Opinion
No. HHD CV 08 5025357 S
December 4, 2009
MEMORANDUM OF DECISION ON MOTIONS TO STRIKE
This action arises out of prior contentious litigation involving the parties. On December 2, 2008, Fiondella Insurance Retirement Planning, Inc. (FIRP); Jerob Enterprises; Robert W. Fiondella; and Robert J. Fiondella commenced this action against Reiner, Reiner Bendett (RRB), Attorney Michael Reiner, and Attorney Sharon Ferris by service of process. In their five-count complaint, the plaintiffs allege the following facts. From July of 2003 to his termination in February of 2007, Russell Ruff, who is not a party to this action, was employed at will by FIRP as a driver and assistant. As a result of his termination, Ruff filed a nine-count complaint dated April 3, 2007 against Robert W. Fiondella, Robert J. Fiondella, FIRP, and Wealth Management Advisors. The gist of Ruff's complaint was that he had an employment contract for specified term that was breached by his termination. At the time of his complaint, Ruff was represented by Attorney Ferris of Employment Law Resources, LLC (ELR), a Connecticut limited liability company that was billed as being "[i]n association with [RRB]" and whose office address was listed and advertised as the same as that of RRB. As president of RRB, Attorney Reiner was responsible for supervising Attorney Ferris in Ruff's action against the plaintiffs. In their positions as agents and/or employees of RRB and/or ELR, Attorneys Ferris and Reiner caused, encouraged, and/or filed, served and prosecuted Ruff's complaint.
FIRP, Jerob Enterprises, Robert W. Fiondella, and Robert J. Fiondella are collectively referred to as the plaintiffs.
The writ and summons lists the defendant as Reiner, Reiner Bennett; however, throughout the pleadings the parties refer to the defendant as Reiner, Reiner Bendett. For the sake of clarity, RRB is used throughout.
RRB, Reiner, and Ferris are collectively referred to as the defendants.
Wealth Management Advisors is not a party to this action.
The plaintiffs further allege that Ruff's complaint and its subsequent amendments contained numerous counts and theories that lacked probable cause and were factually false and/or legally baseless. The defendants had actual knowledge, through Ruff's own statements under oath, that Ruff's primary allegation against the plaintiffs was false. The complaint and its subsequent amendments were brought in an effort to and as a means of establishing, promoting, launching and marketing a labor and employment practice at RRB through ELR's association with RRB. RRB, through Attorneys Reiner and Ferris, prosecuted the complaint in a manner designed to make the litigation long, costly, nasty, public and personal. Specifically, the complaint contained scandalous, false and salacious charges about Robert J. Fiondella that had nothing to do with Ruff's employment or its termination. It also included allegations that falsely portrayed Robert W. Fiondella as dishonorable, disloyal, manipulative and vindictive. These allegations against the Fiondellas were included in the complaint solely as a means of promoting an extortionate settlement of "hush money" that would be the launch pad for the new labor and employment practice at RRB. The defendants also employed a variety of obstructionist tactics to hinder the discovery process and prevent revelation of the true facts.
Ruff's complaint was first amended on March 17, 2008 to include nineteen counts. Although Attorney Ferris signed Ruff's original complaint, Attorney Reiner signed Ruff's first amended complaint, which contravened then existing court orders. On August 25, 2008, Ruff's complaint was amended a second time. Sometime thereafter, a "second revised amended complaint" was filed.
Ruff's primary allegation was that he had contracted with the plaintiffs to work until he was sixty-six years old.
The plaintiffs further allege that on April 9, 2008, after initiating the action against the plaintiffs, impeding the progress of the case at every turn, causing the plaintiffs to incur tens of thousands of dollars of attorneys fees and expenses, and dragging the plaintiffs' names through the mud, RRB and Attorney Reiner moved to withdraw as counsel. In their Motion, RRB and Attorney Reiner cited Attorney Ferris's departure from RRB and the provisions of Ruff's engagement letter as reasons for the withdrawal. RRB's motion to withdraw was denied by the Court on June 20, 2008.
The plaintiffs further allege that Attorney Reiner and RRB circulated a version of the complaint, which included all of its false and defamatory allegations, to "members of the business community, the legal profession, and the Connecticut bar" as well as numerous attorneys who were colleagues of Robert W. Fiondella. The dissemination was in furtherance of Reiner and RRB's efforts to walk away from Ruff and the mess that they had created. As a result, false and libelous allegations were spread throughout the business and legal communities. Attorney Reiner and RRB eventually convinced Attorney Gary Greene of Greene Law, P.C. to file an appearance for Ruff. Greene Law, P.C., which is located in the same building as RRB, is directly or indirectly linked or affiliated with RRB. Although the procedural posture of Ruff's case against the plaintiffs becomes somewhat murky after the entrance of Attorney Greene, it is alleged that Attorney Greene filed various pleadings that were rejected by the Court and that the plaintiffs prevailed on all counts against them.
Robert W. Fiondella is a member of the Connecticut bar.
Specifically, the plaintiffs allege that in a memorandum of decision dated October 17, 2008, the Court granted Jerob Enterprise's motion for summary judgment. On October 23, 2008, Ruff withdrew the action with respect to FIRP. Thereafter, Ruff filed a "second revised amended complaint" that contained four counts directed against Robert W. Fiondella and Robert J. Fiondella. Both Fiondellas filed motions for summary judgment on October 24, 2008. The Court granted the Fiondellas' motions for summary judgment by a memorandum of decision dated November 21, 2008. In that memorandum of decision, "[t]he court found as a matter of law (1) that FIRP, not [Robert J. Fiondella, Robert W. Fiondella, or Jerob Enterprises], employed Ruff; (2) that the representation that supposedly formed the basis of the contract and reliance claims that Attorneys Reiner and Ferris and RRB and their successor counsel brought and prosecuted was, clearly and as a matter of law, not sufficiently specific or promissory to support any cause of action; (3) that Ruff `was an at-will employee who could be terminated without just cause . . .; and finally (4) that there were `no relevant statements made by Robert J. Fiondella.'"
In count one, the plaintiffs allege abuse of process. In counts two and three, the plaintiffs allege invasion of privacy based on unreasonable publicity given to another's private life and publicity that unreasonably places another in a false light respectively. Counts four and five allege vexatious litigation.
On March 12, 2009, Attorney Reiner filed a Motion to Strike counts one through three of the complaint and a memorandum in support. Both RRB and Ferris also filed Motions to Strike counts one through three and incorporated Attorney Reiner's memorandum in support thereof. On May 8, 2009, the plaintiffs filed a memorandum in opposition to the defendants' Motion to Strike. Thereafter, the defendants filed memoranda in response to the plaintiffs' memorandum in opposition. The matter was heard at the short calendar on October 5, 2009.
RRB filed its Motion to Strike on March 16, 2009. Ferris's Motion to Strike was filed on July 1, 2009.
The plaintiffs' objection to the Motion to Strike dated May 8, 2009 was in response to both RRB and Reiner's Motions to Strike. An objection to Ferris's Motion to Strike was filed on July 22, 2009.
I MOTION TO STRIKE
"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). "In 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). Nevertheless, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id.
II ABUSE OF PROCESS
The defendants have moved to strike count one of the complaint, which alleges abuse of process, on the grounds that: (1) the claim fails to allege any instance of process; and (2) the plaintiffs have not pleaded any abuse outside the normal contemplation of private litigation. The plaintiffs argue that the initiation and maintenance of Ruff's action against them constituted legal process. The plaintiffs also argue that they have sufficiently pleaded facts constituting specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.
"An action for abuse of process lies against any person using a legal process against another in an improper manner or [primarily] to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . (Emphasis added.) Comment b to § 682 explains that the addition of primarily to this definition is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citation omitted; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).
"Abuse of process differs from [vexatious litigation] in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently, in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause." (Internal quotation marks omitted.) Lewis Truck Trailer Inc. v. Jandreau, 11 Conn.App. 168, 170-71, 526 A.2d 532 (1987).
Where an abuse of process claim is brought against an attorney, the standard is heightened in order to balance "the attorney's primary duty of robust representation of the interests of his or her client." Mozzochi v. Beck, supra, 204 Conn. 497. Specifically, in order to prevail on an abuse of process claim against an attorney, the plaintiff must allege "specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Id. Thus, in cases where the defendant is an attorney, the "viability of an abuse of process claim turns on the specificity of its allegations." Id., 497 n. 2.
A Legal Process
The first issue is whether the plaintiffs have sufficiently pleaded an instance of legal process. Essentially, the defendants argue that the plaintiffs must point to something in addition to the filing of Ruff's suit in order to survive the Motion to Strike. The plaintiffs claim that the complaint sufficiently pleads an instance of legal process by alleging that the defendants initiated and maintained Ruff's suit.
Although the Supreme Court has not set forth parameters for what may constitute process sufficient to support a cause of action for abuse of process, it is well settled that an abuse of process claim may be predicated on the institution and prosecution of a legal action for an improper purpose. See Larobina v. McDonald, 274 Conn. 394, 406, 876 A.2d 522 (2005). In order to satisfy the process requirement of abuse of process, the plaintiff is required only to point to the use of a judicial procedure. See id., 406-07. This is because the tort of abuse of process contemplates the use of process that is properly issued and otherwise valid on its face but used, however, in a manner inconsistent with its design. Schaefer v. O.K. Tool Co., 110 Conn. 528, 532, 198 A. 330 (1930).
General Statutes § 52-45a defines legal process in relevant part as follows: "Civil actions shall be commenced by a legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint." Cf ABB, Inc. v. Tate Renner, Superior Court, judicial district of Fairfield, Docket No. CV 08 4023893 (September 8, 2008, Arnold, J.) ( 46 Conn. L. Rptr. 345) (looking to General Statutes § 52-45a for the definition of legal process in the context of an abuse of process claim); Fedor v. Hawley, Superior Court, judicial district of Fairfield, Docket No. CV 06 5003192 (April 12, 2007, Tyma, J.) ( 43 Conn. L. Rptr. 233) (same). "The process of serving a complaint in an ordinary civil action requires the use of a writ of summons directed to a sheriff or other authority competent to make service of process. See General Statutes §§ 52-45a and 52-45b." Tolly v. Dept. of Human Resources, 225 Conn. 13, 20, 621 A.2d 719 (1993). Thus, a complaint is a legal process sufficient to satisfy the process requirement for an abuse of process claim.
In the present case, when viewed in the light most favorable to the plaintiffs, the complaint alleges a legal process sufficient to survive the Motion to Strike. The complaint sets forth allegations that the defendants initiated Ruff's action by filing a writ of summons and complaint. Thus, the institution and prosecution of Ruff's legal action is a legal process for purposes of an abuse of process claim.
B Outside of the Normal Contemplation of Private Litigation
Having established that the plaintiffs have sufficiently pleaded an instance of process to survive the Motion to Strike, the issue now becomes whether the plaintiffs have sufficiently pleaded the element of abuse by alleging that the commencement of Ruff's action was intended to cause specific injury outside of the normal contemplation of private litigation. Allegations that suit was commenced without legal justification or pursued despite its groundlessness are insufficient to satisfy the requirement of "specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Mozzochi v. Beck, supra, 204 Conn. 497. Such allegations merely state a claim for vexatious litigation because the wrong alleged is in the use of process, not the abuse of it. Schaefer v. O.K. Tool Co., supra, 110 Conn. 532. Instead, in order to prevail on an abuse of process claim, the plaintiff must specifically plead that the defendant attempted to obtain some benefit that he could not have achieved by the proper and successful use of process. See Mozzochi v. Beck, supra, 494, citing 3 Restatement (Second), Torts § 682, comment (b) (1977). That is, the plaintiff must plead that the defendant used regularly issued process to accomplish a specific, unlawful purpose. See Schaefer v. O.K. Tool Co., supra, 532.
The following examples serve as a non-exhaustive list of specific injuries outside of the normal contemplation of private litigation: (1) the use of the pleadings or process in one case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation; (2) the use of unreasonable force, excessive attachments or extortionate methods to enforce the right of action; and (3) the pursuit of the case in order to gain a collateral advantage extraneous to its merits. Mozzochi v. Beck, supra, 204 Conn. 493-94.
Specific injury is not outside of the normal contemplation of private litigation where the plaintiff merely alleges that the initiation of suit by the defendant was used to "inflict injury upon the plaintiff and to enrich [the defendants] and their said client;" Mozzochi v. Beck, supra, 204 Conn. 497; "harm and/or destroy [a] business competitor"; Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 600-02, 715 A.2d 807 (1998); or "force the defendant to pay for the lawsuit [and] to shift blame from the plaintiffs to the defendant"; Glazer v. Dress Barn, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0178375 (March 30, 2001, D'Andrea, J.) [ 29 Conn. L. Rptr. 596]. Under these factual scenarios, the prevailing party could have obtained the benefits complained of by the proper and successful use of process. See also ABB, Inc. v. Tate Renner, supra, 46 Conn. L. Rptr. 345 (striking abuse of process claim for failure to allege specific injury outside the normal contemplation of private litigation where complaint alleged that the filing of claims were for purposes of harassment); Lane Construction Corp. v. O'Brien, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 97 0157926 (September 20, 2000, McWeeny, J.) (granting motion to strike abuse of process claim premised on aggravation and embarrassment on the ground that such injury was not outside of the normal contemplation of private litigation).
In the present case, the plaintiffs claim that they have alleged specific injury outside of the normal contemplation of private litigation by their claims that Ruff's action was brought to: (1) promote the defendants' practice group; (2) "harass, intimidate, and retaliate against them after a perceived, allegedly wrongful termination"; (3) "compel unjustified payment and settlement on . . . Ruff's unmeritorious claim;" and (4) "[publicize] scandalous allegations, which were made against Robert J. Fiondella and which had ultimately had nothing to do with the case or the termination of . . . Ruff's employment, as a means of convincing the senior Fiondella to pay `hush money.'"
In assessing the viability of the abuse of process claim with regard to the plaintiffs' allegations, it is useful to note at the outset what these allegations do not allege. There is no claim that the defendants used the pleadings or the process in the Ruff case as leverage to coerce the plaintiffs to pay a debt or surrender property unrelated to the litigation. Similarly, there is no claim that the plaintiff used unreasonable force, excessive attachment or extortionate methods to enforce the right of action asserted in the Ruff suit. Finally, there is no claim that the defendants' purpose in pursuing the Ruff case was to gain any collateral advantage extraneous to its merits.
None of the plaintiffs' claims allege specific misconduct outside of the normal contemplation of private litigation. The claims "in no way [distinguish] between the costs and benefits ordinarily associated with the pursuit of litigation and the burdens that the defendants in this case allegedly improperly inflicted upon the plaintiff." Mozzochi v. Beck, supra, 204 Conn. 497-98. The allegations, read in the light most favorable to the plaintiffs, simply allege that the defendants' motives were to benefit Ruff in pursuing a frivolous claim against the plaintiffs, to obtain an ulterior benefit of fame to their new practice group, and possibly to gain an incidental benefit of spite by embarrassing the plaintiffs. Such ulterior benefits and incidental motives are insufficient to establish an action for abuse of process. See 3 Restatement (Second), supra, § 682, comment (b). All of the benefits complained of are inside of the normal contemplation of private litigation because they could have been achieved by the proper and successful use of process had the defendants prevailed in Ruff's action.
In light of the plaintiffs' arguments, it is important to reiterate that the initiation and maintenance of a frivolous lawsuit, while perhaps actionable under another legal theory, is not sufficiently ulterior to constitute an abuse of process under the Mozzochi criteria. Specifically, the Court in Mozzochi, supra, 204 Conn. 497, stated "although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney's primary duty of robust representation of the interests of his or her client." Thus, it makes no difference that Ruff's lawsuit against the plaintiffs was frivolous for purposes of their abuse of process claim.
Although the initiation of a suit to promote a practice group may appear to be an attempt to gain a collateral advantage extraneous to the merits of the case, it is not outside of the normal contemplation of private litigation because such publicity and promotion was motivated by the substance of Ruff's claim and could have been achieved by the proper and successful use of process. That is, the promotion of the practice group was not a benefit that would have been unavailable upon the defendants' success on the merits of Ruff's claim. It was merely an ulterior benefit that naturally flowed from successful litigation and ardent advocacy of Ruff's position.
In support of their argument that other jurisdictions have found an abuse of process claim predicated on the use of process as a marketing tool, the plaintiffs cite Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 489 N.E.2d 185 (1986), and Pundzack, Inc. v. Cook, 500 N.W.2d 424 (Iowa 1993). These cases are unpersuasive, however, because they miss the mark of Mozzochi. In particular, the plaintiffs' reliance on Datacomm, supra, 776, is misplaced because that case indicates that, unlike Connecticut, the Massachusetts standard for abuse of process merely requires the use of process in part for an ulterior motive. This is not the case in Connecticut, where the standard "exclude[s] liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Internal quotation marks omitted.) Mozzochi v. Beck, supra, 204 Conn. 494. Thus, process that is used in part as a marketing tool would sufficiently allege an abuse of process claim in Massachusetts but would not in Connecticut. Compare Datacomm Interface, Inc. v. Computerworld, Inc., supra, 776, with Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn.App. 63, 918 A.2d 889 (2007). Similarly, Pundzack, supra, 430, is unpersuasive because the claim in that case was not brought against an attorney, and thus did not require the heightened standard of "specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation," as articulated in Mozzochi, supra, 497.
For all of the foregoing reasons, the Court concludes that it must grant the defendants' Motion to Strike count one on the ground that it does not allege abuse by pointing to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.
III INVASION OF PRIVACY
The defendants have moved to strike counts two and three of the complaint, alleging two categories of invasion of privacy, on the ground that an absolute privilege attaches to all statements made in connection with legal proceedings, and the plaintiffs have not alleged any communications outside the scope of that privilege. The plaintiffs argue that the published communications are not subject to the absolute privilege because the defendants' dissemination of Ruff's complaint was not made during the course of a judicial proceeding and was neither related to nor necessitated by Ruff's claims.
It is worth noting that the defendants have not claimed that the plaintiffs have failed to allege a prima facie case of invasion of privacy. Instead, their assertion, which is akin to a special defense, is that the absolute privilege applies notwithstanding the pleadings. "In the typical case, a motion to strike challenges the alleged failure of the complaint to state facts which, if proved at trial, would establish each essential element of the plaintiffs intended claim or cause of action. Because matters of defense which, if proved at trial, would defeat the plaintiff's claim or cause of action without negating any of its essential elements must be specially pleaded by the defendant; Practice Book § 10-50; the plaintiff's failure to deny such a defense anticipatorily affords no valid legal basis for striking his complaint or any count thereof to which the defense may be asserted.
"When, however, a plaintiff so pleads a claim or cause of action as necessarily to imply that even if the defendant engaged in the conduct of which he is accused, he clearly did so under circumstances affording him a complete defense to the claim or cause of action, a different situation arises. Then, because the facts alleged in the complaint, if proved as pleaded, would necessarily absolve the defendant from liability for his otherwise actionable conduct, a motion to strike may properly be granted for failure to state a claim upon which relief can be granted. See, e.g., Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003) (stating that `where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead [absolute] governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.')" Albert v. Shaikh, Superior Court, judicial district of Hartford, Docket No. CV 03 0825352 (November 25, 2003, Sheldon, J.). Thus, the motion to strike is the proper procedural vehicle for the defendants to assert the absolute privilege. See also Dlugokecki v. Vieira, Superior Court, judicial district of Waterbury, Docket No. CV 04 0184600 (July 7, 2005, Matasavage, J.) ("a motion to strike is proper to determine the issue of absolute privilege"), aff'd, 98 Conn.App. 252, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006).
Although it typically arises in the context of defamation, the absolute privilege will bar recovery for an invasion of privacy claim. See Alexandru v. Dowd, 79 Conn.App. 434, 441, 830 A.2d 352 ("[w]e conclude that the court properly determined that the defendant was entitled to an absolute privilege and, therefore, that the court properly granted the defendant's motion for summary judgment as to the plaintiff's claims of libel, slander, intentional infliction of emotional distress and invasion of privacy [emphasis added]), cert. denied, 266 Conn. 925, 835 A.2d 471 (2003); Tucker v. Bitonti, 34 Conn.Sup. 643, 647, 382 A.2d 841 (App. Sess. 1977) ("the absolute privilege which protects . . . attorneys from liability for defamation occurring in the conduct of a judicial proceeding would apply also to an infraction of the right of privacy in the course of such a proceeding"). In analyzing whether the absolute privilege applies to an invasion of privacy claim, our case law on the absolute privilege in the context of defamation is instructive. See 3 Restatement (Second), supra, § 652F, p. 400 ("[t]he rules on absolute privileges to publish defamatory matter stated in §§ 583 to 592A apply to the publication of any matter that is an invasion of privacy").
Although the plaintiffs have alleged both unreasonable publicity given to one's private life and publicity that unreasonably places the other in a false light before the public, which have different elements; see 3 Restatement (Second), supra, §§ 652D, 652E, pp. 383, 394; they are considered together for purposes of whether the absolute privilege applies. See id., § 652F, p. 400.
"It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Hopkins v. O'Connor, 282 Conn. 821, 830-31, 925 A.2d 1030 (2007). "[The] absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous." Alexandru v. Strong, 81 Conn.App. 68, 83, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.3d 406 (2004). The absolute privilege accorded to statements made in connection with a court proceeding is based on a strong public policy "that encourages participants in legal proceedings to speak freely and without fear that they might later be subjected to judicial scrutiny or tort liability." Id., 84. Our courts have recognized three essential limitations upon the circumstances in which absolute immunity attaches to statements made in a judicial proceeding. First, the proceeding in which the statements are made must in fact be a "judicial proceeding." Albert v. Shaikh, supra, Superior Court, Docket No. CV 03 0825352. "Second, the statements in question must be made `in the course of' that judicial proceeding. Third, such statements must somehow relate to the subject matter of that proceeding." Id.
A
The first issue is whether the complaint sufficiently alleges a `judicial proceeding." The plaintiffs argue that the privilege does not apply because the defendants' attempt to drop Ruff does not constitute a judicial proceeding. Rather, they contend that the complaint was publicized in an attempt to withdraw from a judicial proceeding, which does not satisfy the first requirement for the absolute privilege. The defendants claim that the alleged publication was made in the course of Ruff's action against the plaintiffs, which constitutes a judicial proceeding.
"The `judicial proceeding' to which [absolute] immunity attaches . . . includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest." (Internal quotation marks omitted.) Hopkins v. O'Connor, supra, 282 Conn. 831. This privilege "extends to every step of the proceeding until final disposition." (Internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 566, 606 A.2d 693 (1992). "The privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding." Alexandru v. Dowd, supra, 79 Conn.App. 438.
In Alexandru v. Strong, supra, 81 Conn.App. 82-84, the Appellate Court was faced with the issue of whether statements made by an attorney in her motion to withdraw and supporting documentation were subject to the absolute privilege. The comments at issue in that case, which were published exclusively to the court, "were articulated for the purpose of explaining the deteriorating attorney-client relationship and [the attorney's] reasons for wanting to withdraw." Id., 83. In affirming the trial court's ruling that the absolute privilege applied, the court explained that the "representations were essential to and published in the course of a judicial proceeding." (Emphasis added.) Id. Thus, based on the precedent of Alexandru v. Strong, supra, 83, a motion to withdraw constitutes a judicial proceeding for purposes of whether the absolute privilege applies.
When read in the light most favorable to the plaintiffs, the plaintiffs' complaint identifies two possible judicial proceedings. First, the complaint identifies Ruff's action against the plaintiffs, which is clearly a judicial proceeding. Second, the complaint identifies the defendants' motion to withdraw, which constitutes a judicial proceeding based on Alexandru v. Strong, supra, 81 Conn.App. 83. Thus, the complaint alleges a judicial proceeding sufficient to satisfy the first requirement for the absolute privilege.
B
The next issue is whether the complaint alleges that the publication was made "in the course of" a judicial proceeding. The plaintiffs argue that defendants' dissemination of the complaint throughout the business and legal communities was neither related to nor necessitated by the subject of the controversy because it was not done in furtherance of Ruff's claims. The defendants argue that the publication was made in the course of a judicial proceeding because it was made in the context of Ruff's complaint in his action against the plaintiffs and in furtherance of securing alternate counsel for Ruff. Alternatively, they argue that there can be no liability for dissemination of information that is available to the public, as the complaint is in this case.
The "in the course of" requirement is broadly interpreted by the courts. Statements may satisfy this requirement even though they are not made in the course of formal testimony before the ultimate fact finder or decision maker and not made under oath. See Petyan v. Ellis, 200 Conn. 243, 251, 510 A.2d 1337 (1986). Statements are considered made "in the course of" the judicial proceeding where they are made "in pleadings or other documents prepared in connection with a court proceeding" or in communications in preparation for a judicial proceeding. (Internal quotation marks omitted.) Hopkins v. O'Connor, supra, 282 Conn. 832. Thus, any statement can satisfy the "in the course of" requirement when it is "directed toward the achievement of the objects of the litigation or other proceedings." (Internal quotation marks omitted.) Id.
Nevertheless, in determining whether a statement is made "in the course of" a judicial proceeding, "the pivotal factor is frequently to whom the matter is published." Kelley v. Bonney, supra, 221 Conn. 575. In Hopkins v. O'Connor, supra, 282 Conn. 848-50, the Court was faced with the issue of whether a police officer's publication of information regarding the plaintiff's transportation to a hospital for psychiatric evaluation was subject to absolute immunity. Specifically, the complaint alleged that the defendant had publicized the information by providing a copy of his incident report to, and directly speaking with, the plaintiff's coworkers. Id., 825. In support of his motion for summary judgment, the defendant argued that he was absolutely immune from liability for invasion of privacy because his conduct was in the course of a judicial proceeding. Id., 849. In rejecting the defendant's argument, the Court explained that "the communication by the defendant to the plaintiff's supervisors or fellow workers cannot fall within even the most expansive definition of that term. The decision to inform others, unconnected with the process of the plaintiff's commitment, even if properly motivated out of concern for their safety, was in no way directed toward the achievement of the objects of litigation or any other proceedings. Because that communication was not made pursuant to or in furtherance of a commitment proceeding, the trial court properly concluded that the defendant was not entitled to immunity on that basis." Id.
Thus, the identity of those to whom the matter is published is often determinative. Kelley v. Bonney, supra, 221 Conn. 575. "The privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged." (Internal quotation marks omitted.) Id. Thus, an out-of court statement is not "directed toward the achievement of the objects of the litigation or other proceedings" when it is publicized to an individual unconnected with the proceedings. In the present case, the complaint alleges that the statements were publicized by circulating a copy of the complaint to "members of the business community, the legal profession and the Connecticut Bar." Like the publication of the police incident report to coworkers in Hopkins v. O'Connor, supra, 282 Conn. 849, the publication of the complaint in the present case to "members of the business community," in particular, was in no way directed toward the achievement of the objects of litigating Ruff's action or the motion to withdraw.
In opposition, the defendants contend that their publication was in the course of a judicial proceeding because the defendants'"circulation of the complaint to possible substitute counsel was directly linked with one potential objective of litigation, namely, to withdraw representation." Even if the circulation of the complaint to members of the Connecticut bar was in furtherance of securing new counsel for Ruff, the defendants' argument still fails. As articulated above, the complaint alleges circulation to " members of the business community, the legal profession and the Connecticut Bar." (Emphasis added.) Thus, the defendants' argument ignores the allegation that Ruff's complaint was circulated to members of the business community, who are not necessarily members of the Connecticut bar.
The analysis does not end here, however. Although publication to one for whom the occasion was not privileged is not ordinarily sufficiently related to a judicial proceeding to satisfy the "in the course of" requirement, the requirement is satisfied where the public is independently entitled to view the material. See Kelley v. Bonney, supra, 221 Conn. 575-77. In Kelley v. Bonney, supra, 574-79, the Court was faced with the issue of whether the publication of a verified petition and complaint to the media was absolutely privileged, entitling the defendant to judgment notwithstanding the verdict. In determining the issue, the Court began by explaining that ordinarily, publication to the news media is not sufficiently related to a judicial proceeding to constitute a privileged occasion. Id., 576. Nevertheless, the Court went on to explain that "[p]ublication to the media of material that the media was independently entitled to view . . . cannot provide a basis for a claim of defamation. See DeLaurentis v. New Haven, [ 202 Conn. 264, 265-66, 597 A.2d 807 (1991)] . . . In DeLaurentis we concluded that the mayor's publication to the media of material contained within a formal summons was entitled to the protection of an absolute privilege. The pivotal question here is whether, regardless of the actions of the defendant, the media would have been entitled to access to the complaint. We are aware of no persuasive justification for punishing [the defendant's] publication to [the media] of the formal written complaint and petition if [the media] was independently permitted to view the material." Id., 576-77. The Court then considered whether the complaint was a public record for purposes of the Freedom of Information Act. See id., 577-79. In holding that the verified petition and complaint filed with the state board of education was a public record under the act, the Court concluded that the publication to the media was absolutely privileged because "[the media] had a statutory right to the information provided by [the defendant]." (Citation omitted.) Id., 579.
Applying the rationale of Kelley to the present case, the "in the course of" requirement is satisfied where the complaint alleges that those to whom Ruff's complaint was disseminated (i.e., members of the business community, the legal profession, and the Connecticut Bar) were independently entitled to access Ruff's complaint. In support of its argument that the complaint was available to the public, the defendants point to sections 7-4A and 7-4B of the Practice Book. They argue, essentially, that Ruff's complaint was available to the public because the plaintiffs have not made any allegations that the pleadings were not available to the public.
Practice Book § 7-4A provides: "Except as otherwise required by statute, every case filed in the superior court shall be identified as existing in the records of the court by docket number and by the names of the parties, and this information shall be available to the public."
Practice Book § 7-4B provides: "(a) As used in this section, `record' means any affidavit, document, or other material.
"(b) A party filing a motion requesting that a record be filed under seal or that its disclosure be limited shall lodge the record with the court pursuant to Section 7-4C when the motion is filed, unless the judicial authority, for good cause shown, orders that the record need not be lodged. The motion must be accompanied by an appropriate memorandum of law to justify the sealing or limited disclosure.
"(c) If necessary to prevent disclosure, the motion, any objection thereto, and any supporting records must be filed in a public redacted version and lodged in a nonredacted version conditionally under seal.
"(d) If the judicial authority denies the motion to seal or to limit disclosure, the clerk shall either (1) return the lodged record to the submitting party and shall not place it in the court file or (2) upon written request of the submitting party retain the record as a lodged record so that in the event the submitting party appeals the denial of the motion, the lodged record can be part of the record on appeal of the final judgment in the case. In the latter event or if the judicial authority grants the motion, the clerk shall follow the procedure set forth in Section 7-4C(e). If the lodged record is retained pursuant to (2) above, the clerk shall return it to the submitting party or destroy it upon the expiration of the appeal period if no appeal has been filed."
Although Practice Book §§ 7-4A and 7-4B lend some support for the defendants' argument that a complaint is available to the public, the better authority is section 11-20A. Cf. Biro v. Hirsch, Superior Court, judicial district of Fairfield, Docket No. CV03 14442 (February 5, 1998, Skolnick, J.) (noting that the predecessor to § 11-20A would govern the determination of whether the pleadings were available to the public).
Section 11-20A(a) of the Practice Book provides: "Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public." Subsections (b) through (j) govern the circumstances under which materials on file with the court may be sealed or subject to limited disclosure. This section of the Practice Book makes it clear that there must be a compelling reason to justify limiting public access. See Practice Book § 11-20A. Nevertheless, to prevail on their Motions to Strike, the defendant must establish that under any set of facts provable under the complaint, Ruff's complaint was available to the public. See Albert v. Shaikh, supra, Superior Court, Docket No. CV 03 0825352; see also Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004) ("[w]here the legal grounds for [a motion to strike] are dependent upon underlying facts not alleged in the plaintiffs pleadings, the defendant must await the evidence which may be adduced at trial, and the Motion should be denied). Because the complaint does not specifically allege that Ruff's complaint was available to the public, and the Court is to construe the pleadings in a light most favorable to the plaintiffs, the defendants have not established that Ruff's complaint was available to the public under all sets of facts provable under the complaint. Accordingly, the "in the course of" limitation of the absolute privilege is not satisfied by the present allegations of the complaint.
This same rationale applies to the extent the defendants argue that, as a general matter, there can be no liability for dissemination of information that is available to the public notwithstanding whether the statements at issue had some relation to the subject matter of the judicial proceeding.
C
The last limitation on the absolute privilege is whether the complaint sufficiently alleges that the statements at issue had some relation to the subject matter of a judicial proceeding. As articulated above, "[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding." (Emphasis added.) 3 Restatement (Second), supra, § 586, p. 247. This "relation" requirement, however, is somewhat misleading because the statements need not be relevant or material to the proceeding in question under the rules of evidence so long as they are somehow pertinent to the subject matter of the proceeding. See id., comment (c). "On the other hand, the privilege does not cover the attorney's publication of defamatory matter that has no connection whatever with the litigation." Id.
The facts of the complaint, when construed in the light most favorable to the plaintiffs, do not support the claim that the allegations of Ruff's underlying complaint had any relation to the proceeding. The complaint alleges, in counts two and three, that at least some of the statements that served as the basis for the invasion of privacy claims were "scandalous, false and salacious charges that had nothing to do with . . . Ruff's employment or its termination." (Emphasis added.) Thus, the plaintiffs' complaint does not sufficiently allege that the third limitation on the absolute privilege is satisfied.
It is important to note that in determining whether the statements are in some way pertinent to the subject of the controversy, the Court is limited to the facts alleged in the complaint. See Faulkner v. United Technologies Corp., supra, 240 Conn. 580 ("[i]n ruling on a motion to strike, the Court is limited to the facts alleged in the complaint" [internal quotation marks omitted]). Thus, even though the plaintiffs attached a copy of Ruff's underlying complaint to their memorandum in opposition to the Motion, the Court does not look to its contents for purposes of the motion to strike.
The defendants argue that "because the allegations of the complaint were privileged, any disclosure to others was similarly subject to the privilege." Even assuming that the defendants' legal conclusion is correct, the complaint does not allege that the statements contained in Ruff's underlying complaint were privileged because the statements do not satisfy the third limitation on the absolute privilege. Furthermore, the defendants' legal conclusion is imprecise, particularly where the underlying communication is not available to the public. That is, it is not necessarily true that just because a statement is privileged, its unbridled dissemination to others is also subject to the absolute privilege. As articulated above, "[t]he privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged." (Internal quotation marks omitted.) Kelley v. Bonney, supra, 221 Conn. 575.
Accordingly, for all of the foregoing reasons, the Court hereby concludes that it must deny the defendants' Motion to Strike counts two and three of the complaint on the ground that the challenged counts cannot reasonably be read to plead facts necessarily establishing that the special defense of absolute immunity.
CONCLUSION AND ORDER
The Court has concluded, as aforesaid, and therefore ORDERS as follows that the defendants' Motion to Strike must be GRANTED with respect to count one of the plaintiffs' complaint, but that it must be DENIED with respect to counts two and three of said complaint. IT IS SO ORDERED this 4th day of December 2009.