Opinion
No. CV08 500 58 18S
April 14, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (#147)
FACTS AND PROCEDURAL HISTORY
The plaintiff, Cheryl Olah, commenced the present action by service of process on the defendants, Brooklawn Country Club, Inc. (Brooklawn), Raul Cordero and Judy Barbagallo on April 3, 2008.
The Connecticut Commission on Human Rights and Opportunities is a nonappearing defendant in the present case.
The plaintiff filed a thirteen-count revised complaint on January 26, 2009, in which she alleges that she was employed in the capacity of an office manager by the defendant, Brooklawn, for all times relevant to her complaint. The plaintiff alleges that she performed the duties of her job satisfactorily and received oral promises from Barbagallo, her immediate supervisor, that her "job was safe, and that [she] `was not going anywhere.'" The plaintiff further alleges with specificity multiple incidents of sexual harassment by the defendant, Cordero, who was also employed by Brooklawn.
The plaintiff's revised complaint states the following causes of action: (1) violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60 et seq., by Brooklawn; (2) intentional infliction of emotional distress by all defendants; (3) statutory negligence under General Statutes § 31-49 by Brooklawn and Barbagallo; (4) assault and battery by Brooklawn and Cordero; (5) invasion of privacy by Brooklawn and Cordero; (6) breach of implied contract by Brooklawn; (7) intentional misrepresentation by Brooklawn and Barbagallo; (8) promissory estoppel against Brooklawn; (9) false imprisonment against Brooklawn and Cordero; (10) violation of CFEPA by Brooklawn; (11) violation of CFEPA, General Statutes § 46a-60(a)(5), by Brooklawn and Barbagallo; (12) violation of CFEPA by Cordero; and, (13) violation of CFEPA by retaliation, against all defendants.
On November 9, 2009, this court, Radcliffe, J., issued an order that granted in part a motion to strike filed by the defendants, Brooklawn and Barbagallo. Only counts six, seven and eight of the plaintiff's complaint survived. The court granted judgment without trial for the defendants, Brooklawn and Barbagallo, on counts three, four, five and nine of the plaintiff's complaint.
The plaintiff alleges that she complained of the alleged incidents of sexual harassment on multiple occasions to several people at Brooklawn, including Barbagallo, but that Barbagallo and Brooklawn failed in their duty "to promptly and fully investigate these charges and take corrective action to prevent [the plaintiff] from being sexually harassed." The plaintiff alleges that the defendant, Brooklawn, thereafter manufactured cause for her dismissal and that sexual discrimination formed the actual basis for her termination.
On November 9, 2009, the defendants, Brooklawn and Barbagallo, filed an answer and special defenses. Therein, the defendants raised six counterclaims and claims for a right of setoff against the plaintiff: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) fraud; (5) forgery and statutory double damages; and, (6) theft and conversion. The defendant, Barbagallo, also raises a counterclaim against the plaintiff for common-law vexatious suit.
On March 19, 2010, the plaintiff filed a motion to strike the defendants' counterclaims and claims for a right of setoff, together with a memorandum of law in support. The defendants filed an objection to the plaintiff's motion to strike on May 4, 2010. The parties appeared before the court for oral argument at short calendar on May 17, 2010. The court issued an order that overruled the defendants' objection to the plaintiff's motion to strike on October 14, 2010. This memorandum of decision articulates the basis for that decision.
DISCUSSION
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court takes] the facts to be those alleged in the [pleading] . . . and [construes] the [pleading] 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." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
A Whether the Present Motion is Proper
The defendants argue first that a request to revise is the proper procedural mechanism to "dismiss" counterclaims that are unrelated to the complaint. Accordingly, the defendants conclude that, "by filing a motion to strike rather than a request to revise, [the] plaintiff has waived her opportunity to file a request to revise."
A timely request to revise pursuant to Practice Book § 10-35 may be used by a party in order to clarify a pleading prior to filing a motion to strike. See Rowe v. Godou, 209 Conn. 273, 279-80, 550 A.2d 1073, 1076 (1988). "Nothing in Practice Book § 10-35 authorizes a party to request that material allegations . . . be stricken." Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 277 n. 12, 943 A.2d 420 (2008). Moreover, when the court grants a request to revise, the result is not the dismissal of a claim, but the deletion of certain allegations from a pleading.
Practice Book § 10-35 provides: "Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading or, (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party's pleading, the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading."
In support of their position, the defendants rely on the decision reached in TIE/Communications v. Kopp, Superior Court, judicial district of Middlesex, Docket No. CV 64983 (August 18, 1992, Higgins, J.) ( 7 C.S.C.R. 1027) [ 7 Conn. L. Rptr. 244], the subject matter of which was the transfer of a note and certain shares of stock. In TIE/Communications, the parties came before the court on the plaintiff's motion to strike the defendant's counterclaims for fraudulent misrepresentation and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42a-110a et seq., because they did not arise out of the same transaction that was the subject of the complaint. The court stated, as the defendants cite in their memorandum of law, that "the proper way to raise the issue of whether a counterclaim arises out of one of the transactions alleged in the compliant is to file a request to revise claiming the deletion of the counterclaim as an improper allegation." (Internal quotation marks omitted.) Id. Nevertheless, the court concluded in the following paragraph that: "The fact that the promissory note was executed on the same day as the stock transfer is indicative, reading the counterclaim in the light most favorable to sustaining its sufficiency, that the note and the stock transfer were part of the same transaction. Accordingly, assuming arguendo that a motion to strike is the proper procedural vehicle to raise the issue, the counterclaim meets the transactional test of Practice Book [§ 10-10]." Id.
In the present case, the plaintiff's motion does not seek a more complete or particular statement of the defendants' pleading, the deletion of improper factual allegations, the division into separate counts the allegations of any particular counterclaim/claim for a right of setoff, nor does it seek a correction to the defendants' pleading. Rather, the plaintiff's motion seeks to challenge the legal sufficiency of those counterclaims and claims for a right of setoff. Accordingly, the plaintiff's motion is procedurally proper.
B The Defendants' Counterclaims 1 Brooklawn's Counterclaims
The plaintiff argues that the court should grant her motion to strike the defendants' six counterclaims and claims for a right of setoff because they are improper under Practice Book § 10-10. In opposition to the plaintiff's motion, the defendant, Brooklawn, maintains that its counterclaims are related to the plaintiff's complaint because the causes of action stated in the plaintiff's complaint and in the defendant's counterclaims arise out of the plaintiff's employment relationship with the defendant.
Practice Book § 10-10 provides, in part: "In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint." Section 10-10 "is a common-sense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy . . . The transaction test is one of practicality." (Citation omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 132-32, 952 A.2d 56 (2008). "Relevant considerations in determining whether the transaction test has been met include whether the same issues of fact and law are presented by the complaint and the [counter]claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts . . . [T]he underlying purposes of Practice Book § [10-10 are] judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action." (Citation omitted; internal quotation marks omitted.) Jackson v. Conland, 171 Conn. 161, 166-67, 368 A.2d 3 (1976).
In support of their position, the defendants cite Foster v. Delman, Superior Court, judicial district of Waterbury, Docket No. CV 06 5002506 (August 22, 2008, Roche, J.). In Foster, the court sustained defendant's objection to the plaintiff's motion to strike the defendant's counterclaim, where the plaintiff's complaint stated a cause of action for embezzlement and larceny, and the defendant counterclaimed for invasion of privacy, slander, replevin, intentional infliction of emotional distress and negligent infliction of emotional distress. In sustaining the defendant's objection, the court applied the transaction test and concluded that the employment relationship was a single transaction, and that the causes of action raised by the parties stemming from that relationship were best suited for a single action.
Were the transaction test a mechanical legal rule, the defendants' reliance on Foster for the proposition that the word transaction in § 10-10 should be construed broadly would be persuasive. Rather, the transaction test is a guide for an ad hoc discretionary determination of the court. That determination is not rote; it is one in which the court must balance the interests of "judicial economy, [the] avoidance of multiplicity of litigation, and [the] avoidance of piecemeal disposition of what is essentially one action." Jackson v. Conland, supra, 171 Conn. 166-67.
The present case is an action to recover damages for alleged sexual harassment that occurred during the plaintiff's employment by the defendant, Brooklawn. The plaintiff's complaint alleges facts relevant to her job performance, which the defendants rely upon in asserting that their counterclaims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, fraud and conversion would be duplicitous if litigated in a separate case. Those facts alleged by the plaintiff, however, appear to have bolstered her causes of action for sexual discrimination under CFEPA.
See footnote 2.
Further militating against the defendant's argument that a separate trial would be duplicitous is that the plaintiff maintained a companion case to the present case in Olah v. Brooklawn Country Club, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 5005818 (April 17, 2009, Levin, J.) ( Olah I). Olah I was an action to recover regular and overtime wages that the plaintiff alleged that the defendant, Brooklawn, did not pay her in connection with her employment. The core facts of Olah I appear to have been closer in both factual and legal relation to the counterclaims raised by the defendant in the present case.
That the plaintiff's causes of action and the defendant's counterclaims arise in the context of an employment relationship, alone, does not make the facts alleged in the plaintiff's complaint closely related to those alleged by defendant in support of its counterclaims. Furthermore, that an employment relationship once existed between the parties does not make it practical to join the defendant's counterclaims. Moreover, the legal issues raised by the plaintiff's complaint are distinct from those raised by the defendant's counterclaims, which would compound the difficulty of trying those claims and counterclaims together. Accordingly, the court finds that it would best serve the underlying purposes of § 10-10 if the defendant, Brooklawn's, counterclaims were tried separately.
2 Barbagallo's Counterclaim for Vexatious Suit
The plaintiff also moves to strike the counterclaim and claim for a right of setoff raised by the defendant, Barbagallo, for common-law vexatious suit. In her memorandum in support of her motion to strike, the plaintiff contends that this counterclaim is legally insufficient because it is "based on the finding in [ Olah I] that [Barbagallo] was not personally liable to the plaintiff for unpaid wages." The plaintiff also maintains that this counterclaim falls outside the scope of § 10-10. In response, the defendant argues that her counterclaim for vexatious suit is proper because Olah I was resolved in her favor.
The common-law cause of action for malicious prosecution of a civil suit and the statutory cause of action for vexatious suit are "governed by the same general principles." Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 89 Conn.App. 459, 467, 874 A.2d 266 (2005). "The elements of a common-law or statutory cause of action for vexatious litigation are identical." Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 596, 715 A.2d 807 (1998). "[A] claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiff's favor . . . In suits for vexatious litigation, it is recognized to be sound policy to require the plaintiff to allege that prior litigation terminated in his favor." (Citations omitted; emphasis added.) Blake v. Levy, 191 Conn. 257, 263, 464 A.2d 52 (1983).
Assuming arguendo that the defendant has stated a legally sufficient counterclaim for vexatious suit, the defendant's counterclaim fails to meet the requirements of § 10-10. A proponent of a claim for vexatious suit is not burdened with demonstrating the existence of a subsequent suit on the same grounds or that such a subsequent suit seek the same remedy as a prior action. Nevertheless, under § 10-10, a counterclaim for vexatious suit must share a nexus with the operative facts of a complaint.
In the present case, the defendant, Barbagallo, alleges in her counterclaim for vexatious suit that the defendant commenced her suit in Olah I without probable cause and in retaliation for her dismissal from Brooklawn. The defendant, Barbagallo, also alleges that the plaintiff pursued that suit in a way that "falsely [maligned] Barbagallo's character and competence." The defendant further alleges that the plaintiff's suit in Olah I terminated in her favor. The defendant does not, however, allege any relationship between Olah I and the present case that would meet the transaction test of § 10-10.
C Whether the Defendants' Claims for Equitable Rights of Setoff are Legally Sufficient
The plaintiff argues that the court should grant her motion to strike the defendants' claims for a right of setoff because "the defendants have failed to allege that there are mutual debts between the parties, or even that there is a debt due by the plaintiff to the defendants." The defendants respond that their "counterclaims are also viable setoffs" and that their claims for a right of setoff "allege liquidated damages that have already been determined in Olah I" in which the court determined that the plaintiff had been overpaid by the defendant.
"In Connecticut, a setoff may be legal or equitable in nature." Croall v. Kohler, 106 Conn.App. 788, 791, 943 A.2d 1112 (2008). "A [setoff] is made where the defendant has a debt against the plaintiff arising out of a transaction independent of the contract on which the plaintiff sues, and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiff's recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance." (Internal quotation marks omitted.) Mariculture Products, Ltd. v. Certain Underwriters at Lloyd's of London, 84 Conn.App. 688, 703, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004). A "debt" is a "[l]iability on a claim; a specific sum of money due by agreement or otherwise." Black's Law Dictionary (8th ed. 2004).
"To constitute mutuality, the debts must be due to and from the same persons in the same capacity . . . Mutual debts . . . are cross debts in the same capacity and right and of the same kind and quality . . . It is the [proponent's] burden to demonstrate its right of setoff by affirmatively and adequately alleging such a claim in the pleadings." (Citations omitted; internal quotation marks omitted.) Mariculture Products, Ltd. v. Certain Underwriters at Lloyd's of London, supra, 84 Conn.App. 704.
The defendants allege that the court concluded in Olah I that the defendant was overpaid for her services while in the employ of the defendant, Brooklawn. The defendants do not allege a specific dollar amount that is liquidated and capable of being collected. Rather, the defendants allege damages. Furthermore, the plaintiff's complaint seeks damages, not the collection of a debt. Accordingly, the defendants have failed to allege mutual debts. Therefore, the defendants' claims for a right of setoff are legally insufficient.
CONCLUSION
For the forgoing reasons, the defendants' objection to the plaintiff's motion to strike is overruled, and the plaintiff's motion to strike is granted.