town employees amounted to intentional misconduct. As such, pursuant to § 52-557n(a)(2)(A), the Town is entitled to governmental immunity and cannot be held liable. The defendant's motion to strike count three (D) is granted.
In his objection to the defendant's motion to strike (#139), the plaintiff argues that he has made out a case for nuisance pursuant to § 52-557n(a)(1)(C) which states: " Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ." (Emphasis added.) The amended complaint does not support such a finding, and therefore the applicable finding is pursuant to § 52-557n(a)(2)(A).
II. Count Four--Civil Conspiracy
In count four of the complaint, the plaintiff alleges civil conspiracy. " The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." Harp v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003). The plaintiff contends that Benway and Chimento, among others, conspired to ensure that the plaintiff would not be reappointed as the operator of the transfer station.
The defendants argue that the plaintiff's civil conspiracy claim fails because all of the defendants are agents/representatives of the Town and, therefore, cannot conspire. In adopting the intracorporate conspiracy doctrine the Supreme Court held, " [c]ourts . . . that have addressed issues involving civil intracorporate conspiracy allegations have adopted the intracorporate conspiracy immunity doctrine to hold that wholly intracorporate conduct does not satisfy the plurality requirement necessary to establish an actionable conspiracy claim." Id., 776-77. " The corporation may be held liable for conspiracy, however, (1) where its officers, agents or employees were acting for personal reasons, (2) or where they have an independent personal stake in achieving the object of the conspiracy, (3) or where an independent third party conspired with the corporation." Doe v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. CV-08-5029882-S (May 24, 2012, Bergen, J.) (54 Conn. L. Rptr. 101, 104).
This theory is known as the intracorporate conspiracy doctrine. The doctrine pertains to the first element of a claim for civil conspiracy requiring that a plaintiff prove " a combination between two or more persons . . ." Harp v. King, supra, 266 Conn. 779.
In the present action, the plaintiff has alleged that Chimento, Benway, St. Onge and other servants and/or agents of the Town conspired and formed an agreement to ensure that the plaintiff would not be reappointed as the operator of the transfer station. The plaintiff does not allege that any of the supposed conspirators were acting outside the scope of their employment; rather, to support his claim, the plaintiff argues that the defendants ignored portions of the 2002 agreement between the Town and the plaintiff and that the Town terminated the plaintiff's lease agreement based on " trumped up" allegations that have never been substantiated by evidence. The plaintiff's complaint also contains allegations that an independent third party, Willimantic Waste, Inc., conspired with Chimento, Benway, St. Onge and other servants/agents of the Town.
Paragraph 23 of the amended complaint alleges, " [i]n spite of the fact that [the] [p]laintiff was the low bidder, the contract was awarded to Willimantic Waste . . . On the day that the bids were due in the Town's Engineering office, Chimento took the Willimantic [Waste] bid from his jacket pocket and filed it on behalf of Willimantic [Waste] while concurrently declaring it the low bid." Paragraph 43 of the amended complaint alleges that the defendants and other servants of the town " conspired amongst themselves and with or not with Willimantic Waste." Further, paragraph 46 establishes, " [o]n information and belief, [the] [p]laintiff alleges that evidence exists of undisclosed monetary payments to Mr. Chimento by operatives of Willimantic [Waste] after Chimento became Town Engineer." On a motion to strike the court is bound by the allegations in the complaint and the allegations are to be construed in the manner most favorable to sustaining their legal sufficiency. See Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 309 Conn. 350. Since the allegations indicate that a third party, Willimantic Waste, may have been involved in the alleged conspiracy, the alleged conspiracy did not remain intracorporate and therefore the plurality requirement for a claim of civil conspiracy has been met. The intracorporate conspiracy doctrine is inapplicable. The defendant's motion to strike count four is denied.
III. Count Five--Connecticut Unfair Trade Practices Act
In count five, the plaintiff alleges a violation of CUTPA, codified as General Statutes § 42-110(b). In their motion to strike, the defendants argue that the plaintiff's CUTPA claim fails as a matter of law because the defendants were not engaged in the advertising, selling, renting, leasing or distribution of goods. Section 42-110b(a) provides: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." " Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." Eden Brothers, Inc. v. Wine Merchants of Connecticut, 275 Conn. 363, 380, 880 A.2d 138 (2005).
" A person is defined to mean, a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity. Since a municipality is, in fact, a legal entity, its activities in the conduct of any trade or commerce, may fall within the broad parameters of CUTPA." (Internal quotation marks omitted.) Manchester v. United Stone America, Inc., Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-98-0070702-S (June 15, 2000, Bishop, J.) (27 Conn. L. Rptr. 414, 414).
In their motion to strike, the defendants claim that CUTPA does not apply because the defendants were not engaged in the advertising, selling, renting, leasing, or distribution of goods. The plaintiff's objection to the motion to strike indicates that the basis for the CUTPA claim is a lease, which brings the claim within the reach of CUTPA. The language of the amended complaint supports the plaintiff's contention that the underlying issue in the CUTPA claim is a lease. Paragraph 62 of the amended complaint alleges that the Town wrongfully evicted the plaintiff from the buildings that the plaintiff constructed at his cost, of which he was entitled to a twenty-year period of occupancy. Further, paragraph 61 of the amended complaint alleges that upon entering into the lease with the Town the plaintiff relied upon the " firm and definite promises and representations of the Town's officials" when he undertook the construction of a large building on the leased property. Therefore, for the purposes of the motion to strike, the underlying CUTPA claim involves the violation of the lease agreement. Thus, it is necessary to determine whether the defendants were engaged in a trade or commerce, required for CUTPA to apply, when they allegedly breached the lease agreement.
The complaint also alleges that the Town initiated an " unfair and deceptive and false eviction plan [in which], the Town came up with a 'map' of the leased six acres which dishonestly excluded the land upon which [the] [p]laintiff constructed and operated the Processing Area . . ."
Connecticut courts have held that the trade or commerce requirement of § 42-110b(a) is limited. " [A] CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce." McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). A number of Connecticut trial courts have explored what it means to be an entity's primary trade or commerce. In Nxegen, LLC v. Bridgeport, Superior Court, judicial district of Hartford, Docket No. CV10-3013893-S, (February 23, 2015, Vacchelli, J.), the plaintiff alleged that the parties agreed upon a contract that would take place in two phases, and that the defendant, Bridgeport Board of Education, breached the contract by awarding the second phase of the contract to a third party. The court ruled, " [t]o the extent that the Board of Education has a 'trade, ' or 'commerce' it is the provision of education . . . Entering into contracts for improving the energy efficiency of school facilities is merely incidental to that primary function." Id.
Further, in Manchester v. United Stone America, Inc., Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-98-0070702-S (June 15, 2000, Bishop, J.) (27 Conn. L. Rptr. 414), the plaintiff contracted with the defendant requiring that the defendant complete construction work upon the Manchester Town Hall. The court ruled, " the described activities on the part of the Town do not constitute 'trade' or 'commerce.' Neither contracting with the defendant for the alteration and addition of the Town Hall, nor the specified activities associated with performance of the contract constitutes the conduct of trade or commerce as defined in [CUTPA]." Id.
In the present case, the primary function of the Town was not to enter into lease agreements, and therefore the entering into and the alleged violation of the lease in question is not an example of the Town engaging in its primary trade or function. The present situation is akin to that of the aforementioned Superior Court decisions. Because the Town is alleged to have been engaged in an activity incidental to its primary trade or commerce, CUTPA does not apply. The motion to strike count five is granted.
IV. Count Six--Unjust Enrichment Against Defendant Town
In count six the plaintiff alleges unjust enrichment against the Town. The count alleges that the plaintiff, in reliance upon his belief that his permission to use the processing area was not intended to terminate should the lease between the parties be terminated prematurely, incurred substantial monetary detriment to the Town's benefit. In their motion to strike, the Town argues that the plaintiff's unjust enrichment claim is barred by governmental immunity. Specifically, the Town argues that municipalities are provided with immunity from liability for their arguably tortious acts unless the legislature has enacted a statute that abrogates the immunity. The Town further claims that there is no statute under which they may be held liable. In his memorandum of law in opposition to the motion to strike, the plaintiff argues that the unjust enrichment claim is a claim grounded in equity, for which governmental immunity does not apply.
In later briefs the parties introduce arguments about the scope of § 52-557n and what type of suits are authorized by statute. The court need not address those arguments at this time as the motion to strike count six is denied on other grounds.
" Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . 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 . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Citations omitted; internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
In Vertex, Inc. v. Waterbury, the Supreme Court held that Connecticut law allows for recovery against a political subdivision in claims of unjust enrichment. Id., 576-77; see also Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564-69, 244 A.2d 404 (1968) (claim of unjust enrichment against a municipality considered, but ultimately rejected under facts of that case). Moreover, in Town of New Hartford v. Connecticut Resources Recovery Authority, Superior Court, judicial district of Waterbury, Docket No. CV-04-0185580-S, (June 19, 2007, Everleigh, J.), the defendants asserted governmental immunity as a special defense to an unjust enrichment claim, citing § 52-557n(a)(2)(A). The court held, " [u]nder common law, principles of governmental immunity do not bar claims for breach of contract against political subdivisions of Connecticut . . . Likewise, governmental immunity does not bar plaintiffs' claims for unjust enrichment." Id.
The Town is a political subdivision of the state. See Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739, 747, 22 A.3d 1251 (2011) (stating, " provisions [of General Statutes] establish a core set of entities--cities, towns, and other units of local government--that plainly fall within the meaning of political subdivision").
In the present case, the plaintiff has made a claim of unjust enrichment against the Town, a political subdivision. The Town, in turn, argues that such claim is barred by governmental immunity. Connecticut case law is clear that governmental immunity does not bar claims for unjust enrichment against a political subdivision. The motion to strike count six is denied.
CONCLUSION
For the foregoing reasons, the court should grants the defendants' motion to strike as to count three (D) and count five, and denies the motion to strike as to count four and count six.