Opinion
No. CV08 402 61 34 S
March 10, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
FACTS
On September 10, 2008, the plaintiff, Clifton G. Smith, commenced this action by service of process on "New Horizon Computer William E. Sanford/President." In his complaint, the plaintiff alleges the following facts. On March 22, 2006, the plaintiff began attending New Horizon's graphic web design program. The plaintiff was the only person of Jamaican ancestry in the class. On the first day of the plaintiff's training, Tom, "a white instructor," told the plaintiff that if he "could not keep up with the rest of the class maybe [he] should leave." Approximately two weeks after this incident, the plaintiff spoke with Jim Ardigon, New Horizon's intake person, who appeared to be surprised at Tom's comment. Throughout the course of the plaintiff's training, New Horizon's instructors made negative comments whenever he required assistance, but made no similar remarks when "white trainees" asked for help. On June 22, 2006, New Horizon's director terminated the plaintiff's participation in the graphic design program. The plaintiff alleges that to the best of his knowledge, "no Black participates in any of [New Horizon's programs] through Connecticut Works." Moreover, the plaintiff alleges that there was no cause for his termination, and that his color, black ancestry, and Jamaican national origin played a role in his removal. He alleges that he was "prevented from [pursuing] a new [career] as a web designer, often becoming [disabled] from working on construction." Specifically, the plaintiff contends that the defendants violated Connecticut General Statutes § 46a-64(a)(1) and (2) is the state's public accommodation statute.
The summons page, and the motion to strike, list the spelling as "Sanford," while the caption of the complaint lists the spelling as "Samford." For the purposes of this decision, I will use the spelling on the summons. Additionally, there is some confusion to whether Sanford is a party defendant, as the motion to strike refers to "the defendants, New Horizon and William E. Sanford, President." It appears from the summons page that "New Horizon Computer William Sanford/President" is listed on the line as a "FIRST NAMED DEFENDANT," and that service of process was made only upon "New Horizon Computer"; as such, it appears that there is one defendant in this suit. Additionally, counsel's appearance was filed for "The Defendant." Finally, while the summons and motion to strike refer to "Horizon," the caption of the complaint refers to "Horizons," and the memorandum of law in support of the motion to strike spells it both ways. Again, I will use the spelling contained in the summons — i.e., Horizon.
On November 10, 2008, the defendant filed a motion to strike the plaintiff's complaint and a memorandum of law in support. The plaintiff has not filed a memorandum of law in opposition. This matter was on the short calendar on January 26, 2009.
DISCUSSION CT Page 4660
"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). In a moiton to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Conversely, the motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "Insofar as [a] motion to strike is directed to the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 (1991).
There is currently a split of authority among the judges of the Superior Court regarding whether an opposing party consents to the granting of a motion to strike when it fails to file a memorandum of law in opposition. "A minority of the trial courts that have decided the issue have held that absent the filing of a memorandum in opposition, the motion to strike must be granted on procedural grounds. See, e.g., Stamford v. Clear Channel Outdoor, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 03 0194433 (January 19, 2005, Wilson, J.). A majority of the trial courts have held that the court has discretion to consider the motion to strike on its merits. See, e.g., DeJesus v. Smith, Superior Court, judicial district of Windham, Docket No. 063771 (January 9, 2001, Foley J.). One majority decision, Sullivan v. Guzman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 044002010 (October 24, 2006, Adams, J.) [ 42 Conn. L. Rptr. 233], noted that the lack of opposition `add[ed] some force' to the moving party's arguments. In Consiglio v. Streeto, Superior Court, judicial district of New Haven, Docket No. CV 065001967 (April 11, 2008, Bellis, J.), this court joined the majority and considered the merits of the defendant's motions, despite the failure of the opposing parties to file memoranda in opposition; this court also adopted Judge Adams' reasoning that the lack of opposition adds some weight to the movant's arguments. As such, the court will address the merits of the defendant's motion, with some `added force' noted to the defendant's argument, in light of the lack of opposition from the plaintiff." Burr v. Ruggiero, Superior Court, judicial district of New Haven, Docket No. CV 07 5013127 (June 25, 2008, Bellis, J.). See also Erikson v. Geanuracos, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 085015667 (November 17, 2008, Bellis, J.).
"Practice Book § 155, now § 10-42, previously provided that a party who failed to file such a memorandum shall be deemed by the court to have consented to the granting of the motion . . . That language was subsequently removed from Practice Book § 10-42." (Citation omitted; internal quotation marks omitted.) Doe v. Board of Education, 76 Conn.App. 296, 298 n. 5, 819 A.2d 289 (2003). In Doe, the Appellate Court stated that "[b]ecause we affirm the judgment on the merits of the motion to strike and because the plaintiff's failure to file a memorandum of law has not been raised as an alternative ground for affirmance, we have no occasion to consider whether such failure remains a sufficient basis for granting a motion to strike." Id.
In his complaint, the plaintiff expressly alleges that "I believe the respondent violated the following laws Conn. Gen. Statute 46a-64(a)(1)(2)." The defendant has moved to strike the complaint on the ground that General Statutes § 46a-64 does not give rise to a private cause of action.
The defendant also argues that not only does the statute not provide a private cause of action, but, at the very least, the claim against Sanford should be stricken because Sanford cannot be considered a place of public accommodation as defined by General Statutes § 46a-63; as discussed previously, however, it does not appear as if Sanford is a defendant in this lawsuit.
Section 46a-64(a) provides in relevant part: "It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry . . . (2) to discriminate, segregate, or separate on account of race, creed, color, national origin, ancestry . . ." Section 46a-63(1) defines "[p]lace of public accommodation, resort or amusement" to mean "any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent . . ." As a threshold matter, this statutory definition does not encompass individuals. The only entities to which the discriminatory prohibitions apply are places of "public accommodation, resort or amusement." Any attempted claim here under § 46a-64 against an individual defendant would be stricken, because this statute does not apply to individuals. See, e.g., Batiste v. Soundview Medical Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 065001278 (March 25, 2008, Gilardi, J.) (motion to strike granted, in part, on ground that § 46a-63(1) is inapplicable to individual defendants).
The enforcement mechanism under this statute is § 46a-64(c), which provides, in relevant part: "Any person who violates any provision of this section shall be fined not less than twenty-five nor more than one hundred dollars or imprisoned not more than thirty days or both." Consequently, by its plain language, § 46a-64 does not include any right for a private cause of action.
As a result, in order for the plaintiff's complaint to survive this motion to strike, the court must find that § 46a-64 provides for an implied private cause of action against places of public accommodation, resort or amusement.
Under Connecticut law, there is a "well settled fundamental premise . . . that private enforcement does not exist unless expressly provided in the 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). Our Supreme Court has established a three-part test to determine if a cause of action can be implied. "First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 247, 890 A.2d 522 (2006). "Consistent with the dictates of General Statutes § 1-2z, however, [courts] do not go beyond the text of the statute and its relationship to other statutes unless there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action. Textual evidence that would give rise to such a question could include, for example, language granting rights to a discrete class without providing an express remedy or language providing a specific remedy to a class without expressly delineating the contours of the right." Provencher v. Enfield, supra, 778.
While the plaintiff is within the class of individuals that this statute is supposed to benefit, he is unable to state a claim under § 46a-64(a)(1) and (2). As emphasized by many Superior Court judges, § 46a-64(a)(1) and (2) "have [only] been found to be penal in nature and not to afford a private cause of action . . . The legislature has in many instances provided express language creating a private cause of action. See Brewer v. Wilcox Trucking, Inc., Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. 479546 (September 26, 1997) (Stengel, J.) (`[p]rivate causes of action under our anti-discrimination statutes are provided in only limited circumstances such as General Statutes 46a-98 . . . 46a-99 . . . 46a-100'). The statutes that the plaintiff alleges do not contain such express terms and should not be expanded by the court." (Citation omitted.) McPhail v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. 054506 (February 25, 1999, Thompson, J.); see also Wright v. Hartford, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 97 0570863 (February 13, 1998 Devlin, J.) (no statutory authorization for private cause of action under § 46a-64(a)(1) and (2)). Given the persuasiveness of these Superior Court opinions and because the plain language of § 46a-64(a)(1) and (2) indicates that the statute was meant only to be enforced through fines or imprisonment, the defendant's motion to strike the entire complaint is granted, as Connecticut's public accommodation statute does not provide for either an express, or implied, private cause of action under § 46a-64(a)(1) and (2).