Reinaldo Madera v. Hartford Housing Authority et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 124 (ALAN E. GREEN)

The plaintiff, Reinaldo Madera, filed a two-count amended complaint on March 4, 2010, against the following defendants, Hartford Housing Authority (housing authority);  Alan E. Green, individually and in his official capacity as executive director of the housing authority;  Sharon Burts, individually and in her official capacity as scattered sites manager of the housing authority;  Advance Communications, Inc., doing business as Holly's Message Service, Inc.;   and Beatriz Santana.¹  In count one of the amended complaint, which the plaintiff entitles “Illegal Recording (Conn.Gen.Stat. § 52-570d),” the plaintiff alleges the following facts.   The plaintiff is employed by the housing authority.   During the relevant time period, Green ² has been the executive director of the housing authority, Burts has been the scattered sites manager for the housing authority and Burts has been the plaintiff's supervisor.   During this time, the housing authority retained the services of Holly's Message Service, Inc., or alternatively, of Advance Communications, Inc., doing business as Holly's Message Service,³ to provide the authority with telephone answering services and dispatch all after hour and holiday emergency calls.   Santana was an employee or agent of the message service.   On or about January 18, 2009, Burts directed and/or conspired with the message service, through its employees and/or agents including Santana, to surreptitiously record Burt's telephone conversations with the plaintiff and to record the telephone conversations of several other employees of the housing authority without the employees' knowledge and/or consent.   The housing authority, Green and/or Burts subsequently used the recorded telephone conversations in disciplinary proceedings against the plaintiff, which resulted in his being suspended for sixty days.   These actions of all of the defendants violated General Statutes § 52-570d and caused the plaintiff to suffer damages.   In count two, breach of the right to privacy, the plaintiff alleges that these actions by all of the defendants constitute an unreasonable intrusion into the plaintiff's seclusion and/or violated the plaintiff's privacy rights and caused him to suffer damages.

On March 5, 2010, Green filed a motion to strike count one as it pertains to him on the ground that there are no allegations that he was involved in any way in recording the telephone calls on January 18, 2009.   Green moves to strike count two as it pertains to him on the grounds that there are no allegations that he violated the plaintiff's privacy or was in any way involved in the alleged recording.

“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).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff 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).  “Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, we note that [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).⁴

COUNT I

The defendants argue that count one should be stricken as to them on the ground that the plaintiff has failed to state a claim upon which relief can be granted because he failed to allege that Green taped, recorded or was in any way involved in the recording of the telephone conversations and General Statutes § 52-570d, which prohibits the recording of private telephone conversations without the consent of all parties, must be strictly construed in that it creates a statutory cause of action not available at common law.   Green points out that the plaintiff's only allegation pertinent to Green's conduct is that he used the recordings in disciplinary proceedings against the plaintiff, which is not sufficient to state a cause of action under § 52-570d.

In opposition to the motion to strike count one, although the plaintiff counters that he alleged that both the housing authority and Burts conspired with the message service to record the conversations at issue, he has not made this allegation.   In addition, although he appears to recognize that the statute does not expressly provide for a cause of action for conspiracy, the plaintiff contends that the allegations that Green used the recorded conversations in disciplinary proceedings against the plaintiff are sufficient to state a claim that Green joined the conspiracy formed by Burts and the message service to deprive the plaintiff of his rights, and that this conduct constitutes a violation of § 52-570d.   The plaintiff further states that he “should not be deprived of his cause of action because the legislature was imprecise in its statutory language.”   Green argues that even if the statute could be construed to allow a conspiracy claim, the plaintiff's allegations are insufficient in that he does not allege that Green engaged in any unlawful conduct or joined in a conspiracy to do so.

General Statutes § 52-570d provides, in pertinent part:  “(a) No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use ․ (c) Any person aggrieved by a violation of subsection (a) of this section may bring a civil action in the Superior Court to recover damages, together with costs and a reasonable attorneys fee.”

The plain language of the statute indicates that it is limited to providing a cause of action against those who participate in the recording of conversations.⁵  The Appellate Court has explained the limitations of the statute as follows:  “Section 52-570d creates a statutory cause of action that was not available at common law.   Therefore, the language of the statute must be strictly construed ․ Strictly construed, § 52-570d prohibits the taping of a private telephone conversation, not the re-recording of an illegally taped conversation by a third party.”  (Citations omitted;  emphasis added.)  Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 770, 706 A.2d 1379 (1998).   In that case, the court held that the trial court properly granted the defendant's motion to strike, as it concluded that he did not violate § 52-570d by re-recording a conversation that was taped by someone else.  Id. As a judge of the trial court has stated:  “[Section] 52-570d does not prohibit the use of an illegally recorded conversation, but only the act of illegally recording the conversation.”   Smith v. Hartford Firefighters, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0565304 (March 14, 1997, Aurigemma, J.) [19 Conn. L. Rptr. 314].

Even if the court were inclined to agree that the statute would support a cause of action for civil conspiracy, the plaintiff has not, as Green correctly argues, alleged sufficient facts to support such a claim against him.  “[T]here is no independent claim of civil conspiracy.   Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself ․ Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Harp v. King, 266 Conn. 747, 779 n.37, 835 A.2d 953 (2003).  “The [elements] of a civil action for conspiracy are:  (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.”  (Internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 100 n.34, 952 A.2d 1 (2008).

In the present case, in count one, the plaintiff alleges that Burts directed and conspired, or both, with the message service through its employees or agents to surreptitiously record the telephone conversations between Burts and the plaintiff, and that the housing authority, Green and/or Burts used the allegedly unlawfully recorded conversations in disciplinary proceedings against the plaintiff, which resulted in damages to the plaintiff.   The facts alleged fail to support the first, second and third elements of a civil conspiracy to violate § 52-570d because the plaintiff has not alleged that Green entered into an agreement or engaged in an unlawful act, a lawful act by unlawful means or that he entered into an agreement or a scheme to promote any unlawful act.   The allegations that other defendants directed or conspired, or both, to have the conversations recorded do not necessarily imply that Green did so.  “[T]he purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor's conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing.”  (Internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 101.   Therefore, the motion to strike count one as to Green must be granted.

COUNT II

Green also argues that the court should strike count two, in which the plaintiff alleges that the defendants breached his right of privacy, as it pertains to Green because there are no allegations that Green violated the plaintiff's privacy or was in any way involved in the alleged recording of the telephone calls.   According the defendant, the plaintiff's claim is solely based on his allegation that his telephone conversations were illegally recorded and that Green used the recording in disciplinary proceedings against the plaintiff and the claim must be stricken.   The plaintiff counters that his cause of action for invasion of privacy is also premised on his allegations of Green's use of the recording in the disciplinary hearing and support a claim that Green joined in a conspiracy to invade his privacy.   Green replies that the plaintiff's allegations do not support a claim that Green unreasonably intruded on the plaintiff's privacy.   The plaintiff counters that he had the right to expect that his telephone conversations with Burts would not be recorded without advance notice and that Burts and Green would not use the illegally obtained recording in disciplinary proceedings against him.   Green's use of the recording breached the plaintiff's right to privacy.

“Connecticut has recognized the tort of invasion of privacy.”  Perkins v. Freedom of Information Commission, 228 Conn. 158, 171-72 n.16, 635 A.2d 783 (1993).  “[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone ․ The four categories of invasion of privacy are ․ as follows:  (a) unreasonable intrusion upon the seclusion of another;  (b) appropriation of the other's name or likeness;  (c) unreasonable publicity given to the other's private life;  or (d) publicity that unreasonably places the other in a false light before the public.”  (Citation omitted;  internal quotation marks omitted.)  Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007).

Count two is premised on the first category.  “The Connecticut Appellate Courts have yet to interpret what constitutes ․ an unreasonable intrusion upon the seclusion of another ․ The Supreme Court, however, has often adopted the Restatement [ (Second) of Torts] when adjudicating an invasion of privacy claim ․ and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another.”  (Citations omitted;  internal quotations omitted.)   Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No. CV 06 5005107 S (July 20, 2009, Wilson, J.) According to that source, “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other ․ [t]he invasion may be by physical intrusion into a place in which the plaintiff has secluded himself.   It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or taping his telephone wires.”  (Citations omitted;  internal quotation marks omitted.)  Id. (quoting 3 Restatement (Second), Torts § 652B, p. 378 (1977).

In the present case, the plaintiff has alleged that Green used conversations that were recorded without the plaintiff's prior knowledge or consent in disciplinary proceedings.   Because the plaintiff has failed to allege that Green intentionally intruded, physically, or by the use of his senses, with or without mechanical aids, on the plaintiff's private affairs, the allegations are not sufficient to state a cause of action against Green for unreasonable intrusion on the plaintiff's seclusion.   Additionally, the plaintiff has failed to allege that Green acted in combination with other persons or directed other persons to intentionally intrude, physically or by use of his or her senses, with or without mechanical aids, on the plaintiff's private affairs.   The allegations, considered in the light most favorable to sustaining legal sufficiency, do not state a cause of action against Green for conspiracy to unreasonably intrude upon the plaintiff's seclusion.   Therefore, the motion to strike as to count two as to Green must be granted.

GREEN AS NECESSARY PARTY

The plaintiff further argues that even if Green's motion is granted as to both counts, the court should order Green to remain a named defendant in this action because he is a necessary party.   The plaintiff contends that Green is a necessary party because, as the executive director of the housing authority, Green would have to carry out and/or enforce a court order to permanently enjoin the defendants, their employees and/or agents from any and all future attempts and/or efforts to record telephone conversations of the plaintiff and all other employees of the housing authority in violation of § 52-570d.   Green counters that there is no merit to the claim that he would be responsible for enforcing any injunctive relief.

General Statutes § 52-107 states:  “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others;  but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in ․” “Necessary parties ․ are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may ․ do complete justice, by adjusting all the rights involved in it ․ [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable ⁶ parties ․ A party is deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial ․” (Citations omitted;  internal quotation marks omitted.)  In re Devon B., 264 Conn. 572, 579-80, 825 A.2d 127 (2003).

The plaintiff has alleged that Green is the executive director of the housing authority.   This fact does not demonstrate that the court will be unable to determine this entire controversy and do complete justice without the presence of Green as a named party.

CONCLUSION

Accordingly, for all the foregoing reasons, the motion to strike counts one and two of the amended complaint is hereby granted as to the defendant Green.

Peck, J.

FOOTNOTES

FN1. The documents that have been filed refer to this defendant variously as “Beatrice Doe,” “Beatrice Santana,” and “Beatriz Santana.”.  FN1. The documents that have been filed refer to this defendant variously as “Beatrice Doe,” “Beatrice Santana,” and “Beatriz Santana.”

FN2. This memorandum of decision addresses Green's motion to strike.   A motion to strike (docket entry # 126), filed by the housing authority and Burts is the subject of a separate memorandum of decision filed this date..  FN2. This memorandum of decision addresses Green's motion to strike.   A motion to strike (docket entry # 126), filed by the housing authority and Burts is the subject of a separate memorandum of decision filed this date.

FN3. This memorandum of decision refers to this defendant as the “message service” without resolving the issue of which name is the proper name of the entity..  FN3. This memorandum of decision refers to this defendant as the “message service” without resolving the issue of which name is the proper name of the entity.

FN4. As a procedural matter, some judges of the Superior Court have determined “[a] motion to strike a count brought against multiple defendants may not be granted on the ground that the allegations are insufficient as they relate to a single defendant.   When a single count of a complaint combines separate causes of action against multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike ․ Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. CV 0556799 (January 9, 2002, Hurley, J.T.R.) (31 Conn. L. Rptr. 217, 220);  see also Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).   Hodgate v. Ferraro, Superior Court, judicial district of New London, Docket No. CV 05 4001779 (November 10, 2005, Gordon, J.).”  (Internal quotation marks omitted.)   Metallo v. Torrington Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007012 (May 25, 2010, Shaban, J.).   In the present case, the housing authority, Green and Burts filed a request to revise in which they asked the court to order the plaintiff to revise his complaint to state separate counts against each defendant.   The court, Rittenband, J., sustained the plaintiff's objection to this request.   The plaintiff has not objected to Green's motion to strike on this basis.   Therefore, the court addresses the merits of Green's motion..  FN4. As a procedural matter, some judges of the Superior Court have determined “[a] motion to strike a count brought against multiple defendants may not be granted on the ground that the allegations are insufficient as they relate to a single defendant.   When a single count of a complaint combines separate causes of action against multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike ․ Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. CV 0556799 (January 9, 2002, Hurley, J.T.R.) (31 Conn. L. Rptr. 217, 220);  see also Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).   Hodgate v. Ferraro, Superior Court, judicial district of New London, Docket No. CV 05 4001779 (November 10, 2005, Gordon, J.).”  (Internal quotation marks omitted.)   Metallo v. Torrington Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007012 (May 25, 2010, Shaban, J.).   In the present case, the housing authority, Green and Burts filed a request to revise in which they asked the court to order the plaintiff to revise his complaint to state separate counts against each defendant.   The court, Rittenband, J., sustained the plaintiff's objection to this request.   The plaintiff has not objected to Green's motion to strike on this basis.   Therefore, the court addresses the merits of Green's motion.

FN5. In discussing the question of whether a state agency could be held liable under § 52-570d for instituting a system that recorded telephone conversations between its employees and the public without warning the public, the attorney general stated that “depending on the facts of a particular case ․ the [employer] may be liable for [an employee's violation of § 52-570d].”   Opinions, Conn. Atty. Gen. No. 01-001 (January 9, 2001)..  FN5. In discussing the question of whether a state agency could be held liable under § 52-570d for instituting a system that recorded telephone conversations between its employees and the public without warning the public, the attorney general stated that “depending on the facts of a particular case ․ the [employer] may be liable for [an employee's violation of § 52-570d].”   Opinions, Conn. Atty. Gen. No. 01-001 (January 9, 2001).

FN6. “In the past, there had been a distinction between ‘necessary’ and ‘indispensable’ parties ․ Over time, however, this distinction has become less pronounced ․ and provisions of our Practice Book and General Statutes currently refer only to necessary parties.”  (Citations omitted.)  In re Devon B., supra, 264 Conn. 580 n.12..  FN6. “In the past, there had been a distinction between ‘necessary’ and ‘indispensable’ parties ․ Over time, however, this distinction has become less pronounced ․ and provisions of our Practice Book and General Statutes currently refer only to necessary parties.”  (Citations omitted.)  In re Devon B., supra, 264 Conn. 580 n.12.

Peck, A. Susan, J.