Opinion
CV125007354S.
12-12-2012
Kim THOMAS v. Tyrone ROGERS.
UNPUBLISHED OPINION
JOHN A. DANAHER III, Judge.
On October 5, 2012, the defendant, Tyrone Rogers, moved to strike the plaintiff's second amended complaint. The plaintiff, Kim Thomas, did not file a memorandum in opposition to the motion to strike. This matter came before the court on short calendar and was heard on November 13, 2012. The plaintiff did not appear to oppose the motion.
The plaintiff is a self-represented party. The plaintiff inaccurately entitled the complaint which the defendant seeks to strike as a " substituted complaint." For clarity, the court will refer to the complaint at issue as the plaintiff's " second amended complaint."
The motion to strike the defamation claim is denied. The motion to strike the claim for relief due to the defendant's " harassment" is granted. The motion to strike the claims for intentional and negligent infliction of emotional distress is denied as moot. The motion to strike the claim for punitive damages is denied.
I
PROCEDURAL AND FACTUAL HISTORY
On January 26, 2012, the plaintiff filed a complaint alleging, inter alia, defamation, followed by an amended complaint on February 29, 2012. On May 22, 2012, the court granted the defendant's motion to strike the entire amended complaint (the " prior ruling"). Thereafter, on May 25, 2012, the plaintiff filed her second amended complaint, which is the subject of the present motion to strike.
The plaintiff inaccurately entitled the amended complaint as a " supplemental complaint." For purposes of clarity, the court will refer to the February 29, 2012 complaint as the plaintiff's " amended complaint."
The plaintiff's second amended complaint alleges that she was the defendant's manager at a company known as Marrakech, Inc. (" Marrakech"), and, on November 7, 2011, she declined the defendant's invitation to go out on a date. According to the plaintiff, on December 27, 2011, the defendant threatened her and filed a fabricated complaint with the Marrakech human resources department, alleging that the plaintiff sexually harassed him. The plaintiff claims that, shortly thereafter, on December 29, 2011, she was suspended from work. She contends that she became emotionally distraught and, thereafter, began seeing a psychiatrist in early January 2012.
The plaintiff further claims that on January 7, 2012, the defendant sent her a threatening text message. The plaintiff alleges that two days later, on January 9, 2012, she was terminated from her employment on the basis of the defendant's false sexual harassment complaint. She also claims that on February 19, 2012, the defendant filed a false police report, alleging that the plaintiff was harassing him. According to the plaintiff, on that day, the police warned her that she would be arrested if she continued to harass the defendant. The plaintiff alleges that she has been diagnosed with posttraumatic stress disorder.
II
DEFENDANT'S POSITION
The defendant moves to strike the second amended complaint, basing the motion on five separate claims. The defendant contends that the second amended complaint " does not specifically identify any alleged defamatory statements and fails to state how the plaintiff's reputation suffered as a result of the defamatory statement." Second, he claims that the complaint improperly alleges " harassment" as a cause of action, a claim that was previously stricken by the court. Third, the defendant contends that any claim of intentional infliction of emotional distress should be stricken because the allegations are insufficient to support such a claim. The defendant asserts that this specific issue was previously addressed by the court in its prior ruling. Fourth, he contends that the plaintiff's allegations are insufficient to support a claim of negligent infliction of emotional distress and that the court previously addressed this same claim in the prior ruling. Finally, the defendant moves to strike the plaintiff's claim for punitive damages in the absence of sufficient allegations or citation to statutory authority that would support a recovery of punitive damages.
III
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: " Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief ... that party may do so by filing a motion to strike the contested pleading or part thereof." " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
In ruling on a motion to strike, the court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). The court is limited, in its review, " to a consideration of the facts alleged in the complaint." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).
" [W]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
A
Defamation
On May 21, 2012, the court granted a motion to strike the plaintiff's defamation claim contained in the amended complaint for the following reason: " the plaintiff does not allege any specific details concerning the fabricated complaint made by the defendant to the plaintiff's employer. Therefore, that incident is insufficiently pled ..." The defendant claims that the second amended complaint suffers from the same defect, in that it " does not specifically identify any alleged defamatory statements and fails to state how the plaintiff's reputation suffered as a result of the defamatory statement." Def.'s Mem. at 5.
The defendant's argument is readily refuted by reference to the second amended complaint. The plaintiff alleges, at paragraph three, that the defendant stated " I will make sure you get what you got coming." She then claims, in paragraph four, that the defendant fabricated a complaint against her, and in paragraph five, she alleges that " [t]he defendant told Irma Turnage, from human resources, that the plaintiff sexually harassed him at work by sending text messages." At paragraph twelve, she alleges that the Chief Operating Officer at her place of employment " terminated the plaintiff from her job due to the defendant's fabricated sexual harassment complaint."
The plaintiff has alleged that the defendant made statements that are defamatory per se. Matthew v. Kensington Square Apartments, Superior Court, judicial district of New Haven, Docket No. CV 02 0470739 (April 28, 2004, Devlin, J.) (36 Conn. L. Rptr 904) (false oral statement that supervisor engaged in sexual harassment in the workplace actionable per se). Evaluating the complaint in the manner most favorable to sustaining its legal sufficiency, as the court must, the court concludes that the plaintiff has sufficiently alleged a cause of action sounding in defamation. The motion to strike the defamation count is denied.
B
Harassment
The second amended complaint is pleaded in a single count, entitled " cause of action." Nonetheless, it appears to the court that the plaintiff has sufficiently defined the issues in dispute, and the one-count second amended complaint alleges defamation. See Practice Book § 10-1. In her prayer for relief, however, the plaintiff seeks recovery for " harassment." The defendant contends that the plaintiff has failed to " sufficiently state a cause of action for harassment" because this court has already ruled that Connecticut has not recognized a cause of action for harassment. The defendant is correct that the prior ruling struck the claim of harassment. The court notes that the plaintiff's amended complaint, which was the subject of the prior ruling, stated under the heading " Cause of Action" that " [a]s a result of the defendant's actions the plaintiff has been harassed." Thus, in the amended complaint, the plaintiff attempted to state a cause of action for harassment. The defendant now relies on doctrine of the " law of the case" in moving to strike what he contends is a cause of action that alleges harassment.
The law of the case doctrine provides that " [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ... A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ... [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Internal quotation marks omitted.) General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009). Such rulings are not to be lightly changed. McCarthy v. McCarthy, 55 Conn.App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000). The doctrine is a flexible one, but the reasons behind it are compelling. " A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." (Internal quotation marks omitted.) Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).
" The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause." (Emphasis added; internal quotation marks omitted.) Id.
The first question this court must resolve is whether the plaintiff is attempting to raise a question of law that has already been presented and determined. In the second amended complaint, the plaintiff is not pleading a separate cause of action for harassment, but rather is seeking damages for harassment under her prayer for relief. Thus, strictly speaking, the doctrine of the law of the case does not support the motion to strike. Therefore, the issue is not whether the court should strike an alleged cause of action, but rather whether the court should strike a part of the plaintiff's prayer for relief. That issue, in turn, is to be resolved by determining whether one who brings a claim of defamation can recover damages for " harassment."
The court notes that the defendant has not focused his motion to strike on the prayer for relief. See Practice Book § 10-39(a)(2). However, in view of the fact that the complaint is less than a model of clarity, and since the plaintiff does make references to " harassment" in her defamation claim, the court will construe the motion to strike as directed at the claims for compensation for harassment in the prayer for relief.
In Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 733 A.2d 197 (1999), our Supreme Court provided guidance with regard to the economic and noneconomic damages that are recoverable when a plaintiff employee, who has been terminated, prevails on a claim of defamation. Economic damages include recovery for lost wages the employee would have earned but for the termination, minus any other wages that the employee earned elsewhere, as established by the employer. Id., 553 n. at 33. Lost wages can include lost bonuses and benefits. Id. Noneconomic damages include damages to the plaintiff's reputation, as well as damages for emotional distress, embarrassment, anxiety and humiliation. Id., at 552.
Gaudio permits recovery for objective and subjective losses and damages suffered by a plaintiff. Imposing damages against a defendant for " harassing" the plaintiff would appear to be in the nature of sanctioning a defendant for his conduct rather than compensating a plaintiff for her losses. Therefore, the motion to strike the plaintiff's prayer for relief due to the defendant's alleged harassment is granted.
C
Intentional Infliction of Emotional Distress
The defendant moves to strike any claim for intentional infliction of emotional distress that may be found in the second amended complaint on the grounds that the allegations are insufficient to support such a cause of action and the court already decided this issue. This court has already concluded that the plaintiff's sole cause of action, in the second amended complaint, sounds in defamation. Thus, there is no claim of intentional infliction of emotional distress. Therefore, the motion to strike is moot insofar as it seeks an order striking a claim for intentional infliction of emotional distress.
Consequently, the court need not address the defendant's alternative " law of the case" argument. The court notes, however, that should the plaintiff seek to re-plead and add a count for intentional infliction of emotional distress, the factual allegations that appear in the second amended complaint are different, and more specific, than those that were the subject of the court's prior ruling. This court, however, expresses no opinion as to whether such allegations would be sufficient to support a claim for intentional infliction of emotional distress.
D
Negligent Infliction of Emotional Distress
The defendant moves to strike any claim for negligent infliction of emotional distress, to the extent one can be discerned in the second amended complaint. The defendant bases his motion on the insufficiency of the allegations and also on the prior decision of this court.
As this court has already concluded that the sole count of the plaintiff's second amended complaint alleges defamation. Therefore, it does not allege negligent infliction of emotional distress. Thus, the law of the case doctrine does not support the motion to strike. The court notes, however, that there is authority for the proposition that a plaintiff can seek recovery for negligent infliction of emotional distress when the claim is derivative of a cause of action sounding in defamation. " 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 ... The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the [defamation] caused him." (Internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn.App. 228, 234-35, 784 A.2d 376 (2001); see Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 852, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003); Langer v. Szeibert, Superior Court, judicial district of Hartford, Docket No. CV 10 5034961 (March 15, 2012, Rittenband, J.T.R.); Hauer v. ECHN Community Healthcare Foundation, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 4046119 (February 16, 2012, Woods, J.). Of course, if the plaintiff ultimately fails to establish the claim of defamation, any derivative claims will also, necessarily, fail. See Hauer v. ECHN Community Healthcare Foundation, Inc., supra; Finnelli v. Tepfer, Superior Court, judicial district of Fairfield, Docket No. CV 07 5011659 (April 24, 2009, Gilardi, J.); Red Apple II, Inc. v. Hartford Courant, Superior Court, judicial district of Hartford, Docket No. CV 95 547043 (January 17, 1996, Hale, J.).
Since a plaintiff can recover general damages for the injury to her reputation and for humiliation and mental suffering, if she prevails in her claim of defamation, she need not specifically allege negligent infliction of emotional distress. Rather, the plaintiff merely needs to include, in her prayer for relief, a claim for damages for emotional distress. In the present case, the plaintiff's prayer for relief specifically, and properly, seeks recovery for emotional distress. The motion to strike is denied as moot insofar as it seeks an order striking a claim for negligent infliction of emotional distress
E
Punitive Damages
The defendant moves to strike the claim in the prayer for relief that seeks punitive damages, on the ground that the second amended complaint does not sufficiently state a claim for punitive damages.
" Both nominal and punitive damages also may be awarded where the defamatory material is libel per se. Where the court has found that the plaintiff has suffered a technical legal injury, the plaintiff is entitled to at least nominal damages ... In turn, an award of punitive damages is appropriate where the plaintiff has recovered nominal damages ... Furthermore, punitive damages are appropriate in a libel action where the court has found that the defendant acted with actual malice when publishing the defamatory material." (Citations omitted.) Lyons v. Nichols, 63 Conn.App. 761, 768-69, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001).
This court has already concluded that the defendant's alleged statements constitute defamation per se. Since it may be possible for the plaintiff to recover only nominal damages, it may be that an award of punitive damages would be appropriate. Therefore, the motion to strike the claim for punitive damages is denied.
V
CONCLUSION
For all of the foregoing reasons, the defendant's motion to strike the claim sounding in defamation is denied. The motion to strike the claim for relief due to the defendant's " harassment" is granted. The motion to strike the claims for intentional and negligent infliction of emotional distress is denied as moot. The motion to strike the claim for punitive damages is denied.
So ordered.