Opinion
No. FBT-CV09-5021085S
November 10, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #112 AND MOTION TO DISMISS #119
FACTS
On December 12, 2008, the plaintiff, Christian Miron, commenced this action by service of process against the defendants, Joseph McNeil, Shawn Farmer, the Stratford Police Union Local 407, Council 15, AFSCME (Local 407) and Michael Henrick.
The operative complaint, which is the May 4, 2009 revised complaint, alleges the following facts. The plaintiff, whose brother, James Miron, is the mayor of Stratford, applied for a position as a police officer with the Stratford police department in October 2007. During the application and hiring process, the plaintiff scored well on the written and oral examinations. Additionally, a psychologist interviewed him. The psychologist recommended that the plaintiff be hired, but expressed "strong reservations." Prior to March 25, 2008, the Stratford police department extended a verbal offer of employment to the plaintiff, conditional upon his placement in the Connecticut Police Academy. Subsequently, Joseph McNeil, a captain in the Stratford police department, and Shawn Farmer, a sergeant in the Stratford police department, accessed and printed copies of the plaintiff's background report. McNeil and Farmer mailed copies to the media and to several members of the town council, including Henrick. The plaintiff's brother and Henrick are political opponents, and upon release of the background report, Henrick made televised, false and defamatory statements concerning the plaintiff. As a result, the plaintiff experienced public ridicule, embarrassment and humiliation. Additionally, he was not placed into the Connecticut Police Academy.
The plaintiff alleges a violation of General Statutes § 53a-251 (computer crimes), as enforced through General Statutes § 52-570b (an action for computer related offenses), against McNeil, Farmer, and the union in counts one, two and three, respectively. The plaintiff alleges defamation in count four and defamation per se in count five against Henrick. In counts six, seven, eight and nine, the plaintiff alleges invasion of privacy against each of the defendants. In counts ten through thirteen, the plaintiff alleges civil conspiracy against each of the defendants. Lastly, in counts fourteen, fifteen, sixteen and seventeen, the plaintiff alleges tortious interference with business relations against each of the defendants.
On June 1, 2009, the McNeil, Farmer, and Local 407 defendants filed an apportionment complaint, dated May 11, 2009. In counts one, two and three, said defendants/apportionment plaintiffs allege negligence against James Miron, John J. Buturla, chief of police of the Stratford police department and Joseph Loschiavo, deputy chief of police, respectively, for failing to implement sufficient procedures for the proper retention of police department records and failing to safeguard the plaintiff's background report. In counts four and six, the defendants/apportionment plaintiffs allege negligence against John Popik, captain of the police department and John Cratty, computer consultant for the town of Stratford, respectively, for failing to safeguard the plaintiff's background report and failing to ensure the integrity of the computer program that contained the police department records. In count five, the defendants allege negligence against Hunt Computer Design for failing to create and maintain a computer program that properly met the police department's needs.
Four of the apportionment defendants, James Miron, Buturla, Loschiavo and Popik, filed a motion to strike the apportionment complaint on May 28, 2009 and raised the same argument that the plaintiff raises now. Their motion to strike was granted by the court, Tobin, J., on July 27, 2009. The remaining apportionment defendants are Hunt Computer Design and Cratty. On May 20, 2009, the plaintiff filed a motion to strike the apportionment complaint on the ground that under General Statutes § 52-572h, there can be no apportionment of liability between parties liable for negligence and parties liable on any other basis. The plaintiff submitted a memorandum in support of the motion. On June 16, 2009, Hunt filed a motion to dismiss the apportionment complaint for lack of subject matter jurisdiction, along with a memorandum in support of the motion. On July 24, 2009, the defendants/apportionment plaintiffs filed memoranda in opposition to the plaintiff's motion to strike and Hunt's motion to dismiss. The matter was argued at short calendar on August 24, 2009.
DISCUSSION 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). "[T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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, 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
In his memorandum of law in support of the motion to strike, the plaintiff argues that the defendants' apportionment complaint fails to state a claim on which relief can be granted, because liability may not be apportioned between parties liable for negligence and parties liable on any other basis. The defendants/apportionment plaintiffs counter that negligence is the underlying basis for several causes of action in the plaintiff's revised complaint, so liability may be apportioned between the defendants and the apportionment defendants.
General Statutes § 52-102b(a) provides in relevant part: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . ." "[A] civil action to which section 52-572h applies, within the meaning of § 52-102b, means a civil action based on negligence." (Internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793-95, 756 A.2d 237 (2000). Pursuant to General Statutes § 52-572h(o), "there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence . . ." "[C]onduct other than negligence, [includes but is not] limited to intentional, wanton or reckless misconduct, strict liability, and liability pursuant to any cause of action created by statute." Allard v. Liberty Oil Equipment Co., supra, 803.
In his complaint, the plaintiff alleges a violation of § 53a-251, defamation, invasion of privacy, civil conspiracy, and tortious interference with business relations. The § 53a-251 claim is a statutory cause of action. The civil conspiracy and defamation claims require intentional misconduct. Additionally, one of the elements of tortious interference with business relations is intent to interfere. The complaint alleges that intentional misconduct gave rise to all of the causes of action. Section 52-572h(o) precludes apportionment liability between parties liable for negligence and parties liable based on their intentional misconduct.
§ 53a-251 provides in relevant part, "[a] person commits computer crime when he violates any of the provisions of this section . . . A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization . . . A person is guilty of the computer crime of misuse of computer system information when: (1) As a result of his accessing or causing to be accessed a computer system, he intentionally makes or causes to be made an unauthorized display, use, disclosure or copy, in any form, of data residing in, communicated by or produced by a computer system . . . or . . . [H]e uses or discloses any data he knows or believes was obtained in violation of [his unauthorized access or usage] . . ."
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." Larobina v. McDonald, 274 Conn. 394, 408, 876 A.2d 522 (2005).
"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." Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). "When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor to prove it." (Internal quotation marks omitted.) Battista v. United Illuminating Co., 10 Conn.App. 486, 492, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987).
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendant's knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants tortious conduct." Appleton v. Board of Education, 254 Conn. 205, 213, 757 A.2d 1059 (2000).
The defendants/apportionment plaintiffs argue that there is no specific intent element for the tort of invasion of privacy or for tortious interference with business relations, and, therefore, the defendants' alleged negligence could be the basis for liability under these causes of action. They provided no case law on point supporting this proposition.
"The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A [1977] as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." (Internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007).
In Allard v. Liberty Oil Equipment Co., the defendants sought to construe the claims in the apportionment complaint as negligence claims, in order to comport with § 52-572. Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 787. The court stated that although the apportionment complaint contained allegations of negligence, the allegations themselves were "classic allegations of product liability" and "[the defendant could not] convert its apportionment claim against [the apportionment defendant] into something other than a product liability claim simply by alleging only negligent misconduct." Allard v. Liberty Oil Equipment Co., supra, 799-800. In Allard, the court looked at the language of the complaint to determine that the allegations did not match the asserted cause of action. Id.
The present case differs from Allard, because the language used in the operative complaint here clearly alleges the asserted cause of action, and throughout the complaint, the factual allegations plainly allege intentional misconduct. As such, § 52-572h(o) precludes the defendants/apportionment plaintiffs from seeking apportionment liability. Therefore, the plaintiff's motion to strike is granted, as the two remaining counts of the apportionment complaint.
Motion to Dismiss
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, CT Page 18319 282 Conn. 130, 134, 918 A.2d 880 (2007). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." Practice Book § 10-31.
"It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] courts lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept of Public Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." Peters v. Dept. of Social Services, 273 Conn, 434, 441, 870 A.2d 448 (2005). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
In its memorandum of law in support of the motion to dismiss, Hunt argues that the court lacks subject matter jurisdiction over the apportionment action, because liability may not be apportioned between parties liable for negligence and parties liable on any other basis. The defendants/apportionment plaintiffs counter that negligence is the underlying basis for several causes of action in the plaintiff's revised complaint, so liability may be apportioned between the defendants and the apportionment defendants.
In Carpenter v. Law Offices of Dressler Associates, LLC, the Appellate Court held that it "lacked subject matter jurisdiction over the apportionment action because § 52-102b(a) limits apportionment to civil actions to which General Statutes § 52-572h applies . . . Section 52-572h applies to causes of action based on negligence . . ." (Internal quotation marks omitted.) Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 660, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004).
In the present case, and for the reasons set forth more fully above, the court does not have subject matter jurisdiction over the apportionment action, because §§ 52-102b(a) and 52-572h limit apportionment to causes of action based on negligence. Accordingly, Hunt's motion to dismiss is granted.