Opinion
No. CV 08-4034644S
July 7, 2010
MEMORANDUM OF DECISION
This action arises out of the plaintiffs', Karim and Nizar Sidi's, submission of a bid to develop a piece of property in New Haven. On January 3, 2000, the City of New Haven acquired the subject property and subsequently, on February 6, 2005, the city circulated a Request for Proposal ("RFP") requesting bids to develop this property, which the plaintiffs responded to. For the purposes of this decision, "the defendants" will refer to Wendy Clarke and Paul Wessel. The plaintiffs allege that the defendants violated closed bidding procedures by informing other bidders, also named defendants in this action, that the city wanted a grocery store at the site and further, by informing these bidders how much to offer in their bid. Clarke is being sued in her official capacity as the interim economic development director for the city and Wessel is being sued in his official capacity as a member of the city committee responsible for carrying out the RFP.
The operative amended complaint was filed in March 2009, in United States District Court for the District of Connecticut. The first count of the plaintiffs' complaint, alleging violation of their due process rights, was dismissed by the district court, Bryant, J., on November 30, 2009, which declined to exercise supplemental jurisdiction over the remaining state law claims. See Sidi v. Diaz, United States District Court, Docket No. 3:08-CV-1930 (VLB) (D.Conn. November 30, 2009). As a result, the case was remanded back to this court.
The remaining counts allege the following: count two alleges violation of § 53a-161a; count-three alleges negligent interference with a contractual relationship; and count four alleges violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). The defendants filed a motion to strike counts two through four and their memorandum in support on March 10, 2010. The plaintiffs filed their objection and memorandum in opposition on April 28, 2010. The defendants filed their reply on May 6, 2010. The parties appeared for oral argument on June 1, 2010.
"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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "if any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
Section 53a-161a is titled "Bid rigging: Class D felony" and provides: "No person, firm, corporation, association or partnership who bids, or intends to bid, for any contract to be awarded by any commission, agency or department of the state or any political subdivision of the state shall induce or attempt to induce any other person, firm, corporation, association or partnership to submit or not to submit a bid or proposal for the purpose of restricting competition. Any person who violates the provisions of this section shall be guilty of a class D felony." The defendants argue that this count should be stricken because this statute is part of Connecticut's penal code and does not provide a private cause of action for the plaintiffs. This court agrees.
"[T]here exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute." Provencher v. Enfield, 284 Conn. 772, 777-78, 936 A.2d 625 (2007); see also Cort v. Ash, 422 U.S. 66, 80, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (no private cause of action existed under a "bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone"); Burke v. APT Foundation, 509 F.Sup.2d 169, 173 (D.Conn. 2007) (statutory provisions identified by plaintiff were criminal statutes and as such, did not provide a private right of action to civil litigants).
The court could not find any case law supporting the plaintiffs' argument that § 53a-161a provides the basis for a civil action. In bases in which "bid-rigging" was alleged, the plaintiffs, including the State of Connecticut, have based their causes of action upon other statutes, namely, the Connecticut Antitrust Act, § 35-24 et seq. See State v. Marsh McLennan Cos., 286 Conn. 454, 944 A.2d 315 (2008); State v. Liberty Mutual Holding Co., Inc., Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 064023087 (March 20, 2009, Shortall, J.); Interstate Aviation, Inc. v. Meriden, Superior Court, Judicial District of New Haven at Meriden, Docket No. CV 92 0240874 (June 12, 1997, Satter, J.). As a result, the court strikes the second count of the plaintiffs' complaint.
The court notes that the Federal District Court, Bryant, J., expressed doubt that § 53a-161a provided a private cause of action for the plaintiffs. See Sidi v Diaz, supra, United States District Court, Docket No. 3:08-CV-1930 (VLB).
"Connecticut has long recognized a cause of action for tortuous interference with business relations . . . Connecticut recognizes two causes of action for tortuous interference with a contract. These actions are negligent interference with a contract and intentional interference with a contract . . . [T]his court has required privity of contract in order to sustain a claim for negligent interference with contract obligations . . . Negligent interference with contractual relations requires privity of contract between the plaintiff and the defendant." (Citations omitted; internal quotation marks omitted.) Dworkin Construction Corp. v. Shremshock-Yoder Architects, Inc., Superior Court, Judicial District of New Haven, Docket No. 380352 (August 2, 1996, Zoarski, J.T.R.).
In the present case, the plaintiffs do not allege the existence of a contract between themselves and any of the named defendants. Therefore, the plaintiffs have failed to state a claim for negligent interference with contract and as a result, the court strikes count three.
The defendants also argue that this count is barred by the three-year statute of limitations in § 52-577. Because this count was stricken for an alternative reason, the court need not address the defendants' statute of limitations argument.
The defendants argue that the fourth count, alleging violation of CUTPA, should be stricken because it is barred by the three-year statute of limitations provided by § 42-110g(f). The defendants contend that since their alleged conduct occurred on or about March 15, 2005, the plaintiffs' complaint, brought on October 31, 2008, is time-barred. Typically, "a claim that an action is barred by . . . the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). "[T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted." Id.
"The First is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer . . . The second is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Citation omitted; internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993).
Here, the plaintiffs allege violation of CUTPA, which is a statutory right of action that did not exist at common law. "Pursuant to the clear and unambiguous language of § 42-110g(f), no cause of action can be maintained under CUTPA if brought more than three years after the unfair practice occurs." Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 606 n. 6, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007). Thus, the court may address the defendants' statute of limitations argument in this motion to strike. See J.E. Robert Co. v. Signature Properties, LLC, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 07 5026084 (March 1, 2010, Shapiro, J.) (striking CUTPA claims because a specific time limitation is contained in § 42-110g(f)); White Oak Corp. v. American International Group, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 07 4027319 (July 6, 2009, Shortall, J.T.R.) ( 48 Conn. L. Rptr. 198) ("CUTPA cases fall within the second exception to the rule that a statute of limitations claim must be pleaded as a special defense, not raised by a motion to strike").
In their opposition brief, the plaintiffs argue that the statute of limitations in § 42-110g(f) does not bar this action because the fraudulent concealment statute, § 52-595, applies in this case. That statute provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefore at the time when the person entitled to sue thereon first discovers its existence." Moreover, "to prove fraudulent concealment, the plaintiffs [are] required to show: (1) a defendant's actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs' cause of action; (2) that defendant's intentional concealment of these facts from the plaintiffs; and (3) that defendant's concealment of the facts for the purpose of obtaining delay on the plaintiffs' part in filing a complaint on their cause of action." Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).
In Fichera v. Mine Hill Corp., 207 Conn. 204, 216, 541 A.2d 472 (1988), the Supreme court held that, based upon the facts presented in that case, application of § 52-595 "would defeat the legislative intention expressed in § 42-110g(f) to bar actions for CUTPA violations after lapse of more than three years from their occurrence." The court reasoned: "Since CUTPA violations are defined in General Statutes § 42-110b to include `deceptive acts or practices in the conduct of any trade or commerce,' it is evident that the legislature intended that the perpetrators of such fraudulent practices, as well as other CUTPA violators, should be permitted to avail themselves of the statute of limitations defense provided by § 42-110g(f). Despite the existence in other states of statutes of limitation applicable to unfair trade practices establishing a limitation period for bringing an action that begins after discovery of the violation, our legislature has failed to create such an option for victims of CUTPA violations in this state. We conclude, therefore, that those who violate CUTPA by committing "deceptive acts . . . were intended by the legislature to have the same protection that § 42-110g(f) affords to other CUTPA violators, such as those who engage in `unfair methods of competition' and `unfair . . . practices in the conduct of any trade or business.' General Statutes § 42-110b(a)." Id., 216-17.
Although Fichera has been criticized by a decision of the Superior Court; Assurance Co. of America v. Yakemore, 50 Conn.Sup. 28, 36-38, 911 A.2d 777 (2005); the court is satisfied that § 52-595 does not toll the statute of limitations in § 42-110g(f). See Bartone v. Robert L. Day Co., Inc., supra, 232 Conn. 532 n. 4 ("Because we conclude that the plaintiffs have failed to prove fraudulent concealment, we need not consider their contention that, despite our decision in Fichera v. Mine Hill Corp., 207 Conn. 204, 215-17, 541 A.2d 472 (1988), the statute of limitations contained in CUTPA; General Statutes § 42-110g(f); may be avoided by proof of such fraudulent concealment); Blew v. Jacobson, Superior Court, Judicial District of New London, Docket No. 56433 (October 5, 2001, Hurley, J.T.R.) (relying on Fichera in granting motion for summary judgment as to plaintiff's CUTPA claim because it was time barred by § 42-110g(f).
Furthermore, the plaintiffs' operative complaint fails to allege any facts which would support a fraudulent concealment claim. None of the plaintiffs' allegations can be read by this court to imply that the defendants knew of the plaintiff's cause of action and as a result, concealed facts to delay the plaintiffs' filing of this action. See Blew v. Jacobson, supra, Superior Court Docket No. 565433 ("plaintiffs have neither affirmatively pleaded fraudulent concealment nor alleged sufficient facts to meet the burden of proving fraudulent concealment, and therefore, General Statutes § 52-595 will not toll the statute of limitations"). Therefore, the court finds that the plaintiffs claim is time-barred and as a result, strikes count four.
Conclusion
The defendants' motion to strike is granted in its entirety.