Opinion
No. CV 09-6005913-S
August 2, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE #111
A hearing on the motion referred to above was held on June 22, 2010. This action arises out of the attempts by the plaintiff, Wolf Colorprint, Inc., a printing company, to purchase a printing press. The defendants are MKM Importers, Inc. (MKM), which buys and sells printing equipment, and Michael Marino and Mark Marino, who are the officers and owners of MKM.
In the eighteen-count revised complaint, which it filed on April 16, 2010, the plaintiff alleges the following facts. In 2009, the plaintiff and the defendants had several conversations and meetings in which they discussed the possibility of the plaintiff purchasing a particular printing press that was owned by a third party, Pentagraphix Offset Printing, Inc. (Pentagraphix). Ultimately, the plaintiff offered to purchase the press directly from Pentagraphix, signed a contact to do so and sent Pentagraphix a check for a deposit on the purchase. Shortly thereafter, Pentagraphix deposited the check and sent the plaintiff a signed contract. In telephone conversations over the following days, Mark Marino told the plaintiff's president, Jack Meier, that he had learned of the purchase, that the plaintiff did not have the right to speak with Pentagraphix directly, but could only do so through MDM, and that the plaintiff would never get the press. Pentagraphix's owner, Jonathan Chung, then told Meier that Pentagraphix would not sell the press to the plaintiff because the defendants threatened and enticed Pentagraphix to not do so. In addition, Mark Marino falsely told Chung that Meier and Glenn Basale, the plaintiff's vice president, were dishonest and that the defendants had an exclusive agreement with the plaintiff to act as its representative in all of its printing press purchases. The defendants knew or should have known that their conduct would cause Pentagraphix to breach its contract to sell the press to the plaintiff and that this would harm the plaintiff's business, which it did.
Further, the plaintiff alleges that Bill Woodford, who is the president of another third party, C S Press, had previously told Basale that his company was interested in installing the press for the plaintiff. A short time later, Woodford told Balsale that the defendants had learned of this interest, and they threatened to stop giving him work if he continued to do work for the plaintiff. Woodford told Basale that C S Press would no longer submit bids to do installation and repair work for the plaintiff. The defendants knew or should have know that this conduct would reduce the competition for doing this work for the plaintiff, and cause the plaintiff to pay more for these services.
The plaintiff alleges the following causes of action; in counts one through three, a claim against each defendant for tortious interference with a business expectancy, as to its contract with Pentagraphix; in counts four through nine, two claims against each defendant for tortious interference with a business relationship, as to its relationships with Pentagraphix and C S Press; in counts ten through twelve, a claim against each defendant for violations of the Connecticut Unfair Trade Practices Act (CUTPA); in counts thirteen through fifteen, a claim against each defendant for defamation; and in counts sixteen through eighteen, a claim against each defendant for intentional infliction of emotional distress.
On April 21, 2010, the defendants filed a motion to strike in which they argue that every count of the complaint is legally insufficient to state a cause of action upon which relief can be granted. Moreover, they ask the court to grant their motion with prejudice as they have filed three motions to strike and the plaintiff has not remedied "any of the defects from its . . . earlier complaints." The plaintiff filed an objection to the defendants' motion on June 7, 2010, in which it argues that it has alleged adequate facts to support all of its causes of action. As the plaintiff accurately notes, the motion before the court is the defendants' second motion to strike, not its third. The defendants filed a reply on June 18, 2010.
DISCUSSION
The following procedural history is relevant to the defendants' motion to strike. The defendants filed their first motion to strike on December 8, 2009. Therein, they argued that each count of the plaintiff's operative complaint, which was then the amended complaint that the plaintiff filed on December 3, 2009, was legally insufficient for various particular reasons. The plaintiff did not file an objection to the motion. The court, Hale, J., granted the motion, but did not issue a written memorandum of decision. The revised complaint, which is presently the operative pleading, contains numerous factual allegations that were not in amended complaint. In their second motion to strike, the defendants argue not only that the plaintiff has failed to cure the legal insufficiencies that they raised in their first motion to strike, but they also raise additional grounds on which they contend that some of the counts are legally insufficient.
As to these additional grounds, it is noted that "[m]ost [trial] courts [that] have considered the issue have found that successive motions to strike are not appropriate. Although the appellate courts have not ruled on the issue, in numerous cases, the judges of the Superior Court have concluded that the rules of practice preclude a party from filing successive motions to strike when the grounds raised in a later motion could have been raised in the initial motion . . . [T]he judges reason that Practice Book [§ 10-41] provides that each motion to strike shall set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each claimed insufficiency . . . [Because] [t]he Practice Book provides for pleading multiple grounds in a single motion to strike and, further, provides that pleadings are to advance after the adjudication of each enumerated pleading, a defendant may not impede the progress of the suit by dividing his grounds and pleading them in consecutive motions to strike . . . [Therefore], a defendant who has failed to raise all grounds for striking a complaint may not [later] file a second motion to strike asserting additional grounds . . ."
"[Nevertheless], [a] second motion to strike may be appropriate in limited circumstances. For example, when a plaintiff pursuant to Practice Book § 10-44, files a subsequent pleading alleging new facts . . . Additional motions to strike, however, are not allowed when the grounds asserted therein could have been raised in an earlier motion." (Internal quotation marks omitted.) Grant v. James Street, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 5027291 (July 2, 2009, Zoarski, J.) ( 48 Conn. L. Rptr. 192, 194). Although the defendants' second motion to strike arguably falls within this category, "the seemingly large loophole created by the allowance of successive motions to strike in the wake of new factual allegations is not as gaping as it first appears." Grazioli v. Nichols, Superior Court, judicial district of New Haven, Docket No. CV 06-5001604 (October 2, 2007, Lopez, J.) ( 44 Conn. L. Rptr. 273, 275). Even in those circumstances, the party filing the subsequent motion to strike must confine itself to grounds that pertain to the new factual allegations in the amended pleading, and the court properly declines to consider grounds that the movant could not have raised in its initial motion. Id. According, the court declines to consider the grounds that the defendants raise in their second motion to strike that they could have, but did not, raise in their first motion to strike.
Practice Book § 10-44 provides in relevant part: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . ."
As to the question of whether the plaintiff cured the deficiencies that were present in its amended complaint, the doctrine of the law of the case is relevant. "The law of the case doctrine applies where a motion to strike is directed to an amended complaint that is substantially the same as a previous version thereof which was already stricken." Haven Health Center v. Parente, Superior Court, judicial district of Litchfield, Docket No. CV 03 0091743 (January 18, 2006, Bozzuto, J.). Assuming the judge considering the second motion to strike agrees with the ruling of the judge on the first motion to strike, "[i]f the amended complaint state[s] a new cause of action, the [motion to strike] should [be] denied. If, however, the amended complaint mere restate[s] the original cause of action, without curing the defect, the [motion to strike] [is] properly granted." (Internal quotation marks omitted.) Melfi v. Danbury, 70 Conn.App. 679, 684, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002). After reviewing the plaintiff's amended complaint and the defendants' first motion to strike, this court concludes that Judge Hale correctly decided that the motion should be granted.
"The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . 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 . . . Where 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 . . ."
"[The Supreme Court] has determined that although a judge should be hesitant to rule contrary to another judge's ruling, he or she may do so [n]evertheless, if the case comes before him [or her] regularly and [the judge] becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed . . ." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008).
The next issue is whether the plaintiff, in its revised complaint, cured the deficiencies that the defendants relied upon in their first motion. In this regard, it is noted that "[t]he function of a motion to strike is to test the legal sufficiency of a pleading; it admits all facts well pleaded. The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs to determine whether the plaintiffs have stated a legally sufficient cause of action." Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).
On the other hand, in ruling on a motion to strike, the nonmovant's legal conclusions are not "deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). Therefore, "[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, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
CT Page 15566
Counts One Through Nine Tortious Interference with Business Expectancy and Business Relationships
In their first motion to strike, the defendants maintained that the plaintiff's claims for tortious interference with business expectancy and tortious interference with business relationships were legally insufficient because the plaintiff failed to allege that it suffered an actual loss as a result of their conduct. As to this issue, in its amended complaint, the plaintiff merely alleged that "[a]s a direct result of [the defendant's] purposeful actions [in interfering with its relationships with Pentagraphix and C S Press, Inc.], Plaintiff has suffered great financial harm and detriment."In the revised complaint, the plaintiff incorporates into counts one through nine allegations that the defendants' conduct prevented the plaintiff from purchasing the printing press from Pentagraphix, which, in turn, prevented it from soliciting and obtaining additional work that was suited to the press; prevented it from increasing its profitability by improving its efficiency; caused it to incur additional labor costs; and reduced its pricing flexibility. In addition, the plaintiff alleges that the defendants' conduct caused C S Press to decline to bid on the plaintiff's repair and installation work, which, in turn, reduces the competition for such work and will cause the plaintiff to pay higher prices for such services, thereby increasing the plaintiff's expenses and decreasing its profits. In their second motion to strike, the defendants argue that the new allegations are merely conclusory and based on speculation, and these counts are still legally insufficient on this basis. The plaintiff counters that its additional allegations are sufficiently specific to provide notice of the damages it claims to have incurred as to these counts.
"[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32-33, 761 A.2d 1268 (2000). Similarly, "[a] claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' 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." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).
As to both causes of action, the Supreme Court has stated the following as to the actual loss element: "Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss." (Citation omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 33 (discussing tortious interference with business expectancy); see Appleton v. Board of Education, supra, 254 Conn. 213 (discussing tortious interference with business relationships). "Therefore, in order to survive a motion for summary judgment the plaintiff must allege an `actual loss' resulting from the improper interference with [its] contract . . . [T]he tort is not complete unless there has been actual damage suffered." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 213.
The Supreme Court has also noted that "`[a] major problem with damages of this sort . . . is whether they can be proved with a reasonable degree of certainty . . . If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant's interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was "made hypothetical by the very wrong" of the defendant. Sometimes, when the court is convinced that damages have been incurred but the amount cannot be proved with reasonable certainty, it awards nominal damages.' Restatement (Second), Torts § 774A, comment (c) (1979). Thus, an award of compensatory damages is not necessary to establish a cause of action for tortious interference as long as there is a finding of actual loss, and a finding of actual loss may support an award of punitive damages." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 34.
Here, the plaintiff's allegations are necessarily hypothetical, and whether it will be able to prove them with a reasonable degree of certainty is a matter for the trier of fact. The allegations are, however, sufficient to satisfy the requirement that the plaintiff must allege sufficient facts to show that it sustained an actual loss due to the defendants' conduct. Therefore, the defendants' motion to strike is denied as to counts one through nine.
Counts Ten Through Twelve Violations of CUTPA
In their first motion to strike, the defendants argued that the plaintiff had not adequately alleged claims that the defendants violated CUTPA because it did not allege that it had a business relationship with the defendants. In the amended complaint, the plaintiff alleged that it entered into an agreement to purchase the press from Pentagraphix, and Chung then informed him that he could not sell the press to the plaintiff because the defendants threatened and enticed him not to fulfill Pentagraphix's contract with the plaintiff. The plaintiff also alleged that Michael Marino told the plaintiff's president that it would never get the press. The plaintiff incorporated these allegations into its CUTPA counts, and alleged that the defendants' actions violated CUTPA in that the conduct constituted unfair and deceptive acts in the conduct of the defendants' business, and caused the plaintiff to suffer financial harm and detriment.In the revised complaint, the plaintiff adds numerous allegations regarding the contacts that it had with the defendants prior to the time that Pentagraphix notified it that the defendants had threatened and enticed it not to sell the press to the plaintiff. Specifically, the plaintiff alleges that: it notified Mark Marino that it was searching for a press; MKM made several offers to sell the press at issue and another press to the plaintiff, at his request, Mark Marino visited the plaintiff's office and discussed the possible purchase of a press; Mark Marino, Meier and Basale visited the Pentagraphix plant together to look at the press, and Mark Marino made several representations to the plaintiff regarding the ownership of the press. The plaintiff incorporates these allegations into counts ten through twelve, and adds that the defendants are engaged in the trade or commerce of selling printing equipment, that their conduct constituted unfair and deceptive acts as that term is used in CUTPA, and that the plaintiff suffered financial harm as a result of this conduct.
In their second motion to strike, the defendants argue the plaintiff's CUTPA claims remain legally insufficient in that the plaintiff does not allege that the parties had a business relationship. They also add three other grounds for striking these claims, specifically, they are legally insufficient in that: the conduct on which the claims are premised was not done in the conduct of trade or commerce; the claims are premised upon one isolated act; and the plaintiff does not allege that it sustained an ascertainable loss. The court declines to consider these additional grounds as the defendants could have raised them in their first motion to strike, but did not do so. As to the ground at issue, the plaintiff counters that its allegations show that the defendants were actively engaged in trying to sell a printing press to the plaintiff and treated the plaintiff as a potential customer.
"CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, [General Statutes] § 42-110b(a), states merely that `[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.' General Statutes § 42-110b(a). Trade or commerce, in turn is broadly defined as `the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.' General Statutes § 42-110a(4). The entire act is remedial in character; General Statutes § 42-110b(d) . . . and must be construed liberally in favor of those whom the legislature intended to benefit." (Citation omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 212-13, 680 A.2d 1243 (1996).
Nevertheless, "[a]lthough our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA. See Ventres v. Goodspeed Airport, LLC, [ 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006)]. . ." (Citations omitted; emphasis in original.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006).
Clearly, the plaintiff has alleged adequate facts to satisfy the requirement that it allege that it had a business relationship with the defendants. Contrary to the defendants' arguments, the plaintiff is not required to allege that it was a customer of or in competition with the defendants. In Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 643, 804 A.2d 180 (2002), the court emphasized that "[w]e have previously stated in no uncertain terms that CUTPA imposes no requirement of a consumer relationship . . . [W]e [have] concluded that CUTPA is not limited to conduct involving consumer injury and that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury." (Citation omitted; internal quotation marks omitted.) As the Appellate Court has noted, in Ventres, "[t]he court observed that . . . in Macomber v. Travelers Property Casualty Corp., supra, 262 Conn. 626, the parties had . . . a business relationship with each other because, although the plaintiffs were neither consumers nor competitors of the defendant, they had entered into settlement agreements with the defendant. Ventres v. Goodspeed Airport, LLC, supra, [ 275 Conn.] 157-58." Pinette v. McLaughlin, supra, 96 Conn.App. 778 n. 9.
Furthermore, contrary to the defendants' assertion, the plaintiff has not expressly denied that it had any business relationship with the defendants. Instead, in the portion of the complaint that the defendants rely upon for this assertion, the plaintiff alleges that the defendants' statement that they had an exclusive agreement to represent the plaintiff in all of its printing press purchases was false in that the plaintiff did not enter into such an agreement with the defendants. This allegation does not negate the plaintiff's allegations regarding the nature of its relationship with the defendants.
Accordingly, the defendants' motion to strike is denied as to counts ten through twelve.
Counts Thirteen through Fifteen Defamation
In their first motion to strike, the defendants argued that the plaintiff's claims for defamation were legally insufficient because the plaintiff failed to allege that they made any defamatory statements and did not plead its claims with adequate specificity. In the amended complaint, the plaintiff merely alleged, without providing any details, that the defendants published false comments that the plaintiff lacked integrity and had engaged in dishonest conduct to third parties, that the defendants knew that the statements were false and the statements caused the plaintiff to suffer financial harm.
In the revised complaint, the plaintiff adds the following allegations that pertain to counts thirteen through fifteen: Pentapraphix's president told Meier and Basale that Mark Marino told him that Meier and Basale were dishonest and that the defendants had an exclusive agreement to represent the plaintiff in its purchases of a printing press; these statements were false and impugned the plaintiff's integrity; the defendants knew or should have known that these statements were false and that would cause harm to the plaintiff, they made the statements with malice and to harm the plaintiff, and the statements harmed the plaintiff in several specific ways. In their second motion to strike, the defendants contend that these counts are legally insufficient because the plaintiff has not alleged any facts showing that any of the defendants made any statements in which they disparaged the plaintiff's credit, property or business; to the extent that the plaintiff is attempting to recover for the defamation of its officers, it is not the proper party to assert the claims; and the plaintiff has still not pleaded its claims with sufficient particularity. The plaintiff contends that it has adequately stated a claim for trade defamation.
In a footnote, the defendants add that the court should strike the plaintiff's defamation claim as to MKM because "[a]s a matter of law, it is impossible for a corporate entity to `defame' anybody." The court declines to consider this ground for two reasons: the defendants did not raise it in their initial motion to strike; and they do not cite to an authority for their argument, see Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) ("[w]e are not obligated to consider issues that are not adequately briefed . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived . . . In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority . . . will not suffice." (Citations omitted; internal quotations omitted)).
"Defamation or disparagement of a business' goods and services may be considered trade libel . . . and is recognized by Connecticut . . . courts as a species of defamation . . . The torts of trade libel and commercial disparagement, like defamation, require that the alleged damaging statement be make concerning the plaintiff." (Citations omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 358-59, 773 A.2d 906 (2001). "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . ." (Internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
In the present case, the plaintiff alleges that, the defendants, in the course of their discussions with Chung regarding the plaintiff's attempt to purchase a printing press from his company, falsely told Chung that Meier and Basale, the plaintiff's president and vice president, respectively, were dishonest, and that the defendants had an exclusive agreement to represent the plaintiff in its purchase of printing presses. These allegations are sufficiently specific and adequately state that the defendants made false statements that disparaged the plaintiff's reputation so as to lower it in the estimation of the business community or to deter others from dealing with the plaintiff. Accordingly, the defendants' motion to strike is denied as to counts thirteen through fifteen.
Counts Sixteen Through Eighteen Intentional Infliction of Emotional Distress
In the amended complaint, the plaintiff alleged that the defendants interfered with its efforts to purchase the printing press from Pentagraphix by threatening and enticing Chung to decline to fulfill his company's contract with the plaintiff and by telling Chung that they had an exclusive contract with the plaintiff regarding its purchase of a press. By incorporation into the counts for intentional infliction of emotional distress, the plaintiff alleged that the defendants engaged in this conduct with the intent to inflict emotional distress on the plaintiff, their conduct was extreme and outrageous and caused the plaintiff to suffer severe emotional distress. The defendants moved to strike these counts on the grounds that the conduct upon which they were premised was not extreme and outrageous and because the plaintiff did not specify the threats and enticements that they allegedly made to Chung.
In the revised complaint, as to these causes of action, the plaintiff adds the following allegations: Mark Marino made several misrepresentations to Meier regarding the ownership of the press; after the plaintiff entered into a contract with Pentagraphix to buy the press, Mark Marino told Meier that the plaintiff did not have the right to communicate with Chung or Pentagraphix directly and could only do so through the defendants, and that the plaintiff would never get the press; Chung told Meier and Basale that his company would not sell the press to the plaintiff because the defendants had threatened and enticed Pentagraphix; Chung told Meier and Basale that Mark Marino said they were dishonest and that the defendants had an exclusive agreement to represent the plaintiff in its purchase of a press, and Marino's statements were false; and Woodford, the president of C S Press, told Basale that the defendants threatened that they would stop giving work to his company if he continued to work for the plaintiff, and as a result, C S Press would no longer bid to provide services to the plaintiff. The plaintiff incorporates these allegations into counts sixteen through eighteen and alleges that the defendants engaged in this conduct with the intent to inflict emotional distress on the plaintiff, the conduct was extreme and outrageous, and it caused the plaintiff to suffer severe emotional distress.
In their second motion to strike, the defendants move to strike these counts on the grounds that they are legally insufficient because the plaintiff is a corporation, and therefore, cannot suffer emotional distress; and the conduct on which the claims are premised is not extreme and outrageous. The defendants did not raise the first ground in their first motion to strike, although they could have done so. Therefore, the court declines to consider it in the context of the present motion. Regarding the ground at issue, the plaintiff does not offer a specific objection.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
As to the second element, which is the only one presently at issue, the Appellate Court has noted that, "[i]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme and outrageous." (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 492 (2010). "Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 433, 443.
In this case, the conduct that the defendants allegedly engaged in is not sufficiently outrageous in character and so extreme in degree as to be regarded as atrocious. Although they may have engaged in unacceptable behavior, it was not sufficiently extreme and outrageous to support the plaintiff's claims for intentional infliction of emotional distress.
Accordingly, the defendant's motion to strike is granted as to counts sixteen through eighteen.
To summarize, for the foregoing reasons, the court denies the defendants' motion to strike as to counts one through fifteen, and grants the motion as to counts sixteen through eighteen.