Opinion
No. CV06 4014204S
June 8, 2006
MEMORANDUM OF DECISION MOTION TO STRIKE #105
The defendant, WABB-FM, Inc. ("WABB") has moved to strike the First, Sixth and Seventh Counts of the plaintiff's Revised Complaint, dated February 23, 2005. The motion to strike is dated March 8, 2006. The plaintiff claims that the defendant has failed to plead "sufficient facts" to support each of these counts. The First Count of the Revised Complaint alleges fraud. The Sixth Count alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a et seq., and the Seventh Count alleges commercial disparagement. In support of the motion to strike, the defendant has filed a memorandum of law, also dated March 8, 2006.
The plaintiff has filed an objection to the motion to strike. The objection is dated March 24, 2006. In its objection, the plaintiff first claims that the defendant's motion to strike is fatally defective, as it is in violation of Practice Book § 10-41, as discussed in Bouchard v. People's Bank, 219 Conn. 465, 4 n. 4, 594 A.2d 1 (1991) and Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986). The plaintiff argues that these decisions require that the defendant, within the body of its motion to strike, must specify the "distinct reasons" for the claimed insufficiency of the three counts of the Revised Complaint to which the motion to strike is directed. A review of the defendant's motion to strike reveals that it claims only that the plaintiff has failed to "plead sufficient facts in support of each of these counts." The defendant's memorandum of law, however, is more particular in specifying the alleged defects in three counts of the Revised Complaint which are the subjects of the motion to strike. The defendant's memorandum of law specifies that, as to the First Count alleging fraud, the plaintiff has not pleaded particular facts "demonstrating what WABB's false representations were and how they were false." As to the Sixth Count (CUTPA), the defendant's memorandum of law specifies that the plaintiff has failed to allege sufficient "aggravating circumstances" to support its claim for a violation of CUTPA. Regarding the Seventh Count, alleging commercial disparagement, the defendant's memorandum of law specifies that the plaintiff has "failed to plead any disparaging statements made by WABB" about the plaintiff or its products to a third party, in support of its claim.
"The defendant's motion to strike simply stated that the plaintiff had `failed to state a claim upon which relief can be granted.' Because the defendant did not specify the distinct reasons for the claimed insufficiency of the plaintiff's complaint in its motion, the motion was `fatally defective' under Practice Book 154 notwithstanding the defendant's inclusion of such reasons in its supporting memorandum. See Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986). We, nevertheless, consider the defendant's motion in the form presented to the trial court due to the plaintiff's failure to object to its form and the non-jurisdictional nature of 154." Bouchard v. People's Bank, supra, 219 Conn. 473, n. 4 (1991).
"The defendant's motion to strike failed to comply with Practice Book 154, which requires that a motion to strike based on legal insufficiency distinctly specify the reason or reasons for each such claimed insufficiency. The motion filed sought to strike the revised substitute complaint `because each count fails to state a claim upon which relief can be granted.' We have said that a motion to strike that does not specify the grounds of insufficiency is `fatally defective'; Lubas v. McCusker, 153 Conn. 250, 253, 216 A.2d 289 (1965); and that `Practice Book 155, 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 154 that the reasons for the claimed pleading deficiency be specified in the motion itself." King v. Board of Education, 195 Conn. 90, 94 n. 4, 486 A.2d 1111 (1985). Nevertheless, the plaintiff made no objection to the form of the defendant's motion to strike, arid because we do not consider Practice Book 154 to be jurisdictional in nature, we will consider the motion to strike in the form presented to the trial court." Morris v. Hartford Courant Co., supra, 200 Conn. 685 n. 5.
The claim that the motion to strike, itself, is fatally defective and in violation of Practice Book § 10-41 is a threshold question that the court must address before it can consider the merits of the arguments contained in the defendant's memorandum of law.
I Legal Standard
The law regarding a motion to strike is well-settled. "The purpose of a motion to strike is to contest the legal sufficiency of the 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, 815 A.2d 1188 (2003); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185. (1988).
In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, "[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
II Discussion
Practice Book § 10-41 reads as follows:
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 requires that a motion to strike raising a claim of insufficiency shall distinctly specify the reason or reasons for each such claimed insufficiency . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). However, where the plaintiff does not object to the form of the motion to strike, and because Practice Book § 10-41 is not jurisdictional in nature, the motion may be considered by the trial court. Bouchard v. People Bank, supra, 219 Conn. 473 n. 4 (1991); see also, Morris v. Courant Co., supra, 200 Conn. 683 n. 5. In the Bouchard and Morris decisions, the plaintiffs did not object to the form of the subject motions to strike. However, in Barasso v. Rear Still Hill Road, LLC, supra, the plaintiff did object, and the Appellate Court ruled that the motion to strike was fatally defective. Id. at 14. Because of the objection by the plaintiff in the present case, the court must consider the sufficiency of the defendant's subject motion to strike. The court determines that the defendant's claim that the plaintiff "has failed to plead sufficient facts to support each of these counts," is, in fact, insufficient to comply with Practice Book § 10-41 and the decisions of our Supreme Court and Appellate Court in Bouchard v. People's Bank, supra, 219 Conn. 473 n. 4 (1991); Morris v. Courant Co., supra, 200 Conn. 683 n. 5; and Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). The plain language of Sec. 10-41 instructs the defendant to "separately set forth each claim of insufficiency" and to "distinctly specify the reasons for each such claimed deficiency." The plaintiff's motion to strike does not comply with this mandate. The fact that the defendant's accompanying memorandum of law is more specific as to each of the claimed deficiencies in the Revised Complaint and does cite claimed legal authority, does not dispense with the requirement of Sec. 10-41. Morris v. Hartford Courant Co., supra, 200 Conn. 683 n. 5; Barasso v. Rear Still Hill Road, LLC, supra, 64 Conn.App. 13.
Having determined that the defendant's motion to strike is fatally defective and does not comply with Practice Book § 10-41, the court declines to consider any additional issues raised by the defective motion to strike.
Accordingly, for the reasons set forth herein, the defendant's motion to strike is denied.