Opinion
FSTCV186037925S
06-06-2019
Anthony ALLEVA v. STAMFORD HEALTH MEDICAL GROUP
UNPUBLISHED OPINION
POVODATOR, JTR
Background
This is one of two actions arising from a dispute between a number of physicians whose private practice had been acquired by the defendant, and the defendant. The issues between the parties involved contractual obligations under the contract by which the defendant had acquired the plaintiffs’ practice, and related and consequential matters. The matter has been resolved as to all of the plaintiffs except Dr. Fennell, and therefore any reference to the plaintiff is intended to be a reference to her.
Currently before the court is a motion to strike filed by the defendant, challenging the legal sufficiency of the fifth, sixth and eighth counts. The court heard argument on this motion on February 11, 2019.
Legal Standard
A motion to strike attacks the legal sufficiency of the allegations in a pleading ... In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder ... (Internal quotation marks and citation, omitted.) Soto v. Bushmaster Firearms Int’l, LLC, 331 Conn. 53, 70 n.15, 202 A.3d 262, 275 (2019).
In other words, in connection with a motion to strike, the court is required to accept all well-pleaded facts as true. Further, the court is required to give the nonmoving party the benefit of all reasonable favorable inferences. The court is limited to the record before it. Finally, the court is limited to the grounds identified in the motion.
I. Fifth Count- Declaratory Relief
The fifth count of the plaintiff’s complaint seeks declaratory relief with respect to the agreement that had been reached between the plaintiff and defendant. In particular, the plaintiff seeks to have certain provisions (restrictive covenants) of the agreement declared unenforceable. As noted above, the court is limited to the grounds identified by the defendant in its motion. Therefore, the appropriate starting point is the motion itself.
In Count Five, Plaintiff alleges that she "is entitled to a declaratory judgment pronouncing the restrictive covenants contained in [Plaintiff’s] employment agreements unenforceable pursuant to Connecticut General Statutes § 20-14p." Plaintiff’s claim fails as a matter of law because there is a concurrent lawsuit brought by [the defendant] against [the plaintiff] that can provide Plaintiff immediate redress (Case No. FST-CV-18-6037988-S). Indeed, [the defendant] and Plaintiff have already preliminarily litigated the enforceability of Plaintiff’s restrictive covenant, and [defendant’s] case against [the plaintiff] will proceed to full trial and hearing on a permanent injunction. Allowing Plaintiff to proceed with her claim for declaratory judgment in the instant action not only (1) creates a danger of inconsistent rulings in the other action brought by [defendant] against her, but also (2) wastes the judiciaries’ resources by litigating an identical issue between identical parties in two separately filed cases in the same court. Accordingly, this Court should strike Count Five of Plaintiff’s Complaint.
At the outset, the court must note that neither of the grounds asserted in the foregoing recitation, quoting directly from the defendant’s motion, implicate legal sufficiency of the fifth count, the count under attack. Rather, both concerns are substantially negated by the fact that the cases have been consolidated for trial. Conversely, if the cases were not to be tried together, for some unknown reason, the first to be tried likely would result in collateral estoppel and/or res judicata with respect to any prospective second trial.
Still further, the second argument quoted above sounds like a variation on the prior pending action doctrine except that there is no analysis consistent with that doctrine. (The language the defendant quotes from National Equipment Rental, Limited v. Fowler, 287 F.2d 43, 46 (2nd Cir. 1961) is quite similar to the language used in connection with Connecticut’s prior pending action doctrine.) Further, the court must note that in the companion matter, the plaintiff, there acting as a defendant, has filed special defenses but has not filed any counterclaim, such that there is no affirmative claim for relief. Finally in this regard, although of limited weight, this action was commenced first, such that it might (almost) be appropriate to ask why the defendant did not utilize the structure of this proceeding to seek the relief being sought in the separate proceeding.
Only in the body of the brief in support of the motion to strike does the defendant identify a possible challenge to the legal sufficiency of the fifth count. (In the introductory portion of that brief, language similar to that quoted above is used to describe the challenge to the fifth count.) The defendant asserts that this count runs afoul of the proposition that "a court should not entertain a declaratory judgment action when an ordinary action affords a remedy as effective, convenient and simple ..." citing O’Brien v. Stott-Nielsen Transportation Group, Ltd., 48 Conn.Supp. 200 (Super. 2003). The defendant also cites Practice Book § 17-55, which provides that "[a] declaratory judgment action may be maintained if all of the following conditions have been met" and expresses reliance upon subsection (3) identifying the final condition: "in the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternative procedure."
As a threshold matter, the court must note that neither of these principles are stated in absolute terms- at a minimum, both require some exercise of discretion or judgment by the court. Other than asserting that the other case is scheduled for trial (and the somewhat irrelevant reference to the fact that certain pretrial proceedings have taken place in the other case, relating to a temporary injunction), there is no real analysis as to why the other case is more "effective, convenient and simple" than this one. Indeed, to the contrary, a court in trying both cases simultaneously, might well consider bifurcating the issues, and trying the declaratory action first- if the relevant portions of the contract are not enforceable, there would be no need to determine whether there was a breach of any of those restrictive covenants and if so, the damages and any other relief that might be appropriate. Conversely, at least in theory, it is possible that the defendant- plaintiff in the other case- might fail to prove an essential element of its cause of action in that other case, which at least in technical terms would not dispose of the issue of enforceability.
The Practice Book language quoted also is insufficient to justify striking this count, for the reasons discussed above. Further, there is a serious question as to whether the defendant is properly applying that provision- Practice Book § 17-55 appears to focus on alternate procedures available to the plaintiff in the action under consideration, whereas here, the defendant is focusing on the existence of a separate proceeding in which the plaintiff is not even seeking any form of affirmative relief.
For all these reasons, the court denies the motion to strike as to the fifth count.
II. Sixth Count- Intentional Infliction of Emotional Distress
In the sixth, the plaintiff attempts to assert a cause of action based on intentional infliction of emotional distress. In challenging this count, the defendant is asking the court to perform its often-invoked gatekeeper function with respect to such claims, determining whether the conduct alleged, even if it were proven, can possibly come within the scope of conduct that can give rise to a claim of intentional infliction of emotional distress.
To succeed in a claim for intentional infliction of emotional distress, "four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks and citation, omitted.) Micek-Holt v. Papageorge, 180 Conn.App. 540, 569-70, 183 A.3d 1213 (2018).
With respect to claims of intentional infliction of emotional distress, our appellate courts have set a high and sometimes seemingly insurmountable hurdle (see, e.g. Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43 (2003); Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 86-89 (2013)).
Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! ... Conduct on the part of defendant that is merely insulting or displays bad manners or results in hurt feelings the is insufficient to form the basis for an action based upon intentional infliction of emotional distress. (Internal quotation marks and citations, omitted.) Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 527, 43 A.3d 69, 101 (2012).
In her brief, the plaintiff acknowledges the gatekeeper function, but insists that she has satisfied the pleading requirements for such a claim.
The defendant relies upon Voccola v. Rooney, 136 F.Supp.3d 197, 210 (D.Conn. 2015) for the proposition that "[i]n the workplace, the threshold for demonstrating extreme and outrageous conduct is higher: [i]t is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace," citing Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002). At this point, the defendant’s frequent reliance upon District Court decisions (rather than Connecticut appellate decisions) becomes problematic. In Benton v. Simpson, 78 Conn.App. 746, 829 A.2d 68 (2003), the Appellate Court rejected the proposition that analogous to claims of negligent infliction of emotional distress, workplace considerations required a limited scope of application of intentional infliction of emotional distress claims for the public policy reasons that had been articulated in Perodeau. Instead, the court concluded that the distinction between negligent infliction of emotional distress and intentional infliction of emotional distress was of such a magnitude that the limiting scope of Perodeau could not be justified in claims of intentional infliction of emotional distress. Thus, the court is required to disregard that aspect of the defendant’s argument.
Nonetheless, the court cannot conclude that the plaintiff has satisfied the minimum standards for a potentially-valid claim of intentional infliction of emotional distress. The allegations related to this claim are sufficiently brief to be quoted in full:
1. During Dr. Fennell’s employment, [the defendant’s] President and Chief Executive Officer, Rod Acosta, M.D., made public and repeated menacing threats that he would personally ‘get Dr. Fennell and anyone associated with her, ’ necessarily encompassing Plaintiffs Alleva, Kurian, and Neeson.
2. In making such remarks, Dr. Acosta engaged in willful, outrageous conduct intended to denigrate, embarrass, and belittle Plaintiff. Such behavior constitutes intentional infliction of emotional distress upon Plaintiff.
3. As a result, Dr. Fennell has suffered emotional distress, mental anguish, and loss of self-esteem, and are entitled to damages in an amount to be determined at trial, such amount being no less than $1,000,000.
The foregoing is the complete text of the sixth count. Aside from the improper request for a certain minimum amount of damages in the third paragraph (see, Practice Book § 10-20 and General Statutes § 52-91), that paragraph only relates to damages, not the elements of a claim of intentional infliction of emotional distress. The truly operative language is found in the first paragraph, i.e., that the defendant’s president stated that he "would personally ‘get [the plaintiff] and anyone associated with her, ’ necessarily encompassing [former] Plaintiffs Alleva, Kurian, and Neeson." There is no suggestion that this was intended or taken as a threat to the plaintiff’s safety; to the contrary, the second paragraph asserts that the purpose of the statement was to "denigrate, embarrass and belittle" the plaintiff.
Emphasizing the inadequacy of the alleged conduct of the defendant, the court must note that the statements appear to have been made not directly to the plaintiff but rather publicly, as emphasized by the quoted language of his intent to "get Dr. Fennell and anyone associated with her." The language is in quotation marks and does not use a second person format ("you"). (Additionally, a layer of ambiguity is presented by the use of the word "personally"- was this a personal matter for Dr. Acosta or was it a "threat" on behalf of the defendant?)
The allegation of "I am going to get you"- whether in a second person or third person format- does not appear to rise to the level of outrageous conduct necessary for a legally-sufficient claim of intentional infliction of emotional distress. Such allegations pale when compared to cases such as Di Teresi. The oft-repeated standard for sufficiently egregious conduct is recited therein:
The threshold inquiry in an intentional infliction of emotional distress action is, therefore, whether the alleged behavior is sufficiently extreme and outrageous. This high bar for distasteful behavior has been described as requiring conduct ... so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! (Citations and internal quotation marks omitted.) Di Teresi v. Stamford Health Systems, Inc., 142 Conn.App. 72, 87, 63 A.3d 1011, 1020-21 (2013).
A variation on "I’m going to get you," particularly when understood as not conveying a threat to safety, does not exceed "all possible bounds of decency." An average member of the community might be surprised to hear such language from the defendant’s president directed to a doctor whose practice is within an office that is part of the defendant’s operations, and might be shocked in the sense of surprise at the apparent lack of prudence, diplomacy or self-control, but it would not be perceived as an extreme outlier type of conduct that would be "regarded as atrocious, and utterly intolerable in a civilized community."
Both parties- for different purposes- have cited Appleton v. Board of Education of Town of Stonington, 254 Conn. 205, 757 A.2d 1059 (2000), and the court agrees with the defendant that the facts are instructive:
The conduct of the defendants in the present case is described in the plaintiff’s affidavit in opposition to the defendant’s motion for summary judgment. Rifenburg’s opposing affidavit does not raise any genuine issue of material fact concerning the defendants’ conduct. The plaintiff complains that Rifenburg: "made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read"; telephoned the plaintiff’s daughter, representing that the plaintiff "had been acting differently" and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car. The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign.
These occurrences may very well have been distressing and hurtful to the plaintiff. They do not, however, constitute extreme and outrageous conduct within the meaning of the precedents to which we referred previously. Id. at 211.
A comparison of the allegations in the plaintiff’s complaint with those set forth above from Appleton confirms the inadequacy of the allegations of the plaintiff’s complaint with respect to assertion of sufficiently-outrageous conduct. The motion is granted as to the claim of intentional infliction of emotional distress.
III. Eighth count- Defamation
The eighth count, asserting a claim of defamation, also is brief enough to be quoted in its entirety:
1. Following Plaintiff Fennell’s exposure of [defendant’s] problematic practices in violation of Plaintiffs’ Employment Agreements, Dr. Acosta, acting both on his own behalf and on behalf of SHMG, began publicly calling Plaintiff Fennell "incompetent" and informing others around him that she was a "troublemaker" who "needed to be brought down."
2. Dr. Acosta also informed as many individuals as possible that Plaintiff Fennell had far too much power.
3. Dr. Acosta’s comments regarding Plaintiff Fennell, made in the presence of other employees of SHMG, as well as visitors and patients of SHMG, resulted in Plaintiff Fennell being slandered in public.
4. Said comments, which were made with reckless disregard for the truth, caused Plaintiff Fennell personal and professional humiliation, injuring her reputation and undermining her intellect and abilities among her coworkers, patients, and also staff members who reported to her.
5. As a result, Plaintiff is entitled to damages against SHMG and Dr. Acosta in an amount to be determined at trial, such amount being no less than $1,000,000.
The defendant finds fault with these allegations in at least two respects. First, the claim is that the allegations are insufficiently specific with respect to the circumstances under which the statements were made, and particularly failed to identify with requisite particularity the persons who heard the allegedly slanderous statements. Additionally, the defendant contends that the statements were matters of opinion, rather than fact, and therefore cannot be a basis for defamation-based liability.
[L]ibel is actionable per se if it charges improper conduct or lack of skill or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business. Slander is actionable per se if it charges incompetence or dishonesty in office, or charges a professional person with general incompetence. Libel or slander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached. Statements accusing a plaintiff of theft are libelous or slanderous per se. (Internal quotation marks and citation, omitted.) Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A.2d 199, 209 (1987).
Here, it is clear that the plaintiff is complaining that the defendant, inter alia, "[charged] a professional person with general incompetence." Further, pertinent to this case is a distinction being made, based on an earlier case.
A distinction is recognized, however, in this connection between slander and libel. Restatement, 3 Torts, § 569, comment e; Newell, Slander & Libel, 4th Ed., § 11. Spoken words are actionable per se only if they charge a general incompetence or lack of integrity. They are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity. Proto v. Bridgeport Herald Corp., 136 Conn. 557, 567, 72 A.2d 820, 826 (1950).
The defendant contends that the language quoted in the complaint constitutes opinion rather than fact, and that opinions cannot be actionable as defamation. The defendant’s argument is overly broad. The comments to § 566 of the Restatement (Second) of Torts, provide a refinement that is applicable here, but not addressed by the defendant:
b. Types of expressions of opinion. There are two kinds of expression of opinion. The simple expression of opinion, or the pure type, occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff’s conduct, qualifications or character. The statement of facts and the expression of opinion based on them are separate matters in this case, and at common law either or both could be defamatory and the basis for an action for libel or slander. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated.
The pure type of expression of opinion may also occur when the maker of the comment does not himself express the alleged facts on which he bases the expression of opinion. This happens when both parties to the communication know the facts or assume their existence and the comment is clearly based on those assumed facts and does not imply the existence of other facts in order to justify the comment. The assumption of the facts may come about because someone else has stated them or because they were assumed by both parties as a result of their notoriety or otherwise.
The second kind of expression of opinion, or the mixed type, is one which, while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication. Here the expression of the opinion gives rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant. To say of a person that he is a thief without explaining why, may, depending upon the circumstances, be found to imply the assertion that he has committed acts that come within the common connotation of thievery. To declare, without an indication of the basis for the conclusion, that a person is utterly devoid of moral principles may be found to imply the assertion that he has been guilty of conduct that would justify the reaching of that conclusion.
It was the first, or pure, type of expression of opinion to which the privilege of fair comment was held to apply. Some courts and commentators took the position that the true explanation of the defense of fair comment was not that the statement was made on a privileged occasion but that, not being actually a false statement of fact, it could not be a defamatory communication. The first Restatement of Torts set out the principles of the privilege of fair comment in § § 606-10; it did not espouse this position. For the second, or mixed, type of expression of opinion the privilege of fair comment was held to be inapplicable; and the privileges that were available were those set forth in § § 585-98, for defamatory statements of fact. Restatement (Second) of Torts § 566 (1977).
Comment c to § 566, after discussing constitutional implications of defamation, provides further relevant refinements/distinctions:
The distinction between the two types of expression of opinion, as explained in Comment b, therefore becomes constitutionally significant. The requirement that a plaintiff prove that the defendant published a defamatory statement of fact about him that was false (see § 558) can be complied with by proving the publication of an expression of opinion of the mixed type, if the comment is reasonably understood as implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion. A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is. But an expression of opinion that is not based on disclosed or assumed facts and therefore implies that there are undisclosed facts on which the opinion is based, is treated differently. The difference lies in the effect upon the recipient of the communication. In the first case, the communication itself indicates to him that there is no defamatory factual statement. In the second, it does not, and if the recipient draws the reasonable conclusion that the derogatory opinion expressed in the comment must have been based on undisclosed defamatory facts, the defendant is subject to liability. The defendant cannot insist that the undisclosed facts were not defamatory but that he unreasonably formed the derogatory opinion from them. This is like the case of a communication subject to more than one meaning. As stated in § 563, the meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.
It is the function of the court to determine whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct, and the function of the jury to determine whether that meaning was attributed to it by the recipient of the communication. (See § 614.) Restatement (Second) of Torts § 566 (1977).
The defendant’s claim that the defamation count is deficient because it relies on an opinion does not address this critical distinction. A statement that the plaintiff is incompetent, coming from an individual with an organizational/institutional supervisory role, likely would lead to a reasonable inference of the existence of unspoken facts leading that "higher-up" to make such an assessment. That is the type of opinion that could be actionable. It is less clear how an assertion that someone had too much power- not an assertion that the individual was abusing her power- can be perceived as actionable defamation. Characterizing the plaintiff as a "troublemaker" who "needed to be brought down" would appear to be problematic as to characterization as defamatory, particularly when framed in terms of an institutional hierarchy.
Having gone through all of the alleged defamatory statements, at least one- incompetence- appears to be legally sufficient, based on the current record, to withstand a motion to strike. Under Proto and subsequent cases, assertion of incompetence, with or without the underlying conduct, can be actionable. ("Spoken words are actionable per se only if they charge a general incompetence or lack of integrity. They are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity.") The defendant seems to be seeking allegations of the specific acts of incompetence, but does not go into reconciling its position with the cited authorities.
The defendant also contends, however, that there is insufficient specificity as to the audience for the defamatory statements. Statements were allegedly made to or in the presence of "other employees of [the defendant], as well as visitors and patients of [the defendant]" (¶3 of the eighth account), and ¶4 implies that the statements were made to or came to the attention of the plaintiff’s "coworkers, patients, and also staff members who reported to her."
A number of trial court decisions have required a fair degree of specificity as to the persons who heard the defamatory statements. In Law Offices of Frank N. Peluso, P.C. v. Cotrone, No. FST CV 06 5000599 S, 2009 WL 3416247, at *3 (Conn.Super.Ct. Sept. 23, 2009), allegations that the alleged defamatory statements were made to "diverse persons" was held to be inadequate. In Crosby v. HSBC North American Holdings, Inc., No. CV 065000378S, 2007 WL 1599848, at *10 (Conn.Super.Ct. May 16, 2007), the court held that a claim that written materials placed in a personnel file might be seen by unknown persons, and that certain statements had been heard by subordinates, was insufficiently specific. In Hernandez v. Bloomfield Foot Specialists, LLC, No. CV 156057551S, 2016 WL 7974267, at *3 (Conn.Super.Ct. Dec. 20, 2016), the court drew a distinction between the scenario before the court and Crosby:
Unlike Crosby v. HSBC North American Holdings, Inc., supra, Superior Court, Docket No. CV-06-5000378-S, where the persons to whom the defamatory statements were made could have been any employees of multiple corporate defendants, the allegation in the present case is limited to those employees of a medical practice who were present at a staff meeting on a particular date.
Although set forth in a footnote, the Appellate Court has endorsed the requirement set forth in trial court decisions that a claim of defamation must be recited with specificity: "[A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom ..." (Internal quotation marks and citation, omitted.) Stevens v. Helming, 163 Conn.App. 241, 247 n.3, 135 A.3d 728, 732 (2016).
The complaint attempts to identify "what allegedly defamatory statements were made" and is very clear as to "by whom" but is extraordinarily open-ended with respect to "to whom." Paragraph 1 states that Dr. Acosta made statements to "others around him." Paragraph 2 states that certain statements were made to "as many individuals as possible." Paragraph 3 states that unspecified statements were made "in the presence of other employees of [the defendant], as well as visitors and patients of [the defendant]," claimed to constitute public slander. Paragraph 4 states that the statements previously mentioned had an adverse impact on her reputation with "her coworkers, patients, and also staff members who reported to her."
By way of a benchmark, the first paragraph of the fifth count asserts that the defendant has "over 30 offices in lower Fairfield County. It employs over 120 physicians in 17 medical and surgical specialties, and nearly 400 non-clinical staff members." With that universe of potential audience- not including "visitors and patients"- the lack of specificity is apparent. There is no suggestion that there was ever an assemblage of people hearing statements from Dr. Acosta directed to the plaintiff such that out of the hundreds if not thousands of potential persons hearing one or more statements made by him, inferentially only a handful at a time would have heard any specific statement. The current case, then, is far closer to Crosby than Hernandez .
Accordingly, the court is compelled to find that the defendant is correct in asserting that the complaint is legally deficient with respect to identifying the persons who heard defamatory statements made about the plaintiff- and especially the lack of any attempt at correspondence between specific statements and specific audience.
Conclusion
In connection with a motion to strike, the court is limited to considering the allegations of the complaint, viewed in the light most favorable to the non-moving party, giving the non-moving party the benefit of all reasonable favorable inferences. While pleadings must be read in a practical manner, the court cannot supply omissions.
The court finds that the defendant’s attempt to strike the fifth count, while not without plausible arguments, does not really implicate legal sufficiency of that count. It is a variation on the prior pending action doctrine, except that there is no prior pending action in which the plaintiff is seeking the same relief as is being sought in the fifth count (and if anything, this action appears to be prior in time to the proceeding that the defendant claims should be given precedence). In effect, the defendant is seeking to compel the plaintiff to file a counterclaim, even though Connecticut does not have compulsory counterclaims as part of its jurisprudence. State v. Bacon Construction Company, Inc., 160 Conn.App. 75, 88, 124 A.3d 941, 949 (2015) (permissive nature of counterclaims); Burton v. City of Stamford, 127 Conn.App. 651, 18 A.3d 590 (2011) (drivers in motor vehicle accident commenced separate actions with result in first action (resolved via arbitration, later confirmed) being given collateral estoppel effect in second).
The court agrees with the defendant that the conduct alleged in the sixth count does not rise to the level necessary for a claim of intentional infliction of emotional distress. If Dr. Acosta said and did things attributed to him by the plaintiff- without justification or provocation- then such conduct and statements do not reflect well upon him. That however is a far cry from the level of outrageous conduct that is needed for intentional infliction of emotional distress.
Finally, with respect to the defamation claim, the defendant has not provided a sufficiently detailed analysis with respect to the notion that an opinion cannot be the basis for a claim of defamation. At this stage of the proceeding- a motion to strike- the onus is on the moving party to establish the legal insufficiency of the claim, and he has not done so. However, with respect to the need for particularity as to the individuals who heard the alleged defamatory statements, the complaint identifies categories of listeners, rather than individuals, and the categories are relatively open ended in nature. While not intending to suggest that it necessarily would have been sufficient, the complaint does not even allege that any defamatory statement was heard by the other doctors in her specific office, or heard by the limited number of staff in her office, or otherwise limited to a small number of knowable listeners.
Accordingly, the motion to strike is denied as to the fifth count but is granted as to the sixth and eighth counts.
Paragraph 5 of the eighth count, and claims for relief related to the sixth and eighth counts ((f) and (h) of the claims for relief), seek damages from Dr. Acosta- but he is not a party to this proceeding. Therefore, sua sponte, the court strikes/dismisses the claims for relief directed to him, as the court has no jurisdiction or authority to enter a monetary judgment against someone who is not a party and has not submitted to the authority/jurisdiction of the court.