Opinion
No. CV-10-5014085
August 9, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, No. 179 FACTS
On February 14, 2011, the plaintiffs, Dennis and Audra Hyek, filed a five-count amended complaint against the defendants, Field Support Services, Inc. (FSS), Attorney Loretta Susan Slavin, Matthew Raynes and Littler Mendelson, P.C. (Littler), after this case was remanded by the United States District Court for Connecticut. On March 2, 2011, the plaintiff Audra Hyek moved for permission to withdraw from the case, which was granted by this court on March 21, 2011. Dennis Hyek filed another amended complaint, as the sole plaintiff, on March 2, 2011, arising from his wife's employment with FSS and failed employment discrimination action against FSS in the United States District Court for the Eastern District of New York. Defendants Littler and Slavin represented FSS in the discrimination action; defendant Raynes is an employee of FSS. The complaint sounds in defamation, negligent misrepresentation, negligence, reckless infliction of emotional distress, violation of the Connecticut Unfair Trade Practices Act (CUTPA) and a violation of the constitution of Connecticut, article first, § 10. On May 12, 2011, this court granted the defendants FSS and Slavin's motion to dismiss for lack of personal jurisdiction. Also on May 12, 2011, the remaining defendants, Raynes and Littler, filed a motion for summary judgment and memorandum of law in support of their motion. The plaintiff filed an objection to the motion for summary judgment and memorandum of law on May 29, 2011. The defendants filed a reply memorandum on June 2, 2011, and the plaintiff filed what appears to be a sur-reply memorandum on June 8, 2011.DISCUSSION
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Gold v. East Haddam, 290 Conn. 668, 678, 966 A.2d 684 (2009). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
As a preliminary matter, the court must note that on May 19, 2011, one week after the court dismissed the claims against the defendants FSS and Slavin and the remaining defendants moved for summary judgment, the plaintiff filed a "notice as of right to amend" and a third amended complaint against the defendants Raynes and Littler. The defendants filed an objection to the plaintiff's notice to amend and amended complaint on June 1, 2011.
The plaintiff's third amended complaint contains the same basic allegations as the previous complaint, except that the plaintiff adds allegations that the defendants have made slanderous statements about the plaintiff at his gym and grocery store. As the court will discuss, these additional allegations will not save the plaintiff's claims, as they still fail to set forth a cause of action. The affidavits submitted by the plaintiff and the defendant do not support the conclusion that there are genuine disputes as to the material facts of these claims.
As the court will discuss herein, no amount of repleading can cure the deficiencies in the plaintiff's complaint. Therefore, not only is summary judgment appropriate in favor of the defendants, but even if the court were to adopt the third amended complaint as the operative complaint in this case, the plaintiff's claims would still fail as a matter of law.
A second preliminary matter, as the defendants point out, is that the court must perform a choice-of-law analysis to determine whether the law of New York or Connecticut controls this action. Under Connecticut law, lex loci delicti, "the doctrine that the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury," typically applies. O'Connor v. O'Connor, 201 Conn. 632, 637, 519 A.2d 13 (1986). Connecticut courts, however, "have moved away from the place of the injury rule for tort actions and adopted the most significant relationship test found in §§ 6 and 145 of the Restatement (Second) of Conflict of Laws." Jaiguay v. Vasquez, 287 Conn. 323, 350, 948 A.2d 955 (2008).
The Supreme Court "previously ha[s] summarized the most significant relationship test set forth in §§ 6 and 145 of the Restatement (Second) as follows. Subsection (1) of § 145 of the Restatement (Second) of Conflict of Laws provides that [t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6 . . . Subsection (2) of § 6 of the Restatement (Second) of Conflict of Laws, in turn, provides: When there is no [statutory] directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of a particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied." (Citation omitted; internal quotation marks omitted.) Id., 351.
"For assistance in our evaluation of the policy choices set out in §§ 145(1) and 6(2) . . . we turn . . . to § 145(2) . . . which establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases . . . Subsection (2) of § 145 . . . provides: Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue." (Internal quotation marks omitted.) Id., 352. "[I]t is the significance, and not the number, of § 145(2) contacts that determines the outcome of the choice of law inquiry under the Restatement [Second] approach." Id., 353.
In the present case, it is clear that the state with the most significant relationship to the parties and the underlying conduct giving rise to these claims is New York. The plaintiff's wife filed her employment discrimination action against FSS in federal court in New York because, according to her complaint, "all of the acts and/or omissions giving rise to the claims . . . occurred in th[at] judicial district." Because the plaintiff's wife worked and filed suit in New York, it is reasonable to assume that the parties in this action expected New York law to apply to any dispute arising out of those circumstances. Specifically, the defendant Littler could not have anticipated that its defense of the discrimination action in New York court for a New York employer could subject them to liability under Connecticut law. No part of that litigation took place in Connecticut. In fact, the gravamen of the plaintiff's complaint in this case is that he has been harmed by the publication of the decision in the federal case in New York. Therefore, the first two prongs of § 145(2) of the Restatement (Second) clearly favor New York law over Connecticut.
With respect to the third prong, the defendant Raynes is a Connecticut resident; however, he works in New York and his relationship with the parties, in evaluating the fourth prong, is clearly centered on the plaintiff's wife's employment in New York and her prior lawsuit in New York. Similarly, although the defendant Littler maintains an office in Connecticut, its entire involvement with respect to these parties is limited to its New York attorneys.
Therefore, based on an evaluation of the contacts each party has with both New York and Connecticut, the court holds that New York has the most significant relationship to the occurrence and parties in this case; thus New York law will apply.
Next, as a final procedural matter, the court notes that any parts of the plaintiff's claims that arise out of his wife's employment with FSS is time-barred by the applicable statutes of limitations. New York's Civil Practice Law and Rules § 215(3) provides that claims for defamation must be commenced within one year. Further, "[t]he New York courts have held that a claim for damages for intentional infliction of emotional distress is subject to the one-year statute of limitations . . ." Patterson v. Balsamico, 440 F.3d 104, 112 n. 4 (2d Cir. 2006). Under New York law, actions sounding in negligence and negligent misrepresentation are governed by a three-year statute of limitations. See New York Civil Practice Law and Rules § 214; Colon v. Banco Popular North America, 59 App.Div.3d 300, 301, 874 N.Y.S.2d 44 (2009) (applying three-year statute of limitation for negligent misrepresentation claim); Ross v. Louise Wise Services, 8 N.Y.3d 478, 491, 868 N.E.2d 189, 836 N.Y.S.2d 509 (2007) (applying three-year statute of limitations to negligence claim). Finally, according to General Statutes § 42-110g(f), claims alleging a CUTPA violation are subject to a three-year statute of limitations.
The determination of whether New York or Connecticut's statutes of limitations apply is guided by the same "most significant relationship" test. Restatement (Second) Conflict of Laws § 142 provides: "Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable:
(1) The forum will apply its own statute of limitations barring the claim.
(2) The forum will apply its own statute of limitations permitting the claim unless:
(a) maintenance of the claim would serve no substantial interest of the forum; and
(b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence."
In the present case, the plaintiff originally commenced this action by service on the remaining defendants on September 20 and 21, 2010. It is undisputed between the parties that the plaintiff's wife's employment with FSS ended in 2006. Further, the only specific incident alleged in the plaintiff's complaint, concerning an incident in a parking lot in Connecticut, took place on November 22, 2006. Therefore, there is no genuine issue of material fact with respect to any alleged conduct by the defendants during the plaintiff's wife's employment with FSS being time-barred. Any part of the plaintiff's claims that are based on events occurring before September 21, 2009 (with respect to the defamation and emotional distress claims) and before September 21, 2007 (with respect to the negligent misrepresentation, negligence and CUTPA claims) will not be considered by the court.
Now the court will turn to each of the plaintiff's claims in his complaint to determine whether summary judgment is appropriate.
With respect to the plaintiff's defamation claim, the defendants have met their burden of establishing that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law on the ground that any allegedly defamatory statements made during the discrimination law suit in New York are privileged and not actionable.
"Under New York law, a claim for defamation must allege (1) a false statement about the [complainant]; (2) published to a third party without authorization or privilege; (3) through fault amounting to at least negligence on [the] part of the publisher; (4) that either constitutes defamation per se or caused special damages." (Internal quotation marks omitted.) Fuji Photo Film USA., Inc. v. McNulty, 669 F.Sup.2d 405, 411 (S.D.N.Y. 2009). "A defamation cause of action must identify the statement, when it was made, and to whom it was communicated." John v. New York, United States District Court, Docket No. 09 Civ. 233 (N.D.N.Y. May 24, 2011). "In New York, in the context of a legal proceeding, statements by parties and their attorneys are absolutely privileged if by any view, or under any circumstances, they are pertinent to the litigation . . . Whether a statement is pertinent is broadly construed and embraces anything that may possibly or plausibly be relevant or pertinent, with the barest rationality, divorced from any palpable or pragmatic degree of probability." (Citation omitted; internal quotation marks omitted.) Id.
In the present case, during the plaintiff's wife's litigation in New York, the defendants made verbal and written statements concerning the plaintiff's actions on November 22, 2006 because those events were relevant to the issues in the case. The plaintiff's confrontation with an FSS employee right before his wife's termination certainly is pertinent to FSS's motivation in terminating her. Thus, the court holds that the defendants' statements about the plaintiff's actions on November 22, 2006, as alleged in his complaint, are privileged as a matter of law. With this determination, coupled with the applicable statute of limitation, the defendants have established they are entitled to summary judgment on the plaintiff's defamation claim.
With respect to count two, the defendants have sufficiently established that the plaintiff cannot state a cause of action for negligent misrepresentation and that no amount of repleading can cure the count's deficiencies. Thus, the defendants are entitled to judgment as a matter of law. "It is settled New York law that the elements of negligent misrepresentation are: (1) carelessness in imparting words; (2) upon which others were expected to rely; (3) and upon which they did act or failed to act; (4) to their damage . . . Most relevant, the action requires that (5) the declarant must express the words directly, with knowledge or notice that they will be acted upon, to one to whom the declarant is bound by some relation or duty of care." (Citation omitted; emphasis added.) Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 788 (2d Cir. 2003). "[L]iability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party." (Internal quotation marks omitted.) Id.
In the present case, no amount of repleading on the part of the plaintiff could create a genuine issue of material fact as to whether the remaining defendants owed him a duty of care or were in a special position of confidence and trust with him. Defendant Raynes worked with plaintiff's wife; defendant Littler represented FSS, not the plaintiff or his wife. Therefore, the defendants have sufficiently established that they are entitled to summary judgment with respect to count two.
Turning to count three, the defendants have established that there is no genuine issue of material fact that they did not owe any legal duty to the defendant. Because no amount of repleading can cure this deficiency, the defendants are entitled to summary judgment on this count as well. "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "A finding of negligence may be based only upon the breach of a duty. If . . . the defendant owes no duty to the plaintiff, the action must fail. Although juries determine whether and to what extent a particular duty was breached, it is for the courts first to determine whether any duty exists." Darby v. Compagnie National Air France, 96 N.Y.2d 343, 347, 753 N.E.2d 160, 728 N.Y.S.2d 731 (2001). As previously discussed with respect to count two, there is no genuine issue of material fact that the remaining defendants owed no duty to the plaintiff. Any attempts by the plaintiff to replead to cure this deficiency would be fruitless. Thus, the defendants are entitled to judgment as a matter of law for the plaintiff's negligence claim.
Furthermore, the defendants correctly argue that the plaintiff's negligence claim is simply a restatement of his defamation claim, which is impermissible under New York law. "When . . . the claims in a complaint are in essence claims for defamation, a plaintiff may not circumvent the one-year limitation applicable to defamation by redescribing the tort as . . . any other characterization designed to circumvent an otherwise short limitation period." (Citations omitted.) Ramsay v. Mary Imogene Bassett Hospital, 113 App.Div.2d 149, 151, 495 N.Y.S.2d 282 (1985). For these reasons, the court will grant summary judgment as to count three as well.
With respect to count four, there is no cause of action for reckless infliction of emotional distress under New York law. See Garland v. Herrin, 724 F.2d 16, 18-19 (2d Cir. 1983); Stordeur v. Computer Associates International, 995 F.Sup. 94, 102 (E.D.N.Y. 1998) ("There is . . . no separate recovery for emotional distress inflicted recklessly"). Even if this court were to interpret count four as a claim for intentional infliction of emotional distress, there is no evidence of extreme or outrageous conduct that would give rise to a genuine issue of material fact concerning this claim. "Under New York law, [intentional infliction of emotional distress] requires pleading the following four elements: (1) extreme and outrageous conduct, measured by the reasonable bounds of decency tolerated by society; (2) intent to cause or disregard of a substantial probability of causing severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress . . . The conduct at issue must transcend the bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community . . . The conduct alleged must consist of more than mere insults, indignities and annoyances." (Citations omitted; internal quotation marks omitted.) Margrabe v. Sexter Warmflash, P.C., 353 Fed.Appx. 547, 550 (2d. Cir. 2009).
In the present case, the only conduct alleged by the plaintiff that is not time-barred by the statute of limitations is that of the defendants during the plaintiff's wife's litigation in New York. This court has already held that any statements connected with that litigation are privileged under New York law. Furthermore, there is no genuine issue of material fact that any of the allegations attributed to the remaining defendants could be interpreted as "atrocious and utterly intolerable in a civilized community." Therefore, summary judgment will also enter with respect to count four.
Turning to count five, because this court has ruled that New York law applies in this action, combined with the fact that the alleged conduct attributed to these remaining defendants occurred outside of Connecticut and is not a form or trade intimately associated with this state, there can be no valid cause of action for a CUTPA violation. "CUTPA does not apply to a violation occurring outside Connecticut unless the violation is tied to a form of trade or commerce intimately associated with Connecticut, or Connecticut choice of law principles dictate the application of Connecticut law." (Internal quotation marks omitted.) McCrae Associates, LLC v. Universal Capital Management, 746 F.Sup.2d 389, 396 (D.Conn. 2010). Summary judgment is therefore appropriate with respect to count five. No amount of repleading can cure this deficiency.
Finally, it appears that the plaintiff claims a violation of the constitution of Connecticut, article first, § 10, in count one of his complaint. "The constitution of Connecticut, article first, § 10, is both our due process and access to the courts provision . . . and has the same meaning and same limitations as the federal due process provision." (Citations omitted.) Chmielewski v. Aetna Casualty Surety Co., 218 Conn. 646, 656 n. 12, 591 A.2d 101 (1991). There is no genuine issue of material fact regarding whether the remaining defendants have interfered with the plaintiff's access to courts or any due process under the law. The defendants are entitled to judgment as a matter of law with respect to this claim.
CONCLUSION
Based on the foregoing, the court hereby grants the defendants Littler Mendelson, P.C. and Matthew Raynes' motion for summary judgment in its entirety.