Opinion
No. CV03-034-91 38 S
September 10, 2003
MEMORANDUM OF DECISION
American BioTech Enterprises, Inc. (hereinafter "BioTech") instituted these proceedings by filing a four-count complaint sounding in breach of contract, breach of implied contract, negligence and violation of our Unfair Trade Practices Act (CUTPA) against Connecticut Telephone Communication Systems, Inc. (hereinafter "Telephone"). The controversy arose out of a contract between the parties whereby Telephone was to provide a toll-free telephone line to BioTech for handling incoming calls. BioTech, alleges that in reliance on the agreement, it began advertising its business using the toll-free telephone number provided by Telephone which, without warning or notice, stopped providing the line from April 2001 through August 2001.
The plaintiff is also known as "All About Bats and Wildlife."
It asserts that during the service interruption, telephone calls made by BioTech's potential customers were redirected to another number and never reached BioTech. It claims that it continued to operate during that time which supposedly is their busiest of the year under the belief that Telephone was continuing to provide the toll-free service when in fact it was not. It continued to pay its bill for the service during the period when there was no such service and when it discovered that the service was terminated, it contacted Telephone. Telephone failed and refused to provide it with the information regarding this service interruption. This scenario leads us to Telephone's motion to strike the fourth count of the complaint which claimed that the CUTPA claim is legally deficient because a simple breach of contract augmented solely by legal conclusions cannot support such a claim.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of 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 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading] . . ." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1977). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Vacco v. Microsoft Corp., 260 Conn. 59, 64-65 (2002). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Novametrics Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992)." Fort Trumbull Conservancy, LLC v. Alves, supra.
[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]. (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68, 736 A.2d 824 (1999).
Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644 (2002). "Not every relationship . . . comes within the terms of CUTPA. There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy." Muniz v. Kravis, 59 Conn. App., 704, 715 (2000).
The majority of our cases hold that "[a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA] a [claimant] must show substantial aggravating circumstances attending the breach to recover under the [CUTPA] . . ." Cadle Co. v. Multi Unit Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 393187 (May 12, 2003, Levin, J.); see also Velenchik v. First Union National Bank, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 372515 (May 7, 2003, Wolven, J.) ( 34 Conn.L.Rptr. 576, 579). "In the absence of any Connecticut appellate opinion on point, almost if not, all Superior Court decisions and one decision of the United States Court of Appeals for the Second Circuit, applying Connecticut law, have held that a simple breach of contract does not amount to a violation of CUTPA. See Boulevard Associates v. Sovereign Hotels, Inc., 73 F.3d 1029, 1038-39 (2d Cir. 1995) (noting that `vast majority' of Connecticut courts `hold that a simple contract breach is not sufficient to establish a violation of CUTPA'); Derrig v. Thomas Regional Directory Co., judicial district of Hartford CV98-0583548 (June 22, 1999, Peck, J.); Profitel, Inc. v. FKI Industries, Inc., judicial district of New Haven at New Haven, CV99-0427490 (September 30, 1999, Alander, J.) (commenting that each of 51 Superior Court decisions reviewed held that a simple albeit intentional, breach of contract was insufficient to demonstrate a CUTPA violation)." Abatron, Inc. v. Reed Elsevier, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 191987 (January 24, 2003, Adams, J.).
This court is quite satisfied that BioTech has pleaded sufficient facts to support a cause of action for breach of contract. However, this breach of contract might well be characterized as a simple breach of contract. It does not rise to the level of a CUTPA violation. There is no sufficient factual predicate to support a claim for violation of our statute. It has simply incorporated and reiterated the claims it made to support its cause of action for breach of contract. Consequently, the court grants the defendant's motion to strike the fourth count of the complaint.
Moraghan, J.T.R.