Opinion
No. CV99-0150580 S
January 27, 2004
MEMORANDUM OF DECISION
Plaintiff, Michael J. Daly, the Chapter 7 Trustee for the Bankruptcy Estate of John T. Lounsbury and Additional Party Plaintiff (hereinafter, the "Trustee") has brought claims against Marcus Camby and ProServ Inc. Plaintiff Lounsbury alleges that, while a student at the University of Massachusetts and a member of its basketball team, Camby promised that he would sign an exclusive agency contract with the plaintiff when he ended his collegiate career if Lounsbury provided Camby, his friends and family with money, gifts, gratuities and services.
In a motion dated October 8, 2003, the defendant Camby has moved to strike the four counts against him. A Memorandum of Law in support of the Motion to Strike was filed on that same day. That motion was the subject of oral argument on January 12, 2004. The Trustee provided the court, at oral argument, a "Memorandum of Law in Opposition to ProServe Motion for Summary Judgment" (sic). The first sentence of that memorandum states that it is submitted "in [o]pposition to Marcus Camby's Motion to Strike." No other memorandum was submitted by the Trustee/Plaintiff, regarding this motion.
STANDARD OF REVIEW ON MOTION TO STRIKE
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1042 (2002); Sherwood v. Danbury Hospital, 252 Conn. 193, 213, 746 A.2d 730 (2000); Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Practice Book 10-39. The role of the trial court is to examine the complaint, construed in favor of the pleader, to determine whether the pleader has stated a legally sufficient cause of action. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772, 802 A.2d 44 (2002); ATC Partnership v. Windham, 251 Conn. 597, 603, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (2000); Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997); Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 388 (1997).
In adjudicating a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. Vacco v. Microsoft Corp., supra, 260 Conn. 65; Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001); Bohan v. Last, 236 Conn. 670, 675, 674 A.2d 839 (1996); Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn. App. 235, 239, 624 A.2d 389 (1993).
COUNT ONE: ALLEGED CONTRACT IS ILLEGAL
Camby has moved to strike Count One on the ground that the alleged contract is illegal, against public policy, and fails to identify a clear and definite promise. "A motion to strike challenges the legal sufficiency of the complaint. The defendant's claim that the parties' agreement is in violation of public policy does not challenge the plaintiff's cause of action, but rather is in the nature of a defense." Holzberg, J. denial of #109 ProServe's Motion to Strike, June 15, 1999, citing Lichstein v. Yankee Coach, 20 CLR. The motion to strike Count One is denied.
COUNT TWO: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Camby has moved to strike Count Two on the ground that Trustee/Plaintiff is unable to identity any conduct that is extreme and outrageous nor has he alleged emotional distress that can be considered severe. Lounsbury, in its memorandum of law in opposition, simply refers the court to a June 9, 1999 memorandum related to defendant ProServe's motion to strike.
As stated above, in adjudicating a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. The court must also construe the complaint in the manner most favorable to sustaining its legal sufficiency.
The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." Lavoie v. Bayer Corporation, No. X01-CV 01-010168392 (Jan. 23, 2002), 2002 Ct. Sup. 746, 31 Conn. L. Rptr. 391, citing Forbes v. Ballaro, 31 Conn. App. 235, 239 (1993).
Connecticut's appellate courts have stated that conclusory statements or statements of legal effect not supported by allegations of fact will not enable a complaint to withstand a motion to strike. Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985); Raye v. Wesleyan University, No. CV-02-0098865-S (Apr. 10, 2003) 2003 Ct. Sup. 4870.
To sustain a claim for intentional infliction of emotional distress, a plaintiff, must establish; "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that the emotional distress was a 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." Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). The question of whether a defendant's conduct is sufficient to satisfy the extreme and outrageous element is in the first instance for the court. Carnemolla v. Walsh, 75 Conn. App. 319, 331 (2003).
"[L]iability 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 recitation of the facts to an average meter of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . 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 omitted.) Appleton v. Board off Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
In Carnemolla v. Walsh, 75 Conn. App. 319, 332 (2003), the Appellate Court held that the defendant's action of accusing the plaintiff of embezzling company funds and requesting that the plaintiff sign resignation and release forms in front of the plaintiff's coworker was not outrageous and extreme conduct. The Court compared the conduct of the defendant to conduct which occurred in Dollard v. Board of Education, 63 Conn. App. 550, 552-53, 777 A.2d 714 (2001), where the defendants hypercritically scrutinized every aspect of the plaintiff's work and personal life, publicly admonished her and organized a plan to force her to resign. The foregoing conduct was not held to be outrageous or extreme. Carnemolla, at 333. The Court also looked at Appleton v. Board of Education, supra, where the plaintiff was subjected to condescending comments by the employer, subjected to two psychiatric evaluations, escorted off the employer's premises by police and forced to resign. Nonetheless, the defendant's conduct was determined to be not outrageous or extreme. Carnemolla, at 333.
The alleged accusations of which the plaintiff complains relate entirely to pre-employment related contact between professional agent (plaintiff) and student athlete (Camby). The defendant's alleged conduct does not even rise to the level of offensiveness of the defendants' conduct in Carnemolla, or Dollard, which was insufficient as a matter of law to constitute intentional infliction of emotional distress.
There is no doubt that the defendant's conduct in investigating and criticizing the plaintiff's job performance was distressing and offensive to the plaintiff. Nonetheless, "criticism of employee job performance . . . is an expected, albeit unwelcome and uncomfortable, part of every employee's working life. Unless it is of such a nature as to exceed all bounds of human decency and to be totally unacceptable in a civilized society, it cannot support a civil damages action." Scandura v. Friendly Ice Cream Corp., No. CV930591095, 1996 LEXIS 1642, at *13-14 (Conn.Super., 1996, Sheldon, J.). The defendant Camby's alleged conduct clearly did not exceed all or even any bounds of human decency, and was not extreme or outrageous.
For the foregoing reasons, the motion to strike Count Two is granted.
COUNT THREE: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The applicable statute of limitations for negligence actions, § 52-584, provides in pertinent part: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ." In the present case, the plaintiff alleges that Camby's tortious conduct continued from October 1994 through April 1996. Therefore the cause of action expired in 1998. The present complaint was not served until January 1999, almost 3 years after the alleged conduct terminated. The plaintiff, in either his complaint or his responsive memorandum of January 10, 2004, part VI, does not assert either a tolling of the statute, or that a three-year limitations period should apply. Accordingly, the plaintiff's claim for negligent infliction of emotional distress is barred by the statute of limitations. The motion to strike Count Three is granted.
COUNT FOUR: CUTPA
Count Four claims a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110 et seq., and in support thereof alleges a few facts which do not quite add up to the conclusion that the defendant Camby was engaged in the conduct of trade or commerce at the time of his alleged actions. For example, in paragraph 5 of count one, incorporated by reference into the CUTPA count, the plaintiff alleges that the "defendant Camby repeatedly promised the plaintiff that if the plaintiff would supply him and his friends with money, gifts, gratuities and services, defendant Camby would sign an exclusive agency contract with the plaintiff, when Camby ended his college basketball career and became a professional athlete." [Emphasis supplied]. At all times alleged in the complaint, defendant Camby was a student-athlete at the University of Massachusetts. Nowhere in the complaint is there reference to any trade or commerce while Camby was a student-athlete. Thus, the reader is called upon to make several leaps of faith in order to conclude that the defendant's alleged actions in accepting gifts while a student was related to his being engaged in trade or commerce. Although, in deciding a motion to strike, the complaint is to be construed in the light most favorable to the plaintiff, that construction does not include making assumptions based on leaps of faith. The motion to strike Count Four is therefore granted.
ALVORD, JUDGE.