Opinion
No. 106012847
May 13, 2011
MEMORANDUM OF DECISION
I
A preliminary issue is whether the plaintiff Marilyn Miller has any complaint pending against the defendant. This action was brought in the name of the named plaintiff and Miller by attorney Matthew J. Corcoran. The original complaint was in four counts. Counts one and three asserted claims by the corporation. Counts two and four asserted claims by Miller for intentional infliction of emotional distress and defamation, respectively. On October 19, 2010, Miller filed a pro se appearance in addition to Corcoran's appearance. On November 15, 2010, Miller filed a pro se appearance in lieu of Corcoran's appearance. On November 16, 2010, Corcoran, on behalf of the corporation, filed a revised complaint containing two counts, denominated 1 and 3, which contained claims asserted by the corporation but none asserted by Miller. On January 3, 2011, in a brief in support of a motion to strike the defendant's request to revise, Miller objected to a request to revise filed by the defendant on the basis that the original complaint had been superceded by an amended complaint.
On October 15, 2010, Marilyn Miller's husband, Paul Miller, filed a motion to be made a party plaintiff. On November 22, 2010, this motion was denied. Thus, "Miller" shall refer to the plaintiff Marilyn Miller.
The defendant contends that there is no longer a complaint pending containing claims by Miller. The court disagrees. At the time Corcoran filed the amended pleading omitting claims by Miller, he no longer represented Miller. He could not delete or withdraw her claims. Miller's complaint is the original complaint. Although Miller has stated in pleadings that "the original complaint no longer remains before the court" and that the amended complaint "became the operative complaint," I am not persuaded that she thereby intended to withdraw from the action. Such a decision would be the intentional relinquishment of a known right, requiring both knowledge of the existence of the right and intention to relinquish it. See Novella v. Hartford Accident Indemnity Co., 163 Conn. 552, 561-62, 316 A.2d 394 (1972) (discussing waiver). I do not find that Miller's statement intended a withdrawl of her claims against the defendant.
Miller is granted leave to file a separate complaint entitled "Complaint of Plaintiff Marilyn Miller," within twenty days. That complaint shall repeat verbatim the allegations asserted by her in the original complaint.
Motion No. 223 is denied. The defendant has answered. Her answer may not be to the plaintiff's liking. The answer may not even be truthful. However, Miller has not provided the court with a basis for determining that the defendant's answers are intentionally false or answered in a manner calculated to mislead, within the meaning of Practice Book § 13-14.
II
The plaintiff has moved for summary judgment (motion No. 179) against the defendant based upon the defendant's failure to answer what the plaintiff characterizes as requests for admissions, to which there has been no answer. The defendant argues that Miller cannot obtain judgment in favor of the corporation and that her "requests for admissions" are not requests for admissions within the contemplation of the Practice Book but, rather, questions.
Practice Book § 13-22(a) states, in relevant part: "A party may serve in accordance with Sections 10-12 through 10-17 upon any other party a written request, which may be in electronic format, for the admission, for purposes of the pending action only, of the truth of any matters relevant to the subject matter of the pending action set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the existence, due execution and genuineness of any documents described in the request."
What the plaintiff characterizes as requests for admission are a series of "yes-no" questions. Miller represents that the requests were served on the defendant on November 9, 2010. The questions were neither objected to nor answered by the defendant.
Because Practice Book § 13-22 was patterned closely after Rule 36 of the Federal Rules of Civil Procedure, and our jurisprudence governing the form of requests for admissions is relatively undeveloped, we look to federal case law for guidance in construing Practice Book § 13-22. See, e.g., Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 658, 986 A.2d 278 (2010); Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 259, 943 A.2d 430 (2008); State v. Carmelo T., 110 Conn.App. 543, 570-72, 955 A.2d 687, cert. denied, 289 Conn. 950, 960 A.2d 1037 (2008).
"Regardless of the subject matter of the Rule 36 request, the statement of the fact itself should be in simple and concise terms in order that it can be denied or admitted with an absolute minimum of explanation or qualification . . . The request, except in a most unusual circumstance, should be such that it [can] be answered yes, no, the answerer does not know, or a very simple direct explanation given as to why he cannot answer, such as in the case of privilege . . . On the other hand, a requesting party should not state `half a fact' or `half truths' which require the answering party to qualify responses." (Citations omitted; internal quotation marks omitted.) Havenfield Corp. v. H R Block, Inc., 67 F.R.D. 93, 96 (W.D.Mo. 1973); see 8B C. Wright, A. Miller R. Marcus, Federal Practice and Procedure (2010) § 2258, pp. 348-53.
Although the plaintiff's requests for admissions are not strictly in the form recommended by attorney practitioners; see 3B J. Grenig, West's Federal Forms, District Courts (2002) § 3655, p. 62; they nonetheless consist of a series of simple statements that possibly can be answered either yes or no.
In response to Miller's requests for admissions, the defendant could have objected to the requests, moved for an extension of time to answer, moved for a protective order, denied the matters, made specific admissions or set out the reasons why she could not truthfully admit or deny the matter. Instead, she did nothing. The matters are deemed admitted pursuant to Practice Book § 13-23(a).
Some of the questions in Miller's request for admission contain scurrilous and irrelevant material, as to which a protective order was warranted. The court will not tolerate such conduct.
The matters relevant to Miller's motion for summary judgment that are deemed admitted are the following: that the defendant created a website known as Tinacious, that she is the owner of that website, that she published information amount Marilyn and Paul Miller in the website, that there are subscribers, patrons, members and bloggers who acknowledge the existence of the website, that the defendant intended to harm Miller by the publications in her website, that she published in her website assertions against Miller that she was going to make her life miserable and ruin her and that Miller's children would require therapy.
Miller's two counts purport to set forth claims for intentional infliction of emotional distress and defamation. "[T]o prevail in a case for liability under a theory of intentional infliction of emotional distress, the plaintiff must plead and prove four elements. It must be shown: (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort . . ." (Citations omitted; internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn.App. 147, 159-60, 908 A.2d 13 (2006).
Even assuming that the admissions charged against the defendant established the first two elements of the tort of intentional infliction of emotional distress, they certainly do not establish elements three and four.
With respect to Miller's claim of defamation, "[a] defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009).
"To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). "An indispensable element of an action of slander is injury to the reputation of the person defamed . . . The action fails unless that element is present." (Citation omitted.) Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952). "Furthermore, defamation is a personal tort . . ." Los Angeles Fire Police Protective League v. Rodgers, 7 Cal.App.3d 419, 425, 86 Cal.Rptr. 623 (1970). The reputation injured must be the plaintiff's, not a third person's, even though that third person is a family member of the plaintiff. Viewed against this legal backdrop, the admissions do not establish defamation. The plaintiff confuses injury to one's reputation with injury to one's feelings. "Slander and libel are based upon an injury to reputation, not the feelings; and although many offensive things may be said that injure feelings and shock and violate the moral sense, even though they be untruthful, they are not necessarily actionable." (Internal quotation marks omitted.) Baumaun v. Baumann, 250 N.Y. 382, 387, 165 N.E. 819 (1929), quoting Atkinson v. Doherty Co., 121 Mich. 372, 80 N.W. 285 (1899).
It is possible for the two injuries to overlap.
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . ." (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009). "To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
Even considering the admissions charged against the defendant, there remain genuine issues of material fact as to liability for both torts asserted by Miller. Therefore, Miller's motion for summary judgment (No. 179) is denied.
III
In motion No. 210, the defendant seeks to strike Miller's pro se appearance on the grounds that she no longer has a complaint. Since the court has ruled that Miller does have a complaint, the motion is denied.
The defendant also moves for a protective order from discovery interposed on January 18, 2011 based on the same grounds, and on the grounds that the discovery requests are offensive, intrusive and bizarre. The defendant has satisfied the requirements for a protective order pursuant to Practice Book § 13-5. I will not permit the judicial system to be used as a vehicle to spew venomous invective and irrelevant defamatory innuendo. Discovery must be within the scope of Practice Book § 13-2. Appropriate discovery requests may be re-filed. Motion No. 211 is granted.
IV
Miller's motion to strike (No. 187) is denied. This is not to be interpreted as granting the defendant's motion for dismissal. Motion No. 189 is moot. Motions No. 201, 216 and 217 are denied.