Elaine Segreto v. United Healthcare, Inc. et al. (2011)

MEMORANDUM OF DECISION RE (# 113) DEFENDANTS' MOTION TO STRIKE

This is an action by the plaintiff, Elaine Segreto, against the defendants, United Healthcare, Inc. (UHC) and Lee J. Buchman (“Buchman”), sounding in defamation, claim of false light against Buchman, and vicariously liability against UHC.

The defendants have moved to strike the plaintiff's revised complaint for the reason that the plaintiff's complaint demonstrates on its face ¹ that she cannot state a claim and has no cause of action against either defendant (emphasis added).   By that, the defendant is arguing that the chronology of events alleged in the complaint shows that the (1) the alleged act of defamation occurred more that two years before the suit was commenced and (2) that Buchman was never served with a copy of the complaint.

The record shows that an appearance was filed by counsel for all defendants” on March 30, 2007.   The defendants' motion to strike was filed on January 13, 2011.   That appearance, which was filed by the defendants' previous law firm, is a bar to any claim at this time that the Court lacks subject matter jurisdiction over Buchman.

As for the argument that the plaintiff's claim of defamation is barred by a two-year statute of limitation, that issue is more properly raised by special defense.

For the foregoing reasons, the Court denies the defendants' motion to strike without prejudice for the defendants to raise any appropriate special defenses they may have and to make a motion for summary judgment if they claim that there are no genuine issue of material fact concerning the statute of limitations or the issue of whether there was sufficient publication of Buchman's comments to establish a claim of false light.

BY THE, COURT,

Joseph W. Doherty, Judge

FOOTNOTES

FN1. While the state marshal's return of 2/7/07 purports to show that (only) United Healthcare, Inc. was served (by service upon the Secretary of State), the marshal's return is not part of the complaint and is not part of the pleadings..  FN1. While the state marshal's return of 2/7/07 purports to show that (only) United Healthcare, Inc. was served (by service upon the Secretary of State), the marshal's return is not part of the complaint and is not part of the pleadings.

Doherty, Joseph W., J.