Opinion
No. CV05-4006397S
February 22, 2006
MEMORANDUM OF DECISION
This is an action brought by two former employees of the defendant Mohsen Solhjoo, D.M.D., LLC, alleging, inter alia, that the defendant Mohsen Solhjoo, D.M.D. committed various acts of sexual assault and battery against each plaintiff. The defendants move to strike all the counts of a complaint pleaded by the plaintiff Licedia Souchet based on the ground of improper joinder.
FACTS
On September 30, 2005, the plaintiffs, Kristy Mascia (Mascia) and Licedia Souchet (Souchet), filed a second amended complaint against the defendants, Mohsen Solhjoo, D.M.D. (Solhjoo) and Mohsen Solhjoo, D.M.D., LLC (Solhjoo LLC). The plaintiffs allege that, although they worked for Solhjoo, LLC for different durations, they worked together at the defendant company between July 2003 and late December of 2003. The plaintiffs allege that, during the course of their employment with Solhjoo LLC, Solhjoo committed various sexually inappropriate acts against each of them.
The plaintiffs filed the initial complaint on July 6, 2005 and an amended complaint on September 8, 2005.
On September 21, 2005, the defendants filed a motion to strike all the counts of the plaintiffs' complaint pleaded by Souchet on the ground of misjoinder.
Counts three, four, seven, eight, eleven, twelve, fourteen, sixteen, eighteen, and twenty.
On October 14, 2005, the defendants filed a second motion to strike in response to the plaintiffs' second amended complaint. In their second motion to strike, the defendants again seek to strike all the counts pleaded by Souchet on the ground of misjoinder.
DISCUSSION CT Page 3566
"The exclusive remedy for misjoinder of parties is by motion to strike." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723 n. 23, 661 A.2d 973 (1995); see also Practice Book § 11-3. "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotations omitted.) Commission of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 474, 823 A.2d 1202 (2003). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).The defendants argue that the requirements for joinder of parties under General Statutes § 52-104 and Practice Book § 9-4 have not been met because the plaintiffs do not posses a right to relief in respect to or arising out of the same transaction or series of transactions and their counts pleaded do not present common questions of law or fact. They contend that each plaintiff alleges misconduct by each defendant that was directed specifically towards that plaintiff, without any relationship to the acts of misconduct that the defendants allegedly directed towards the other plaintiff. The defendants add that although each plaintiff claims to have suffered similar types of injury caused by a common defendant, the injuries alleged, by their nature, are not common to the plaintiffs. The defendants state that each plaintiff will be cross examined as to her separate background and history and her distinct claims as to how the defendant's alleged conduct affects her life, if at all. The defendants finally argue that the plaintiffs' added allegation of a common scheme or plan in their second amended complaint satisfies only one requirement of joinder and, therefore, does not render joinder proper.
The plaintiffs counter that Connecticut's higher courts have always approached joinder of parties' issues liberally. The plaintiffs specifically argue that the rules of joinder enable all plaintiffs to settle their controversies in one action. The term "controversy," the plaintiffs argue, is to be applied in an exceedingly broad and comprehensive manner, such that each defendant's interest is adverse to each plaintiff's interest in whole or in part. They argue further that joinder of claims should be allowed where it is in the best interest of judicial economy except only where there is a gross imposition upon the court. They assert that it is clearly in the interests of both justice and judicial economy to handle the litigation of both plaintiffs as one joint case. The plaintiffs contend that their allegations clearly arise out of the same fact pattern and that their claims have "some substantial unity" and will involve common questions of law and fact so as to meet the requirements for joinder.
General Statutes § 52-104 provides in relevant part: "All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common questions of law or fact would arise." General Statutes § 52-104. More simply said, plaintiffs may "join in one action if their respective rights of relief [arise] out of the same transaction or series of [transactions] and if any common question of law or fact [are] involved." Fairfield Lumber Supply Co. v. Herman, 139 Conn. 141, 144, 90 A.2d 884 (1952).
The language in General Statutes § 52-104 and Practice Book § 9-4 is virtually identical.
The Superior Court has decided several employment cases that provide guidance to resolve the present case. In one case, the Superior Court held that "[for joinder of plaintiffs to be proper,] [t]here must be some allegation of an interconnection between various acts complained of . . . Where there is an allegation of common plan or design against a corporate entity that must act through agents, then a legal framework is presented in the complaint to allow the benefits of permissive joinder to be apparent; the evidence of each plaintiff can be cumulatively considered to show common plan or design. In other words, whether some series of acts can be defined as arising out of the same transaction or series of transactions is arrived at as the end result of an analysis of the alleged operative facts for the purpose of determining whether permissive joinder would serve the purposes of judicial economy and the expeditious handling of cases." Zahedi v. Envirotest Systems, Superior Court, judicial district of New London, Docket No. CV 00 0552215 (February 25, 2000, Corradino, J.) ( 26 Conn. L. Rptr. 509, 512).
The Zahedi court came to this conclusion after analyzing state and federal law controlling joinder of parties. After analyzing state law, the court looked to federal cases concerning permissive joinder under Federal Rule 20(a), which the court stated is substantially similar to Connecticut's joinder rule. Zahedi v. Envirotest Systems, supra, 26 Conn. L. Rptr. 510.
In Zahedi v. Envirotest Systems, supra, CT Page 3568 26 Conn. L. Rptr. 509, the court concluded that the plaintiffs could not be joined because the plaintiffs failed to allege that the perpetrators were pursuing a common scheme or plan of discriminatory conduct by the defendant corporate entity. After analyzing federal case law, the Zahedi court recognized that where plaintiffs allege the existence of a common scheme or plan on the part of the corporate entity, the plaintiffs satisfy the requirement that each plaintiff's right of relief arise out of the same transaction or series of transactions. Zahedi v. Envirotest Systems, supra, 26 Conn. L. Rptr. 511, citing Grier v. Educational Service Unit No. 16, 144 FRD 680, 688-89 (D.Neb., 1992). The Zahedi court further recognized from federal case law that even though each plaintiff's allegation of abuse may be unique to that plaintiff, the allegation of a common scheme or plan raises questions of common fact regarding, among other things, the existence of such a policy. Zahedi v. Envirotest Systems, supra, 26 Conn. L. Rptr. 511, citing Grier v. Educational Service Unit No. 16, 144 FRD 680, 688-89 (D.Neb., 1992).
In the present case, Souchet is a properly joined plaintiff because the plaintiffs allege in all twenty counts of their second amended complaint that "said acts were a part of a common plan, scheme or policy of the defendant, Mohsen Solhjoo, D.M.D., to [harass], intimidate, dominate, control, undermine and/or discriminate against female employees of Mohsen Solhjoo, D.M.D[.], LLC[,] under the defendant's authority and supervision during the workday." As the Zahedi court held, the plaintiffs' allegation of a common scheme or plan in the present case renders joinder proper and is, therefore, reason for this court to deny the defendants' motion to strike.
Although the plaintiffs in the present case allege a common scheme or plan against Solhjoo, the defendant individual, rather than against Solhjoo LLC, the defendant corporate entity, the holding in Zahedi still applies to this case. In Zahedi, the three perpetrators were mere employees of the defendant corporate entity. In the present case, however, Solhjoo is the sole individual perpetrator in the case and is the sole owner of Solhjoo, LLC, the defendant corporate entity. It is, thus, inconsequential that the plaintiffs' allegation of common scheme or plan is against the individual because the individual and the corporate entity are one in the same.
In another sexual harassment case, the Superior Court held that Connecticut's liberal approach to joinder of parties permits joinder where the plaintiffs allege that they witnessed incidents of inappropriate sexual conduct and claim that the defendant's conduct created a hostile work environment during a specific period of time. Balog v. Shelton Restaurant, judicial district of Ansonia-Milford, Docket No. CV 04 0084313 (August 2, 2004 Lager, J.) ( 37 Conn. L. Rptr. 659, 660-61). In Balog v. Shelton Restaurant, supra, 37 Conn. L. Rptr. 659, the court stated: "Because a plaintiff claiming a sexually hostile environment must prove that the sexual harassment was severe and pervasive, courts permit evidence of the existence of a number or series of adverse conditions because the effect of such adverse conditions in the workplace is cumulative . . . Indeed, one measure of hostile work environment is when the incidents of harassment occur either in concert or with a regularity that can reasonably be termed pervasive." (Citation omitted, internal quotation marks omitted.) Id., 661.
The Balog court stated that to claim hostile work environment, the plaintiff must show that "the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alert the conditions of the victim's employment and create an abusive working environment . . . [I]n order to be actionable . . . sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances . . ." (Citation omitted, internal quotation marks omitted.) Balog v. Shelton Restaurant, supra, 37 Conn. L. Rptr. 660-61.
Considering the plaintiffs' allegation that they witnessed inappropriate sexual conduct on the part of the defendant, the Balog court reasoned that if each plaintiff commenced separate actions against the defendant, each plaintiff would likely be able to introduce evidence of the defendant's conduct towards the plaintiff's co-workers as proof of the existence of a hostile work environment. Balog v. Shelton Restaurant, supra, 37 Conn. L. Rptr. 661. The court further noted that there is "substantial unity to all the plaintiffs' claims and they are connected to the same subject of action. The complaint alleges facts that describe a common wrongdoer involved in a pattern of discriminatory conduct. The claims of all the plaintiffs involve common questions of fact." Id. The court held that "reasons of judicial economy alone strongly support the conclusion that the plaintiffs are properly joined as parties to this action." Id.
The Balog court's reference to a "pattern of discriminatory conduct" echoes the Zahedi court's discussion of the plaintiffs' allegation of a common scheme or plan against a corporate entity. Zahedi v. Envirotest Systems, supra, 26 Conn. L. Rptr. 512.
Souchet is properly joined also because the plaintiffs allege that the defendants' wrongful conduct towards each plaintiff occurred at the same time and in the same place and that the defendants' conduct had the "purpose and effect of substantially interfering with an individual's work performance or creating an intimidating, hostile . . . working environment." (Emphasis added.) General Statutes § 46-60(a)(8)(C). Consequently, as the court reasoned in Balog, if each plaintiff commenced separate actions against the defendants, each plaintiff would likely be permitted to introduce evidence of sexual abuse against the plaintiff's co-worker as proof of the existence of a severe and pervasive sexually hostile working environment. Balog v. Shelton Restaurant, supra, 37 Conn. L. Rptr. 661. As the court held, reasons of judicial economy alone support a finding in this case that Souchet is properly joined.
The plaintiffs in the present case allege that the wrongful conduct "toward the plaintiff, Kristy Mascia, occurred at or about the same time that the same or similar acts were being committed by the defendant toward the plaintiff, Licedia Souchet, a co-employee of the plaintiff, Kristy Mascia, during the course of the workday within the business hours of Mohsen Solhjoo, D.M.D[.], LLC, at the same location." Admittedly, the plaintiffs in Balog alleged that they witnessed incidents of improper conduct while the plaintiffs in the present case allege that the incidents towards each plaintiff occurred around the same time and at the same location. This distinction, however, is likely inconsequential given that when analyzing a motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations in the complaint are taken as admitted. Commission of Labor v. C.J.M. Services, Inc., supra, 268 Conn. 292. What is necessarily implied from the plaintiffs' allegation in the present case is that the plaintiffs at least were aware of Solhjoo's actions because the plaintiffs allege that the incidents of sexual abuse against each of them occurred around the same time and in the same location.
The Superior Court's decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp., judicial district of Bridgeport, Docket No. CV 93 0302072 (September 16, 1993, Freedman, J.) ( 10 Conn. L. Rptr. 52), fails to provide support for the defendants' motion to strike. After a brief analysis, the court held that joinder was improper because the plaintiffs "[did] not allege that [the] defendant's acts as to any one plaintiff [were] in any manner related to the acts alleged by any other plaintiff." Id., 53. The court reasoned that by failing to allege such acts, the plaintiffs merely stated separate causes of action in sexual abuse, sexual exploitation, and assault. The court concluded that the plaintiffs' separate causes of action did not satisfy the requirements of joinder. Id.
Unlike the plaintiffs in Rosado, the plaintiffs in the present case allege that the defendants' acts as to any one plaintiff are related to the acts alleged by the other plaintiff. The plaintiffs make this allegation by virtue of their stated allegation of the existence of a common scheme or plan of discriminatory conduct by Solhjoo. The plaintiffs' allegation complies with the Rosado court's recognition that for joinder purposes, "a series of transactions, and multiple questions of law and fact, have been found where allegations of a company-wide policy designed to inflict the particular injury have been made." Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 10 Conn. L. Rptr. 53; citing Blesedell v. Mobil Oil Co., 708 F.Sup. 1408, 1422 (S.D.N.Y. 1989). Under Rosado, the plaintiffs in the present case make the necessary allegations to comply with the requirements of joinder.
For all the reasons stated above, the court determines that the requirements of joinder are met in this case. Accordingly, the motion to strike is denied.