Opinion
FSTCV186037709S
03-20-2019
Janet Wilson v. FCA US, LLC fka Chrysler Group, LLC
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Povodator, Kenneth B., J.T.R.
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#103.00)
POVODATOR, JTR
Nature of the Proceeding
This is a product liability action in which the plaintiff claims to have been injured as a result of a defective motor vehicle manufactured and/or sold by the defendants. The defendant, Jonathan Wade, challenges his designation as "Jonathan Wade d/b/a Jeep Chrysler Dodge City" for purposes of this action, claiming that the improper nature of that designation warrants striking the complaint as to him. The plaintiff, not surprisingly, has filed an objection.
Legal Standards
The standards for a motion to strike, as well as interpretation of pleadings in general, are well established:
We take the facts to be those alleged in the complaint ... and we construe the complaint 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 ... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.
(Internal quotation marks and citation omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206, 216-17 (2010).
The court is limited to considering only the issues raised in the motion to strike; Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
Discussion
As noted above, presumptively, the court is limited to considering issues raised in the motion to strike itself, and therefore the motion to strike is the appropriate starting point.
Pursuant to Connecticut Practice Book § 10-39 et seq., and on behalf of the so-called defendant "Jonathan Wade d/b/a Jeep Chrysler Dodge City," undersigned counsel hereby moves that this Court strike Plaintiff Janet Wilson’s ("Plaintiff") Complaint dated August 8, 2018 on the grounds that all of the allegations made against the so-named party are legally insufficient, as they fail to state a claim upon which relief can be granted because Plaintiff cannot maintain a lawsuit against a party that does not have a legal existence.
In support of this Motion, Mr. Jonathan Wade relies upon (i) the accompanying Memorandum of Law, and (ii) the Affidavit of Jonathan Wade discussed therein and submitted herewith.
In a footnote to the initial reference to "Jonathan Wade d/b/a Jeep Chrysler Dodge City," the defendant states "No such person or entity identified as "Jonathan Wade d/b/a Jeep Chrysler Dodge City" exists. Instead, Jonathan Wade is the President of Greenwich Automotive Enterprises, Ltd., another named defendant in this action." In making this assertion, it is clear that there is no dispute but that Jonathan Wade exists and has been named as a defendant— the only issue is with respect to the significance, if any, of the "d/b/a" addendum to his name.
It seems clear that the defendant has put undue emphasis on the "d/b/a" aspect of the description of the individual defendant, Jonathan Wade. Describing an individual as "doing business as" is not essential to the identification of the party, and does not have the same potentially-critical impact as when an individual is identified as acting in a representative capacity (e.g., vice president, director, managing partner). The law often distinguishes between an individual acting in a personal capacity and acting in a representative or official capacity, but the defendant has not cited any authority for the proposition that a d/b/a appendage to a name in any way changes the nature of the liability or status of that party. An individual acting as a d/b/a is an individual acting as an individual, without any formal capacity. Conversely, if the summons and complaint identified Mr. Wade without the d/b/a designation but contained an allegation that he was doing business as the identified entity, there seemingly would be no issue as to whether he was a non-existent entity/party.
The court is required, in the context of a motion to strike, to construe the pleadings in a manner most favorable to the non-moving party, giving the non-moving party the benefit of all reasonable favorable inferences. Even if the court were to re-characterize this as a motion to dismiss, recognizing that a suit by or against a nonexistent party/entity has jurisdictional implications; Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, cert. den., 196 Conn. 807 (1985); even an erroneous d/b/a designation would not negate the existence of defendant Wade. By way of analogy, if FCA US, LLC was not, in a strict sense, formerly known as Chrysler Group, LLC, would that affect the viability of the claim against FCA US, LLC, if it otherwise was the successor with respect to liability? Successors to mergers often are described as f/k/a a premerger entity, as an informal way of identifying a pre-merger entity, but if the successor is the correct party, then any informality in identifying the f/k/a status is immaterial.
Anecdotally, the court currently is determining the remaining issues in Connecticut Community Bank, N.A. v. Kiernan, FSTCV166028092S, in which the remaining defendant is identified as M&T Bank f/k/a Hudson City Savings Bank. Hudson merged into M&T, and the underlying transaction involved Hudson, such that the terminology is being used to indicate that M&T is the successor in interest; M&T itself never appears to have been known as Hudson.
Although not articulated in the motion, in the supporting brief, the defendant articulates a backup or alternate position, to the extent that it is claimed that this defendant is improperly joined with the other defendants. Although the defendant is correct that a motion to strike is the proper mechanism for challenging improper joinder, whether of parties or causes of action; see, Practice Book § 11-3; the defendant appears to conflate the notion of improper joinder with the underlying merits.
The court finds the discussion in Cummings v. Chesson & Schweickert, LLC, No. TTDCV 125005691S, 2013 WL 3871388, at *3 (Conn.Super.Ct. July 3, 2013), to be particularly helpful in identifying the nature of misjoinder (claims and parties) in a practical manner:
In the present case, the movants argue, correctly, that Cummings has improperly joined claims and parties in the complaint. Specifically, the movants argue that there are no common questions of law or fact between Cummings’ allegations against them and those against Barry, Devcon Enterprises,
Cornfield Associates and certain claims against Riding. Cummings argues to the contrary. This decision analyzes the motion to strike in the light of the most recent complaint filed on April 19, 2013 because the claims against the movants are essentially identical in both complaints and the current allegations against the remaining defendants are relevant to the misjoinder of parties issue.
Joinder of parties is permitted if the claims on behalf of each plaintiff or against each defendant arose from the same common questions of fact and would essentially involve the same evidence and testimony at trial. Financial Consulting, LLC v. Illinois Mutual Life Ins. Co., Superior Court, judicial district of New London, Docket No. CV 09 5013143 (October 28, 2010, Cosgrove, J.). If, however, the crucial facts differ for each party in the complaint, then the parties were not properly joined. McCart v. Shelton, 81 Conn.App. 58, 62, 837 A.2d 872 (2004). The revised complaint fails this test. (Internal footnote, omitted.)
Under this standard, the claims against all of the parties, including Jonathan Wade (given the d/b/a designation), "arose from the same common questions of fact and would essentially involve the same evidence and testimony at trial." A trial, or some other fact-based proceeding, might enable this defendant to establish that he was not acting as a d/b/a but rather as a representative of a corporate entity (as asserted in his affidavit), such that he would not have liability unless he, personally, acted tortiously in that capacity, but that is not a matter of improper joinder.
From an alternate perspective, the defendant effectively is asking the court to adjudicate, conclusively, the factual nature of his involvement with the enterprise(s) alleged to have been responsible for selling the allegedly defective product. That is not a proper purpose for a motion to strike. The allegations of the complaint are treated as admitted for purposes of a motion to strike, and the complaint alleges that defendant Wade was operating the business as a d/b/a, a factual allegation that the court must accept as true for purposes of this motion.
Conclusion
In Coldwell Banker Manning Realty, Inc. v. Cushman and Wakefield of Connecticut, Inc., 136 Conn.App. 683, 692-93, 47 A.3d 394 (2012), the court discussed non-existent parties and whether a suit by or against a non-existent party was a curable defect. Notably, the instances of non-existent parties relevant to this dispute involved situations where a fictitious trade name, alone, had been used to identify a party or where there otherwise was not an existing individual or entity identified. Here, however, the plaintiff has identified an existing person, and is being faulted by the defendant only because he claims that he really didn’t do business under that trade name. An assertion that defendant Wade did not do business under a trade name does not implicate non-existence of a party and does not implicate improper joinder of parties— it goes to the merits of the claims directed to him. Whether his relevant conduct was as a principal (acting as a d/b/a) or as an agent as claimed by the defendants, is a factual issue, not properly resolved via motion to strike.
For all of these reasons, the motion to strike is denied.