Opinion
No. CV 05 40 080 81S
December 19, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#116)
This matter is before the court on the defendant's motion to dismiss on the ground that the court lacks subject matter jurisdiction over the action.
The plaintiff in this action, Tamara Simpson, alleges that the defendants, DL Tractor Trailer School and its president, C. Donald Lane, Jr. (Lane), unlawfully sexually harassed her by subjecting her to a sexually harassing work environment, unlawfully retaliated against her by terminating her employment after she complained about the allegedly harassing conduct, and unlawfully terminated her employment on the basis of her race and color. On May 11, 2004, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) against DL Tractor Trailer School, alleging the aforementioned discriminatory acts. On May 21, 2005, the CHRO released its jurisdiction over the complaint and authorized the plaintiff to commence a civil action in superior court. The plaintiff timely filed a three-count complaint on April 27, 2005, and an amended three-count complaint on December 27, 2006.
On August 14, 2007, the defendants filed a motion to dismiss the action on the ground that the court lacks subject matter jurisdiction over each defendant. The defendants argue that the court lacks jurisdiction over DL Tractor Trailer School because "DL Tractor Trailer School" is merely a trade name that does not have the legal capacity to be sued. The defendants further argue that the court lacks jurisdiction over the defendant Lane because the plaintiff did not name Lane individually in her CHRO complaint and thus has failed to exhaust her administrative remedies against him.
1. SUBJECT MATTER JURISDICTION: DL TRACTOR TRAILER SCHOOL
"[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005).
The defendants argue that the court does not have subject matter jurisdiction over DL Tractor Trailer School because "DL Tractor Trailer School" is a trade name that does not have the capacity to be sued. In support of their argument, the defendants emphasize a statement from Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000): "[i]t appears well settled that the use of a fictitious or assumed business name does not create a separate legal entity . . . [and that] [t]he designation [d/b/a] . . . is merely descriptive of the person or corporation who does business under some other name." (Internal quotation marks omitted.) The Bauer court, in support of that proposition, cited to Pinkerton's Inc. v. Superior Court, 49 Cal.App. 4th 1342, 1348, 57 Cal.Rptr.2d 356 (1996) (quoting Providence Washington Ins. Co. v. Valley Forge Ins. Co., 42 Cal.App. 4th 1194, 1200, 50 Cal.Rptr.2d 192 (1996)), and many of the cases cited in the Pinkerton's Inc. opinion. Bauer v. Pounds, supra, 61 Conn.App. 36. The Pinkerton's Inc. court, however, provided a more comprehensive description of the cases that the statement was derived from, a description that merits repeating: One federal court aptly explained, "the significance [of the term `doing business as') is, thus, much like that given to other phrases in common use in the law for slightly different purposes, `alias' . . . `a/k/a' or `also known as' . . ." Southern Ins. Company v. Consumer ins. Agcy., Inc. (E.D. La. 1977) 442 F.Sup. 30, 31; see also Wood Manufacturing Co., Inc. v. Schultz (W.D. Ark. 1985) 613 F.Sup. 878, 884, fn.7 [`"Doing business under another name does not create an entity distinct from the person operating the business. The individual who does business as a sole proprietor under one or several names remains one person, personally liable for all his obligations. So also with a corporation which uses more than one name.'"]; American Express Travel Related Services Co., Inc. v. Berlye (1992) 202 Ga.App. 358, 360, 414 S.E.2d 499, 501 ["The use of d/b/a or `doing business as' to associate a tradename with the corporation using it does not create a legal entity separate from the corporation but is merely descriptive of the corporation."]; Krawfish Kitchen Restaurant, Inc. v. Ardoin (La.App. 1981) 396 So.2d 990, 993 ["The designation `d/b/a' means `doing business as' but is merely descriptive of the person or corporation who does business under some other name. Doing business under another name does not create an entity distinct from the person operating the business."]; Jaffe v. Nocera (D.C.App. 1985) 493 A.2d 1003, 1008 [`"[T]he ordinary sense of the words' X, d/b/a Y, Inc. should `convey . . . the message' that X remains personally liable for this entity's obligations."]; Arizona v. Ivanhoe (1990) 165 Ariz. 272, 274, 798 P.2d 410, 412 ["Defendant's decision to conduct business under [a fictitious name] did not create an entity distinct from defendant: The designation "d/b/a" means "doing business as" but is merely descriptive of the person or corporation who does business under some other name. Doing business under another name does not create an entity distinct from the person operating the business.'"]; in accord, Patterson v. VM Auto Body (1992) 63 Ohio St.3d 573, 575, 589 N.E.2d 1306, 1308; Rink v. NPN, Inc. (N.D. 1988) 419 N.W.2d 194, 195; Carlson v. Doekson Gross, Inc. (N.D. 1985) 372 N.W.2d 902, 905; Thomas v. Colvin (Okla.App. 1979) 592 P.2d 982, 983." Pinkerton's Inc. v. Superior Court, supra, 49 Cal.App. 4th 1348-49.
The defendants also cited to most of the cases cited in the Pinkerton's Inc. opinion.
The defendant in this case would have the court interpret the Bauer proposition as barring all suits against DL Tractor Trailer School because it is not a distinct legal entity. The Bauer proposition, however, is more properly read as saying that while a trade name does not create a separate legal entity, the entity doing business under the trade name, whether corporation or individual, remains liable for all of its obligations. For example, several of the cases cited in Bauer and Pinkerton's Inc. involved individual proprietorships who unsuccessfully attempted to limit their personal liability by claiming that their fictitious trade name entity had legal status and thus were the owners of various insured property subject to insurance policy exclusions. See, e.g., Providence Washington Ins. Co. v. Valley Forge Ins. Co., supra, 42 Cal.App. 4th 1194, Carlson v. Doekson Gross, Inc., supra, 372 N.W.2d 902, Southern Ins. Co. v. Consumer Ins. Agency, Inc., supra, 442 F.Sup. 30. Those courts determined that the "d/b/a" name did not limit the liability of the individual. In essence, the courts held that the trade names were not distinct separate entities, but rather that the owners of the trade name and the trade name entities were one and the same.
Applying that same interpretation of the "well settled" legal rule announced in Bauer to this case, the person liable for the obligations of DL Tractor Trailer School is C. Donald Lane, Jr., as evidenced in myriad ways throughout the documents before the court, and the naming of his fictitious business name as a defendant does not limit the plaintiff's ability to reach Lane the individual, nor does it prevent this court from retaining jurisdiction over the dispute. See Lussier v. Dept. of Transportation, 228 Conn. 343, 350-51, 636 A.2d 808 (1994) ("A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, rather than the legal nature of his existence. When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant."); 59 Am.Jur.2d 461, Parties § 52(2002) ("[a] defendant may be a natural or an artificial person, or a quasi-artificial person, such as a partnership, and a person may be sued under a trade name").
For example, the signed and notarized Trade Name Certificate for DL Tractor Trailer School, as listed in the Bridgeport Land Records, states that C. D. Lane, Jr., is the owner of the business operating under the assumed name of DL Tractor Trailer School, and "that there are no other persons associated with the undersigned in the conduct of said business," Additionally, the defendant Lane admitted that he was the president and owner of the respondent DL Tractor Trailer School in the answer to the initial CHRO complaint filed by Tamara Simpson.
This issue has not been widely adjudicated in Connecticut courts and the few courts to directly address the issue of jurisdiction over a trade name entity have come to varied results. For instance, courts that have determined that they lack subject matter jurisdiction often have done so when a plaintiff has brought suit under a trade name, thereby implicating policy concerns such as protecting consumers and creditors from the potential fraud that can arise when legal entities do business under assumed names. See America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477-80, 866 A.2d 698 (2005) (assessing Connecticut case law and drawing a sharp line between cases where defendants were identified by trade name and where plaintiffs sued as fictitious entities); America's Wholesale Lender v. Silberstein, 87 Conn.App. 485, 866 A.2d 695 (2005). Even when a plaintiff sues as an individual doing business as a trade name, the defect may be considered circumstantial or a mere misnomer that does not deprive the court of subject matter jurisdiction unless the defendant is prejudiced. Young v. Vlahos, 103 Conn.App. 470, 478-79, 929 A.2d 362 (2007) (use of name "Roy Young d/b/a/ Silvermine Investors, LLC" in complaint was circumstantial defect that did not prejudice or confuse the defendant and therefore trial court properly determined that the plaintiff had standing). In this case, the policy concerns raised in the America's Wholesale Lender cases are not applicable because DL Tractor Trailer School is the defendant, not the plaintiff, and there is no risk of fraud in going forward with DL Tractor Trailer School as a defendant. Furthermore, there is no risk of confusion or prejudice against defendant Lane because he has participated in every step of this dispute from the CHRO proceedings until now. It follows therefore, that the court has subject matter jurisdiction over the defendant DL Tractor Trailer School because it and the defendant Lane are one and the same, both are named defendants in this case, and Lane will suffer no prejudice in having the case go forward against him individually and against his fictitious trade name.
In the respondent's signed and notarized answer to the initial CHRO complaint filed against DL Tractor Trailer School, defendant Lane admitted that he was the president and owner of the respondent employer, and also that he was the person to be contacted for further information in the matter.
2. SUBJECT MATTER JURISDICTION: C. DONALD LANE, JR.
The defendants also claim that the court lacks subject matter jurisdiction over C. Donald Lane, Jr., because the plaintiff did not individually name Lane in her CHRO complaint and did not obtain a release of jurisdiction to file suit in the superior court against him pursuant to General Statutes § 46a-100. "Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The analysis of the Appellate Court in Malasky v. Metal Products Corp., 44 Conn.App. 446, 689 A.2d 1145, cert. denied, 241 Conn. 906, 695 A.2d 539 (1997), under factual circumstances remarkably similar to this case, governs this issue. The plaintiff in Malasky filed a CHRO complaint alleging sexual harassment against two corporations that were owned and operated by the same individual, and the individual was not a named party in the CHRO complaint. Id., 447-49. The plaintiff secured a release of jurisdiction from the CHRO permitting her to bring an action in superior court against the two corporations. Id. The plaintiff then filed a complaint in superior court against both corporations as well as the individual in his capacity as owner and president of the two corporations. Id., 449. The individual defendant then moved to dismiss the case for failure to exhaust administrative remedies and the trial court granted the motion. Id., 449-50. The Appellate Court reversed, finding that the plaintiff had in fact exhausted her administrative remedies. Id., 452. The Appellate Court determined that the plaintiff had satisfied a limited exception to the exhaustion requirement and thus the trial court had subject matter jurisdiction over the plaintiff's complaint. Id., 453-56.
The Malasky court based its conclusion on the reasoning of Maturo v. National Graphics, Inc., 722 F.Sup. 916 (D.Conn. 1989), and cited the applicable standard from that case: "Generally, an action under Title VII can proceed only against those individuals named as respondents in the complaint filed with the EEOC. 42 U.S.C. § 2000e-5(f)(1). The purpose of this exhaustion requirement is to provide notice to those alleged to have committed the violations and to provide an opportunity for the parties to comply voluntarily with the requirements of Title VII . . . A limited exception to the exhaustion requirement permits an action against a party not named as a respondent in the EEOC complaint if the underlying dual purposes of the exhaustion requirement are otherwise satisfied . . . Specifically, the factors to be considered under this exception are 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party . . ." (Citation omitted; internal quotation marks omitted.) Malasky v. Metal Products Corp., supra, 44 Conn.App. 453-54. "Although the court in Maturo was concerned primarily with EEOC filing requirements, the same rationale applies to the requirements of the CHRO." Id., 454. The exception to the exhaustion requirement, as described above, is commonly known as the "identity of interest" exception. See Johnson v. Palma, 931 F.2d 203, 209-10 (2d Cir. 1991).
The Malasky court, in applying the "identity of interest" factors to assess the underlying dual purposes of the exhaustion requirement, found that each of the factors weighed in favor of the plaintiff. Similarly, in this case, each of the factors and the underlying purposes of the exhaustion requirement support the plaintiff. First and foremost, the defendant Lane clearly had notice of the allegations. Lane was the contact person during the CHRO proceedings, he identified himself as the president and owner of DL Tractor Trailer School, and he signed the answer to the CHRO complaint that included those statements. As the court stated in Malasky, "[i]n his position as owner and president of the companies involved, [the defendant] certainly had notice of the CHRO complaint." (Internal quotation marks omitted.) Malasky v. Metal Products Corp., supra, 44 Conn.App. 455. Furthermore, "because the plaintiff's CHRO complaint specifically stated which acts performed or not performed by [the defendant] that the plaintiff considered to have harmed her, there can be no prejudice as to him." Id. The fact that Lane is identified as an actor in the plaintiff's CHRO complaint fulfills the first specific factor. See id., 456 ("[a]lthough [the defendant] was not named in the title of the CHRO complaint, he was named in its text . . . [t]hus, the plaintiff had ascertained the part he played in her allegations and did name him"). Additionally, because Lane and DL Tractor Trailer School are one and the same for purposes of liability, their interests are identical for purposes of voluntary conciliation and compliance. See id., 455. Finally, Lane admitted in the CHRO answer that he was the person who was responsible for making the final decision to terminate the plaintiff's employment. See id. ("[the defendant's] action of offering the plaintiff a pink slip represented to the plaintiff that he could control her relationship with the company"). Consequently, the plaintiff clearly meets the requirements of the identity of interest exception.
The defendant, however, argues that the plaintiff was represented by counsel at the time she filed her CHRO complaint and therefore the motion must be governed by a series of cases holding that the identity of interest exception does not apply where the plaintiff was represented by counsel at the time that the EEOC or CHRO complaint was filed. See Harrington v. Hudson Sheraton Corp., 2 F.Sup.2d 475 (S.D.N.Y. 1998); Kudatzky v. The Galbraith Co., No. 96 Civ. 2693, 1997 WL 598586, U.S. Dist. LEXIS 14445 (S.D.N.Y. Sept. 23, 1997); Tarr v. Credit Suisse Asset Management, Inc., 958 F.Sup. 785 (E.D.N.Y. 1997). The plaintiff counters that various courts have rejected such a limitation. See Williams v. Quebecor World Infiniti Graphics, Inc., No. 3:03-CV-02200, 2007 WL 926901, 2007 U.S. Dist. LEXIS 21194 (D.Conn. Mar. 22, 2007); Wood v. Pittsford Central School District, No. 03-CV-6541T, 2005 WL 43773, 2005 U.S. Dist. LEXIS 18063 (W.D.N.Y. Jan. 10, 2005); Olvera-Morales v. Sterling Onions, Inc., 322 F.Sup.2d 211 (N.D.N.Y 2004); Manzi v. DiCarlo, 62 F.Sup.2d 780 (E.D.N.Y. 1999). The Malasky court "consider[ed] the fact that the plaintiff was not represented by counsel at the time she filed the complaint with the CHRO" and also noted that the plaintiff was represented by counsel at the time that she sought a release of jurisdiction from the CHRO. Malasky v. Metal Products Corp., supra, 44 Conn.App. 455-56. The Malasky court continued by stating that "[c]onsidering the entire situation, we conclude that the underlying purposes of providing notice to [the defendant] were satisfied in the plaintiff's filing with the CHRO." Id., 456. Even more so than the defendant in Malasky, Lane was provided ample notice in the plaintiff's filing with the CHRO and Lane will not be prejudiced whatsoever by the plaintiff having filed the original CHRO complaint against him under his fictitious business name DL Tractor Trailer School. Accordingly, the Court finds that the plaintiff exhausted her administrative remedies with regards to Lane by fulfilling the identity of interest exception requirements.
The plaintiff was represented by counsel in the administrative proceedings before the CHRO according to her attorney's affidavit dated September 10, 2007.
For the foregoing reasons, the court denies the defendants' motion to dismiss for lack of subject matter jurisdiction.