Lucas M. DiBenedetto v. Mike Gianatti et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE, # 200

The defendants, Michael Gianatti, Quality Sales, LLC, Lawrence A. Gianatti, III, and Randall Dougan, move to strike counts four, six, twelve, fourteen, twenty, twenty-two, twenty-eight and thirty, as well as the prayer for relief for attorneys fees and interest of the complaint dated October 11, 2011, filed by the plaintiff, Lucas M. DiBenedetto, because they are legally insufficient.

Counts four, twelve, twenty and twenty-eight allege intentional infliction of emotional distress, and the defendants contend that the alleged actions do not constitute extreme and outrageous conduct.   Counts six, fourteen, twenty-two and thirty allege harassment against each defendant.   The plaintiff agrees that there is no freestanding tort of harassment, and that these counts may be stricken.   As to the prayer for relief for interest and attorneys fees, the defendants argue that the plaintiff has not set forth a statute or contractual provision that would allow for such relief.

In the plaintiff's operative complaint, he alleges that the defendants made a series of defamatory statements directed against the plaintiff between July 2010, and March 2011.   He alleges that the defendants made statements to various customers, vendors, insurance companies, and the Hartford police, regarding drug use, poor work performance and embezzlement of company money.   The plaintiff also alleges that he was told by customers and vendors that Quality Sales, LLC, was making claims that he stole from them, and he received contact from the Hartford Police regarding criminal complaints alleging embezzlement.

“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).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  Id. When deciding 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).  “Practice Book ․ § 10–39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).

The defendants argue that the plaintiff failed to allege sufficient facts that the defendants' conduct rose to the level of extreme and outrageous conduct necessary to satisfy this type of action.   The plaintiff argues the conduct was outrageous and extreme because he has alleged that the defendants repeatedly asserted to customers, vendors, former coworkers, police officers, insurance companies, friends and family that the plaintiff was a drug user, a poor worker and a thief on a major scale.

“In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484, 491–92, 998 A.2d 1221 (2010).  “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’  “ (Citation omitted;  internal quotation marks omitted.)  Cassotto v. Aeschliman, 130 Conn.App. 230, 234–35, 22 A.3d 697 (2011).  “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.”  (Citations omitted;  internal quotation marks omitted.)   Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).

In the present case, the facts do not support an allegation of extreme and outrageous conduct.   These actions do not meet the threshold to sufficiently allege a cause of action for intentional infliction of emotional distress.   Counts four, twelve, twenty, and twenty-eight are stricken.

As to the prayer for relief requesting interest and attorneys fees which the plaintiff has alleged as part of his damages in each count, he has failed to plead a statute or contractual provision that would allow for such relief.   The plaintiff argues that attorneys fees are recoverable as part of a punitive damages award, and those are clearly appropriate if he prevails on most of the counts of his third revised complaint.   The plaintiff has not claimed sufficient facts to support a claim for punitive damages by showing that the defendants acted with a reckless indifference to his rights.   Therefore, the prayer for relief requesting attorneys fees and interest is stricken.

For the foregoing reasons, the defendant's motion to strike four, six, twelve, fourteen, twenty, twenty-two, twenty-eight, and thirty, as well as the prayer for relief seeking attorneys fees and interest is granted.

Swienton, J.

Swienton, Cynthia K., J.