Kim Thomas v. Tyrone Rogers (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 108 SHORT CALENDAR MAY 14, 2012

ISSUE AND SUBMISSION

The issue before the court is the defendant's motion to strike the plaintiff's amended complaint, in its entirety, on the ground that the plaintiff has failed to plead legally sufficient causes of action.   For the reasons given, the motion must be granted.

I

FACTS

On February 29, 2012, the plaintiff, Kim Thomas, filed an amended complaint ¹ against the defendant, Tyrone Rogers.   The complaint alleges that on November 7, 2011, the defendant asked the plaintiff out on a date.   The plaintiff declined the defendant's offer, stating that she was engaged and that, nonetheless, it would be unethical because she is the defendant's manager.   On December 27, 2011 the defendant threatened the plaintiff, stating:  “I will make sure you get what you got coming.”   On that same date, the defendant fabricated a complaint against the plaintiff and filed it with the human resources department at the parties' employer, Marrakech, Inc. Thereafter, on December 29, 2011, the plaintiff was suspended from work as a result of the defendant's complaint.   On January 6, 2012, the plaintiff began treatment with a psychiatrist due to the incidents involving the defendant.   On January 7, 2012, the defendant sent a text message to the plaintiff, stating:  “I told [you] I would get rid of you since you turned me down when I asked you out.   I told you men are gods and women are meant to serve us.   See I am back at work and you're not.   Soon I will have your job.”   On January 12, 2012, the plaintiff was terminated from her job as a result of the defendant's complaint.   Thereafter, on January 19, 2012, the defendant deliberately filed a false police report in an attempt to retaliate against the plaintiff for filing the present lawsuit.   In the report to the police, the defendant stated that he observed the plaintiff drive by his place of business while beeping her horn and waiving at him.

The complaint alleges causes of action for defamation, harassment and emotional distress.²  On April 13, 2012, the defendant filed the present motion to strike the entire amended complaint, along with the request for punitive damages, on the ground that the plaintiff has not pleaded legally sufficient causes of action.   On May 1, 2012, the plaintiff filed an objection to the motion to strike.   The defendant filed a reply memorandum on May 8, 2012.   The matter was heard on the May 14, 2012 short calendar.

II

DISCUSSIONAMotion to Strike Standard

“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).  “[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

B

Analysis

The defendant moves to strike the entire amended complaint on the ground that the plaintiff has not sufficiently pleaded her causes of action.   The court will address each in turn.

1

Defamation

The defendant argues that the defamation claim is legally insufficient because the complaint does not specifically identify any alleged defamatory statements;  it fails to state how the defamatory statement specifically identified the plaintiff to a third person;  it fails to provide the identity of the third person to whom the defamatory statement was published;  and it does not state how the plaintiff's reputation suffered as a result of the defamatory statement.

The plaintiff objects, arguing that the complaint includes allegations that the defendant filed a false police report to the Torrington Police Department.   The plaintiff attached a photocopy of the police report to her objection.   In his reply, the defendant objects to the police report as it improperly raises facts outside the pleadings and constitutes an improper speaking motion.   Moreover, the defendant argues that any statements made by the defendant to the Torrington Police Department are protected by a qualified privilege.

“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Internal quotation marks omitted.)   Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28, 969 A.2d 736 (2009).

“[I]n order for a statement to be actionable as defamation it must be one of fact and not opinion.   In other words, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion ․ A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known ․ In a [defamation] action, such statements of fact usually concern a person's conduct or character ․ An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact.”  (Citations omitted;  internal quotation marks omitted.)   Dominican Chimi, LLC v. Scarano, Superior Court, judicial district of New London, Docket No. CV 10 6002422 (July 20, 2011, Cosgrove, J.).

In the present case, the complaint alleges that the defendant made a false police report to the Torrington Police.   Although the plaintiff attached the police report to her objection, she did not attach the police report to the original or amended complaint and, therefore, the police report was not incorporated into the pleadings.   See Practice Book § 10–29(a).   The court will not consider any facts contained in the police report because the assertions of those facts constitutes an improper speaking motion.  “Speaking motions have long been forbidden by our practice ․ A speaking motion to strike is one improperly importing facts from outside the pleadings ․ Because [a] motion to strike ․ focuses solely on the pleadings ․ [i]t is ․ improper for the court to consider material outside of the pleading that is being challenged by the motion.”  (Citations omitted;  internal quotation marks omitted.)   Vanghele v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 11 6015983 (March 13, 2012, Bellis, J.).

The plaintiff does not allege any specific details concerning the fabricated complaint made by the defendant to the plaintiff's employer.   Therefore, that incident is insufficiently pled and cannot serve as the basis for the plaintiff's defamation claim.   Thus, the court is left only with the allegation that the defendant made a false police report to the Torrington Police, in which the defendant allegedly told the police that the plaintiff was driving past his place of business, beeping her horn and waving at him.   Even taking the allegation in the light most favorable to the plaintiff, this statement cannot be considered defamatory as it would not tend to harm the reputation of the plaintiff.   Therefore, the motion to strike the plaintiff's defamation claim will be granted.

2

Harassment

The defendant moves to strike this cause of action on the ground that Connecticut does not recognize a civil action for harassment.   The plaintiff did not address this argument in her objection to the motion to strike.

“Connecticut has not recognized a civil cause of action for harassment.   While harassment is recognized in our criminal penal code and in cases pertaining to discrimination and harassment in the employment context, this recognition of harassment is based upon statutory violations.   Harassing behavior has been alleged in causes of action for emotional distress, but Connecticut has yet to recognize a separate cause of action for harassment.”  (Internal quotation marks omitted.)   Wagner v. Feldstein, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 05 4003866 (February 7, 2006, Ronan, J.T.R.).

Therefore, the motion to strike the plaintiff's harassment claim will be granted.

3

Emotional Distress

The defendant moves to strike this cause of action on the ground that the plaintiff has not pleaded the elements of either negligent or intentional infliction of emotional distress.   The plaintiff did not address this argument in her objection to the motion to strike.

“To survive a motion to strike and establish a claim of negligent infliction of emotional distress, a plaintiff is required to allege facts supporting the following elements:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  (Internal quotation marks omitted.)   Woodcrest Condominium Assn. v. Ruby, Superior Court, judicial district of Waterbury, Docket No. CV 10 6004962 (January 19, 2012, Taylor, J.), citing Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).

In the present case, the complaint alleges facts from which it can be inferred that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress and that the defendant's conduct was the cause of the plaintiff's distress.   Specifically, the plaintiff alleges that the defendant threatened her, the defendant fabricated a complaint against her resulting in her suspension and ultimate termination from work, the defendant sent her a text message of questionable content, and the defendant deliberately filed a false police report against her.   The plaintiff further alleges that she began treatment with a psychiatrist due to the incidents involving the defendant.   Nonetheless, the complaint fails to allege that the plaintiff's distress was foreseeable or that the emotional distress was severe enough that it might result in illness or bodily harm.   Accordingly, the plaintiff has not sufficiently alleged a cause of action for negligent infliction of emotional distress.

“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 ․ 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 facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!”  (Citations omitted;  internal quotation marks omitted.)  Carrol v. Allstate Ins. Co., supra, 262 Conn. 442–43.  “[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.   In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).

The plaintiff's complaint is insufficient to establish a cause of action for intentional infliction of emotional distress.   Although the alleged threats and intimidation by the defendant may rise to the level of extreme and outrageous, there are no allegations that the defendant intended to inflict emotional distress, or that he knew or should have known that emotional distress was a likely result of his conduct.   Furthermore, the plaintiff does not allege that the emotional distress she sustained was severe.   Rather, the plaintiff alleges only that she began to see a psychiatrist as a result of the defendant's actions.

Therefore, the motion to strike the emotional distress claim will be granted.

4

Damages

As all counts of the plaintiff's complaint have been stricken, all corresponding prayers for relief, including the claim for punitive damages, are also stricken.

BY THE COURT

John W. Pickard

FOOTNOTES

FN1. The plaintiff labels the pleading “Supplemental Complaint.”.  FN1. The plaintiff labels the pleading “Supplemental Complaint.”

FN2. The plaintiff does not separate the counts, but rather under the heading “Cause of Action” states that “As a result of the defendant's actions, the plaintiff's character has been defamed ․ the plaintiff has been harassed ․ the plaintiff has been suspended and terminated from her job ․ [and] a false report is on file with the Torrington Police Department with false allegations that the plaintiff harassed the defendant.”   In her prayer for relief, the plaintiff seeks punitive damages for the defendant's malicious actions and for the false police report..  FN2. The plaintiff does not separate the counts, but rather under the heading “Cause of Action” states that “As a result of the defendant's actions, the plaintiff's character has been defamed ․ the plaintiff has been harassed ․ the plaintiff has been suspended and terminated from her job ․ [and] a false report is on file with the Torrington Police Department with false allegations that the plaintiff harassed the defendant.”   In her prayer for relief, the plaintiff seeks punitive damages for the defendant's malicious actions and for the false police report.

Pickard, John W., J.