Opinion
No. FST CV 09 6002530 S
January 4, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSES (130.00 AND 133.00)
FACTS
On September 1, 2009, the plaintiff, Synthia I. Brooks, commenced this action by service of process on the defendant, Sallie Mae, Inc. In the operative pleading, which is the amended complaint dated March 5, 2010, the plaintiff alleges the following facts that are relevant to the disposition of the motion that is presently before the court. At some undisclosed time, the plaintiff, a consumer residing in Greenwich, obtained student loans administered under the federal family education loan program. The defendant is the holder of the plaintiff's student loans. Beginning on December 23, 2003, the plaintiff applied for, and obtained, economic hardship deferments for her student loans. The plaintiff renewed these deferments several times through December 21, 2007. Nevertheless, starting in December 2007, the defendant began contacting the plaintiff in order to inform her that her student loan payments were late. The plaintiff told the defendant's representatives that she did not have to pay because she had an economic hardship deferment. As a result, a representative of the defendant named Joan Brooks told the plaintiff that she should apply for another deferment and to include a copy of her most recent tax return in order to determine if the plaintiff qualified for such a deferment. Consequently, on December 20, 2007, the plaintiff faxed the completed deferment form to the defendant, along with her 2006 federal tax return.
Despite the fact that the plaintiff had submitted this form, the defendant sent account statements to the plaintiff showing that she failed to make any payments on her student loans during January, February and March 2008. Moreover, in late March 2008, Banks contacted the plaintiff and requested that she complete a new form because her previous one had failed to include a social security number. The plaintiff then faxed another completed form and a copy of her 2006 federal tax return to the defendant on April 7, 2008. On April 15, 2008, Banks again contacted the plaintiff and told her that the defendant would only accept either a 2007 federal tax return or pay stubs as proof of the plaintiff's income. The plaintiff informed Banks that she had yet to file a 2007 federal tax return and that she did not have any pay stubs because she was self employed. Banks told the plaintiff that a tax return or pay stubs were the only documents that the defendant could accept in order to verify her income. The plaintiff was subsequently told by another representative of the defendant, Lisa, that the defendant would also accept quarterly tax statements, quarterly withholding statements or recent pay stubs. Nevertheless, the plaintiff also did not have any of these documents. Furthermore, the plaintiff was told that the defendant could not process her deferment request until after the plaintiff paid the balance and late fees owed on her loans.
The plaintiff further alleges that pursuant to 34 C.F.R. § 682.210(s)(6)(ix), the defendant could have accepted other documentation to substantiate her income, but the defendant chose not to do so because it wanted to delay purposefully the processing of her deferment request in order to drive up late fees. As a result of the defendant's alleged mishandling of the plaintiff's request for an economic hardship deferment, the plaintiff alleges that, inter alia, she suffered damages because her loans entered default and she incurred late fees, accrual of interest and collection fees. Consequently, the plaintiff's one-count amended complaint alleges a cause of action against the defendant for violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA).
In addition to the dispute regarding the type of documentation that the defendant would accept in order to substantiate the plaintiff's income, the plaintiff also alleges that she experienced numerous other procedural difficulties in the processing of her request for an economic hardship deferment.
On January 14, 2010, the defendant brought a motion to strike the plaintiff's complaint. This motion was denied by the court, Brazzel-Massaro, J., in a memorandum of decision dated July 20, 2010.
In response to the plaintiff's amended complaint, the defendant filed an answer along with three special defenses on August 13, 2010. The defendant's first special defense alleges that "[b]ased on the allegations of her Amended Complaint, plaintiff's right to relief depends on whether her application for loan deferment or forbearance was denied as a result of [the defendant] misapplying the federal laws and regulations governing deferment or forbearance of [federal family education] loans. [The defendant], in all respects here, has complied with the applicable federal laws and regulations." The defendant's second special defense alleges that the federal family education loan program is derived from the federal Higher Education Act, 20 U.S.C. §§ 1001- 1155, and that the plaintiff's claims are barred because there is no private right of action under that statute. Finally, in its third special defense, the defendant alleges that the plaintiff's CUTPA cause of action is preempted by the Higher Education Act.
Specifically, the first special defense alleges that the defendant complied with the following laws and regulations: 20 U.S.C. § 1071 et seq. and 34 C.F.R. §§ 682.210 and 682.211.
On October 27, 2010, the plaintiff filed a motion to strike all three of the defendant's special defenses, along with a memorandum of law in support of her motion. The face of the plaintiff's motion failed to state specifically the grounds upon which the plaintiff contends that the defendant's special defenses are legally insufficient. On November 30, 2010, the defendant filed a memorandum of law in opposition to the plaintiff's motion. The defendant argues both that the plaintiff's motion to strike is procedurally deficient and that its special defenses are legally sufficient and should not be stricken. In an attempt to cure the defects in her original motion to strike, on December 6, 2010, the plaintiff filed a "substitute motion to strike," that listed specific grounds. The court heard argument in this matter at short calendar on December 6, 2010.
DISCUSSION
A motion to strike can be used to test the legal sufficiency of a special defense. Practice Book § 10-39(a) states in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." In a motion 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). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[a] motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). When ruling on a motion to strike, the court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
I DEFECTS IN THE PLAINTIFF'S MOTION TO STRIKE
As a threshold matter, the court must first address the defendant's argument that the plaintiff's motion is "fatally flawed," and, as a result, that it must summarily be denied. On the face of her original motion to strike that was filed with the court on October 27, 2010 (Dkt Entry 130.00) the plaintiff stated the following: "Pursuant to Practice Book § 10-39(a)(5), the Plaintiff, Synthia I. Brooks, motions to strike the Special Defenses of the Defendant, Sallie Mae, Inc. dated August 13, 2010. Plaintiff attaches her memorandum of law in support of this motion." According to our rules of practice: "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41. "Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).
In Stuart v. Freiberg, supra, 102 Conn.App. 857, the Appellate Court held that "[s]imply stating that all of the counts `are legally insufficient' and that they `fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10-41." Id., 862. Furthermore, the Appellate Court stated that although "the defendant gave several reasons for his challenge to the causes of action as alleged by the plaintiffs in his memorandum of law in support of the motion . . . [t]hose reasons . . . were not contained in the motion itself, and the fact that they were provided in the accompanying memorandum of law does not save the motion from being considered `fatally defective.'" Id. In the present case, the grounds stated on the plaintiff's motion to strike are even less specific than those in Stuart. Moreover, the defendant has not waived this defect because it has explicitly stated that the plaintiff's motion should be denied because of its non-compliance with Practice Book § 10-41. Accordingly, there is no question that the plaintiff's October 27, 2010 motion to strike is fatally defective and it cannot be granted by the court.
Nevertheless, the plaintiff has filed a "substitute motion to strike" that adequately states the grounds upon which the plaintiff believes that the defendant's special defenses are legally insufficient. (Dkt. Entry 133.00.) At the present time, the defendant has not filed any formal written objection as to the validity of this substitute motion. Consequently, the question then becomes whether the court can consider this newly filed motion as the operative motion in the case.
Following its decision in Stuart, the Appellate Court remanded the case to the Superior Court with the direction that the defendant's motion to strike should be denied. The defendant in Stuart then filed a motion for leave to file a new motion to strike, to which the plaintiffs objected. When determining whether it could consider the defendant's second motion to strike, the court, Tobin, J., stated that: "Most courts which have considered the issue have found that successive motions to strike are not appropriate. Although the appellate courts have not ruled on the issue, in numerous cases, the judges of the Superior Court have concluded that the rules of practice preclude a party from filing successive motions to strike when the grounds raised in a later motion could have been raised in the initial motion . . . [T]he judges reason that Practice Book [§ 10-41] provides that each motion to strike shall set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each claimed insufficiency . . . Practice Book [§ 10-43] provides that a judge deciding a motion to strike in which more than one ground is asserted shall specify the ground relied upon in striking a claim . . . [Because] [t]he Practice Book provides for pleading multiple grounds in a single motion to strike and, further, provides that pleadings are to advance after the adjudication of each enumerated pleading, a defendant may not impede the progress of the suit by dividing his grounds and pleading them in consecutive motions to strike . . . [Therefore], a defendant who has failed to raise all grounds for striking a complaint may not [later] file a second motion to strike asserting additional grounds." (Internal quotation marks omitted.) Stuart v. Freiberg, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200508 (July 9, 2008, Tobin, J.).
Nevertheless, as noted by Judge Tobin, multiple Superior Court judges, including this court, have determined that a party can file successive motions to strike when the first motion was denied for failure to state grounds on the face of the motion. See, e.g., Irahieta v. Donaldson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182260 (December 12, 2001, Adams, J.) (considering a subsequently filed motion to strike on the merits when the first motion was denied for failure to state the grounds). Moreover, at least two Superior Court judges, have allowed a moving party to file an amended motion to strike to replace a pending motion to strike that did not adequately state its grounds. See, e.g, Grant v. James Street, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 5027291 (July 2, 2009, Zoarski, J.T.R.) [ 48 Conn. L. Rptr. 192] (granting party's request for leave to file an amended motion to strike when the original motion to strike violated Practice Book § 10-41); Crosby v. HSBC North American Holdings, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 500378 (May 16, 2007, R. Robinson, J.) (holding that "the court will consider the substance of the amended motion to strike in place of the original motion to strike" because "[t]he defendants' amended motion to strike includes the required language regarding specific deficiencies to the plaintiff's complaint" and the plaintiff has not shown any prejudice resulting from the amended motion).
As a result of this Superior Court authority, the court determines it can rule on the substitute motion to strike, which adequately states its grounds on the face of the motion. When reaching this conclusion, the discussion by Judge Tobin in Stuart is instructive. Invoking the language and spirit of Practice Book § 1-8, Judge Tobin states: "If the court were to deny the defendant's motion to strike based upon procedural grounds business would not be facilitated, nor justice advanced. Instead, the court would simply be delaying an inevitable examination of the sufficiency of the plaintiffs' complaint. This delay might well require both parties to expend needless time, effort and money. As such a result appears to contradict the purpose of the Practice Book rules, the court finds that it is appropriate to entertain and decide the defendant's motion to strike." Stuart v. Freiberg, supra, Docket No. CV 04 0200508. Furthermore, it does not appear that the defendant in the present case would suffer any prejudice by the court ruling on the substitute motion to strike. In addition to objecting to the procedural deficiencies found in the plaintiff's original motion to strike, the defendant's memorandum of law in opposition also argues the substantive issues raised in the plaintiff's motion. As none of the legal issues would change if the court were to deem the December 6, 2010 substitute motion to strike as operative as opposed to the original October 27, 2010 motion to strike, the court will treat the substitute motion as operative and rule on the merits presented in the plaintiff's motion.
Practice Book § 1-8 provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
II THE DEFENDANT'S SPECIAL DEFENSES
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway . . . Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "Practice Book § 10-50 require[s] the defendant's special defense to be consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff ha[s] no cause of action," and when this does not occur, the special defense is legally insufficient and the court should grant the motion to strike. Mitchell v. Guardian Systems, Inc., 72 Conn.App. 158, 167, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).
The plaintiff moves to strike the defendant's first special defense, compliance with the law, on the ground that this allegation cannot be pleaded as a special defense because it alleges facts that are contradictory to those alleged in the plaintiff's amended complaint. Specifically, the plaintiff argues that the crux of this matter is that the defendant did not comply with the law when it processed the plaintiff's request for an economic hardship deferment. Consequently, the defendant's position that it acted in accordance with the law is in direct contradiction to the plaintiff's allegations. In response, the defendant argues that the first special defense is legally sufficient because "[i]n its First Special Defense, [the defendant] explains that deferment or forbearance of federally-guaranteed student loans are governed by 20 U.S.C. § 1701 et seq., as well as regulations promulgated by the United States Department of Education, including 34 C.F.R. §§ 682.210 and 682.211, and among other things, that [the defendant] complied with the requirements under those regulations here. Nowhere in her Amended Complaint has Plaintiff alleged that her loans are not governed by such regulations, or that [the defendant] did not comply with such regulations. Plaintiff's claim here is an alleged CUTPA violation, nothing more."
However, in paragraph seventy-six of her amended complaint, the plaintiff alleges that the defendant violated CUTPA because it refused to accept income information that complied with 34 C.F.R. § 682.210(s)(6)(ix). Similar allegations are found in paragraphs sixty-one through sixty-six. As a result, with its first special defense, the defendant is alleging that it adhered to federal statutes and regulations that the plaintiff alleges that the defendant violated. Consequently, the first special defense alleges different facts than those found in the amended complaint. Under our rules of practice, the facts alleged in a special defense cannot contradict those alleged by the plaintiff. Mitchell v. Guardian Systems, Inc., supra, 72 Conn.App. 167. Moreover, it should be noted that the defendant's potential adherence or non-compliance with the law is really the ultimate legal issue in this case. Consequently, for these reasons, the court grants the plaintiff's motion to strike the first special defense.
Next, the plaintiff moves to strike the defendant's second special defense, no private right of action under the Higher Education Act, on the ground that the absence of a private cause of action under this statute is not a defense to a CUTPA claim. In her memorandum of law, the plaintiff argues that this special defense should be stricken because Connecticut law authorizes claims to be brought under CUTPA for violations of federal statutes that do not allow for a plaintiff to bring a cause of action. The plaintiff also argues that this special defense is "based on the premise that there is no private right of action under the [Higher Education Act], which in turn implicates that Plaintiff has failed to state a claim under which relief may be granted [which] is more appropriately raised in a Motion to Dismiss because it brings into question the Court's subject matter jurisdiction." In response, the defendant argues that its second special defense is legally sufficient because: (1) the Superior Court case relied on by the plaintiff for her position that she can state a CUTPA claim for violations of a federal statute, Yale-New Haven Hospital, Inc. v. Mitchell, 44 Conn.Sup. 274, 683 A.2d 1362 [ 14 Conn. L. Rptr. 265] (1995), is inapposite because it was decided on summary judgment; (2) matters of law such as the plaintiff's inability to state a claim under a particular statute are properly pleaded as a special defense and (3) even though the court previously denied the defendant's motion to strike, the defendant still has the right to interpose legally appropriate special defenses.
The plaintiff's memorandum of law offers no authority supporting her contention that the defendant must bring a motion to dismiss in order to argue that the plaintiff has no private right of action under the Higher Education Act. In fact, the plaintiff's brief actually implicitly undercuts this position when the plaintiff acknowledges that, with this argument, the defendant is contending that the plaintiff has "failed to state a claim upon which relief can be granted." "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike . . ." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). The plaintiff is incorrect that any argument regarding the legal insufficiency of her complaint should have been raised by the defendant via a motion to dismiss. Rather, it appears that a motion to strike or a motion for summary judgment would have been the appropriate procedural vehicle. Nevertheless, as will be demonstrated below, this issue does not affect the disposition of the motion that is presently before the court.
In reality, the resolution of this portion of the plaintiff's motion to strike is more straight forward than the somewhat confused arguments offered by the parties. As stated on her substitute motion, the plaintiff is moving to strike the second special defense because the absence of a private right of action under the Higher Education Act does not provide for a defense to a CUTPA claim. Logically speaking, this position makes sense because the fact that a plaintiff may not be able to state a private right of action under the Higher Education Act has no bearing on whether the plaintiff can succeed on a claim brought under an entirely different statute. In fact, the second special defense suggests that the plaintiff is proceeding under a different statute than she has actually alleged. Consequently, the second special defense both alleges different facts than those found in the operative complaint and it fails to allege facts demonstrating that the plaintiff has no cause of action. For both of these reasons, this special defense it will be stricken.
Nevertheless, it is still possible that the Higher Education Act may preempt state law claims brought under CUTPA. This issue will be addressed in the portion of this memorandum dealing with the plaintiff's third special defense.
Although portions of the Higher Education Act are noted in the plaintiff's one-count amended complaint, it is clear that the plaintiff has only brought a CUTPA cause of action. In fact, it should be noted that the defendant has already attempted unsuccessfully to remove this action to federal court on the ground that the plaintiff alleged that the defendant violated federal statutes.
Specifically, in the federal court action, the defendant argued that the case should be dismissed because the Higher Education Act does not provide for a private cause of action. When remanding this action from federal court back to state court due to lack of federal question jurisdiction, United States District Court Judge Stefan Underhill noted that the plaintiff "does not raise a federal cause of action, she alleges only violations of the Connecticut Unfair Trade Practices Act . . ." Brooks v. Sallie Mae, Inc., United States District Court, Docket No. 3:09-CV-1547 (SRU) (D.Conn. November 19, 2009).
Finally, the plaintiff moves to strike the defendant's third special defense, preemption, on the ground that the Higher Education Act does not preempt CUTPA, and, as a result, preemption is not a valid special defense in this case. The defendant responds that there is a potential that the Higher Education Act could preempt the plaintiff's claims. In their respective memoranda of law, the parties fail to cite to any case or statutory law that actually addresses the issue of whether the Higher Education Act preempts CUTPA. Furthermore, research has failed to reveal any Connecticut or Second Circuit cases that have addressed this issue. Nevertheless, the preemptive effect of the Higher Education Act has been examined by courts in other jurisdictions.
"The Higher Education Act does not generally preempt state law remedies . . . However, state law is preempted to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Citations omitted; internal quotation marks omitted.) Williams v. National School of Health Technology, Inc., 836 F.Sup. 273, 281 n. 7 (E.D.Pa. 1993), aff'd, 37 F.3d 1491 (3d Cir. 1994). The Ninth Circuit Court of Appeals recently examined this preemption issue in a case with very similar facts to the present matter. In Chae v. SLM Corp., 593 F.3d 936 (9th Cir. 2010), cert. denied, 131 S.Ct. 458, 178 L.Ed.2d 287 (2010) a group of student loan borrowers brought claims against a defendant loan servicing company, for, inter alia, a violation of California's Unfair Competition Law, which is similar to CUTPA. The Chae plaintiffs alleged that their loan servicing company, Sallie Mae, violated the law in its student loan servicing practices. When determining that the plaintiffs' state law claims were preempted by the Higher Education Act, the Ninth Circuit stated that: "Congress has enacted several express preemption provisions applicable to [federal family education loan program] participants. See, e.g. 20 U.S.C. §§ 1078(d), 1091a(a)(2)(B), 1091a(b)(1)-(3), 1095a(a), 1098g. These provisions expressly preempt the operation of state usury laws, statutes of limitations, limitations on recovering the costs of debt collection, infancy defenses to contract liability, wage garnishment limitations, and disclosure requirements." Id., 942.
The defendant in Chae was the SLM Corporation, which does business as Sallie Mae. The plaintiffs in Chae also alleged that Sallie Mae was their loan servicer.
California Bus. Prof. Code § 17200 prohibits all unfair competition, including "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . ."
According to the Ninth Circuit, the Chae plaintiffs' "Unfair Competition Law claims allege that Sallie Mae employs `unfair' and `fraudulent' business practices by using billing statements and coupon books that trick borrowers into thinking that interest is being calculated via the installment method when Sallie Mae really uses a simple daily calculation." Id. "At bottom, the plaintiffs' misrepresentation claims are improper-disclosure claims . . . We consider these allegations in substance to be a challenge to the allegedly-misleading method Sallie Mae used to communicate with the plaintiffs about its practices." Id., 942-43. Accordingly, the Ninth Circuit concluded that the Chae plaintiffs' claims violated 20 U.S.C. § 1098g, which provides: "Loans made, insured, or guaranteed pursuant to a program authorized by title IV of the Higher Education Act of 1965 ( 20 U.S.C. 1070 et seq.) [and 42 U.S.C. 2751 et seq.] shall not be subject to any disclosure requirements of any State law." Consequently, the Ninth Circuit's decision in Chae demonstrates that at least one court has found that the Higher Education Act preempts a state's unfair trade practices law in a case where former students alleged that they were misled by their student loan processing company.
In paragraph sixty-four of her amended complaint, the plaintiff alleges that the defendant "misrepresented the documentation requirements to determine [the plaintiff's] eligibility for [the economic hardship program]." Paragraph sixty-five further alleges that the defendant "misrepresented that [the plaintiff] had to pay all late fees before she could enter [the economic hardship program]." Therefore, the plaintiff in the present case alleges at least some misrepresentation and non-disclosure claims that are similar to the plaintiffs in Chae, and there is at least a possibility that the plaintiff's state law claims are preempted by the Higher Education Act. As the Connecticut Supreme Court has determined that a defendant should raise the issue of preemption as a special defense if it wants that defense to remain viable, the court will not strike what may be a legally valid defense to this action. See Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 488-89, 958 A.2d 1195 (2008) (holding that "[b]ecause the defendants did not file a special defense of federal preemption to the plaintiff's claims . . . the defendants waived this special defense . . .").
When making this determination, the court stresses that it has not made a legal finding that the plaintiff's CUTPA cause of action is preempted by the Higher Education Act. Rather, at trial, the defendant may be able to present evidence demonstrating that the plaintiff's claims are either expressly or impliedly preempted by this federal law.
CONCLUSION
For all of the reasons stated above, the court grants the plaintiff's motion to strike the defendant's first two special defenses, and denies it as to the third special defense alleging preemption.