Kenneth J. Krayeske v. Leonard C. Boyle et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

On January 25, 2013, the plaintiff, Kenneth J. Krayeske, filed a twenty-count complaint against Leonard Boyle, Stephen Samoski, Christopher Nolan, Peter Terenzi, Pedro Rosado, Mark Cassista, Jeffrey Antuna, Mack Hawkins, John Horvath, Andrew Weaver, the city of Hartford and two unnamed individuals.¹  In the amended complaint,² the plaintiff alleges the following relevant facts.³  The defendants are police officers with the Hartford police department.   On December 29, 2006, Cassista, a police officer with the Connecticut department of emergency services and public protection (DESPP), assigned Rosado, another officer with DESPP, the task of searching on the internet for individuals or groups that may protest the inaugural celebration of Governor M. Jodi Rell. Through this search, Rosado gathered data and opened a file on the plaintiff.   Rosado used this information to create a two-page dossier and showed this to Cassista.   On January 2, 2007, Cassista instructed Rosado to take a photo of the plaintiff from the first page of the dossier and various information from the second page and create a one-page flyer to be distributed at public safety briefings prior to the inaugural parade and ball.   The defendants attended these briefings and were given this flyer.   The plaintiff attended the inaugural parade in Hartford and was spotted by Rosado.   Rosado radioed this in to headquarters.   Cassista had also spotted the plaintiff.   At this point, a number of officers arrested the plaintiff.   The state, however, dropped the charges against the plaintiff on March 22, 2007.   On May 24, 2007, the plaintiff filed a civil rights suit in the United States District Court for the District of Connecticut against Antuna, Hawkins, Weaver, the city of Hartford and several John Doe defendants.   The plaintiff later added Cassista and Rosado.   On November 6, 2009, the court granted summary judgment as to Hawkins, Weaver, Cassista, Rosado and the city of Hartford.   The court denied the plaintiff's subsequent motion to reconsider.   Each of the defendants intentionally destroyed this one-page flyer in anticipation of the civil suit, with the intent of denying the plaintiff his cause of action.   The plaintiff's lack of access to this one-page flyer made him unable to present a prima facie case resulting in summary judgment against him.

On March 3, 2013, the defendants filed a motion to strike counts ten through fifteen of the plaintiff's complaint to which the plaintiff filed an objection on May 13, 2013.   Both parties have filed memoranda of law.⁴  The court heard oral argument on May 20, 2013.

“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.”  Practice Book § 10–39(a).  “[I]n 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.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “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, 594 A.2d 1 (1991).  “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.)   Coe v. Board of Education, supra, 301 Conn. 117.

The defendants argue that the court should grant their motion to strike counts ten through fifteen of the plaintiff's complaint because (1) Connecticut does not recognize claims of intentional spoliation or third-party spoliation arising out of an underlying civil rights claim as opposed to a products liability claim;  and, (2) even if such claims are recognized under these circumstances, the plaintiff has still failed to demonstrate in his complaint facts necessary to meet the various elements of these claims.   The plaintiff counters that the Supreme Court has recognized intentional spoliation as a valid claim in the products liability context and various Superior Court decisions have applied that claim outside of products liability actions.   The plaintiff also argues that while the Supreme Court declined to decide whether third-party intentional spoliation is a valid claim, the Superior Court has previously allowed such a claim and applied it beyond of products liability cases.   Finally, the plaintiff argues that he has alleged sufficient factual allegations to demonstrate each element of intentional spoliation against each defendant.

The Supreme Court recognized intentional spoliation as a valid cause of action in Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006).   “Intentional spoliation of evidence is defined as the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action ․ [T]he tort of intentional spoliation of evidence consists of the following essential elements:  (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff;  (2) the defendant's destruction of evidence;  (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.”  (Citations omitted;  internal quotation marks omitted.)  Id., 280 Conn. 244–45.

The defendants first argue that a spoliation claim is not allowed under these circumstances because the plaintiff has not brought a products liability claim and the underlying constitutional tort claim does not hinge on a single piece of evidence.   Alternatively, the defendants argue that spoliation is not applicable here because the flyer alleged to have been destroyed was not a unique document.   First, while the appellate courts have not addressed the issue, the Superior Court has previously allowed spoliation claims outside of products liability.   See Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 12 6014139 (January 30, 2013, Adams, J.T.R) (55 Conn. L. Rptr. 451) (allowing a spoliation claim related to an underlying negligence action);  Green–Pinto v. OR & L Facility Services, LLC, Superior Court, judicial district of New Haven, Docket No. CV 12 6027983 (December 24, 2012, Zemetis, J.) (allowing a spoliation claim related to an underlying slip and fall action);  Koozmitch v. South Kendall Properties, Superior Court, judicial district of New London, Docket No. CV 07 5007155 (June 25, 2010, Martin, J.) (allowing a spoliation claim related to an underlying slip and fall action);  Diana v. NetJets Services, Inc., 50 Conn.Sup. 655, 974 A.2d 841 (2007) [44 Conn. L. Rptr. 696] (allowing a spoliation claim related to an underlying negligence action).   Contrary to the defendants' position, there is no reason to assume that there could not be some evidence in a constitutional tort action that would be so essential that its destruction would prevent a plaintiff from presenting a prima facie case.   The defendants' reasoning for denying applicability of a spoliation claim in a constitutional tort action is therefore unpersuasive.

As to the defendants' second argument, the Supreme Court has approved the cause of action of intentional spoliation of evidence and has outlined the necessary elements to prevail on such a claim.   The operative question, then, is whether the flyer in question was so unique that its destruction prevented the plaintiff from demonstrating a prima facie case.   Whether the plaintiff has presented sufficient allegations to establish a claim of intentional spoliation of evidence is discussed below.

The defendant argues that Connecticut does not and should not recognize a third-party spoliation of evidence claim under the circumstances of this case.  “A third party defendant spoliator ․ is oftentimes a stranger to the underlying litigation, but ․ is alleged to have destroyed evidence relevant to the plaintiff's causes of action against another defendant ․ [I]n other words, a third party spoliator is a party not alleged to have committed the underlying tort as to which the lost or destroyed evidence related ․ [The appellate courts have expressed] no opinion as to whether this state recognizes a cause of action for third party spoliation of evidence.”  (Citations omitted;  internal quotation marks omitted.)  Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 234 n.5. Although the appellate courts have not determined whether third-party intentional spoliation is actionable in this state, the Superior Court has twice held that it is since the Supreme Court decided Rizzuto.   In Diana v. NetJets Services, Inc., supra, 50 Conn.Sup. 668–76, the court, Bellis, J., allowed for a third-party spoliation claim on the grounds that such a claim addresses the same concerns that led the Supreme Court to recognize first party spoliation in Rizutto.   The court further noted that the defined elements of intentional spoliation protect potential third-party spoliation defendants from excessive burden.  Id., 671.   In Prada v. Bova, supra, 55 Conn. L. Rptr. 453–54, the court, Adams, J.T.R, also recognized a claim of third-party spoliation, citing the analysis in Diana.

The defendants' final argument in support of its motion to strike counts ten through fifteen is that the plaintiff fails to allege sufficient factual allegations in his complaint to demonstrate a claim of intentional spoliation of evidence.   As noted, “the tort of intentional spoliation of evidence consists of the following essential elements:  (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff;  (2) the defendant's destruction of evidence;  (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.”  Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 244–45.   It must be assumed that a claim of third-party intentional spoliation requires the same essential elements.   See Diana v. NetJets Services, Inc., supra, 50 Conn.Sup. 676–79.   Because of this, and because the plaintiff has generally alleged the same factual support for both his first- and third-party intentional spoliation claims, these claims are addressed together herein.

First, the defendants argue that the plaintiff has failed to demonstrate that they had knowledge of any current or impending lawsuit.   In his complaint, however, the plaintiff alleges that all of the officers knew or should have known that his arrest was made preemptively to prevent him from speaking at the Governor's inaugural ball.   Reading these allegations broadly, the plaintiff has set forth a factual basis from which it may be fairly implied that the defendants had some knowledge that a civil action claiming false arrest might be impending.   See Sullins v. Rodriguez, 281 Conn. 128, 132, 913 A.2d 415 (2007) (when considering a motion to strike, a court takes the facts “to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader”).

The defendants also claim that the plaintiff fails to allege bad faith concerning the destruction of the flyer by the defendants.   As previously stated, the plaintiff alleges that these officers knew of a possible civil rights action against them claiming false arrest and that they destroyed the flyer in anticipation of such an action.   The plaintiff further alleges that the defendants destroyed the flyer with the intent of preventing him from bringing an action claiming false arrest.   Viewing these allegations in the light most favorable to the pleader, they sufficiently demonstrate bad faith on the part of the defendants for the purpose of a motion to strike.

The defendants' final argument is that the plaintiff has failed to allege sufficient facts to support a prima facie case in the underlying action due to the destruction of the flyer.   While the plaintiff alleges in his complaint that the destruction of the flyer by each officer caused him to fail to meet his burden of setting forth a prima facie case, this assertion is undercut by various exhibits incorporated by reference in the complaint by the plaintiff.⁵  Specifically, Exhibit 8, the alleged two-page dossier prepared by Rosado;  Exhibit 29, the federal district court's decision on the plaintiff's motion to reconsider granting summary judgment in the underlying action;  and Exhibit 30, a portion of the transcript of the pre-trial hearing in the underlying federal action, demonstrate an insufficient basis in the complaint to find that the destruction of the document prevented the plaintiff from establishing his prima facie case.⁶

Exhibit 29, the ruling on the plaintiff's motion for reconsideration filed in the United States District Court, reflects that summary judgment was granted in favor of the defendants because the record was devoid of any evidence that those officers were involved in the arrest of the plaintiff.   Furthermore, the court stated that it granted summary judgment for the city of Hartford because the record was devoid of any evidence demonstrating that any act by a final policy maker for the Connecticut state police could be deemed an act by a final policy maker for the city.   Finally, in Exhibit 30, the transcript of a pre-trial hearing, the court indicated that to hold Cassista and Rosado liable in the underlying action, there would have to have been some evidence not just that they passed out to other officers a threat list that included the plaintiff, but also that they gave orders for officers to arrest the plaintiff on sight without any questions.   In his complaint, the plaintiff alleges that Cassista instructed Rosado to make the one-page flyer by taking a photo from page one of the two-page dossier on the plaintiff and adding various information from the second page of the dossier.   The flyer also allegedly had “Person of Interest” written at the top.   As noted, the two-page dossier is referenced as Exhibit 8 in the complaint.   The first page contains two photos of the plaintiff and some general biographical information.   The second page states that the plaintiff is the campaign director for the Green Party in Connecticut and made a web page entry asking who would be protesting the inaugural ball with him.   The second page goes on to state no one had responded to his inquiry and identifies his vehicle and address.   Finally, it notes a previous arrest of the plaintiff for obstruction of free passage.

Based on the foregoing exhibits to the complaint, for the destruction of this flyer to have prevented the plaintiff from demonstrating his prima facie case in the underlying federal action, the flyer would have had to contain information not otherwise available that would have suggested either that the officers had some involvement in the plaintiff's arrest or that an act by a final policy maker for the Connecticut state police could be deemed to be an act by a final policy maker for the city of Hartford.   Significantly, the plaintiff attached as an exhibit to the complaint the very two-page dossier that he alleges to have provided all the pertinent information contained in the allegedly spoliated one-page flyer.   Nothing in the two-page dossier provides any information as to who was involved in the arrest of the plaintiff nor does it evidence an act by a final policy maker for either the state police or the city of Hartford.   Accordingly, the plaintiff has not sufficiently alleged that he was prevented from presenting a prima facie case of intentional spoliation of evidence in the federal court because of the destruction of the flyer in satisfaction of the final element of a claim of spoliation against defendants Weaver, Hawkins, Horvath and Antuna.   See Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 245.

CONCLUSION

For the foregoing reasons, the defendants' motion to strike counts ten through fifteen of the plaintiff's complaint is hereby granted.

Peck, J.

FOOTNOTES

FN1. Only Antuna, Hawkins, Weaver and Horvath are parties to this motion.   All references to the defendants refer to only these four defendants..  FN1. Only Antuna, Hawkins, Weaver and Horvath are parties to this motion.   All references to the defendants refer to only these four defendants.

FN2. The original complaint was amended to correct a series of technical defects and adjust the exhibits incorporated therewith.   The substance of the twenty counts against the original defendants has remained the same to and including the amendment on March 15, 2013.   At the time of oral argument, the parties agreed that the operative complaint was the one filed March 15, 2013, although the motion to strike predated it..  FN2. The original complaint was amended to correct a series of technical defects and adjust the exhibits incorporated therewith.   The substance of the twenty counts against the original defendants has remained the same to and including the amendment on March 15, 2013.   At the time of oral argument, the parties agreed that the operative complaint was the one filed March 15, 2013, although the motion to strike predated it.

FN3. In his complaint, the plaintiff references a number of exhibits, making them a part of his complaint pursuant to Practice Book § 10–29.   The exhibits that are relevant to this motion, and what they contain, are detailed in the body of this memorandum..  FN3. In his complaint, the plaintiff references a number of exhibits, making them a part of his complaint pursuant to Practice Book § 10–29.   The exhibits that are relevant to this motion, and what they contain, are detailed in the body of this memorandum.

FN4. Counts ten and eleven allege spoliation and third-party spoliation against Weaver, counts twelve and thirteen allege spoliation and third-party spoliation against Hawkins, counts fourteen alleges spoliation against Horvath and count fifteen alleges third-party spoliation against Antuna..  FN4. Counts ten and eleven allege spoliation and third-party spoliation against Weaver, counts twelve and thirteen allege spoliation and third-party spoliation against Hawkins, counts fourteen alleges spoliation against Horvath and count fifteen alleges third-party spoliation against Antuna.

FN5. Such exhibits become a part of the complaint.   According to Practice Book § 10–29:  “Any plaintiff ․ desiring to make a copy of any document a part of the complaint shall refer to it as Exhibit A, B, C, etc.”   Thus, “[a] complaint includes all exhibits attached thereto.”   (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A 2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007)..  FN5. Such exhibits become a part of the complaint.   According to Practice Book § 10–29:  “Any plaintiff ․ desiring to make a copy of any document a part of the complaint shall refer to it as Exhibit A, B, C, etc.”   Thus, “[a] complaint includes all exhibits attached thereto.”   (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A 2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

FN6. These exhibits are appended to the original complaint and are referenced in the March 15, 2013 amendment..  FN6. These exhibits are appended to the original complaint and are referenced in the March 15, 2013 amendment.

Peck, A. Susan, J.