Shaun Euell v. LLC (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE, DATED NOVEMBER 10, 2011 (# 107.00)

The defendant, Samuel Lotstein Realty Company, LLC, moved to strike paragraph 22(h) from the Second Count of the plaintiff's Revised Complaint dated November 1, 2011 (# 106.00).   The Revised Complaint is in five counts, each containing a heading that describes in general the cause of action but each heading fails to direct that cause of action to a specific defendant.   The plaintiff sustained injuries in a bar/restaurant/lounge in Stamford, Connecticut caused by a broken beer bottle.   There are five defendants:  Madeira, LLC, the owner of the bar/restaurant/lounge;  Shashi Yadav, the manager and member of the LLC;  Prasanna Kurdukar, the liquor permittee of the LLC;  Omar Wright, the assailant;  and Samuel Lotstein Realty Company, LLC, the landlord.   Only the landlord has appeared by counsel.   Omar Wright filed a pro se appearance.   These other three defendants have not filed an appearance or pleadings.

The five counts are labeled:  (1) Premises Liability, Inadequate Security;  (2) Premises Liability, Inadequate Security;  (3) Negligence;  (4) Negligence, and (5) Recklessness.   Paragraph 11 alleges:  “On or about May 23, 2009, and at all times relevant to the Complaint, the Defendant, Samuel Lotstein Realty Co., LLC (hereinafter ‘Lotstein’) was the owner and operator of a building known as 23 Atlantic Street in Stamford, Connecticut.   Lotstein was and remains a limited liability company organized and existing under the laws of the State of Connecticut.”   The complaint contains no other specific allegations against Lotstein other than paragraph 22.   Paragraph 22 alleges general claims of fault in eight subparagraphs numbered 22a) through 22h).   Paragraph 22h) of the Second Count alleges:  “In that it acted in a negligent manner in allowing entities known to be ill-equipped to take possession of the premises known as Madeira Bar & Lounge.”

One of the purposes for seeking a request to revise is to set up the complaint in order to file a motion to strike testing the legal sufficiency of the allegations of the complaint.   Practice Book § 152.   It is improper to file a motion to strike relating to a paragraph of a pleading.   Only an entire count of a complaint or an entire special defense can be subject to a motion to strike.   Practice Book § 152(1) and Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988);  Mingachos v. C.B.S., Inc., 196 Conn. 91, 109;  Ivey Barnum & O'Mara v. Indian Harbor Properties, Inc. (1985), 190 Conn. 528, 530, n.2 (1983).

Larsen v. Timothy's Ice Cream, Inc., Superior Court, judicial district of Fairfield at Bridgeport Housing Session, Docket Number SPBR 9505–29502 (June 30, 1995, Tierney, J.).

The Motion to Strike paragraph 22h) of the Second Count of the November 1, 2011 Revised Complaint is denied.   Mueller v. Tepler, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 06–5000606 S (December 17, 2007, Tierney, J.);   Zuccarelli v. North American Holding Corporation, Superior Court, judicial district of Litchfield, Docket Number 0054504 (April 2, 1991, Susco, J.).

The defendant, Lotstein, filed a Request to Revise dated July 29, 2011 (# 103.00) that requested that various allegations be separated into multiple counts.   The plaintiff's Objection to Request to Revise (# 104.00) was overruled on September 12, 2011 (# 104.86).   On November 1, 2011 the plaintiff filed the Revised Complaint (# 106.00).   In this court's opinion the plaintiff has not complied with the Request to Revise (# 103.00) and resulting court order (# 104.85) by alleging each claim in a separate count.   The court hereby grants the plaintiff the right to file further Requests to Revise out of order.  P.B. § 10–6(3);  Fleet National Bank v. Bileca, Superior Court, judicial district of Tolland at Rockville, Docket Number 64458 S (November 19, 1998, Sullivan, J.);   Jason v. Jason's Soda Company, Superior Court, judicial district of Tolland, Complex Civil Litigation, Docket Number X07 CV 98–71254 S (October 26, 1999, Bishop, J.) [25 Conn. L. Rptr. 627].

The court notes the following concerns with the November 1, 2011 Revised Complaint.

(1) The headings purportedly labeling the cause of action contained in the counts inaccurately describe the causes of action alleged in each count.

(2) The headings do not describe to which of the five defendants that the count is directed.

(3) The Third Count is labeled Negligence, but there are no allegations of negligence in the Third Count.   The Third Count has not incorporated the allegations of negligence in the First Count, paragraph 22.   It only incorporates the first 21 paragraphs.

(4) The Fourth Count is labeled Negligence, but there are no allegations of negligence in the Fourth Count.

(5) The Fifth Count is labeled Recklessness, but there are no allegations of recklessness in the Fifth Count.

(6) The Fifth Count is labeled Recklessness and it may be alleging negligent acts only, in a failed attempt to incorporate negligence allegations from paragraph 22.

(7) Each count appears to allege piercing the corporate veil.   There should be separate counts of piercing the corporate veil, one for each of the claims of individual liability against the defendant, Shashi Yadav, the LLC's only member.   The complaint is not clear whether the identity rule or the instrumentality rule or both are being invoked.   The complaint appears to allege portions of both rules.   If a piercing claim is being made, it should be in separate counts, one for the identity rule and the second for the instrumentality rule.   Then separate counts of piercing should be made for each of the underlying liability claims;  negligence, premises liability, recklessness, etc.   Thus it would appear upwards of twelve separate counts of piercing must be alleged.

(8) Paragraph 22 of the First Count appears to claim at least five separate causes of action.   Each must be in a separate count.   The five causes of action are:  premises liability, negligence, negligent hiring, misrepresentation, and violation of overcrowding statutes and regulations.   If piercing claims are being made, this may require ten or fifteen separate counts.

(9) Paragraph 22 of the Second Count appears to claim at least six separate causes of action.   Each must be in a separate count.   The six causes of action are:  premises liability, negligence, neglect hiring, misrepresentation, violation of overcrowding statutes and regulations, and negligent entrustment.   If piercing claims are being made, this may require twelve or eighteen separate counts.

(10) The claim of negligent entrustment cannot be understood.   In a motor vehicle context, the owner of the instrumentality, the automobile, gives the motor vehicle to the negligent operator, knowing that the operator possesses no skill in operating a motor vehicle or has a dangerous propensity in operating a motor vehicle.   Under this bar/restaurant/lounge scenario the plaintiff appears to be claiming that Lotstein was the actual owner, operator, holder of the liquor permit, backer of the liquor permit, and/or manager of the bar/restaurant/lounge and then Lotstein turned over the operation of the bar/restaurant/lounge on May 23, 2009 to a party or parties known by Lotstein to be incapable of ensuring the safety of patrons or who had a known propensity for conducting dangerous activities within a bar/restaurant/lounge.   Those allegations are not found in the complaint.   No facts supporting that claim have been alleged.  Greeley v. Cunningham, 116 Conn. 515, 518, 520 (1933).

(11) The plaintiff's claim of negligent entrustment against Lotstein as the landlord is an issue of first impression in Connecticut.   Connecticut has only applied negligent entrustment to motor vehicles.   The court has researched the issue and agrees it is of first impression.   The appropriate elements of negligent entrustment must be alleged in a separate count.

(12) In conducting its research on this issue, the court found that the Lotstein owned property at 23 Atlantic Street, Stamford, Connecticut is a well maintained multi-story commercial building located in the hub of downtown Stamford.   There are commercial tenants on the first floor and either commercial offices and/or residences on the upper floors.   The plaintiff has created the impression that Mr. Lotstein himself was in the bar at another address, 25 Atlantic Street, running the bar/restaurant/lounge up to May 23, 2009 when he negligently turned over the bar/restaurant/lounge to others.   The court finds those facts unlikely but leaves the plaintiff to its future pleadings and proof.

(13) The bar/restaurant/lounge is alleged to be located at 25 Atlantic Street, but Lotstein is alleged to own 23 Atlantic Street, not the premises where the bar/restaurant/lounge is located.

(14) It is telling that only the landlord has hired counsel.   If this lawsuit is a hunt for an insured party or a “deep pocket,” the court would appreciate that an asset and insurance investigation be conducted by the plaintiff of all the defendants, other than Lotstein, before this court gets involved with dealing with complicated pleadings testing legal issues not previously addressed by Connecticut courts.

(15) The Revised Complaint was not served on the non-appearing defendants, yet the allegations against those defendants changed.  P.B. § 10–12(c).

The defendant, Lotstein's, Motion to Strike dated November 10, 2011 (# 107.00) is denied since it is addressed to a portion of a paragraph.

The defendant, Lotstein, is granted the right to file further Requests to Revise.

The plaintiff may elect to file a request for leave to amend his Revised Complaint.  P.B. § 10–60(a)(3).

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.