Opinion
No. CV04 4004852 S
December 27, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
FACTS
This action arises out of the defendant's alleged violations of the plaintiffs' rights, pursuant to the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7, to be free from illegal search and seizure, and pursuant to the fifth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, §§ 8 and 20, to due process. On May 11, 2005, the plaintiff, Arthur D. Machado, filed its second revised complaint, consisting of three counts, against the defendant, the city of New Haven. In the complaint, the plaintiff alleges that the defendant violated these rights through its enforcement of parking regulations and through its use of an infrared license plate scanning device referred to as a "Bootfinder" to identify vehicles with delinquent tax obligations, vehicles that are improperly registered, stolen vehicles and citizens with criminal violations. He alleges that he represents a class of individuals with common questions of law and fact, which are so numerous that joinder of all members would be impracticable.
Because the plaintiff has characterized this action as a class action, and has included allegations pertaining to the purported class in the complaint references herein to "the plaintiffs" are to the purported class. References to "the plaintiff" will be to the named plaintiff, Arthur D. Machado.
In counts one and two, the plaintiff alleges, inter alia, that the defendant's conduct violates the search and seizure and due process provisions of the state and federal constitutions. In count three, the plaintiff alleges that this conduct causes irreparable harm against the class that cannot be resolved solely by the assessment of damages and that the defendant, therefore, should be temporarily and permanently enjoined from performing the alleged actions.
On June 29, 2005, the defendant filed a motion to strike all three counts of the plaintiff's second revised complaint on several grounds. First, the defendant moves to strike on the grounds that the allegations in count one fail to sufficiently demonstrate that the plaintiff is entitled to class action status, that those allegations fail to state a viable class and that class certification should be denied. Next, the defendant asserts that the allegations in count one fail to allege sufficiently that the towing of the plaintiff's vehicle as a result of the accrual of more than $200 in parking fines violates the plaintiff's rights pursuant to the fourth and fifth amendments to the United States constitution and the constitution of Connecticut, article first, §§ 7, 8 and 20. The defendant also moves to strike on the ground that the plaintiff does not allege sufficient facts in count one to show that the defendant's policy of doubling fines that are not paid within fifteen days violates the plaintiffs' rights pursuant to the constitution of Connecticut, article first, § 8. The defendant further moves to strike on the ground that the allegations in count two do not sufficiently allege that the defendant has subjected the plaintiff to an illegal search and seizure in violation of the fourth amendment to the United States constitution or the constitution of Connecticut, article first, § 7, or that it has violated his due process rights under the fifth and fourteenth amendments to the United States constitution or the constitution of Connecticut, article first, § 8, because the plaintiff did not allege that the defendant used the Bootfinder as an enforcement device to tow and/or seize the plaintiff's vehicle. Additionally, the defendant moves to strike on the ground that the plaintiff has failed to allege facts upon which a temporary injunction may issue in count three. Pursuant to Practice Book § 10-42, the defendant filed a memorandum of law in support of its motion to strike on June 29, 2005. The plaintiff filed a memorandum of law in opposition to the defendant's motion to strike on August 1, 2005.
Although both the defendant, in its motion to strike, and the plaintiff, in his complaint, refer to this provision simply as "Section Eight of the Connecticut Constitution" and "Section Eight of the Constitution of the State of Connecticut," respectively, the court notes that the section to which the parties refer may be found in article first of the constitution of Connecticut.
On August 4, 2005, the defendant filed a reply to the plaintiff's opposition to the defendant's motion to strike. The defendant argues that the court should not consider the plaintiff's arguments in opposition to the motion to strike because the plaintiff failed to respond to the motion to strike in a timely manner. Nevertheless, the defendant's motion to strike (#113) was marked off on July 18, 2005 and August 1, 2005, and was not heard until August 29, 2005. The memorandum in opposition, therefore, was timely and will be considered.
"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). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
COUNT ONE Class Action Allegations
In its memorandum of law in support of the motion to strike, the defendant argues that the plaintiff has failed to plead sufficient grounds for class certification in count one. It argues that the plaintiff has not met his burden of establishing facts showing that the requirements of a class action set forth in Practice Book §§ 9-7 and 9-8 are met because he has not alleged sufficient facts showing that the class is so numerous that joinder is impracticable, that questions of law and fact are common to all members of the class, that the claims of the class are typical, or that he fairly and adequately represents the interests of the class. It also argues that one cannot reasonably determine who the intended class members are from the complaint because the proposed class is vaguely defined to include both people who have been harmed by the defendant's actions and people who could be harmed in the future.
Practice Book § 9-7 provides: "One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
Practice Book § 9-8 provides: "An action may be maintained as a class action if the prerequisites of Section 9-7 are satisfied and the judicial authority finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
The plaintiff counters that the motion to strike is premature as to the class certification because the proper method for determining whether a complaint meets the Practice Book requirements is to file a motion for certification of class action in accordance with Practice Book §§ 9-7 and 9-8. He asserts that the facts underlying the allegations have not yet been fully determined because the matter has not yet proceeded beyond the pleading stage. He further contends that even if the motion was properly filed, the claim for class certification is supported by sufficient allegations.
"The requirements of [P]ractice [B]ook § 9-7 must be met before a class action can go forward, which can only mean that to state a cause of action as a class action, the requirements must be met in the complaint." (Internal quotation marks omitted.) Kubas v. Hartford Financial Services, Co., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 00 0073192 (July 19, 2000, Bishop, J.) ( 27 Conn. L. Rptr. 565). "Although a trial court must undertake a rigorous analysis to determine whether the plaintiff has borne [the] burden successfully . . . it has broad discretion in determining whether a suit should proceed as a class action." Marr v. WMX Technologies, Inc., 244 Conn. 676, 711 A.2d 700 (1998).
At least one Superior Court decision supports the proposition that a motion to strike is an appropriate means for challenging the legal sufficiency of a claim for failure to meet the requirements of a class action set forth in Practice Book §§ 9-7 and 9-8, regardless of whether the parties have yet sought certification as a class actions. In Kubas v. Hartford Financial Services Co., supra, Superior Court, Docket No. X07 CV 00 0073192, the plaintiff had brought an action on behalf of himself and over one thousand employees nationwide, asserting claims based on Connecticut wage payment laws. Although the plaintiff argued that the defendant's motion to strike was premature and that the defendant's arguments should not be considered until the plaintiff moves for class certification, the court considered the motion nevertheless. The court stated that "[a] motion to strike may be used to test the sufficiency of allegations establishing the propriety of a class action." (Internal quotation marks omitted.) Kubas v. Hartford Financial Services, Co., supra, Superior Court, Docket No. X07 CV 000073192. The court determined that although the plaintiff had alleged the requisite class action elements set forth in Practice Book §§ 9-7 and 9-8, those allegations were conclusory and not supported by factual underpinnings. On this basis, the court granted the motion to strike the class action counts in their entirety. Accordingly, had the defendant in the present case moved to strike any of the plaintiff's claims on the ground that the plaintiff has failed to allege sufficient facts to establish that he is entitled to class action status, the court would be able to address such an argument.
Nevertheless, the defendant has not moved to strike count one in its entirety on this ground. It argues that count one of the complaint "as to its class action status must be stricken for failure to allege sufficient facts to demonstrate class status." (Defendant's memorandum in support, p. 14.) "[M]ost trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . ." (Internal quotation marks omitted.) Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.T.R.) ( 31 Conn. L. Rptr. 380); see also Zamstein v. Marvasti, 240 Conn. 549, 553, 692 A.2d 781 (1997) (trial court "struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium . . ."). Similarly, a motion to strike portions of a count, which purport to present the underlying claims of that count as a class action claim, are not properly challenged using a motion to strike as they do not set forth a separate cause of action. Accordingly, the motion to strike shall not be granted on this ground.
Alleged Violation of the Fourth Amendment to the United States Constitution and the Constitution of Connecticut, Article First, § 7
The defendant argues that the plaintiff has failed to allege sufficient facts in count one showing that the defendant has violated any of the plaintiff's rights under the fourth amendment to the United States Constitution and the constitution of Connecticut, article first, § 7. It contends that although the plaintiff has alleged that the defendant's practice of towing vehicles that have accrued more than $200 in fines violates the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7, it has failed to allege that the defendant has towed any vehicle owned by the plaintiff. It further contends that the defendant's parking regulations are constitutional. It argues that the allegation that New Haven's towing policy violates his rights is conclusory, not supported by sufficient factual allegations and, therefore, should be stricken.
The fourth amendment to the United States constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."
The constitution of Connecticut, article first, § 7, provides in relevant part: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . ."
The plaintiff counters that the claims set forth in his complaint are understandable after even the most cursory review. Further, the plaintiff argues that his claims "are subject to a reasonableness standard which take them outside of a claim in a motion to strike." (Plaintiff's memorandum in support of objection to motion, p. 4.)
"The [f]ourth [a]mendment to the [United States] Constitution prohibits unreasonable seizures; it is not a general prohibition of all conduct that may be deemed unreasonable, unjustified or outrageous . . ." (Internal quotation marks omitted.) Aselton v. East Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0079187 (December 3, 2002, Sferrazza, J.). "[A]llegations of [unconstitutional acts] and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." (Internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988).
"The right to security in person and property protected by the CT Page 16822 Fourth Amendment may be invaded in quite different ways by searches and seizures . . . [A] seizure deprives the individual of dominion over his or her person or property . . ." (Internal quotation marks omitted.) State v. Williams, 64 Conn.App. 512, 535, 781 A.2d 325, cert. granted on other grounds, 258 Conn. 911, 782 A.2d 1251 (2001). "Since article first, § 7, of the state constitution is couched in the same language as the fourth amendment, it should be accorded the same interpretation . . . Accordingly, [courts] have in the past . . . expressed the view that article first, § 7 of the Connecticut constitution provides the same protection as the fourth amendment." (Citations omitted; internal quotation marks omitted.) State v. Mills, 57 Conn.App. 202, 216, 748 A.2d 318, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000).
The plaintiff fails to sufficiently allege facts to support his allegation of illegal seizure in violation of the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7. Although he alleges that he "has had his vehicle towed from a New Haven street," and that the plaintiff's "vehicle was towed for illegal parking when the sign stated no illegal standing"; (second revised complaint, count one, ¶ 30); he has not alleged any facts that would demonstrate an illegal seizure. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Because the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7 protects against illegal seizure, it follows that the plaintiff must allege behavior by the defendant that demonstrates a violation of constitutionally protected interests. See Barde v. Board of Trustees, supra, 207 Conn. 64 (complaint against state asserting constitutional claims "must clearly demonstrate an incursion upon constitutionally protected interests" to overcome sovereign immunity).
The United States Supreme Court has noted that "[p]olice will . . . frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge." (Emphasis added.) South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
Accordingly, the plaintiff's conclusory allegations in count one as to enforcing municipal parking policies fail to provide a factual basis for his allegations of violation of his right to be free from illegal seizure and, therefore, are legally insufficient.
Alleged Violation of the Plaintiff's Due Process Rights under the Fifth and Fourteenth Amendments to the United States Constitution and the Constitution of Connecticut, Article First, § 8 and 20The defendant also moves to strike on the ground that count one of the plaintiff's complaint fails to sufficiently allege that by towing the plaintiff's vehicle based on his accrual of more than $200 in parking violations, his due process rights under the fifth and fourteenth amendments to the United States Constitution and the Constitution of Connecticut, article first, §§ 8 and 20, have been violated. It argues that despite the allegations of towing vehicles belonging to the class, the plaintiff has not alleged that this practice has been utilized against him. It further contends that the allegations do not demonstrate that any denial of due process occurred because the allegations demonstrate that the defendant gives adequate notice to vehicle owners regarding the possibility of towing as a result of parking violations.
The fifth amendment to the United States Constitution provides: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."
Section one of the fourteenth amendment to the United States constitution provides in relevant part: "No state shall . . . deprive any person of property, without due process of law . . ."
The constitution of Connecticut, article first, § 8, provides in relevant part: "No person shall . . . be deprived of . . . property without due process of law . . ."
The constitution of Connecticut, article first, § 20, contains no provision relating to due process. That section provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin." As the plaintiff has not alleged any discriminatory conduct, allegations pertaining to § 20 are legally insufficient.
The plaintiff fails to counter the defendant's allegations and argument regarding the state and federal constitutional due process allegations beyond stating that the claims are clearly set forth in the complaint, are understandable after even the most cursory review and set forth the necessary elements of the underlying claims. The plaintiff further asserts that all of the claims are subject to a reasonableness standard which take them outside of a claim in a motion to strike.
"[I]n order to state a claim under the fourteenth amendment, the complainant must allege facts showing not only that the State has deprived him of a liberty or property interest but also that the State has done so without due process of law." Coollick v. Windham, 7 Conn.App. 142, 146, 508 A.2d 46 (1986).
"The fourteenth amendment to the United States constitution prohibits any state from depriving any person of life, liberty, or property, without due process of law. Article [first] . . . [§ 8] of our state constitution contains the same prohibition and is given the same effect as the fourteenth amendment to the federal constitution." Barnett v. Board of Education, 232 Conn. 198, 214, n. 12, 654 A.2d 720 (1995). "[D]ue process inquiry takes the form of a two part analysis . . . [A court] must determine whether [the defendant] was deprived of a protected interest, and, if so, what process was . . . due." (Internal quotation marks omitted.) Tuchnzan v. State, 89 Conn.App. 745, 755, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). "The due process clause of the fifth amendment to the United States constitution provides: No person shall . . . be deprived of life, liberty, or property, without due process of law . . ." Barannikova v. Greenwich, 229 Conn. 664, 679, n. 23, 643 A.2d 251 (1994).
The plaintiff's due process claims arise as a result of the defendant's alleged failure to provide notice as to towing policies, inadequate signs, parking meters delivering the incorrect amount of time and parking meters that accept only quarters. Additionally, the plaintiff alleges due process violations as a result of the defendant's denial of any appeal made after the fifteen-day appeal period has expired. Further, the plaintiff alleges that the defendant fails to notify vehicle owners that based upon accumulated parking violations, their vehicle is subject to towing and that the defendant makes no effort to notify the vehicle owner that the value of the ticket doubles fifteen days from the date of issuance.
The allegations do not demonstrate that the defendant has violated the plaintiff's due process rights under the federal or state constitutions. "[O]ur Supreme Court has noted that actual receipt of notice . . . is not a prerequisite so long as the procedure established by law for affording notice has a reasonable certainty of resulting in such notice and so long as that procedure has been followed." (Internal quotation marks omitted.) Moore v. Brancard, 89 Conn.App. 129, 133, 872 A.2d 909 (2005). Here, the plaintiff has alleged that the parking tickets contain a small print notice regarding the fine and appeal period. The plaintiff does not allege that the parking tickets that he has received lacked such notice. Further, the plaintiff alleges that he has personal knowledge of parking meters and signs explaining when vehicles will be towed.
Through these allegations, the plaintiff has demonstrated that he has received notice of the defendant's parking policies as well as his violation of these policies. As the tickets allegedly placed under the windshield of the plaintiff's vehicle allegedly contain notice of the appeal period and the plaintiff alleges that he is aware of the defendant's policy of towing vehicles which have accrued more than $200 in fines, the plaintiff has not alleged sufficient facts demonstrating that he has been denied due process. Further, he has not alleged that his vehicle has been towed as a result of the accrual of more than $200 in fines or that he did not receive notice of his appeal rights or the defendant's policies. Although he alleges that the defendant "makes no effort to notify the owner that, because of the accumulated value of tickets totaling more than two hundred dollars issued against the owner, any vehicle in which the owner shows any ownership interest parked in the municipality of New Haven, is subject to towing"; (second revised complaint, count 1, § 21); he also alleges that New Haven city officials have announced this policy "in newspapers and official publications including statements made in press releases and in statements to the New Haven Register Newspaper and other news organizations . . ." He has not, therefore, sufficiently alleged facts demonstrating that his constitutional due process rights have been violated as a result of inadequate notice that vehicles will be towed if more than $200 in fines have accrued against the owner.
Alleged Violation of the Constitution of Connecticut Article First, § 8, Based Upon Doubling of Fines Not Paid within Fifteen Days
The defendant further moves to strike based upon the plaintiff's failure to sufficiently allege in count one that the defendant's policy of doubling parking fines if not paid within fifteen days is a violation of the prohibition against the imposition of excessive fines set forth in the constitution of Connecticut, article first, § 8. The defendant argues that the plaintiff has failed to allege sufficient facts to show that the defendant created and enforced parking regulations with no legal basis, which, had they been alleged, may have implicated federal due process rights. The defendant asserts that in order to fulfill notice requirements, constitutional due process requires only that parties be informed in a matter reasonably calculated to apprise them of the pending action and provide an opportunity to respond. The plaintiff fails to respond to these arguments.
The constitution of Connecticut, article first, § 8, provides in relevant part: "No person shall . . . be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed . . ." (Emphasis added.) "The amount of the fine which the legislature may properly impose depends largely upon the object designed to be accomplished by the imposition of the fine, and the widest latitude is to be given to the discretion and judgment of the legislature in determining the amount of the fine necessary to accomplish that object . . . It is only in case of a plain conflict between a provision of the constitution and an enactment of the legislature that the courts will interfere." (Internal quotation marks omitted.) Lapinski v. Copacino, 131 Conn. 119, 132-33, 38 A.2d 592 (1944) (analyzing the relationship between a committed offense and the imposed penalty).
In the present case, the plaintiff alleges that the doubling of parking fines is arbitrary and capricious and thereby violates the state constitution. The plaintiff does not allege that the doubling of the fine is without any legal basis. He alleges that, to the best of his "discernment and belief it appears, other than punishing owners of illegally parked vehicles and increasing the defendant's income there is no other reason for doubling the fine in such a short period of time." (Second revised complaint, count 1, ¶ 13.) The plaintiff concedes, therefore, that the defendant doubles the fine after fifteen days to punish owners for nonpayment of fines. Moreover, the plaintiff does not allege that he has not been able to pay the fine within the fifteen-day period or that the amount of the original fines, which allegedly "range from $15.00 for overtime at meter violations and the like to $50.00 for snow emergency violations and the like" are unconstitutionally excessive. Accordingly, the allegations that the defendant imposes excessive fines in violation of the constitution of Connecticut, article first, § 8, are legally insufficient.
For the foregoing reasons, the motion to strike count one of the second revised complaint is granted.
COUNT TWO
The defendant moves to strike count two of plaintiff's complaint on two grounds. First, it asserts that the plaintiff has not sufficiently alleged that the defendant has used the Bootfinder license plate scanning device to tow and/or seize the plaintiff's vehicle and thus has not subjected the plaintiff to an illegal search or seizure in violation of the fourth amendment to the United States constitution or the constitution of Connecticut, article first, § 7. Second, it states that the plaintiff has failed to allege that the defendant has used the Bootfinder to tow and/or seize the plaintiff's vehicle and therefore the defendant has not deprived the plaintiff of his constitutional rights to due process.
In support of these grounds, the defendant first argues that the plaintiff's allegations in the complaint, that the defendant conducted random checks of license plate numbers of cars parked or operated on city streets using the Bootfinder device, without probable cause, to identify vehicles owned by people who owed back taxes or fines or who had improperly registered vehicles, stolen vehicles, or other violations of law, are not sufficient to show that the plaintiff's rights under the fourth amendment to the United States constitution or the constitution of Connecticut, article first, § 7, have been violated. It contends that the plaintiff had no legitimate expectation of privacy in his license plate or the contents thereof because the exterior display of license plates is statutorily mandated. Moreover, the defendant maintains that the plaintiff has failed to allege anywhere in the complaint that use of the Bootfinder led to the plaintiff being stopped, towed, detained or arrested. The plaintiff fails to address these arguments.
To the extent that the plaintiff has alleged that he has been subjected to illegal seizures, for the reasons discussed above relating to count one, the plaintiff has similarly failed to allege sufficient facts in count two to demonstrate that his rights under the fourth amendment to the United States constitution or the constitution of Connecticut, article first, § 7, have been violated. The court must next consider whether the plaintiff has alleged sufficient facts demonstrating that he has been subjected to an illegal search through the defendant's use of the Bootfinder.
"To receive fourth amendment protection against unreasonable searches and seizures, a defendant must have a legitimate expectation of privacy in the [subject of the search] . . . Absent such an expectation, the subsequent police action has no constitutional ramifications." (Internal quotation marks omitted.) State v. Pink, 274 Conn. 241, 258, 875 A.2d 447 (2005). "[I]t is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of [an] automobile . . . The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search." (Internal quotation marks omitted.) State v. Maina, Superior Court, judicial district of Hartford, Geographic Area 12 at Manchester, Docket No. H12M MV 05 0394794 (May 31, 2005, Swords, J.) ( 39 Conn. L. Rptr. 436) (finding no expectation of privacy in vehicle registration plates), citing New York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (holding no expectation of privacy in vehicle identification number).
In the present case, the plaintiff alleges in count two that the defendant, by using the Bootfinder license plate scanning device, has violated the plaintiff's right to be free from unreasonable search pursuant to the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7. These allegations are not legally sufficient to demonstrate that the plaintiff's rights pursuant to the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7, have been violated because the plaintiff has alleged merely that the Bootfinder scans and reads automobile license plates. He does not allege facts to support a claim that the Bootfinder is used to conduct an illegal search because license plates are required to be displayed on the exterior of all vehicles, while in use or operation on any public highway, by General Statutes § 14-18. It follows that the plaintiff, therefore, can have no reasonable expectation of privacy in the plate number. "If a claimant does not sufficiently establish the existence of a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude." Tuchman v. State, supra, 89 Conn.App. 755. Moreover, the plaintiff has not alleged that the defendant has actually used the Bootfinder device to scan a license plate on a vehicle owned by him. He merely alleges that his vehicle "may have been scanned by the defendant's Bootfinder . . ." (Second revised complaint, count 1, ¶ 2; count 2, ¶ 3.) Accordingly, the plaintiff has failed to sufficiently allege a violation of his constitutional rights to be free from illegal search through the defendant's use of the Bootfinder license plate scanning device.
The defendant next contends that the plaintiff has not alleged facts demonstrating that the defendant has violated the plaintiff's constitutional rights to due process in count two because he has failed to allege that the defendant has used the Bootfinder as an enforcement device to tow and/or seize his vehicle.
In count two of the complaint, the plaintiff alleges that his constitutional due process rights have been violated by the defendant's use of the Bootfinder to scan license plates. He does not provide any factual allegations in support of this claim, but merely alleges: "Based on the Defendant's actions as set forth above its actions are in violation of the Fifth and Fourteenth amendment[s] to the Constitution of the United States and Section Eight and Twenty of the Connecticut Constitution in that they are denying the Class due process of law." (Second revised complaint, count 2, ¶ 14.) "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 480. The plaintiff, therefore, has failed to allege sufficient facts to demonstrate a violation of his due process rights in count two. Accordingly, the motion to strike count two of the second revised complaint is hereby granted.
COUNT THREE
The defendant moves to strike count three of the second revised complaint on the ground that the plaintiff fails to allege facts upon which a temporary injunction may issue. In support, the defendant argues that the plaintiff fails to allege facts, which establish what irreparable harm would result from the defendant's continued use of the Bootfinder and its parking and law enforcement measures.
The plaintiff counters that the defendant's "attempt to strike a claim for temporary injunction rather than in a motion on the temporary injunction itself is a clear violation of the rules of practice," but he does not articulate which rule this would violate. Moreover, Practice Book § 10-39(a) provides, in part, "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." As the defendant is challenging the legal sufficiency of count three to state a claim upon which relief can be granted, the motion to strike is proper. The plaintiff further asserts that even if the motion was properly filed, the motion is factually incorrect because count three alleges four reasons which set forth a claim of irreparable injury, which cannot be refuted by evidence in a motion to strike.
"The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Internal quotation marks omitted.) Clinton v. Middlesex Mutual Assurance Co., 37 Conn.App. 269, 270, 655 A.2d 814 (1995). "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). "In order to obtain a temporary injunction, the plaintiffs must show that there is (1) no adequate remedy at law, (2) irreparable injury, (3) probable success on the merits, and (4) a balance of equities favoring an injunction." Friends of Animals, Inc. v. Rocque, Superior Court, judicial district of Hartford, Docket No. CV 000801973 (October 5, 2000, Schuman, J.) ( 28 Conn. L. Rptr. 309).
Count three is hereby ordered stricken because the allegations do not meet at least two of the four requirements for the issuance of a temporary injunction. First, the plaintiff has not met the "irreparable injury" requirement because he has not alleged in count three that he has or will be harmed in any way as a result of the defendant's conduct. Each of the four reasons set forth in count three relate to alleged harm to members of the purported class, but do allege that the plaintiff will be harmed. As discussed supra with regard to the class status allegations in count one, the plaintiff has not met the requirements for a class action. Accordingly, allegations relating only to other members of the purported class are not sufficient to support a claim for injunctive relief. Second, the plaintiff has not met the "probable success on the merits" requirement because the claim for injunctive relief is based upon the alleged constitutional violations set forth in counts one and two, which are legally insufficient. Accordingly, the motion to strike count three of the second revised complaint is hereby granted.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike all three counts of the plaintiff's complaint is granted.