Scholastic Mortgage v. David LeClair et al. (2011)

MEMORANDUM OF DECISION RE (# 120) DEFENDANT'S MOTION TO STRIKE

The defendant, Total Mortgage Services, LLC (hereafter TMS), has moved the Court to strike Counts Two, Three, Four and Five of the revised complaint of the plaintiff, Scholastic Mortgage.

The plaintiff notes that the Second Count and the Third Count are directed to defendant David LeClair and not the movant, TMS, and, for that reason alone, the Court should deny its motion to strike those two counts.

While Count Two and Count Three do contain allegations which impute to TMS conduct which sounds in tortious interference with the plaintiff's contractual expectations, the defendant David LeClair is the only party in those two counts against whom relief is being sought.   Those allegations were incorporated by reference into Count Four and Count Five wherein TMS is the party against whom relief is being sought.   Those are the only two counts in which TMS has the requisite standing to move to strike.   For that reason, the Court denies the motion of the defendant TMS to strike Count Two and Count Three of the Revised Complaint.

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint [or special defense] ․ to state a claim upon which relief can be granted ․ A motion to strike ․ requires no factual findings by the trial court.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “It is fundamental that in determining the sufficiency of a complaint [or defense] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Gazo v. Stamford, 255 Conn. 245, 260 (2001).

[I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied,” Craig v. Driscoll, 262 Conn. 312, 321 (2003).

In its motion to strike Count Four and Count Five, TMS argues that the allegations in each of those counts are legally insufficient in that they require the Court to draw inferences in order to render those claims legally sufficient.

Our courts have had multiple occasions to consider the merits of the position taken by TMS regarding the specificity with which a plaintiff must set forth the factual basis for the allegations in a claim for tortious interference with business expectations.

“The necessary elements of a cause of action in tortious interference with business relations are the existence of a business relationship, an intentional and improper interference with that relationship and a resulting loss of benefits of the relationship.  Blake v. Levy, 191 Conn. 257, 262 (1983).   Conrad v. Erickson, 41 Conn.App. 243, 245 (1996).

“A plaintiff states an actionable cause [for tortious interference with a contract] by alleging that the defendant intentionally interfered with a business or contractual relationship of the plaintiff and that the plaintiff, as a result, has suffered an actual loss.”  Herman v. Endriss, 187 Conn, 374 (1982).

“A defendant is guilty of tortious interference if he has engaged in improper conduct.”  Blake, supra, p. 261;  see 4 Restatement (Second), Torts §§ 766, 766B, 767 (1979).   Not all interference with business relationships is actionable. “ ․ the better reasoned approach requires the plaintiff to plead and prove at least some improper motive or improper means.  Kakadelis v. DeFabritis, 191 Conn. 276, 279 (1983);

“We have stated in an analogous situation, ‘[t]o raise an allegation of wilful conduct, the plaintiff must clearly plead that the [harm] was caused by the wilful or malicious conduct of the defendants.’  Warner v. Leslie–Elliott Constructors, Inc., 194 Conn. 129, 139 (1984).   Moreover, we cannot look beyond the complaint for facts not alleged.”  Cavallo v. Derby Savings Bank, 188 Conn. 281, 285–86 (1982).

In the instant case, the plaintiff has alleged that the defendant LeClair, usurped corporate opportunities of Scholastic Mortgage, LLC and competed with the business of Scholastic Mortgage, LLC without prior written consent;  solicited employees and contractors of Scholastic Mortgage, LLC during his employment there and for two years after;  and interfered with Scholastic Mortgage LLC's rights, title and interest in confidential information.

It further alleged that the conduct of the defendant LeClair was “intentional” and “without justification” and that as a result, the plaintiff suffered actual loss.

It further alleged that the conduct complained of was done within the scope of LeClair's employment with TMS, LLC and in the furtherance of the business of TMS, LLC.

The Court finds that the plaintiff has sufficiently plead facts which allege the acts, the means and the motive and the intent of LeClair in the tortious interference with the business of Scholastic Mortgage, LLC and the responsibility of the defendant TMS for the actions of LeCLair who was acting as its employee and in furtherance of its business.

“If facts provable in the complaint would support a cause of action, the motion to strike must be denied” (emphasis added).  Peter–Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270–71 (1999).  ‘For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.’  Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476 (2003).

The Court finds that the allegations in the Fourth Count of the plaintiff's Revised Complaint dated October 15, 2010 adequately alleges the elements of tortious interference with contractual relations and for that reason the motion of defendant Total Mortgage Services, LLC to strike that count is hereby denied.

The movant further argues that the Fifth Count alleging violation of CUTPA by defendant Total Mortgage, LLC be stricken for the reason that the claim in that count is based upon the doctrine of respondeat superior and cannot be maintained if the underlying counts are stricken.   Having found that the plaintiff has sufficiently plead the allegations in the Fourth Count, the Court denies the motion to strike the Fifth Count.

BY THE COURT,

Joseph W. Doherty, Judge

Doherty, Joseph W., J.