Opinion
No. CV 04-0830647 S
December 7, 2004
MEMORANDUM OF DECISION ON MOTION TO STRIKE COUNTERCLAIM AND MOTION FOR AWARD OF ATTORNEYS FEES (#114)
This matter is before the court concerning the plaintiff's motion to strike defendant's counterclaim and motion for award of attorneys fees. While, as discussed below, the court grants the motion to strike since the defendant has not sufficiently alleged damages, the court addresses other issues raised by the motion to strike since they bear on the motion for award of attorneys fees, which is denied.
PROCEDURAL BACKGROUND
In April 2003, the plaintiff, Michael Thayer, filed a charge of discrimination with the Connecticut Commission on Human Rights and Opportunities (CHRO). The plaintiff alleges that the defendant, Electro-Methods, Inc., discriminated against him, failed to accommodate him, and terminated him in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60, because he suffered from diabetes. See plaintiff's revised complaint (#102). The CHRO issued a merit assessment review in which it dismissed the plaintiff's complaint because "there was no reasonable possibility that investigating the complaint will result in a finding of reasonable cause." See defendant's counterclaim (#112.10), first and second counts, ¶ 3. On October 1, 2003, the CHRO released jurisdiction over the matter, authorizing the plaintiff to sue the defendant in the Superior Court. See revised complaint, ¶ 5.
General Statutes § 46a-60 provides, in relevant part, "[i]t shall be a discriminatory practice in violation of this section . . . [f]or an employer . . . except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's . . . physical disability . . ."
On December 16, 2003, the plaintiff filed this action in the Superior Court. In its amended answer, filed on August 2, 2004, the defendant filed a two-count counterclaim. The second count includes an allegation that the plaintiff's complaint to the CHRO was malicious in nature. See counterclaim, second count, ¶ 5. Both counts are premised on the concept of vexatious litigation.
The plaintiff then filed a motion to strike the counterclaim, on the ground that it fails to state a claim upon which relief can be granted, and also moved for an award of attorneys fees, based on a claim of bad faith litigation practices. The plaintiff filed a memorandum of law (plaintiff's memorandum). The defendant objected to the plaintiff's motion to strike and filed a memorandum of law in opposition (memorandum in opposition).
DISCUSSION A Motion To Strike Counterclaim
"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). "[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 268 Conn. 292. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Id.
As an initial matter, it is noted that the plaintiff has not stated any specific grounds on the face of his motion to strike, but has only stated that the defendant failed to state a claim upon which relief can be granted. Practice Book § 10-41 requires that "[e]ach motion to strike raising any [claim] of legal insufficiency . . . shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." (Emphasis added.) Nevertheless, the Appellate Court has stated that "[m]otions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted." (Emphasis added; footnote omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). Because the defendant has not addressed the plaintiff's noncompliance with Practice Book § 10-41, the court deems that issue to be waived.
"A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor . . . Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action . . . Malice may be inferred from lack of probable cause." (Citations omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).
The plaintiff argues that the defendant's counterclaim is legally insufficient because the CHRO's administrative adjudication cannot lead to liability for vexatious litigation by law. In support of this argument, the plaintiff argues that "a determination regarding reasonable cause by an administrative body empowered to adjudicate employment claims such as the CHRO or EEOC has no legally binding significance." See plaintiff's memorandum, p. 5. The case cited by the plaintiff reads, in relevant part, "The enforcement provisions of § 706 of Title VII, which allow EEOC to initiate civil actions, are therefore predicated upon a timely charge upon which EEOC has made a determination of reasonable cause." E.E.O.C. v. Harvey L. Walner Associates, 91 F.3d 963, 968 (7th Cir. 1996). The cited footnote states: "This determination of reasonable cause is only an administrative prerequisite to a court action and has no legally binding significance in subsequent litigation." Id., n. 3. Thus, the cited authority stands for the proposition that, even though the EEOC may find probable cause to pursue an enforcement action, the court will not be bound to find the defendant liable.
The plaintiff argues that a determination of no probable cause by the CHRO in a merit assessment review cannot lead to liability for vexatious litigation. However, this argument misses the point. It is not the defendant's contention that the CHRO's decision against the plaintiff creates liability. Rather, liability for vexatious litigation is premised on the defendant's claim that the plaintiff filed a complaint in the CHRO without probable cause.
The plaintiff also argues that the defendant's counterclaim is a form of retaliation prohibited by General Statues § 46a-60(a)(4). The plaintiff's employment already was terminated before this suit began. The type of retaliation covered by the statute would include, for example, demotion, reduction of salary, reassignment, or termination. See Bolick v. Alea Group Holdings, Ltd., 278 F.Sup. 2d 278, 283 (D.Conn. 2003); Newtown v. Shell Oil Co., 52 F.Sup.2d 366, 373-74 (D.Conn. 1999). General Statutes § 46a-60(a)(4) does not state that counterclaims for vexatious litigation are retaliatory.
General Statutes § 46a-60(a)(4) provides "It shall be a discriminatory practice in violation of this section . . . For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."
The plaintiff relies on General Statutes §§ 46a-100 and 102 to 104 to support his argument that he cannot be liable for vexatious litigation by law. These statutes are irrelevant to the defendant's counterclaim for vexatious litigation. The plaintiff relies on the fact that the statutes permit a discrimination suit in the Superior Court. While these statutes allow the plaintiff to bring a lawsuit in the Superior Court after the CHRO releases its jurisdiction over the matter, they do not confer immunity on a plaintiff for vexatiously claiming discrimination to the CHRO, and they do not state that the Superior Court suit is an extension of the administrative hearing.
General Statues § 46a-100 provides "Discriminatory practice. Cause of action upon release from commission. Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford."
General Statutes § 46a-102 provides "Civil action for discriminatory employment practice: Statute of Limitations. Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission, except that an action may be brought within six months of October 1, 1991, with respect to an alleged violation provided a complaint concerning such violation has been pending with the commission for more than one year as of October 1, 1991, unless the complaint has been scheduled for a hearing."
General Statutes § 46a-103 provides "Civil action for discriminatory employment practice: Service of process on the commission; right of commission to intervene. The complainant or his attorney shall serve a copy of the complaint in an action brought in accordance with section 46a-100 on the commission at that same time all other parties in such action are served. Service on the commission shall be for the purpose of providing legal notice of the action and shall not thereby make the commission a necessary party to the action. The commission, through its counsel or the Attorney General, may intervene as a matter of right in any action brought in accordance with section 46a-100."
General Statutes § 46a-104 provides "Civil action for discriminatory employment practice: Relief. The court may grant a complaint in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to temporary or permanent injunctive relief, attorneys fees and court costs."
The plaintiff also argues that the defendant has failed to allege the element of termination in its vexatious litigation claim. In DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991), in addressing this issue, our Supreme Court stated that "[m]ost courts now agree with the Restatement (Second) of Torts, [§]680, which permits liability for vexatious initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interest of the other." (Footnote omitted and internal quotation marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 248. In DeLaurentis, the plaintiff was "not barred from bringing a vexatious suit action against [the defendant] simply because it is based upon a proceeding that did not take place in a courtroom." Id., 249.
The plaintiff cites Duncan v. Junior Achievement, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0335878 (April 24, 2001, Brennan, J.). However, that decision addressed neither vexatious litigation or the termination element.
Section 680 of the Restatement (Second) of Torts states that "One who takes an active part in the initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if (a) he acts without probable cause to believe that the charge or claim on which the proceedings are based may be well founded, and primarily for a purpose other than that of securing appropriate action by the board, and (b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought." 3 Restatement (Second), Torts, § 680, p. 468 (1977). To fall within the scope of § 680, "the proceedings must be before an administrative board having the power to impose penalties upon or to take other action adversely affecting the legally protected interests of the person against whom they are brought." Id., comment (b).
"The fact that the action of the board is subject to review by a court is immaterial, except in this, that if the appeal is taken by the person bringing the proceedings, the proceedings are not terminated in favor of the person against whom they are brought until the appeal is determined in the latter's favor." Id.
The plaintiff's Superior Court action is not an administrative appeal. The type of judicial review discussed in the Restatement's comment (b) occurs where the petitioner, displeased with the result in the administrative agency proceeding, brings an administrative appeal. See generally Connecticut's Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et. seq., specifically General Statute § 4-183. In the present case, the plaintiff obtained a release of jurisdiction, and then brought a new action against the defendant in the Superior Court. The CHRO's decision is not being reviewed by the court, and the current lawsuit before the court is a de novo adjudication.
Section 4-183 provides, in pertinent part, "(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section."
This Superior Court proceeding is unlike an administrative appeal, in which an administrative adjudication is subject to review by the courts, and where the matter can be remanded to the agency. See General Statute § 4-183(j). Here, the administrative action has concluded. All proceedings in the CHRO have ended. Rather than bringing an administrative appeal, the plaintiff is suing the defendant directly.
Section 4-183(j) provides, "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
In DeLaurentis, the Connecticut Supreme Court discussed three approaches to defining termination. "The first, and the most rigid, requires that the action have gone to judgment resulting in a verdict of acquittal, in the criminal context, or no liability, in the civil contest. The second permits a vexatious suit action even if the underlying action was merely withdrawn so long as the plaintiff can demonstrate that the withdrawal took place under circumstances creating an inference that the plaintiff was innocent, in the criminal context, or not liable in the civil context. The third approach, while nominally adhering to the favorable termination requirement, in the sense that any outcome other than a finding of guilt or liability is favorable to the accused party, permits a malicious prosecution or vexatious suit action whenever the underlying proceeding was abandoned or withdrawn without consideration, that is, withdrawn without either a plea bargain or a settlement favoring the party originating the action." (Footnotes omitted; internal quotation marks omitted; italics in original.) DeLaurentis v. New Haven, supra, 220 Conn. 250. The Supreme Court continued, "Notwithstanding our recitation of the term ` favorable termination' . . . in Vandersluis [ v. Weil, supra, 176 Conn. 353] and a few other cases . . . we have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration." (Citations omitted; italics in original.) Id., 251.
Our Supreme Court has not adopted a strict interpretation of "favorable termination." See Russo v. City of Hartford, 184 F.Sup.2d 169, 186 (D.Conn. 2002). In DeLaurentis, the Supreme Court specifically rejected the first and second approaches and "clearly adopted the third approach to the termination prong." Id. "The DeLaurentis court considered the burden to establish the termination prong a minimal one, with little emphasis on whether the actual termination was favorable to the plaintiff . . . Thus, so long as the prior action terminated without any adjudication against, or settlement requiring consideration from, the vexatious-litigation plaintiff, the Connecticut Supreme Court deems the termination prong satisfied." (Citations omitted.) Id. With regard to the CHRO action here, the element of termination has been sufficiently alleged by the third paragraphs of both the defendant's first and -second counts.
In addition, the plaintiff argues that the defendant's counterclaim is legally insufficient because the defendant does not allege any facts to support his allegation that the plaintiff lacked probable cause to file a discrimination complaint with the CHRO. Paragraph 4 of both counts of the counterclaim states, "Thayer's complaint to the CHRO was made without probable cause."
The plaintiff does not cite any authorities to support this argument. See plaintiff's memorandum, pp. 8-9. Practice Book § 10-42(a) requires a motion to strike to "be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." (Emphasis added.) "When a memorandum of law fails to cite any legal authority, the memorandum is functionally equivalent to no memorandum at all." (Internal quotation marks omitted.) Young v. Hartford Insurance, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0278264, n. 5 (December 10, 2003, Wiese, J.). The plaintiff's motion to strike the defendant's counterclaim on the grounds of insufficient factual allegations regarding lack of probable cause is not supported by a memorandum of law as required by Practice Book § 10-42(a), as the plaintiff has failed to cite to any legal authority whatsoever for this argument.
In support of his argument, the plaintiff submits a copy of the CHRO's Merit Assessment Review. See Exhibit B to the plaintiff's motion. The court declines to consider this exhibit since, "[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Here, the "complaint" at issue is the defendant's counterclaim. Likewise, the court has not considered the defendant's list of items which it contends that evidence will establish. See defendant's memorandum in opposition, p. 2.
"For purposes of a vexatious suit action, `[t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.' Wall v. Toomey, 52 Conn. 35, 36 (1884) . . . Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Citations omitted and internal quotation marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 256.
The issue of the adequacy of similar allegations of lack of probable cause was addressed, also in the context of a motion to strike a counterclaim, in Ellis v. Ambulance Service of Manchester, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 93 52057 (April 28, 1994, Hammer, J.), where the court noted that "It is of some significance at least that the illustrative form of complaint in statutory or common law actions for vexatious suit commonly used in such actions states only that the action or proceeding was `commenced and prosecuted . . . without probable cause' and that it alleges no further facts other than the nature of the proceeding and the vexatious intent with which it was brought. 3 Connecticut Practice Book Annotated, Form 804.11." The court noted also that an allegation that the party who initiated the previous proceeding never had an honest and sincere belief in the validity of his complaint was sufficient to withstand a demurrer and stated that "[s]uch an allegation creates a factual issue for the trier as to whether the action was brought without probable cause and may not be resolved by the trial court as a matter of law on the ground of its legal insufficiency." Id.
The defendants' allegation of "without probable cause" is sufficient to raise a factual issue for the trier. See DeLaurentis v. New Haven, supra, 220 Conn. 252-53 ("Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law").
The plaintiff argues as well that Connecticut's public policy weighs against permitting defendants to claim that discrimination actions in the CHRO are vexatious, claiming that if individuals who filed claims exposed themselves to liability in the event their claims were dismissed at the merit assessment stage, the remedial and important policy purposes behind the State's anti-discrimination laws would be severely undermined and individuals would be discouraged from complaining about discrimination. See plaintiff's memorandum, p. 4. However, the plaintiff again cites no cases for this proposition.
This argument similarly misses the point that it is not the CHRO's merit assessment which is at issue. The counterclaim alleges that the plaintiff's "complaint to the CHRO was made without probable cause." See counterclaim, both counts, ¶ 4. It will be the facts underlying the plaintiff's complaint to the CHIRO which will be assessed for a probable cause basis.
Surely, Connecticut's public policy is not to encourage vexatious claims in the CHRO. The plaintiff presents no public policy argument similar to that present, for example, in Field v. Kearns, 43 Conn.App. 265, 270-77, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996), where our Appellate Court concluded that the need for public confidence in the integrity of the attorney disciplinary system required that "bar grievants are absolutely immune for the act of filing a grievance complaint." Id., 43 Conn.App. 273.
Finally, the plaintiff argues that the first count of the counterclaim is legally insufficient since the facts alleged do not support the defendant's assertion that his complaint to the CHRO caused the defendant to suffer damages. See plaintiff's memorandum, p. 6. This ground is also adopted in support of the motion to strike the second count of the counterclaim. In paragraph 5 of the first count, the defendant alleges that "[a]s a result of Thayer's complaint to the CHRO, [it] suffered damages." The same statement is repeated in paragraph 6 of the second count.
The defendant's "bare allegation that [it] was damaged fails to satisfy the requirement that [it] plead sufficient facts to fairly apprise the [plaintiff] and the court of the cause and the nature of his injuries and damages." St. Denis v. DeToledo, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV00 0180606 (April 5, 2002, Downey, J.). Such a statement is "too vague and conclusory to indicate what damages the [defendant is] asking for . . ." Talbot v. Kirkup, Superior Court, judicial district of New London at New London, Docket No. 551986 (September 20, 2000, Corradino, J.).
The allegations of damages set forth in these paragraphs of the defendant's counterclaim also do not conform to standard Form 804.11, discussed above, and cited by the defendant. There, the form's paragraph 4 refers to damages relating to sums expended in the defense of the underlying action. Accordingly, the motion to strike the counterclaim is granted since no factual support for the claim of damages is alleged.
B Motion For Award Of Attorneys Fees
The court denies the plaintiff's motion for an award of attorneys fees, which is premised, in material part, on the contention that the counterclaim has no basis in law or fact. As discussed above, the court is unpersuaded by the plaintiff's contention that the counterclaim has no basis in law. Whether or not there is a factual basis for the counterclaim will be addressed, in the event the counterclaim is set forth in a new pleading, see Practice Book § 10-44, when the merits of this matter are considered by the trier of fact.
CONCLUSION
For the foregoing reasons, the motion to strike counterclaim is granted and the motion for an award of attorneys fees is denied. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT