LLC v. JP (2013)

MEMORANDUM OF DECISION

In this civil action the plaintiff seeks to recover damages from the defendants stemming from alleged unlawful entries onto real property owned by the plaintiff located at 5 Meadow Wood Drive in Greenwich.   The unlawful entries allegedly took place between September 23, 2009 and April 14, 2010.   In its first count the plaintiff alleges a cause of action against defendant, JPMorgan Chase Bank, N.A. (“Chase”) based on a claim for entry and detainer.   The third count claims that Chase's actions constituted a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42–110b et seq.  (“CUTPA”).  The fourth count alleges a cause of action against defendant, Lender Processing Services, Inc. (“LPS”), based on a claim for entry and detainer.   The sixth count claims that the actions of LPS constituted a violation of CUTPA.

Presently before the court are two motions to strike.   In the first motion, dated November 5, 2012, Chase seeks to strike the first count of the complaint on the ground that the claims set forth in that count are barred by the statute of limitations and to strike the third count on the grounds that the allegations of that count are insufficient to establish a CUTPA violation.   In the second motion to strike, dated December 21, 2012, LPS seeks to strike the fourth and sixth counts, respectively, on the same grounds.

In its objection to the motion to strike, the plaintiff claim concedes that the first and fourth counts, “together with the corresponding request for relief number 5 seeking double damages” may be stricken.   However, the plaintiff claims that the third and sixth counts adequately allege claims under CUTPA.   The court heard the parties at the short calendar on May 13, 2013.

DISCUSSION

General Statutes § 10–39 provides in relevant part:  “Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”   The role of the trial court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “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.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 260 (2001).  “The court must construe the facts in the complaint most favorably to the plaintiff.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Bhinder v. Sun Co., 263 Conn. 358, 366 (2003).

In their motions to strike the third and sixth counts of the plaintiff's complaint, the defendants claim that the plaintiff has failed to state a cause of action under CUTPA.  General Statutes § 42–110b(a) provides:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”   In determining whether certain acts constitute a violation of this act, Connecticut has adopted “the criteria set out in the cigarette rule by the federal trade commission ․ (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [competitors or other business persons].”  (Internal quotation marks omitted.)  Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591 (1995).

“All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy.”   (Citations omitted;  internal quotation marks omitted.)  Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106 (1992).   The defendants correctly states that a claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based.  Sorisio v. Lenox, Inc., 701 F.Sup. 950, 962 (D Conn.) aff'd 863 F.2d 195 (2d Cir.1988);  S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., 32 Conn.App. 786 (1993).   In Sorisio, supra, the court held that a CUTPA claim must be pleaded with “a particularized allegation of how the [conduct alleged] constituted a violation of an established concept of unfairness.”  701 F.Sup. at 963.

In the eighth paragraph of its third and sixth counts the plaintiff alleges that Chase and LPS, respectively, have been engaged in trade or commerce in the State of Connecticut and have engaged in conduct alleged to constitute unfair trade practices.   In both counts, the alleged conduct consisted of unlawful entries onto the plaintiff's real property which are claimed to constitute unlawful entry and detainer (in the first and fourth counts) and trespass (in the second and fifth counts).   Neither of those counts sets forth any allegations as to the relationship between the plaintiff and the defendants.   The court finds that in order to successfully plead a CUTPA, a plaintiff must plead sufficient facts to show that the alleged injury was sustained by a consumer, competitor or other person having a business relationship with the defendants.  Williams Ford, Inc. v. Hartford Courant Co., supra.   The court finds that the pleading of the naked conclusion that a defendant's actions occurred in the conduct of trade or commerce is insufficient to allege a cause of action under CUTPA.

CONCLUSION

The court grants the defendants' motions to strike the first, third, fourth and sixth counts of the plaintiff's complaint.

David R. Tobin, J.T.R.

Tobin, David R., J.T.R.