Synthia I. Brooks v. Sallie Mae Inc. (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 117

FACTUAL BACKGROUND

On November 20, 2009, the plaintiff, Synthia I. Brooks, filed a one-count complaint against the defendant, Sallie Mae, Inc. This action arises out of the plaintiff's denied application to defer her loans through the defendant via the economic hardship program.   The defendant filed a motion to strike and a memorandum in support on January 14, 2010.   In response, the plaintiff filed an opposition on March 5, 2010, to which the defendant filed a reply on April 21, 2010.   The matter was heard at short calendar on May 24, 2010.

DISCUSSION

“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).  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 260, 765, A.2d 505 (2001).   The role of the court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 118 (2006).   “A motion to strike ․ does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1977).

The defendant argues that the plaintiff fails to state a Connecticut Unfair Trade Practices Act (CUTPA) cause of action because she does not allege:  (1) conduct that violates public policy;  (2) conduct that is immoral, unethical, oppressive or unscrupulous;  (3) facts sufficient to show a substantial injury to consumers;  or (4) that she reasonably was unable to avoid any ascertainable loss.   The plaintiff responds that the plaintiff's motion to strike addresses the original complaint and not the amended complaint.   Further, the facts alleged amount to immoral, unethical, oppressive or unscrupulous conduct, and that the facts alleged show substantial injury.   The defendant replies that the allegations of the plaintiff's complaint (or amended complaint) cannot plausibly support a CUTPA claim, that even if this court were to accept the filing of the amended complaint, it should still be stricken as a matter of law, and that the plaintiff's objection is late and should not be considered.

VALIDITY OF AMENDED COMPLAINT

Before delving into the assessment of the sufficiency of the plaintiff's allegations, several procedural issues must be resolved.   First, the defendant argues that the plaintiff's opposition to the defendant's motion to dismiss was filed in an untimely manner, as the motion to dismiss was filed on January 14, 2010, and opposition papers were not filed until March 5, 2010.   The defendant filed a motion for extension of time on January 20, 2010, which the court granted on February 3, 2010, ordering the defendant to file it's opposition by March 1, 2010.   Accordingly, the defendant filed its opposition four days later than the court order required.   This problem is not a jurisdictional one, however, the court has the discretion to consider the defendant's opposition.   See Phillips Industrial Service Corp. v. Connecticut Light & Power Co., Superior Court, judicial district of New Haven, Docket No. 409665 (March 22, 1999, Levin, J.) (stating that “[a] trial court ․ has discretion to examine the contents of an untimely opposition memorandum where doing so will not prejudice the moving party”);  see also Margaitis v. Deacon, Superior Court, judicial district of Litchfield, Docket No. CV 04 4000439 (February 15, 2005, Bozzuto, J.) (38 Conn. L. Rptr. 752, 754 n.1) (holding that despite untimely filing of memorandum of opposition under Practice Book, court will utilize discretion in considering merits of plaintiff's memorandum in opposition).

Furthermore, contemporaneously with the opposition to the defendant's motion to strike, the plaintiff filed a request for leave to amend the complaint, and an amended complaint, on March 5, 2010.   In its reply to the opposition, the defendant argues that the plaintiff's amended complaint should not be considered by the court, however also argues that the amended complaint does not add to the allegations in a significant way, stating that the arguments in its motion to strike still apply, and urging the court to strike the complaint.   As the amended complaint was filed properly and timely, it is now the operative complaint.   If the court were to decide that the motion to strike only applies to the original complaint, then the motion to strike must be denied, not necessitating any further discussion by the court, and the defendant must file a new motion to strike the appropriate pleading.

According to the defendant's own arguments in its reply, however, it appears that the defendant acknowledges the validity of the amended complaint and, in fact, notes that the motion to strike must not be repleaded, as the arguments still apply to the amended complaint.   Further, judicial discretion permits the court to consider the amended complaint in light of a pending motion to strike in the interest of judicial economy.   Acknowledging that “[t]he issue of whether a request for leave to amend a complaint may be properly filed in response to a pending motion to strike has not yet been resolved by our appellate courts,” the court in Newlands v. NRT Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 4027098 (April 28, 2010, Tyma, J.) [49 Conn. L. Rptr. 704], discussed:  “Certainly, judicial expediency and economy are well served by the court exercising its discretion and permitting an amended complaint to be filed in response to a pending motion to strike.   The amended complaint could eliminate some, or all, of the issues of legal sufficiency from needless consideration and decision by the court.   This fact is highlighted by our rules of practice that ‘[w]ithin fifteen days after the granting of any motion to strike, a party whose pleading has been stricken may file a new pleading ․’ Practice Book § 10-44.”   This court follows the reasoning in Newlands, and thus assesses the motion to strike in the present case addressing the amended complaint.

CUTPA

CUTPA provides that:  “No 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).  “It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]omission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having previously been considered unlawful, offends public policy as it has been established by statutes, the common-law, statutory, or otherwise-in other words, it is within at least penumbra of some common-law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.”  (Internal quotation marks omitted.)   Naples v. Keystone Building & Development Corp., 295 Conn. 214, 227-28, 990 A.2d 326 (2010).

As to whether an allegation of a single act is sufficient under CUTPA, the Appellate Court in Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 351-52, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002), has stated:  “Our interpretation of § 42a-110g is supported by case law in which, albeit without discussion of the issue, CUTPA has been held to apply to a single act of misconduct.   Our Supreme Court so held in Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 259, 550 A.2d 1061 (1988), in which that court found that the single act of dismantling a mobile home violated CUTPA.   This court, again without statutory analysis, came to a similar conclusion in Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992) (single controversy about space in a campground).”   Further, “[p]rofessional negligence or malpractice, does not fall under CUTPA.”  Anderson v. Schoenhorn, 89 Conn.App. 666, 674, 874 A.2d 798 (2005).

In the present case, the plaintiff alleges that she was contacted by the defendant on four separate instances, requesting further information to complete the application.   Among the documents requested was the most recent federal tax return.   Subsequent to various supplemental submissions by the plaintiff, however, the defendant requested the plaintiff's 2007 federal tax return as required to complete the application, as it was April 2008 already at that point in time.   The plaintiff did not have that document and offered to submit a copy of her 2007 federal tax return extension as proof to the defendant.   The plaintiff alleges that she, as well as her financial advisor on her behalf, repeatedly asked why the problematic tax return was necessary for the completion of the application, and why the 2006 federal tax return was not sufficient for an application submitted in December 2007, particularly after she had been told that she was eligible based upon the 2006 federal tax return.   The defendant is alleged to have informed the plaintiff that quarterly tax statements, quarterly withholding statements or recent paystubs were the only other thing acceptable besides the actual 2007 federal tax return, all things which the plaintiff was unable to provide.   The plaintiff alleges that the defendant at no time stated to the plaintiff what other information she could supply in lieu of a 2007 federal tax return, all things which the plaintiff was unable to provide.   The plaintiff alleges that the defendant at no time states to the plaintiff what other information she could supply in lieu of a 2007 federal tax return, and in fact refused to inform the plaintiff what other information could be submitted.   The plaintiff further alleges that eventually the defendant merely told her to pay the bill, that the defendant purposefully delayed the processing of the claim in order to drive up late fees, misrepresented the documentation requirements for eligibility for economic hardship program.   As a result of all of the actions alleged, the plaintiff's application was denied, defaulting her loans, and causing late charges and excessive collection fees to be assessed, as well as interest to accrue, and negative information to be reported to consumer credit reporting agencies.   A motion to strike challenges the legal sufficiency of a pleading and, consequently requires no factual finding by the trial court.   The court considers the facts alleged in the complaint construed in a manner most favorable to sustaining its legal sufficiency.  American Progressive Life and Health Ins. Co. of New York et al. v. Better Benefits, LLC et al., 292 Conn. 111, 119-20, A.2d (2009).   These allegations on their face, as construed in favor of the plaintiff, reach beyond professional negligence, and constitute allegations of international conduct rising to the level of immoral, unethical, oppressive, or unscrupulous conduct, and causing substantial injury to consumers.

CONCLUSION

Based upon the above, the plaintiff sufficiently alleges a CUTPA violation, and the motion to strike the plaintiff's complaint (amended complaint) is denied.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.