Donald E. Berg v. City of Stamford et al. (2010)

MEMORANDUM OF DECISION

The defendant the City of Stamford has moved to strike the First, Second, Third, Fifth, and Eighteenth Counts from the plaintiffs' Third Revised complaint.   The defendant has moved to strike the First, Third, and Fifth Counts of the Third Revised Complaint on the grounds that it fails to allege sufficient facts to plead an agency relationship between the City of Stamford and Long Ridge Fire Company, Inc., that there can be no vicarious liability of the City and Long Ridge Fire Company, Inc. pursuant to General Statutes § 52-557n, and on the grounds that it fails to allege a legally sufficient cause of action for negligent infliction of emotional distress.   The defendant has also moved to strike the Second Count of the Third Revised Complaint on the grounds that the defendant City of Stamford and its officials had no duty to assert control over the defendant Long Ridge Fire Company, Inc. and its officials.   The defendant further moves to strike the Eighteenth Count of the Third Revised Complaint on the grounds that the count is legally insufficient both as the captioned claim of vicarious responsibility of the city for the acts of an alleged agent as well as for the claim that the city was a guarantor of Long Ridge's performance of a collective bargaining agreement.

The plaintiff filed a memorandum in opposition to the defendant City of Stamford's Motion to Strike and oral argument was heard on this motion on May 17, 2010.   The court has reviewed the written submissions by the parties and considered the lengthy arguments made on May 17, 2010.

I

DISCUSSIONLegal Standards for Motion to Strike

Under Practice Book § 10-39, “whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief may be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim, cross complaint, or any count thereof.”

The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.  Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).  “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 by the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

“For the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   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).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”   (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint] construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action.”  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “[I]f facts provable in the complaint would support the cause of action, the motion to strike must be denied ․ Moreover, ․ [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 form the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, supra, 280 Conn. 318.  “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).

As set forth above, the defendant City of Stamford has moved to strike the First, Third, and Fifth Counts of the Third Revised Complaint on the grounds that it fails to allege sufficient facts to plead an agency relationship between the defendant City of Stamford and defendant Long Ridge Fire Company, Inc., on the grounds that there can be no vicarious liability of the City and defendant Long Ridge Fire Company, Inc. pursuant to General Statutes § 52-557n, and on the grounds that it fails to allege a legally sufficient cause of action for negligent infliction of emotional distress.   The defendant City of Stamford has also moved to strike the Second Count of the Third Revised Complaint on the grounds that the defendant and its officials had no duty to assert control over defendant Long Ridge Fire Company, Inc. and its officials.   The defendant City of Stamford further moves to strike the Eighteenth Count of the Third Revised Complaint on the grounds that the count is legally insufficient both as the captioned claim of vicarious responsibility of the city for the acts of an alleged agent as well as for the claim that the defendant City of Stamford was a guarantor of Long Ridge's performance of a collective bargaining agreement.

After reviewing the allegations in the First, Third, and Fifth Counts of the plaintiff's Third Revised Complaint, and construing these Counts of the Third Revised Complaint in the manner most favorable to sustaining its legal sufficiency, this Court concurs with the arguments made by the plaintiff in oral argument and in its memorandum in opposition to the defendant City of Stamford's Motion to Strike and denies defendant's Motion to Strike the First, Third and Fifth Counts.

After reviewing the allegations in the Second Count of the plaintiff's Third Revised Complaint, and construing this Count of the Third Revised Complaint in the manner most favorable to sustaining its legal sufficiency, this Court concurs with all of the arguments made by the defendant City of Stamford in its memorandum in support of Motion to Strike and in oral argument and grants its Motion to Strike the Second Count.   With respect to the plaintiff's Eighteenth Count, and construing this Count of the Third Revised Complaint in the manner most favorable to sustaining its legal sufficiency, the court concurs with the defendant City of Stamford's guarantor arguments set forth in its memorandum in support of Motion to Strike and in oral argument, and grants the Motion to Strike the Eighteenth Count of the Third Revised Complaint.

II

CONCLUSION

Accordingly, based on the foregoing, defendant's Motion to Strike the First, Third and Fifth Counts of the plaintiff's Third Revised Complaint is denied and its Motion to Strike the Second and Eighteenth Counts of the Third Revised Complaint is granted.

BY THE COURT

Ozalis, J.

Ozalis, Sheila A., J.