Jamie Goodman v. Sholeh Janati (2012)

Memorandum of Decision on Motion to Strike (No. 117)

ISSUES

The issues argued before the court at the short calendar of September 26, 2011, are:

(1) Whether the court should grant the defendant's motion to strike Count One, aiding and abetting, for the claimed reason that an aiding and abetting claim requires a valid underlying cause of action and the plaintiff fails to allege the required elements of such an underlying claim;

(2) Whether the court should grant the defendant's motion to strike Count Two, constructive trust, for the claimed reason that Connecticut does not recognize an independent cause of action for a constructive trust.   Alternatively, the defendant contends that this count is legally insufficient because it does not state all of the required elements to maintain an unjust enrichment claim;  and

(3) Whether the court should grant the defendant's motion to strike Count Three, intentional infliction of emotional distress, for the claimed reason that the plaintiff fails to allege that the defendant engaged in any sufficiently extreme and outrageous conduct.

FACTUAL BACKGROUND

On September 1, 2010, the plaintiff, Jamie Goodman, commenced this action by service of process on the defendant, Sholeh Janati.   In the operative pleading, the plaintiff's revised complaint dated May 24, 2011, the plaintiff alleges the following facts relevant to the disposition of the motion that is currently before the court.   The plaintiff was previously married to Keith Styrcula, who is a non-party to this action.   On November 9, 2004, the plaintiff and Styrcula entered into a separation agreement that was incorporated into their divorce decree.   Pursuant to the separation agreement, Styrcula was obligated to pay the plaintiff unallocated alimony and child support of 55 percent of the first $250,000 of his total income and 35 percent of his income between $250,001 and $550,000.   Approximately one year after the divorce, Styrcula left his position at JP Morgan Chase where he had earned $400,000 a year.   From 2005 until February 2009, Styrcula failed to pay alimony or child support, in violation of the divorce decree.   Styrcula claims that he has earned no income from the second half of 2006 until the present time.   According to the complaint, these claims are false and Styrcula has in fact earned substantial sums of money that he has diverted to his gilfriend, the defendant Janati.

Specifically, in 2006, Styrcula formed a limited liability company known as Structured Funds Advisor that later changed its name to Wealth Notes Capital Management, LLC (Wealth Notes).   Styrcula is the chief executive officer of Wealth Notes, which trades on the New York Stock Exchange.   Moreover, Styrcula also is the chairman, founder and sole officer of Structured Products Association.   This company has no offices and is operated out of Styrcula's Westport home where he lives with the defendant.   Structured Products Association produces an annual conference on structured products where Styrcula and other experts present programming relevant to this field.   The Structured Products Association conference draws between 250 and 300 attendees with an average attendance fee of $1,775 to $1,975 per person.   Additionally, the conference has corporate sponsors that pay between $5000 and $10,000 per event.   According to the complaint, Styrcula has testified that the total cost for holding this conference is about $50,000, whereas the conference nets about $500,000.   Nevertheless, Styrcula claims that Structured Products Association does not receive any income from the conference and that all the money collected net of expenses belongs to the defendant.   Styrcula and the defendant have refused to provide any financial information regarding the Structured Products Association conferences.   Accordingly, the complaint alleges that “Styrcula created a scheme to defraud the Plaintiff by diverting and hiding his earned income to the defendant (who participates with Styrcula in putting on the SPA conferences) in order to avoid paying his ex-wife (the Plaintiff) and their children alimony and child support under the Divorce Decree ․ The defendant was a knowing participant in Styrcula's scheme and was aware of the role that she played in diverting and concealing Styrcula's income.”   In order to effectuate this scheme, the plaintiff alleges that Styrcula placed money into the defendant's bank accounts, but that Styrcula has always had access to these funds.   Furthermore, the plaintiff alleges that because the defendant is also a mother and a divorcee, she knew or should have known that allowing Styrcula to channel his income through her would deprive the plaintiff and her children of needed financial support and cause emotional distress.   As a result of all of this conduct, the plaintiff alleges claims against the defendant for:  (1) aiding and abetting;  (2) constructive trust;  (3) intentional infliction of emotional distress and (4) negligent infliction of emotional distress.¹

On June 8, 2011, the defendant filed a motion to strike counts one, two and three of the revised complaint in this action together with a memorandum of law in support of her motion to strike.   The sole ground stated on the face of the defendant's motion is that “[t]he three counts all fail to state a claim upon which relief can be granted and, therefore, are insufficient as a matter of law.” ²  On July 7, 2011, the plaintiff filed a memorandum of law in opposition to the defendant's motion.   The defendant also filed a reply memorandum on August 3, 2011.

DISCUSSION

“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 (2003).   In a motion to strike, “the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2 (1994).   Therefore, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Homgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007).   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.   When deciding a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117 (2006).

I

Aiding and Abetting

The defendant first moves to strike Count One, where the plaintiff alleges a cause of action for aiding and abetting.   In her memorandum of law, the defendant argues that Count One is legally insufficient because the plaintiff fails to allege that the defendant aided and abetted a legally cognizable underlying tort.   The defendant notes that it is unsure based on the plaintiff's complaint precisely what underlying tort that the plaintiff believes that the defendant aided and abetted, but the defendant surmises that the plaintiff most likely intended to allege that the defendant aided Styrcula's scheme to commit fraud.   It is the defendant's position that because the plaintiff fails to allege all of the elements of a fraud claim, that count one must be stricken.

In response, the plaintiff contends that she alleges a valid claim for aiding and abetting.   The plaintiff argues that in Count One she alleges that Strycula committed civil contempt and that the defendant aided and abetted Styrcula's contempt of a court order.   Alternatively, the plaintiff contends that count one also adequately alleges a claim for fraud, and that the plaintiff alleges all of the elements of both a civil contempt and a fraud action.   Additionally, the plaintiff argues that there is nothing in Connecticut law requiring that a plaintiff allege all of the elements of the underlying tort claim in order to state a legally sufficient aiding and abetting cause of action.

The defendant has also filed a reply memorandum, in which the defendant once again argues that count one must be stricken because the plaintiff fails to allege any of the elements of an underlying wrong, whether it be civil contempt or fraud.   Morever, the defendant contends without citation of authority that civil contempt is not the type of wrongful act upon which an aiding and abetting claim can be predicated.

“The Connecticut Supreme Court recognized a civil cause of action for aiding and abetting in Carney v. DeWees, 136 Conn. 256, 262 (1949).   Today, liability for this cause of action is based on the principle[s] articulated in section 876 of the Restatement (Second) of Torts (1979) ․” Katcher v. 3V Capital Partners, LP, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 08 5008383 (February 1, 2011, Blawie, J.), citing, Connecticut National Bank v. Giacomi, 242 Conn. 17, 63 (1997).   As further elucidated by the Connecticut Supreme Court, “[a]iding-abetting includes the following elements:  (1) the party whom the defendant aids must perform a wrongful act that causes an injury;  (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance;  (3) the defendant must knowingly and substantially assist the principal violation ․” (Internal quotation marks omitted.)   Efthimiou v. Smith, 268 Conn. 499, 505 (2004).

Unfortunately, there is a dearth of Connecticut appellate authority outlining the precise parameters of claims brought for aiding and abetting.   See, e.g., Master–Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, 739 F.Sup.2d 109, 120 (D.Conn.2010) (noting that “[w]hile there is little Connecticut case law on the evidentiary standard applicable to civil conspiracy claims, there is even less with regard to aiding and abetting liability”).   Nevertheless, it is clear that in order to be legally sufficient under Connecticut law, an aiding and abetting claim must be based on an underlying cause of action.  Marshak v. Marshak, 226 Conn. 652, 668 (1993);  see also Calore v. Stratford, Superior Court, Judicial District of Fairfield, Docket No. CV 98 0357147 (January 8, 2001, Melville, J.) (28 Conn. L. Rptr. 653, 656) (stating that “[a] civil action of aiding and abetting cannot stand alone and depends upon the existence of a valid underlying cause or action”).   Although it does not appear that Connecticut's appellate courts have definitively ruled on the issue of whether a plaintiff needs to plead all of the elements of the underlying tort in order to state a legally sufficient aiding and abetting cause of action, this court has previously ruled that aiding and abetting claims are derivative in nature and when the predicate claim is stricken, then the aiding and abetting claim also must be stricken as legally insufficient.   Capgrowth Partners v. V.P. Watsa, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 09 6002152 (December 30, 2010, Jennings, J.T.R.) (stating that “aiding and abetting ․ is a derivative claim, dependent on the validity of the claims of the first two counts.   Since the court has found that the allegations of the First and Second Counts are inadequate and those counts must be stricken, the [aiding and abetting] count must necessarily also be stricken”).

Additionally, appellate courts in other states have found aiding and abetting claims to be legally insufficient when the plaintiff failed to allege that the principal actor committed all of the elements needed to state the underlying tort claim.   See, e.g., Dickinson v. Igoni, 76 App.Div.3d 943, 945, 908 N.Y.S.2d 85 (2010) (holding that “the cause of action asserted ․ for aiding and abetting conversion of equity in real property must be dismissed since such a claim stands or falls with the underlying tort”);  Alleco v. Weinburg Foundation, 340 Md. 176, 201, 665 A.2d 1038 (1995) (stating that “an analysis of the sufficiency of the aiding and abetting counts begins ․ [with] whether the plaintiffs adequately alleged that [the principal] committed fraud and breach of fiduciary duty which damaged the plaintiffs ․ [T]he plaintiffs failed to allege adequately that [the principal] had committed either fraud or a breach of fiduciary duty causing harm to the plaintiffs.   Since tort liability for aiding and abetting can only exist where someone has committed the actual tort, and since the allegations were insufficient to show that [the principal] had committed a tort, the aiding and abetting counts were properly dismissed”).   Accordingly, the plaintiff needs to allege a legally cognizable underlying tort claim in order to have a legally sufficient aiding and abetting cause of action.

In her memorandum of law in opposition, the plaintiff argues that she alleges that Styrcula committed both civil contempt and fraud and that the defendant aided and abetted these torts.  “Civil contempt involves the wilful violation of an applicable court order ․ To establish her contempt claim, the aggrieved party must prove by a fair preponderance of the evidence both that the alleged contemnor violated the order and that such violation was wilful.”  (Citation omitted.)  Campbell v. Campbell, 120 Conn.App. 760, 767, 993 A.2d 984 (2010).   In her reply memorandum, the defendant argues that these elements have not been met because the plaintiff fails to allege that Styrcula was ever found in contempt of court.   The plaintiff does allege that Styrcula was subject to a divorce decree in which the court ordered him to pay a certain percentage of his income to the plaintiff as child support and alimony and that Styrcula “failed and refused to pay alimony or child support in violation of the Divorce Decree.”   Furthermore, the plaintiff alleges that the defendant assisted Styrcula “by diverting and hiding his earned income to the defendant in order to avoid paying ․ the Plaintiff ․ and their children alimony and child support under the Divorce Decree.”   If construed in a manner most favorable to the pleader, these allegations could support a conclusion that the defendant materially assisted Styrcula's nonpayment of sums he was obligated to pay under the divorce decree which nonpayment could be in contempt of the family court's order.   And although the civil contempt of court by Keith Styrcula would not technically be a “tort,” ³ it has the potential under certain circumstances to result in an award of damages in favor of the plaintiff in their underlying divorce action.   It also has the potential of having Mr. Styrcula incarcerated for non-payment of alimony or child support.   But those determinations must be made in the family court in the dissolution of marriage action brought by plaintiff against Keith Styrcula.   This court on the facts alleged cannot hold that the actions of Strycula—not a party before this court—were sufficiently wilful in light of all the attendant circumstances to be in contempt of the family court's decree.   Nor is this court, without Mr. Styrcula before me, in a position to say what conditions should be imposed for the purging of any finding of contempt by Mr. Styrcula.   Those rulings must be made in the family court.   There is therefore no valid cause of action pleaded herein for aiding and abetting a contempt of court.⁴

Next, the court considers whether the plaintiff properly alleges aiding and abetting of fraud.   The court first addresses whether an underlying fraud tort has been pleaded.   Although the complaint has certain aspects of a fraudulent transfer claim and might be construed as pleading fraudulent transfers, on close analysis that is not the case.   The transfer of assets alleged went from Mr. Styrcula's company Structured Products Association (“SPA”) to the defendant Janati or an entity controlled by her.   There is no request that those transfers be rescinded.   If they were rescinded, the transferred funds would presumably be restored to SPA and be available to the creditors of SPA. The plaintiff does not allege, however, that she is a creditor of SPA. The fraud claim embodied in Count One is more in the nature of aiding and abetting a claim based on common-law fraud.  “The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury.”   (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124 (2010).   The defendant argues that the plaintiff fails to allege fraud because there is no allegation that Styrcula lied about who received the profits from the events that the defendant catered and there is no allegation that the plaintiff acted to her detriment in reliance on Styrcula's statements.   Essentially, the defendant contends that the crux of the complaint is that, at most, the defendant aided Styrcula in an unwise business deal in which she was overly compensated vis-a-vis Styrcula.   Contrary to the defendant's assertions, accepting the allegations of Count One as true and construing them in a manner most favorable to the non-moving party, the plaintiff's complaint does sufficiently set forth the required elements of fraud.   The plaintiff alleges that Styrcula testified before a judge of the family division of this court that he has earned no income from the second half of 2006 to the present.   Plaintiff alleges that Strycula's testimony was false.   In fact, the plaintiff alleges that Styrcula has earned significant income during this time period and that the defendant has assisted him in hiding that income from the plaintiff.   Furthermore, the plaintiff alleges that she has suffered damage as the result of the defendant and Styrcula's actions.  “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.”   Violano v. Fernandez, 280 Conn. 310, 318 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471 (1991).   Under the allegations of Count One it would be provable that plaintiff's former husband Styrcula knowingly testified falsely to induce the plaintiff to fail in her attempts to collect alimony and child support, and that she has in fact been substantially impeded for more than five years from collecting alimony and child support by Styrcula's fraud in which the defendant Janati knowingly and willingly participated.   The plaintiff has therefore alleged sufficient facts to avoid a motion to strike Count One insofar as it alleges aiding and abetting a claim of common-law fraud.   The motion to strike Count One therefore fails.

II

Constructive Trust

Next, the defendant moves to strike Count Two, which is labeled in the revised complaint as “constructive trust.”   The defendant first contends that this count is legally insufficient because Connecticut law does not recognize an independent cause of action for a constructive trust.   Additionally, to the extent that count two can be construed to allege a cause of action sounding in unjust enrichment, the defendant further argues that count two should be stricken because the plaintiff has not adequately pleaded an unjust enrichment claim.   The elements of a civil claim for unjust enrichment are (1) that the plaintiff has provided goods or services;  (2) that the defendant has benefitted from those goods or services;  (3) that the defendant unjustly did not pay for that benefit;  and (4) that the defendant's failure to pay hurt the plaintiff.  Meaney v. Connecticut Hospital Association, 250 Conn. 500, 511 (1999).   The defendant contends that “[n]o direct relationship, contractual or otherwise, between the plaintiff and defendant is alleged to have existed ․ There is no allegation in Count Two that the plaintiff has rendered any property or services to the defendant in any manner, with the expectation of compensation or not.”   In response, the plaintiff argues that count two should not be stricken because the allegations found in that count are “legally sufficient to give rise to the remedy of a constructive trust.”   The plaintiff further contends that to the extent that count two is construed as an unjust enrichment claim, it is legally valid because unjust enrichment is not limited to quasi-contractual situations and the plaintiff alleges all of the elements to maintain such a cause of action.

As a threshold matter, the court first must determine the precise cause of action that the plaintiff is attempting to allege in Count Two. Count two is clearly labeled as “constructive trust,” whereas paragraph thirty-one of count two alleges in conclusory fashion that the defendant “has been unjustly enriched as a result of the [defendant's] scheme.”   Consequently, there is a plausible argument to support the conclusion that the plaintiff is alleging both a constructive trust or an unjust enrichment cause of action.   Although the plaintiff is correct that the label affixed to a certain count in a complaint is not necessarily dispositive because “[i]t is well settled that [t]he interpretation of pleadings is always a question of law for the court ․”;  Milton v. Robinson, 131 Conn.App. 760, 786, (2011); ⁵  The court here interprets Count Two as a free-standing claim for imposition of a constructive trust.   In paragraph thirty-two of Count Two, the plaintiff alleges that “[t]he defendant['s] ․ maintenance of moneys that are rightfully due the plaintiff is wrongful.”   This is one of the legal requirements for imposition of a constructive trust, which “arises whenever another property has been wrongfully appropriated and converted into a different form ․ [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that [she] would be unjustly enriched if [she] were permitted to retain it.”  (Internal quotation marks omitted.)  Trevorrow v. Marcuccio, 125 Conn.App. 141, 147 (2010).

In a footnote in Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 623 n.3 (2002), the Connecticut Supreme Court stated as follows:  “The plaintiffs ․ requested that the trial court ․ impose a constructive trust over such moneys.   Although the plaintiffs framed these requests as counts eleven and twelve of their complaint, these are issues to be addressed by the trial court upon remand because, rather than being substantive causes of action upon which the complaint is predicated, these counts request remedies, the appropriateness of which would be left to the discretion of the trial court if the plaintiffs, or either of them, were to prevail at trial.”   As recently noted by Judge Karazin, “[t]here exists no appellate authority clarifying the Macomber footnote ․ Connecticut courts, both before and after Macomber, have recognized claims for constructive trust by considering the merits of such claims, whereas other courts have stricken constructive trust counts.”   (Internal quotation marks omitted.)   Romero v. Gewirtz, Superior Court, Judicial District of Stamford–Norwalk at Stamford, Docket No. CV 09 5013109 (September 28, 2011, Karazin, J.T.R.) [52 Conn. L. Rptr. 686] (granting motion to strike the constructive trust cause of action).⁶

Although there is currently a split of authority in the Superior Court regarding this issue, the cases that have held that a constructive trust cannot be brought as an independent cause of action are better reasoned.   Under Connecticut law, “[a] constructive trust is an equitable remedy imposed to prevent unjust enrichment.”  (Emphasis added.)  Gulack v. Gulack, 30 Conn.App. 305, 311 (1993).  “The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment ․ Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.”  (Emphasis added;  internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 210 n.22 (2010).   Accordingly the court holds that, although the imposition of a constructive trust may be an appropriate remedy for the fraud count of Count One or any other substantive claim in this case which proceeds to trial, it is not an independent cause of action which may be submitted in a separate count, and Count Two is therefore stricken.

III

Intentional Infliction of Emotional Distress

Finally, the defendant moves to strike Count Three in which the plaintiff alleges a claim for intentional infliction of emotional distress.   The defendant argues that this count is legally insufficient because the plaintiff fails to allege that the defendant engaged in conduct that could satisfy the “extreme and outrageous” element of this tort.   In her memorandum of law, the defendant notes that the plaintiff merely alleges that she is a “third-party to a business transaction” and that “[t]he plaintiff's allegations amount to nothing more than the claim that her ex-husband [Styrcula] was at the alleged raw end of a business deal with the defendant ․” The defendant contends that her acceptance of earnings pursuant to a business deal cannot rise to the level of extreme and outrageous conduct.   The plaintiff responds that she alleges a legally cognizable intentional infliction of emotional distress claim because the allegations found in the revised complaint indicate that the defendant intentionally assisted Styrcula in a scheme designed to facilitate Styrcula's avoidance of alimony and child support payments owed to the plaintiff.   It is the plaintiff's position that this behavior can rise to the level of extreme and outrageous conduct because society has a strong aversion to “dead beat dads.”

“In order for the plaintiff to prevail in a case for liability under ․ [intentional infliction of emotional distress], four elements must be established.   It must be shown:  (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.)  Angiolillo v. Buckmiller, 102 Conn.App. 697, cert. denied, 284 Conn. 927 (2007).   The extreme and outrageous element is only satisfied “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!’  ․ Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Citation omitted;  internal quotation marks omitted.)  Gillians v. Vivanco–Small, 128 Conn.App. 207, 212, cert. denied, 301 Conn. 933 (2011).  “Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury ․ [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping 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.”  (Citation omitted;  internal quotation marks omitted.)  Cassotto v. Aeschilman, 130 Conn.App. 230, 235 (2011).

When deciding whether alleged conduct rises to the level of extreme and outrageous behavior, it is often best to look at examples.   For instance, in Smulewicz–Zucker v. Zucker, 98 Conn.App. 419 (2006), cert. denied, 281 Conn. 905 (2007), overruled on other grounds by Watts v. Chittenden, 301 Conn. 575 (2011), the plaintiff alleged that during the pendency of divorce proceedings, the defendant, her soon-to-be ex-husband:  “made clear, through counsel, that he was willing to make custodial concessions in exchange for certain financial concessions to be made by the plaintiff and (2) the defendant, again through his attorney, presented the plaintiff with a copy of a motion requesting that the court order that the parties' son be sent to a boarding school.”  Id., 427.   In sum, the plaintiff alleged that the defendant essentially threatened to send away the parties' child in order to coerce her into a divorce settlement.   The trial court granted summary judgment in favor of the defendant on the ground that such behavior, even if proven at trial, did not constitute sufficiently extreme and outrageous behavior in order to state a claim for intentional infliction of emotional distress.   When affirming the decision of the trial court, the Appellate Court stated:  “[c]onsidering the alleged facts and evidence presented in the light most favorable to the plaintiff, we cannot conclude that reasonable minds could find the defendant's conduct toward the plaintiff extreme and outrageous.”  Id.

Similarly, Judge Blue refused to impose liability for intentional infliction of emotional distress in a case where the plaintiff mother alleged that she had suffered emotional harm when the defendant assisted her husband in absconding to a foreign country with the plaintiff's children.   As noted by Judge Blue, “intentional infliction of emotional distress ordinarily occurs in the context of outrageous behavior (such as a practical joke carried to outrageous extremes) directed at the plaintiff herself ․ In a child abduction case not brought by the child, the establishment of this element requires some elasticity in language, unless the evidence establishes (which it does not here) that the child was abducted for the specific purpose of tormenting the parent.   Of course a child abductor ought to realize that the emotional distress of a parent is a likely result of his conduct, so the application of the tort is not completely farfetched in this context, but it is more direct and logical to consider child abduction as a separate tort if it is legally permissible to do so.”  (Citation omitted.)  Marshak v. Marshak, Superior Court, Judicial District of Waterbury, Docket No. CV 088766 (January 16, 1992, Blue, J.) (7 C.S.C.R. 221, 225) [5 Conn. L. Rptr. 447], rev'd on other grounds, 226 Conn. 652 (1993).

A trial court decision from the state of New York is also instructive.   In Langley v. Langley, 118 Misc.2d 559, 461 N.Y.S.2d 202 (1983), the plaintiff brought an intentional infliction of emotional distress claim under the following facts.   The plaintiff agreed to a separation agreement with her husband in which the husband would pay the plaintiff wife alimony until she remarried.   Less than two years after the finalization of her divorce, the plaintiff married a new individual, who was the defendant in the Langley lawsuit.   Within a month of the marriage between the plaintiff and the defendant, the defendant filed for divorce.   The plaintiff claimed that the defendant had conspired with her first husband to deprive her of alimony under the plaintiff's separation agreement with her first husband.   When granting summary judgment against the plaintiff and her co-plaintiff children on the intentional infliction of emotional distress claim, the court stated that “[w]hile the allegations of this complaint may not cast the defendant ․ in praiseworthy light, and while some people may consider the alleged conduct as improper or dishonorable, it cannot be said that it rises to the level of outrageous behavior which could not be tolerated in a civilized society.”   Id., 564.

In the present case, at most, the plaintiff alleges that the defendant aided and abetted a scheme to deprive the plaintiff of alimony and child support that was rightfully owed to the plaintiff by her former husband, Styrcula.   If the allegations in the above three cases did not rise to the level of sufficiently extreme and outrageous behavior to constitute a legally cognizable intentional infliction of emotional distress cause of action, then the facts alleged in this matter also do not.   Therefore, the court grants the defendant's motion to strike Count Three.

CONCLUSION

For the foregoing reasons, the Motion to Strike Count One is denied and the Motion to Strike Counts Two and Three is granted.

Alfred J. Jennings, Jr.

Judge Trial Referee.

FOOTNOTES

FN1. These same parties have another lawsuit that is currently pending under docket number CV10 5013423.   The complaints in the two lawsuits are virtually identical.   The defendant previously moved to dismiss both of these actions on the ground of prior pending action with regard to the dissolution of marriage action pending between Jamie Goodman and Keith Styrcula, and this court denied the motions to dismiss in both cases via a single memorandum of decision dated February 24, 2011.   That memorandum of decision was filed in the CV 10 5013423 case and incorporated by reference in regard to the motion to dismiss filed in the present matter.  (Order No. 104.86 dated March 28, 2011.).  FN1. These same parties have another lawsuit that is currently pending under docket number CV10 5013423.   The complaints in the two lawsuits are virtually identical.   The defendant previously moved to dismiss both of these actions on the ground of prior pending action with regard to the dissolution of marriage action pending between Jamie Goodman and Keith Styrcula, and this court denied the motions to dismiss in both cases via a single memorandum of decision dated February 24, 2011.   That memorandum of decision was filed in the CV 10 5013423 case and incorporated by reference in regard to the motion to dismiss filed in the present matter.  (Order No. 104.86 dated March 28, 2011.)

FN2. It is clear that the defendant's motion to strike does not comply with the requirements of Practice Book § 10–41, with provides that “[e]ach motion to strike raising any claims of the legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   As explained by the Appellate Court in Stuart v. Freiberg, 102 Conn.App. 857, (2007), “[s]imply stating that all of the counts ‘are legally insufficient’ and that they ‘fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10–41 ․ [T]he fact that [the reasons for the defendant's challenge to the plaintiffs' claims] were provided in the accompanying memorandum of law does not save the motion from being considered ‘fatally defective.’   “ Id., 862.   Nevertheless, the plaintiff has not objected to the defendant's failure to adhere to the mandates of Practice Book § 10–41.   Consequently, the court will consider the merits of the defendant's motion.   See Id., 861 (stating that “[i]f the plaintiffs had not objected to the form of the motion to strike, we would have considered the motion in the form presented to the trial court because Practice Book § 10–41 is not jurisdictional in nature”)..  FN2. It is clear that the defendant's motion to strike does not comply with the requirements of Practice Book § 10–41, with provides that “[e]ach motion to strike raising any claims of the legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   As explained by the Appellate Court in Stuart v. Freiberg, 102 Conn.App. 857, (2007), “[s]imply stating that all of the counts ‘are legally insufficient’ and that they ‘fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10–41 ․ [T]he fact that [the reasons for the defendant's challenge to the plaintiffs' claims] were provided in the accompanying memorandum of law does not save the motion from being considered ‘fatally defective.’   “ Id., 862.   Nevertheless, the plaintiff has not objected to the defendant's failure to adhere to the mandates of Practice Book § 10–41.   Consequently, the court will consider the merits of the defendant's motion.   See Id., 861 (stating that “[i]f the plaintiffs had not objected to the form of the motion to strike, we would have considered the motion in the form presented to the trial court because Practice Book § 10–41 is not jurisdictional in nature”).

FN3. A “tort” is defined in Black's Law Dictionary Fourth Edition as “a private or civil wrong or injury, a wrong independent of contract, [or] a violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction.”.  FN3. A “tort” is defined in Black's Law Dictionary Fourth Edition as “a private or civil wrong or injury, a wrong independent of contract, [or] a violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction.”

FN4. Whether the defendant Janati could be joined as a third-party defendant in the dissolution of marriage action as an aider and abettor of civil contempt of that court is not an issue presently before the court..  FN4. Whether the defendant Janati could be joined as a third-party defendant in the dissolution of marriage action as an aider and abettor of civil contempt of that court is not an issue presently before the court.

FN5. See also Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985) (stating that “[w]hen a case requires this court to determine the nature of a pleading filed by a party, we are not required to accept the label affixed to that pleading by the party”)..  FN5. See also Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985) (stating that “[w]hen a case requires this court to determine the nature of a pleading filed by a party, we are not required to accept the label affixed to that pleading by the party”).

FN6. In footnote one of his Romero decision, Judge Karazin cites the following cases regarding this split of authority:  Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 07 4014607 (October 9, 2008, Gilligan, J.);   Consiglio v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV 05 4010111 (November 7, 2006, Zoarski, J.T.R.);   Cadle Co. v. Zubretsky, Superior Court, judicial district of Hartford, Docket No. CV 04 0832777 (February 23, 2006, Hennessey, J.T.R.);   Priceline.com, Inc. v. Mayes, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0196820 (March 16, 2005, Adams, J.) (39 Conn. L. Rptr. 9) (all holding that a constructive trust is not a valid independent cause of action in Connecticut);  Cooke v. Cooke, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001276 (April 23, 2007, Matasavage, J.) and Colodonato v. Hanson, Superior Court, judicial district of Hartford, Docket No. CV 04 4004755 (August 11, 2006, Miller, J.) (where the court ruled the other way)..  FN6. In footnote one of his Romero decision, Judge Karazin cites the following cases regarding this split of authority:  Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 07 4014607 (October 9, 2008, Gilligan, J.);   Consiglio v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV 05 4010111 (November 7, 2006, Zoarski, J.T.R.);   Cadle Co. v. Zubretsky, Superior Court, judicial district of Hartford, Docket No. CV 04 0832777 (February 23, 2006, Hennessey, J.T.R.);   Priceline.com, Inc. v. Mayes, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0196820 (March 16, 2005, Adams, J.) (39 Conn. L. Rptr. 9) (all holding that a constructive trust is not a valid independent cause of action in Connecticut);  Cooke v. Cooke, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001276 (April 23, 2007, Matasavage, J.) and Colodonato v. Hanson, Superior Court, judicial district of Hartford, Docket No. CV 04 4004755 (August 11, 2006, Miller, J.) (where the court ruled the other way).

Jennings, Alfred J., J.T.R.