Maura Fitzgerald et al. v. Jamie Pricone et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 164)

I. FACTS AND PROCEDURAL HISTORY

On June 20, 2013, the plaintiffs, Maura Fitzgerald, Christopher Mocciae, and Simply Eventful, LLC, d/b/a The Hair Loft of Avon (The Hair Loft), filed their first revised complaint alleging multiple counts against the defendant, Kellyann Gelzinis, relating to her employment with the plaintiffs.   In their complaint, the plaintiffs allege the following facts.   The plaintiffs, Fitzgerald and Mocciae are the owners of Simply Eventful, LLC, d/b/a The Hair Loft. The Hair Loft provides hairstyling and other related services to clients.   The defendant was employed as a hairstylist for the Hair Loft since March of 2010.

The plaintiffs were informed by Cynthia Michaud, a longtime client of the Hair Loft, that Jamie Pricone, an employee and former owner of the Hair Loft, had admitted to Michaud that she and the defendant had engaged in conduct defaming the plaintiffs on social media websites and through conversations with third parties.   Michaud also informed the plaintiffs that Pricone had admitted that she and the defendant had captured proprietary client information from the Hair Loft's computers and servers for personal use and stole retail products from the business location.   The plaintiffs further allege that such conduct was engaged in intentionally and with malice in an effort to cause harm to the business interests of the plaintiffs.   As a result of these actions, the plaintiffs allege that they have suffered economic losses and monetary damages.

On August 5, 2013, the defendant filed a motion to strike and supporting memorandum against counts thirteen, twenty, twenty-six, and thirty-eight of the plaintiff's first revised complaint alleging tortious interference with business expectancies, conversion, civil theft under General Statutes § 52–564, and defamation, respectively.¹  On September 11, 2013, the plaintiffs filed an objection and supporting memorandum to the defendant's motion to strike.

II. 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.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “[I]t 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.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co., v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Citation omitted;  internal quotation marks omitted.)  Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).

A. Tortious Interference with Business Expectancies

The defendant argues that count thirteen alleging tortious interference with business expectancies should be stricken on the basis that the plaintiffs have neither alleged intentional conduct designed to interfere with a particular business relationship nor any factual allegations of fraud, misrepresentation, intimidation or malice.   The plaintiffs counter by arguing that the complaint alleges malicious misconduct in the misappropriation of client lists and data for personal use, defamation of the plaintiffs, and theft of goods.

“It is well established that the elements of a claim for tortious interference with business expectancies are:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship, and (3) as a result of the interference, the plaintiff suffers actual loss.”  (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011).  “[N]ot every act that disturbs a contract or business expectancy is actionable ․ [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious.   This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ [A]n action for intentional interference with business relations ․ requires the plaintiff to plead and prove at least some improper motive or improper means ․ The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification.”  (Citations omitted;  internal quotation marks omitted.)  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805–06, 734 A.2d 112 (1999).

In the present case, the plaintiffs have alleged that the defendant intentionally and maliciously defamed the plaintiffs in an effort to harm the plaintiffs' business interests.   The alleged defamatory statements were made publicly on social media websites and to third-party individuals.   This behavior clearly constitutes intentional conduct on the part of the defendant designed to reach present and future customers of the Hair Loft, such as Michaud, either directly or indirectly.   Furthermore, the alleged conduct necessarily implies a malicious or otherwise improper motive on the part of the defendant to harm the business interests of the plaintiffs, as alleged in the plaintiffs' complaint.

Therefore, the court finds that count thirteen of the plaintiffs' complaint adequately states a claim for tortious interference with business expectancies.

B. Conversion and Civil Theft Under § 52–564

The defendant argues that the conversion claim in count twenty is legally insufficient and should be stricken because the plaintiffs do not allege that the defendant deprived or exercised exclusive control over any property belonging to the plaintiffs.   The defendant also argues that count twenty-six alleging a claim of statutory theft under § 52–564 is inadequate since the plaintiffs have not adequately alleged a claim for conversion and, furthermore, have not adequately alleged the requisite intent under the statute.   The plaintiffs counter by arguing that the defendant deprived the plaintiff of exclusive control and dominion over the plaintiffs' client lists and that, nevertheless, the plaintiffs have adequately alleged conversion and theft under § 52–564 of retail products.

“Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights.”  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418, 934 A.2d 227 (2007).  “Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time;  some unauthorized assumption and exercise of the powers of the owner to his harm.   The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.”  (Internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).  “The intention required is an intention merely to exercise a dominion or control over the chattel which in fact seriously interferes with the right of another to control it.”  (Internal quotation marks omitted.)  Luciani v. Stop & Shop Cos., 15 Conn.App. 407, 411, 544 A.2d 1238, cert. denied, 209 Conn. 809 (1988).

“The elements of civil theft are also largely the same as the elements to prove the tort of conversion, but theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.”  (Internal quotation marks omitted.)  Sullivan v. Delisa, 101 Conn.App. 605, 620, 923 A.2d 760, cert. denied, 283 Conn. 908 (2007).   “Statutory theft under § 52–564 ² is synonymous with larceny under General Statutes § 53a–119 ․ Pursuant to § 53a–119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner.”  (Internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 771.

In the present case, the plaintiffs have alleged that the defendant intentionally and maliciously misappropriated the plaintiffs' client lists and other proprietary information, goods and/or services in an effort to harm the business interests of the plaintiffs.   Although the arguments raised by the parties provide an interesting question regarding whether the deprivation of exclusive control over client lists copied from the plaintiffs' computers and servers can form a basis for a claim in conversion, the court need not answer that question at present.   The plaintiffs have also alleged that the defendant converted retail products.   Since “[o]nly an entire count ․ can be subject to a motion to strike;” (Internal quotation marks omitted.)   Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven Docket No. CV–11–6016353 (May 30, 2013, Wilson, J.);   the allegation that retail products were stolen is sufficientto maintain a claim for conversion.   Additionally, the allegation that the appropriation and use of the plaintiffs' client lists and other proprietary information, goods and/or services was engaged in intentionally and with malice towards the business interests of the plaintiffs, as alleged, satisfies the requirement that the defendant intended to wrongfully deprive the plaintiffs of property under § 52–564.

Therefore, the court finds that counts twenty and twenty-six of the plaintiffs' complaint adequately state claims for conversion and statutory theft under § 52–564.

III. CONCLUSION

For the foregoing reasons, the defendant's motion to strike counts thirteen, twenty, and twenty-six are denied.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. During short calendar dated October 15, 2013, the parties agreed by stipulation that count thirty-eight alleging defamation be stricken without prejudicing the plaintiff's ability to replead..  FN1. During short calendar dated October 15, 2013, the parties agreed by stipulation that count thirty-eight alleging defamation be stricken without prejudicing the plaintiff's ability to replead.

FN2. General Statutes § 52–564 provides:  “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”.  FN2. General Statutes § 52–564 provides:  “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

Wiese, Peter E., J.