Opinion
No. CV 10-6008853 S
August 5, 2010
MEMORANDUM OF DECISION
On January 20, 2010, the plaintiff, Joel Cabala, commenced this action by service of process upon the defendant, JP Morgan Chase Bank. In his complaint, the plaintiff alleges the following facts. In May of 2009, the plaintiff had a checking account with the defendant in New Haven, Connecticut. On May 1, 2009, a direct deposit of $739 in Social Security funds was made to this checking account, and on May 7, 2009, another direct deposit of $250 in Social Security funds was made to this checking account. On May 11, 2009, the plaintiff had a balance of no more than $796.65 in this checking account. On or about May 11, 2009, the defendant paid $763.44 in funds from the plaintiff's checking account to a marshal, in response to a bank execution. The defendant knew or had reason to know that the funds in the plaintiff's checking account were not subject to levy under federal and state laws that protect Social Security funds, including General Statutes § 52-367b(c). The defendant's payment of the plaintiff's funds was willful and malicious, and it is the defendant's policy, practice and procedure not to comply with the provisions of Connecticut or federal laws that protect direct deposited social security funds from levy. As a result, the plaintiff suffered an ascertainable loss. On April 21, 2010, the defendant filed its answer and two special defenses.
On April 28, 2010, the plaintiff filed a motion to strike paragraphs three through five of the answer on the ground that the defendant's responses are evasive. The motion is accompanied by a memorandum of law. Also, on April 28, 2010, the plaintiff filed a motion to strike the defendant's special defenses on the ground that the defendant has failed to allege specific facts in support thereof. The motion is accompanied by a memorandum of law. On May 6, 2010, the defendant filed a memorandum in opposition to the plaintiff's motion to strike portions of the answer and a memorandum in opposition to the plaintiff's motion to strike the special defenses.
"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." Practice Book § 10-39(a). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court takes] the facts to be those alleged in the [pleading] . . . and [the court construes] the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
In his motion to strike portions of the answer, the plaintiff has moved to strike paragraphs three through five. The plaintiff claims that paragraphs three through five of the complaint allege specific information about deposits to the plaintiff's JP Morgan Chase Bank account and the balance therein, and that this information was taken directly from his banking statement. He argues that the defendant's responses of insufficient knowledge to paragraphs three through five of the complaint are evasive because the defendant necessarily has "sufficient knowledge as to facts in its own records," and that these responses should therefore be stricken and the allegations deemed admitted. In response, the defendant counters that an answer of insufficient knowledge is effectively a denial, and is therefore legally sufficient.
"The answer to the complaint should follow the format of the complaint." W. Horton K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2010) § 10-46, authors' comments, p. 533. "A defendant should admit those facts well pleaded that are not in controversy. If there is a definite issue, then a denial should be used. If the defendant is in doubt, he should plead `insufficient information.'" Id. "Because the defendant cannot in good faith deny the allegations of the complaint, he is not required to admit them . . . It is because he can properly neither admit nor deny allegations concerning which he has no actual or presumptive knowledge, that the defendant is permitted to aver the want of such knowledge. When want of knowledge or information sufficient to form a belief is a proper answer, it subjects the plaintiff to the same burden of proving, and gives to the defendant the same right of controverting, the allegations to which it applies, as would a denial." (Citation omitted.) Sayles v. FitzGerald, 72 Conn. 391, 396, 44 A. 733 (1899); see also Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963) ("[t]he pleading of no knowledge or information to . . . allegations is in effect a denial").
The courts use the words "insufficient information," "insufficient knowledge" or "no knowledge" interchangeably.
A defendant should only plead "insufficient knowledge" in situations where "[h]e is faced with an allegation of a fact which he cannot in good faith deny because of lack of knowledge and yet he is powerless to get the knowledge which might support a denial." E. Stephenson, 1 Connecticut Civil Procedure (3d Ed. 1997) § 82, p. 236-37. The Appellate Court has held that it is improper to answer "insufficient knowledge" to an allegation in a complaint if the truth or falsity of the allegation should be within the personal knowledge of the defendant. Tolland Bank v. Larson, 28 Conn.App. 332, 336, 610 A.2d 720 (1992). In Tolland Bank, the Appellate Court noted that "the defendant's answer claimed insufficient knowledge on which to form a belief as to each and every paragraph of the complaint, including allegations that the defendant had signed the promissory note and mortgage deed. It is obvious that unless the defendant is incapacitated or otherwise unavailable to his attorney, such information is within his knowledge so as to require an admission or denial." Id. The Appellate Court further noted that the defendant's sole purpose in filing such an answer was to delay the proceedings in the case. Id., 337.
In the present case, in paragraphs three through five of the answer, the defendant pleads insufficient knowledge regarding deposits alleged to have been made to the plaintiff's account on May 1, 2009 and May 7, 2009, and insufficient knowledge regarding the plaintiff's balance on May 11, 2009. It is reasonable to conclude that deposits to and the balance in an account held by a bank's customer are within a bank's knowledge. Furthermore, the defendant does not claim that this information is unavailable to its attorney. Therefore, an admission or denial as to each allegation is warranted. Accordingly, the court grants the plaintiff's motion to strike paragraphs three through five of the answer.
In its memorandum in opposition to the plaintiff's motion to strike portions of the answer, the defendant alleges that the motion contains a statement of facts not alleged in the complaint, the defendant's answer or the special defenses: the existence of bank statements. The defendant argues that the court cannot consider facts that were not alleged in the pleadings.
"It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). "A speaking motion to strike is one improperly importing facts from outside the pleadings." Mercer v. Cosley, 110 Conn.App. 283, 292 n. 7, 955 A.2d 550 (2008). However, "[n]othing in our cases suggests . . . that every argument in a motion to strike is rendered defective by the moving party's allegation of some fact not contained in the pleadings, regardless of whether that fact is relevant for each argument in the motion." Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348-49, 576 A.2d 149 (1990).
Here, even if the existence of bank statements may not be inferred from allegations in the complaint regarding deposits made to the plaintiff's account and the balance therein, removal of this fact from the motion does not render the plaintiff's argument defective. The facts alleged in the complaint support the plaintiff's argument that the defendant necessarily has sufficient knowledge regarding an account held by one of its own customers and does not really lack both the necessary information and reasonable access to such information. Therefore, the defendant's allegation that the plaintiff's motion speaks to facts outside the pleadings does not affect the court's decision to strike paragraphs three through five of the answer.
Lastly, in its memorandum in opposition to the plaintiff's motion to strike paragraphs three through five of the answer, the defendant argues that "[a]n individual paragraph contained in a complaint is not the proper subject of a motion to strike unless it embodies an entire cause of action" citing Depray, v. St. Francis Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 306718 (June 9, 1987, Dorsey, J.) ( 2 C.S.C.R. 691) and Donovan v. Davis, 85 Conn. 394, 397, 82 A.2d 1025 (1912). The defendant further argues that "[i]t is likewise inappropriate to challenge only certain paragraphs of an answer unless they are in response to an entire cause of action (e.g., in response to an entire count of a complaint)" citing Zanoni v. Hudon, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 0399162 (March 11, 1992, Schaller, J.).
In Zanoni, the defendant filed an answer and two special defenses. The plaintiffs filed a motion to strike various paragraphs of the answer and two special defenses. The court stated: "An individual paragraph contained in a complaint is not the proper subject of a motion to strike unless it embodies [an] entire cause of action. Depray v. St. Francis Hospital, [ supra,] 2 C.S.C.R. 691 . . .; see Donovan v. Davis, [ supra,] 85 Conn. 397 . . . A court may find that a motion to strike is likewise inappropriate to challenge only certain paragraphs of an answer unless they are in response to an entire cause of action (e.g., in response to an entire count of a complaint). Further, the court may deny a motion to strike on the ground that individual paragraphs of an answer are not the proper subject of a motion to strike unless they respond to an entire cause of action." Zanoni v. Hudon, supra, Superior Court, Docket No. CV 91 0399162. Zanoni cites no authority for these last two sentences. Even though the court determined that the motion to strike portions of an answer was improper, it dealt with the merits of the motion denying it on the grounds that the answer complied with the rules of pleading and the defendant had the right to plead her case as she desired so long as, in good faith, she had insufficient knowledge regarding the allegations in the complaint. The court reasoned that insufficient knowledge or no knowledge is in effect a "denial" and leaves the burden of proof on the plaintiff. "[A] pleading [of "no knowledge"] has the effect of a denial without requiring the defendant to make denials of allegations without a basis therefore." E. Stephenson, 1 Connecticut Civil Procedure, supra, p. 236.
Depray involved a motion to strike paragraphs 14(h) and 14(i) of counts one and two of the complaint. The court determined that since these paragraphs did not state entire causes of action, they were not properly the subject of a motion to strike. Depray v. St. Francis Hospital, supra, 2 C.S.C.R. 691. In Donovan, the defendant moved to expunge paragraphs of the petition. The court held that if the defendant intended to attack the paragraphs for insufficiency, this could only be done "when a cause of action is therein attempted to be stated, and then only by [motion to strike]." Donovan v. Davis, supra, 85 Conn. 397. Neither of these two cases involved paragraphs in an answer.
Research has revealed one other Superior Court case, Rodman v. Trans Union, LLC, Superior Court, judicial district of Windham at Putnam, Docket No. CV 02 0069386 (October 28, 2003, Potter, J.), which determined that a motion to strike may be used to challenge individual paragraphs of an answer only when those paragraphs state an entire defense. Citing to Perugini v. Metropolitan District Commission, Superior Court, judicial district of Hartford, Docket No. CV 97 0574373 (August 24, 1998, Stengel, J.) ( 23 Conn. L. Rptr. 14) for the proposition that "[w]here individual paragraphs standing alone do not purport to state a cause of action [or defense], a motion to strike cannot be used to attack the legal sufficiency of those paragraphs," Rodman concluded that the motion to strike several paragraphs of the defendant's answer was improper since "[t]hese paragraphs, standing alone, [did] not constitute an entire defense." Rodman v. Trans Union, LLC, supra, Superior Court, Docket No. CV 02 0069386. This court need not follow, however, the decision of another Superior Court judge. See Conway v. Wilton, Superior Court, judicial district of New Haven, Docket No. CV 88 0271482 (March 31, 1994, Gray, J.) ( 9 C.S.C.R. 407) [ 11 Conn. L. Rptr. 315] ("[a] coordinate Superior Court judge is not bound by the ruling of another coordinate Superior Court judge").
Superior Court decisions that have permitted the use of a motion to strike individual paragraphs of an answer, regardless of whether those paragraphs state an entire defense, include Merrill Lynch Credit Corp. v. Doria, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0177409 (July 3, 2001, Hickey, J.) and Welles v. Lichaj, Superior Court, judicial district of Litchfield, Docket No. CV 09 4008201 (August 7, 2009, Ginocchio, J.). Since the format of an answer requires a defendant to admit, deny or plead "no knowledge" to the allegations of a complaint in separate paragraphs, and allege a defense and cause of action as a special defense and counterclaim, respectively, this court concludes that a motion to strike individual paragraphs or portions of an answer should be permitted.
In his memorandum of law in support of the motion to strike special defenses, the plaintiff argues that pursuant to Practice Book § 10-50 both special defenses are legally insufficient because they do not allege specific facts showing what error occurred in good faith or what "reasonable procedures" the defendant maintained to prevent the taking of exempt funds. In the defendant's memorandum in opposition, it argues that its special defenses are statutorily provided by General Statutes § 52-367b(o) regarding good faith immunity, and that the defenses do allege facts: "the fact that the defendant maintains reasonable procedures and the fact that the actions taken with respect to the plaintiff were in good faith . . ."
As a threshold matter, the defendant argues that the motion is not accompanied by an appropriate legal memorandum because the plaintiff fails to cite Connecticut case law, instead relying exclusively on federal citations. "Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Practice Book § 10-42(a). Practice Book § 11-10 provides, in relevant part: "A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests: . . . (3) motions to strike . . ." The appellate courts have concluded that they "are not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Hogan v. Dept. of Children Families, 290 Conn. 545, 578, 964 A.2d 1213 (2009). Where the defendant did not brief "two of the grounds relied upon in his motion to strike," the court "treat[ed] those issues as abandoned." State v. Bashura, 37 Conn.Sup. 745, 748-49, 436 A.2d 785 (App.Sess. 1981). "When a memorandum of law fails to cite any legal authority, the memorandum is functionally equivalent to no memorandum at all." (Internal quotation marks omitted.) Jasmin v. New England Plasma Development Corp., Superior Court, judicial district of Windham at Putnam, Docket No. CV 04 4000706 (July 13, 2005, Foley, J.).
In the present case, the plaintiff provides a two-page memorandum in support of his motion to strike the special defenses, in which he cites only to federal case law for the proposition that special defenses require a factual basis and cannot be conclusory. While the plaintiff has failed to cite Connecticut case law and the authority cited is not binding as to matters of Connecticut law, he has provided some legal authority and analysis. Therefore, the memorandum is not inadequate such that the plaintiff has abandoned the issue as to special defenses. Thus, the court may consider the plaintiff's motion to strike the special defenses on the merits.
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); see Practice Book § 10-50. "A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). "[T]he total absence of any factual allegations" specific to the dispute "renders [the special defense] legally insufficient." U.S. Bank National Assn. v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 345, 346); see also Cluney v. Regional School District No. 13, Superior Court, judicial district of Middlesex, Docket No. CV 99 0089468 (June 16, 2000, Gordon, J.) ( 27 Conn. L. Rptr. 415) (rejecting line of cases that held specific factual allegations in support of special defenses to be unnecessary). "The fact that in a special defense one must plead facts which are consistent with the allegations of the complaint does not relieve the defendants of the duty of providing the plaintiff with a plain and concise statement of the material facts on which they rely. It does not enable the defendants to incorporate the factual claims of the plaintiff without stating them . . . Thus [where] no information is provided as to what actions or lack thereof the defendants rely on, a motion to strike is properly granted . . . P G Construction v. Park Blue, [LLC], Superior Court, judicial district of Waterbury, Docket No. 162954 (January 23, 2002, West, J.); Bank of New York v. Chimblo, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 173731 (June 21, 2000, Rodriguez, J.)." (Internal quotation marks omitted.) Zdanis v. Sekeret, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084641 (July 24, 2002, Moraghan, J.T.R.).
In State v. Senick, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 4000274 (April 10, 2006, Taylor, J.), the court granted the plaintiff's motion to strike four special defenses, each of which was based on the claim that "the lease upon which the plaintiff relies is not valid as it was not reviewed and approved pursuant to the plaintiff's regulatory and administrative procedures." (Internal quotation marks omitted.) The court reasoned that the defendant "does not provide any factual allegations to show in what manner the lease was not reviewed and approved, and which administrative or regulatory procedures the plaintiff did not follow. Without sufficient facts to support this allegation, the defendant fails to apprise the plaintiff and the court of the issues to be tried. While the defendant does not need to present the evidence on which he bases his claims, at a minimum he must state the facts on which he bases his claims that the lease needed to be reviewed and approved, but was not." Id.
See also Donza v. Depamphilis, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0517276 (April 7, 1994, Aurigemma, J.) ( 9 C.S.C.R. 472) (where special defense stated "[t]he plaintiffs breached their duty of good faith and fair dealing in negotiating, preparing and entering into the subject loan transaction," motion to strike the special defense granted, due in part to defendant's failure to allege facts identifying actions that constituted alleged breach).
In the present case, the defendant alleges the following special defenses: (1) "The defendant maintains reasonable procedures to prevent errors in compliance with the statutes alleged by the plaintiff" and (2) "Any act or omission of the defendant with respect to the plaintiff was committed in good faith or through the commission of a bona fide error." As acknowledged in the defendant's memorandum in opposition to the motion to strike special defenses, these defenses are based directly upon § 52-367b(o). That statute states: "Good faith immunity. Except as provided in subsection (n) of this section, no financial institution or any officer, director or employee of such financial institution shall be liable to any person with respect to any act done or omitted in good faith or though the commission of a bona fide error that occurred despite reasonable procedures maintained by the financial institution to prevent such errors in complying with the provisions of this section." The defendant's special defenses merely reiterate the statute regarding good faith and reasonable procedures and do not allege any facts in support of a finding of good faith immunity. To sustain legal sufficiency, a special defense must assert facts such as what actions or lack thereof the defendant bases its conclusions on, as opposed to mere conclusions of law. Similar to the defendant's failure to provide factual allegations regarding which administrative or regulatory procedures the plaintiff did not follow in State v. Senick, supra, Superior Court, Docket No. CV 04 4000274, the defendant in the present case fails to provide factual allegations regarding the nature of the bona fide error it committed or which reasonable procedures it maintained to prevent the taking of exempt funds. Thus, the special defenses are legally insufficient and are properly stricken.
For the foregoing reasons, the court grants the plaintiff's motion to strike portions of the answer and the plaintiff's motion to strike the special defenses.