Opinion
No. CV 75008131
August 7, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#164)
The plaintiff SNET Information Services, Inc., (SNET) filed a motion to strike all thirty-two of the defendant's special defenses. The defendant, Prime One/Prime Direct Inc. (Prime One) opposes the motion by arguing that all of its alleged special defenses are legally and factually sufficient.
On February 8, 2007, the plaintiff filed a single count complaint in which it alleges that the defendant failed to pay for an advertising service that SNET provided. On February 20, 2009, pursuant to the plaintiff's request to revise, the defendant filed an amended special defense asserting thirty-two special defenses. The defendant bases its special defenses on its claims that the plaintiff renewed a contract for a yellow pages advertising without getting notification or authorization from the company's proper representatives. The defendant alleges that the plaintiff had a long standing business relationship with it and knew or should have known that each contract had to be negotiated by the proper agent. As such, the defendant claims the plaintiff was negligent in providing unauthorized advertisement services.
On March 6, 2009, the plaintiff filed a motion to strike all thirty-two special defenses. On April 15, 2009, the defendant filed a memorandum in opposition to the motion to strike. This matter was heard on short calendar on April 20, 2009.
"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). Accordingly, "[i]f 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] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
A special defense is "an affirmative defense that must be proved by the defendant." New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 606 n. 10, 717 A.2d 713 (1998). The courts have outlined two distinct purposes for a special defense that are to be utilized in determining whether a motion to strike should be granted. "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
Practice Book § 10-1 provides in relevant part that "[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." Practice Book § 10-50 addresses the requirements a defendant must satisfy when asserting a special defense, and it "provides in relevant part: No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." (Internal quotation marks omitted.) Barrows v. J.C. Penney Co., 58 Conn.App. 225, 233, 753 A.2d 404, cert. denied, 254 Conn. 925, 761 A.2d 751 (2000). As such, one of the purposes for a special defense is not to deny the factual allegations, but to demonstrate that in spite of those factual allegations, the plaintiff has no cause of action.
"The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Almadad v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). The other purpose of a special defense is to act as a form of pleadings. As such, the purpose is to make the court and the opposing party aware of the issues to be tried.
Therefore, in determining whether the special defense should be stricken, the court should first determine if the special defense pleads facts that are consistent with the plaintiff's complaint but, in spite of those facts, still provide a viable reason for not supporting the cause of action. Second, if the special defense pleads alternative facts, the court should determine whether it is nonetheless necessary for the special defense to remain as a way of allowing the court and the opposing party to be aware of the issues to be tried. Should neither of those purposes be met by pleading the special defense, then the motion to strike should be granted.
I First Special Defense — Unclean Hands
The defendant alleges the special defense of unclean hands. The plaintiff moves to strike the special defense on the ground that the defendant failed to allege that the plaintiff's actions were intentional in nature and designed to cause the defendant's alleged damages. "Our jurisprudence has recognized that those seeking equitable redress in our courts must come with clean hands. The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." (Emphasis added.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005). The standard for proving unclean hands is greater than the standard required for negligence. The first special defense is stricken because the special defense fails to allege wilful conduct.
II Second Special Defense — Bad Faith
The defendant alleges the special defense of bad faith. The plaintiff moves to strike the special defense on the ground that the defendant failed to allege that the plaintiff operated with some design or motive of interest or ill will. "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992). The facts, as pleaded, suggest the plaintiff was negligent in entering the contract. However, the defendant's pleadings do not indicate a design or motive to deceive the defendant. Therefore, the court grants the motion to strike the second special defense.
III Third Special Defense — Waiver
The defendant alleges the defense of waiver as its third special defense. The plaintiff moves to strike the special defense on the ground that the defendant fails to allege any facts that demonstrate the plaintiff intentionally relinquished or abandoned a known right or privilege. "Waiver is defined as the intentional relinquishment of a known right." A. Sangivanna Sons v. F.M. Floryan Co., 158 Conn. 467, 475, 262 A.2d 159 (1969). "Where there is no express waiver, one may be implied. Such a waiver may be found as an inference of fact from the conduct of the plaintiff under the circumstances of the case." Hendsey v. Southern New England Telephone Co., 128 Conn. 132, 135-36, 20 A.2d 722 (1941). "A party seeking the benefit of a waiver, must show that he was substantially prejudiced." Advest, Inc. v. Wachtel, 235 Conn. 559, 569, 668 A.2d 367 (1995). Because waiver is a knowing relinquishment of a known right, the defendant must plead facts indicating the plaintiff has intentionally waived a known right. The defendant not only fails to assert that the plaintiff made an intentional waiver, but also fails to establish which known right was allegedly waived. Therefore, the third special defense is ordered stricken.
IV Fourth Special Defense — Estoppel
The defendant alleges the special defense of estoppel. The plaintiff moves to strike the fourth special defense on the grounds that the defendant fails to allege that the plaintiff intentionally deceived or misled the defendant; and the defendant fails to allege that it changed its position due to the plaintiff's actions. "Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct." Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005). Equitable estoppel requires two essential elements: "the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." Id. The defendant has failed to set forth any facts to allege or suggest that the plaintiff induced the defendant to believe in any facts; nor is there any suggestion that the defendant changed a stated position because of those facts. For this reason, the court grants the plaintiff's motion to strike the defendant's fourth special defense.
V Fifth Special Defense — Unconscionability
For its fifth special defense, the defendant alleges the defense of unconscionability. The plaintiff moves to strike the special defense on the grounds that the defendant fails to allege that the subject contracts were both procedurally and substantively unconscionable when made. "The classic definition of an unconscionable contract is one `which no man in his sense, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.' Smith v. Mitsubishi Motors Credit of America, Inc., 274 Conn. 342, 349, 721 A.2d 1187 (1998). The doctrine of unconsionability as a defense to contract enforcement `generally requires a showing that the contract was both procedurally and substantively unconscionable when made — i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party . . .' (Internal quotation marks omitted.) Hottle v. BDO, LLP, 268 Conn. 694, 719, 846 A.2d 862 (2004)." Bender v. Bender, 292 Conn. 696, 731-2 (2009). In the present case, the defendant fails to allege facts to suggest any procedural or substantive unconscionability. A simple claim that the signor from the defendant's side did not have the authority to enter into the contract is not enough to uphold this claim. Accordingly, this court grants the motion to strike the fifth special defense.
VI Sixth Special Defense — Payment
The defendant's sixth special defense alleges payment. The plaintiff moves to strike this special defense on the ground that the defendant does not allege any facts that it made any payments pursuant to the contract. Because the defendant fails to state a claim that payments were made, and in fact alleges that payments were never properly agreed upon, this court grants the motion to strike the defendant's sixth special defense.
VII Seventh Special Defense — Release
The defendant's seventh special defense is release. The plaintiff moves to strike the seventh special defense on the ground that the defendant fails to allege that the plaintiff executed a release or abandoned his claim. The court strikes the defendant's seventh special defense because the defendant does not provide facts to support this claim.
VIII Eighth Special Defense — Failure to Mitigate, Minimize, or otherwise Avoid Damages
The defendant's eighth special defense is that the plaintiff failed to mitigate, minimize, or otherwise avoid damages. The plaintiff moves to strike this defense on the ground that the defendant fails to allege that the plaintiff failed to take reasonable action to lessen its damages, that the damages were enhanced by such failure, and that the damages avoided can be measured with reasonable certainty. "The doctrine of mitigation of damages contemplates that one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the . . . To claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty." (Citation omitted; internal quotation marks omitted.) Stevenson v. Kettler International, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 5000357 (August 14, 2006, Lewis, J.T.R.) ( 42 Conn. L. Rptr. 69).
"There exists a split of authority within the Superior Court as to whether a defendant may plead failure to mitigate damages as a special defense. Those cases prohibiting mitigation of damages from being raised as a special defense base their decision on the fact that mitigation of damages is not among those special defenses listed in Practice Book and on the ground that mitigation of damages fails to show that the plaintiff has no cause of action." Kochian v. Central Connecticut Coast YMCA, Superior Court, judicial district of Fairfield, Docket No. CV 7 5011527 (March 31, 2008, Frankel, J.). "On the other hand, those decisions permitting mitigation of damages to be pleaded as a special defense reason that it should be allowed because it puts the plaintiff on notice that failure to mitigate will be an issue at trial." Id. "The defendant is not specifically required to plead failure to mitigate damages . . . The majority rule . . . is that although the defendant need not specially plead it, the defendant must bring forward evidence that the plaintiff could reasonably have reduced his loss or avoided injurious consequences, and he must finally convince the jury of this in order to succeed on this issue . . . Therefore, the defendant has the option of pleading failure to mitigate as a special defense." (Internal quotation marks omitted.) LeMaire v. Farmington Ready Mix, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 4 4000443 (January 30, 2006, Pickard, J.).
The court need not address whether or not mitigation is properly pled as a special defense, because in the present case, the defendant does not make any factual claims to support this special defense. A failure to mitigate, in this context, would require the showing of a failure to avoid aggravating damages upon learning of non-payment or the lack of authority. The facts in the special defense do not mention anything related to mitigation. Therefore, the court grants the motion to strike the eighth special defense.
IX Ninth Special Defense — Violation of CUTPA
The defendant's ninth special defense is CUTPA. The plaintiff moves to strike this special defense on the grounds that CUTPA is not a permitted special defense and there are insufficient grounds to support a CUTPA claim. The defendant provides no legal or factual basis for asserting a CUTPA claim. The simple factual claim by the defendant that the contract was signed by an unauthorized agent does not support a CUTPA claim. Accordingly, the defendant's ninth special defense is ordered stricken.
X Tenth Special Defense — Lack of Subject Matter Jurisdiction
The defendant's tenth special defense asserts that the court lacks subject matter jurisdiction. The plaintiff moves to strike the tenth special defense on the ground that the defendant fails to allege how or why the court lacks subject matter jurisdiction. Since the defendant does not provide a legal basis for its argument that this court lacks subject matter jurisdiction in his brief, except to simply state, in a conclusory manner, that the court lacks subject matter jurisdiction, the court treats this claim as abandoned and orders that it be stricken.
XI Eleventh Special Defense — Lack of Personal Jurisdiction
The defendant's eleventh special defense is that there is a lack of personal jurisdiction over the defendant. The plaintiff moves to strike the eleventh special defense on the ground that the defendant failed to raise this issue within thirty days of filing an appearance. As the defendant failed to do so, the issue of personal jurisdiction is waived. "Unlike the situation with subject matter jurisdiction, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 416, 885 A.2d 768 (2005), cert. granted on other grounds, 112 Conn.App. 1, 961 A.2d 1012 (2009). The court grants the plaintiff's motion to strike the eleventh special defense.
The defendant filed an Appearance on January 10, 2007. The defendant never filed a Motion to Dismiss, challenging personal jurisdiction. The first time the defendant raised this issue was in its Answer and Special Defenses, filed on May 29, 2007 (#118).
XII Twelfth Special Defense — Lack of Consideration
The defendant's twelfth special defense alleges that there was a lack of consideration. The plaintiff moves to strike the twelfth special defense on the ground that the defendant fails to allege that the plaintiff sustained a benefit or that defendant suffered a loss or detriment. "The doctrine of consideration is of course fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable. In defining the elements of the rule, we have stated that consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Internal quotation marks omitted.) Osborne v. Locke Steel Chain Co., 153 Conn. 527, 530-31, 218 A.2d 526 (1966). The defendant provides no allegations that the contract did not deliver a benefit. Rather, the defendant claims that the benefit delivered was not requested. Therefore, the facts are insufficient to support the claim of no consideration and the court grants the plaintiff's motion to strike this special defense.
XIII Thirteenth Special Defense — Comparative Negligence
The defendant's thirteenth special defense alleges comparative negligence. The plaintiff moves to strike the defense of comparative negligence on the grounds that it is not a viable special defense in an action where there is one underlying count grounded in breach of contract.
General Statutes § 52-572h defines the scope of comparative negligence in Connecticut. Specifically, § 52-572h(b) provides, in pertinent part, that: "In causes of action based upon negligence . . . [t]he economic or noneconomic damages allowed shall be diminished in proportion of the percentage of negligence attributable to the person recovering . . ." While there is no appellate authority squarely addressing the applicability of § 52-572h to causes of action sounding in contract, the superior courts have noted that the comparative negligence statute does not apply to a breach of contract claim. Curtis Packaging Corp. v. KPMG, LLP, Superior Court, judicial district of Waterbury, Docket No. X06 CV 9 0156558 (July 31, 2002, McWeeny, J.); Center Court Associates Ltd. Partnership v. Maitland/Strauss Behr, Superior Court, judicial district of New Haven, Docket No. CV 6 0252381 (May 4, 1994, Healey, S.T.R.). In Center Court Associates Ltd. Partnership v. Maitland/Strauss Behr, supra, Superior Court, Docket No. CV 6 0252381, the plaintiffs' complaint alleged in count one that the defendants had breached their contract for services with the plaintiffs. In response, the defendants pleaded comparative negligence as a special defense in an effort to bar or lessen their liability. Id. Upon finding that comparative negligence was inapplicable to the plaintiffs' claim for breach of contract, the court reasoned that "[c]omparative negligence . . . cannot apply to [a] breach of contract [theory] . . . because [such] actions . . . are not based on negligence under the comparative negligence statute." (Internal quotation marks omitted.) Id. Consequently, the court noted that "[c]ontributory negligence, and that is one of [the] special defenses to [count one] is . . . not a defense to [the plaintiffs'] breach of contract [claim]." (Internal quotation marks omitted.) Id. This court concurs with the reasoning of the court in Center Court, and grants the motion to strike the thirteenth special defense.
XIV Fourteenth Special Defense — Fraud
The defendant's fourteenth special defense asserts a claim of Fraud. The plaintiff moves to strike the fourteenth special defense on the grounds that the defendant fails to allege the four requisite elements of fraud. "The essential elements of an action in fraud, as we have repeatedly held, are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 683, 657 A.2d 1087 (1995), aff'd, 240 Conn. 58, 689 A.2d 1097 (1997). In this case, the defendant fails to plead any facts that demonstrate a false representation was made by the plaintiff. Rather, the facts, as pleaded by the defendant, only allege that the person who entered into the contract on the defendant's behalf was not authorized to do so. Therefore, the court grants that plaintiff's motion to strike the fourteenth special defense.
XV Fifteenth Special Defense — Illegality
The defendant's fifteenth special defense alleges illegality. The plaintiff moves to strike this special defense on the grounds that the defendant fails to allege sufficient facts that any of the subject agreements were illegal or designed to violate the law. As there are no facts that suggest any illegal behavior on the part of the plaintiff the court grants the plaintiff's motion to strike the defendant's fifteenth special defense.
XVI Sixteenth Special Defense — Statute of Frauds
The defendant's sixteenth special defense alleges a violation of the statute of frauds. The plaintiff moves to strike the sixteenth special defense on the grounds that the defendant fails to allege how the plaintiff's actions are barred, given the plaintiff's undisputed claim that the underlying contracts were written. The court grants the motion to strike the sixteenth special defense because the defendant alleges no facts to demonstrate how the underlying contracts violated the statute of frauds.
XVII Seventeenth Special Defense — Lack of Corporate Capacity
The defendant's seventeenth special defense alleges lack of corporate capacity. The plaintiff moves to strike the seventeenth special defense on the grounds that this would more properly be raised by way of denial in an answer; and that the defendant fails to allege that the plaintiff lacks corporate capacity. The special defense fails to incorporate the facts alleged in the plaintiff's complaint; and fails to provide the court with an understanding of the alleged capacity issues. Therefore, it is insufficient, and must be stricken.
XVIII Eighteenth Special Defense — Lack of Representative or Fiduciary Capacity
The defendant's eighteenth special defense asserts the lack of representative or fiduciary capacity. The plaintiff moves to strike on the grounds that this would properly be raised by way of denial in an answer; and that the defendant fails to allege that the plaintiff lacks representative or fiduciary capacity. As with the seventeenth special defense, this special defense fails to incorporate the facts alleged in the plaintiff's complaint; and fails to provide the court with an understanding of the alleged capacity issues. Therefore, it is insufficient, and must be stricken.
XIX Nineteenth Special Defense — Improper Execution of Instrument
The defendant's nineteenth special defense alleges improper execution of instrument. The plaintiff moves to strike the nineteenth special defense on the grounds that this would properly be raised by way of denial in an answer; and that the defendant fails to apprise the plaintiff and the court on the issues to be tried in connection with this special defense. This special defense fails to incorporate allegations in the plaintiff's complaint; and fails to provide the court with an understanding of the alleged execution issues. Therefore, it is insufficient, and must be stricken.
XX Twentieth Special Defense — Improper Delivery of Instrument
The defendant's twentieth special defense alleges that there was an improper delivery of the instrument. The plaintiff moves to strike the twentieth special defense on the grounds that the defendant fails to plead facts regarding the improper delivery of an instrument; and does not apprise the court of how the issues will be litigated at trial. The court agrees and grants the motion to strike the twentieth special defense.
XXI Twenty-First Special Defense — Nonrenewal of Contract
The defendant's twenty-first special defense asserts the nonrenewal of contract as a special defense. The plaintiff moves to strike the twenty-first special defense on the grounds that it is a legal conclusion and not a special defense. The central issue in this case is whether the contract renewal to place national advertising was properly authorized. Since the issue at hand is whether there was a proper renewal, the special defense of nonrenewal is a legal conclusion. Moreover, the special defense fails to plead sufficient facts to assert this claim. For this reason, the court grants the motion to strike the twenty-first special defense.
XXII Twenty-Second Special Defense — Laches
The defendant's twenty-second special defense is laches. The plaintiff moves to strike this special defense on the ground the defendant failed to allege that there was an inexcusable delay which caused it prejudice. "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . Lapse of time, alone, does not constitute laches. It must result in prejudice to the defendant as where, for example, the defendant is led to change his position with respect to the matter in question . . . or the delay works a disadvantage to another." (Citations omitted.) LaSalle National Bank v. Shook, 67 Conn.App. 93, 98-99, 787 A.2d 32 (2001). In the case at hand, the defendant fails to plead any facts to indicate a delay was caused by the plaintiff which resulted in any prejudice. Therefore, the defendant's twenty-second special defense is ordered stricken.
XXIII Twenty-Third Special Defense — Statute of Limitations
The defendant's twenty-third special defense alleges that the plaintiff's claims are barred by the statute of limitations. The plaintiff moves to strike the twenty-third special defense, which is based on General Statutes § 52-581, because the defendant fails to allege the agreement at issue was an oral agreement. General Statutes § 52-581(a) governs oral agreements and provides, in pertinent part, that: "No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues." The facts alleged in this action assert that the contract at issue was a written contract. Therefore, General Statutes § 52-581 is inapplicable and the twenty-third special defense is ordered stricken.
XXIV Twenty-Fourth Special Defense — Accord and Satisfaction
The defendant's twenty-fourth special defense is that of accord and satisfaction. The plaintiff moves to strike this special defense on the ground that the defendant failed to provide facts to support the existence of an accord and satisfaction. "An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty . . . Accord and satisfaction is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim and to perform the agreement." Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 277, 828 A.2d 64 (2003). In this case, the defendant alleges no facts to establish that an agreement was reached between the plaintiff and the defendant to settle the claim. Therefore, the defendant's twenty-fourth special defense is ordered stricken.
XXV Twenty-Fifth Special Defense — Invalid Execution
The defendant's twenty-fifth special defense alleges invalid execution. The plaintiff moves to strike this defense on the grounds that this defense is properly raised by way of denial in an answer; and that the defendant fails to apprise the court or opposing counsel of the issues to be tried in connection with this special defense. Because the defendant fails to allege sufficient facts in support of this claim, the court orders that it be stricken.
XXVI Twenty-Sixth Special Defense — Invalid Delivery CT Page 13107
The defendant's twenty-sixth special defense alleges invalid delivery. The plaintiff moves to strike this defense on the grounds that this defense is properly raised by way of denial in an answer; and that the defendant fails to apprise the court or opposing counsel of the issues to be tried in connection with this special defense. Because the defendant fails to allege sufficient facts in support of this claim, the court orders that it be stricken.XVII Twenty-Seventh Special Defense — Violation of the State Fair Debt Collection Act
The defendant's twenty-seventh special defense alleges that there was a violation of the State Fair Debt Collection Act. General Statutes § 51-345 et seq. and §§ 36a-800 to 36a-810. The plaintiff moves to strike the twenty-seventh defense on the ground that the defendant fails to allege sufficient facts to uphold this claim. General Statutes § 51-345(d), "Actions involving consumer transactions" provides: "In all actions involving consumer transactions, civil process shall be made returnable to the judicial district where the consumer resides or where the transaction occurred. For the purposes of this subsection, consumer transaction means a transaction in which a natural person obligates himself to pay for goods sold or leased, services rendered or moneys loaned for personal, family or household purposes." Moreover, General Statutes § 36a-800 and 801 relate to consumer collection agencies. The defendant does not allege that it is a consumer debtor or that the plaintiff is a consumer collection agency. Therefore, this special defense is inapplicable and is ordered stricken.
XVIII Twenty-Eighth Special Defense — Violation of the Federal Fair Debt Collection Act
The defendant's twenty-eighth special defense claims a violation of the Federal Fair Debt Collection Act. 15 U.S.C. § 1692 et seq. The plaintiff moves to strike this special defense on the ground that the defendant fails to allege the underlying debt was incurred for personal, family or household purposes rather than business purposes. "The term `debt' means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5). "[I]t is the burden of the party invoking the [Act] to provide evidence that the purposes of the debt were personal . . ." General Financial Services v. Chesanek, Superior Court, judicial district of Middlesex at Middletown, Docket No. 73398 (January 2, 1996, Stanley, J.) ( 15 Conn. L. Rptr. 521, 522). The defendant fails to plead any facts to indicate that the underlying debt was incurred for personal, family, or household purposes. Because this is a requirement of the act, the defendant fails to state a legally sufficient claim. Therefore, the court grants the motion to strike the twenty-eighth special defense.
XXIX Twenty-Ninth Special Defense — Violation of the State Antitrust Act
The defendant's twenty-ninth special defense claims a violation of the State Antitrust Act. General Statutes §§ 35-24 to 35-46 et seq. The plaintiff moves to strike the twenty-ninth special defense on the grounds that the defendant fails to allege the necessary facts. General Statutes § 35-26 provides: "Every contract, combination, or conspiracy in restraint of any part of trade or commerce is unlawful." General Statutes § 35-27 states: "Every contract, combination, or conspiracy to monopolize, or attempt to monopolize, or monopolization of any part of trade or commerce is unlawful." General Statutes § 35-28 provides in pertinent part: "Without limiting section 35-26, every contract, combination, or conspiracy is unlawful when the same are for the purpose or have the effect of: . . . (c) allocating or dividing customers or markets . . . (d) refusing to deal, or coercing, persuading, or inducing third parties to refuse to deal with another person." The defendant's twenty-ninth special defense lacks the necessary factual allegations that the plaintiff monopolized or conspired to monopolize. Therefore, this special defense is ordered stricken.
XXX Thirtieth Special Defense — Violation of the Federal Antitrust Act
The defendant's thirtieth special defense claims a violation of the Federal Antitrust Act. 15 U.S.C. §§ 12 et seq. The plaintiff moves to strike this special defense on the grounds that the defendant fails to plead sufficient facts; and that the Federal Antitrust Act may not be invoked as a special defense in response to a one-count breach of contract state court action based on a commercial debt. 15 U.S.C. § 13 provides, in relevant part, that "it shall be unlawful for any person engaged in commerce . . . to discriminate in price between different purchasers of commodities of like grade in quality . . . and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination . . ." The defendant fails to provide facts that demonstrate this federal statute is applicable to this action. Therefore, this court grants the plaintiff's motion to strike the thirtieth special defense.
Thirty-First Special Defense — Violation of the State Business Opportunity Act
The defendant's thirty-first special defense claims a violation of the State Business Opportunity Act. General Statutes §§ 36b-60 to 36b-80 et seq. The plaintiff moves to strike this special defense on grounds that the defendant fails to plead sufficient facts; and that the State Business Opportunity Act may not be invoked as a special defense in response to a one-count breach of contract state court action based on commercial debt. General Statutes § 36b-61(6) defines business opportunity under the State Business Opportunity Act. The defendant fails to provide facts that demonstrate this Act is applicable to this action. Therefore, this court grants the plaintiff's motion to strike the thirty-first special defense.
XXXII Thirty-Second Special Defense — Violation of the Federal Business Opportunity Act
The defendant's thirty-second special defense claims a violation of the Federal Business Opportunity Act. 15 U.S.C. §§ 12 et seq. The plaintiff moves to strike this special defense on the grounds that the defendant fails to plead sufficient facts; and that the Federal Business Opportunity Act may not be invoked as a special defense in response to a one count breach of contract state court action based on commercial debt. The defendant fails to provide facts that demonstrate this federal law is applicable to this action. Therefore, this court grants the plaintiff's motion to strike the thirty-second special defense.