LLC v. Patrick McGowan et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (# 109)

On May 28, 2013, the plaintiffs Style Search and Consulting, LLC, Adriane Schwartz and Eric Walzer ¹ filed a nine-count revised complaint (complaint) against the defendants Patrick McGowan and Becca Ashley.   On June 11, 2013, the defendants moved to strike the first, third and fourth counts of the plaintiffs' complaint on the ground that those counts sound in negligent infliction of emotional distress arising from conduct by the defendants in the course of their employment by the plaintiff Style Search and Consulting, LLC, and, during employment, there is no such cause of action in this state.   The plaintiffs filed a brief in opposition to the motion to strike on August 2, 2013.   The motion was argued by movant's counsel on August 5, 2013.   The plaintiffs' counsel did not attend the argument.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of sustaining its legal sufficiency.   See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).   Viewing the allegations of the first, third and fourth counts in this light,² the essential facts are as follows.

The plaintiff Adriane Schwartz is the President of the plaintiff Style Search and Consulting, LLC (Style Search), which has offices in Old Lyme, Connecticut.   The plaintiff Eric Walzer is Schwartz's husband and Style Search's Chief Operating Officer.   The defendants are both former employees of Style Search.   The plaintiffs allege many business and personal misdeeds by the defendants—collectively, in many instances—including, for example, sabotage and theft of Style Search's database of contacts, encouraging fellow employees to quit work, McGowan routinely making physical and emotional threats to Schwartz and Walzer such as “indicating” that he intended to have their family killed,³ Ashley offering a prescription drug to colleagues at Style Search, both defendants representing to Schwartz that gift-wrapped “garbage” was a gift and inducing her to open it in the presence of other employees, and numerous statements and acts of an overt and unwelcome sexual nature.   The defendants' conduct caused great emotional distress to Schwartz, who was hospitalized, and to Walzer.

The first count, assuming it includes all the preceding allegations, adds that the defendants' conduct ⁴ created an unreasonable risk of causing Schwartz and Walzer “further and/or cumulative emotional distress”;  Schwartz's and Walzer's emotional distress was foreseeable, reasonable, and so severe it could have resulted in illness or bodily harm;  and the defendants should have realized that risk.   According to the plaintiffs' third and fourth counts, again incorporating all preceding allegations (including the second count, for intentional infliction of emotional distress), the defendants' conduct was extreme and outrageous and the defendants intended it to inflict emotional distress on Schwartz and Walzer and/or knew or should have known that emotional distress would result.   Ashley knew McGowan's conduct constituted a breach of duty to the plaintiffs ⁵ and gave him help and encouragement which “was a substantial factor in causing the resulting tort.” ⁶  McGowan knew the same about Ashley's conduct and did the same, with the same result.

DISCUSSION

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).   The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint or count to state a claim upon which relief can be granted.   See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   In determining the sufficiency of a pleading, all well-pleaded facts and all necessarily implied facts are taken as admitted.  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike does not admit legal conclusions or the correctness of opinions.   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   A motion to strike must be decided based only on the challenged pleading.  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   If any facts provable under the stated and implied allegations support a cause of action, the motion must be denied.  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

The first count alleges negligent infliction of emotional distress against the defendants.   The defendants claim, “Connecticut does not permit a cause of action for negligent infliction of emotional distress when the acts or omissions forming the subject matter of the cause of action occurred during the course of an ongoing employment relationship.   See Perodeau v. Hartford 259 Conn. 729, 762–63, 792 A.2d 752 (2002).”   In Perodeau v. Hartford, supra, 762, the court concluded that “for ․ policy reasons, the societal costs of allowing claims for negligent infliction of emotional distress in the context of ongoing employment are unacceptably high.”   The court held that “an individual ․ employee may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.”  Id., 762–63.

The court's analysis begins with noting that the complaint does not allege that Schwartz and Walzer were employees of Style Search.   It only alleges they were officers of Style Search.   There are references in the complaint to “other employees” which are ambiguous, in that they appear to refer to employees other than the defendants but could imply that Schwartz and Walzer were employees of Style Search.   However, whether Schwartz and Walzer were employees of Style Search is academic:  the effect, if any, of Perodeau on a claim for negligent infliction of emotional distress by someone who is not a colleague of a defendant engaged in the course of the defendant's employment when the defendant acts in a negligently distressing manner is not before this court.   What is clear is that the defendants were employees of Style Search and Schwartz and Walzer were the defendants' workplace colleagues.  Perodeau directly applies to the plaintiffs' first count:  that count fails to state a cause of action because employees may not be found liable to their colleagues for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.  Perodeau v. Hartford, supra, 259 Conn. 762–63.

The plaintiffs oppose the present motion because the complaint alleges some of the defendants' “acts and/or omissions giving rise to the instant suit” occurred after the termination of the defendants' employment by Style Search and during personal interactions outside of their employment.   See Complaint, ¶ ¶ 7, 14.   The plaintiffs may have meant to make such allegations but, with one exception, the complaint fails to do so.   There is only one specific allegation of an action by either of the defendants that occurred after their employment with Style Search ended.   That is the allegation, at paragraph 14, that McGowan “threatened Plaintiffs Schwartz and Walzer, following his termination that he intended to engage any steps necessary to ‘go after’ them in ‘every way possible.’  “ (It is not clear whether that threat was made immediately after McGowan was told his employment was terminated or some time later.)   However, stripped of allegations of the defendants' conduct during the employment relationship, or conduct not clearly outside that relationship,⁷ the court finds that this threat by McGowan “following his termination” does not change the essence of the first count from a claim barred by Perodeau v. Hartford, particularly because this one allegation taken alone could not support a negligent infliction of emotional distress claim.

The defendants also move to strike the plaintiffs' third and fourth counts of “aiding a tort.”   As previously stated, the third count alleges that Ashley aided McGowan in the commission of “the resulting tort,” and the fourth count alleges that McGowan aided Ashley in the same.   The defendants argue that counts three and four can only be read as referring back to count one, because counts three and four include the allegations that each defendant knew that the other defendant's conduct “constituted a breach of duty” and that terminology is generally associated with negligence claims.   The defendants' argument is reasonable and the motion to strike counts three and four is easy to understand.   Counts three and four are sketchily pleaded.   They do not specify which tort—negligent or intentional infliction of emotional distress—is alleged to have been aided and abetted.   See footnotes 5 and 6. Only by construing these counts as incorporating all the allegations which precede them is any specific conduct of either defendant alleged.   See footnote 2. Only by application of the rule that claims are to be construed in the manner most favorable to sustaining their legal sufficiency;  Santorso v. Bristol Hospital, supra, 308 Conn. 349;  can the court conclude that “the resulting tort” means both negligent and intentional infliction of emotional distress, alleged in counts one and two, respectively.   Only by the striking of count one does intentional infliction of emotional distress become the claim underlying counts three and four.   See Marshak v. Marshak, 226 Conn. 652, 668, 628 A.2d 964 (1993) (tort of aiding tort requires an independent, underlying cause of action);  Efthimiou v. Smith, 268 Conn. 499, 504–05, 846 A.2d 222 (2004) (same).   And, since count two alleges intentional infliction of emotional distress by both defendants, only the plaintiffs' privilege to plead in the alternative, and even inconsistently;  Vidiaki, LLC v. Just Breakfast and Things!!!, 133 Conn.App. 1, 24, 33 A.3d 848 (2012);  saves counts three and four from being duplicative, and therefore legally insufficient.

“In Connecticut cases, the tort of aiding and abetting is often used interchangeably with the principles outlined in § 876 of 4 Restatement (Second), Torts.”   Calore v. Stratford, Superior Court, judicial district of Bridgeport, Docket No. CV–98–0357147–S (January 8, 2001, Melville, J.) (28 Conn. L. Rptr. 653, 656);  see also Connecticut National Bank v. Giacomi, 242 Conn. 17, 63, 699 A.2d 101 (1997).   Section 876 of the Restatement (Second) of Torts provides in relevant part:  “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ․ knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself ․” The comments and illustrations to this section of the Restatement indicate that this principle applies regardless of whether the aiding and abetting accompanies a negligent tort or intentional tort.  Id., comment (d);  see also id., illustrations (4)-(6).   In counts three and four, construed in favor of their legal sufficiency, the allegation that “conduct constituted a breach of duty” does not limit the underlying tort to negligent infliction of emotional distress, which would be stricken along with count one.   That allegation is consistent with the language of § 876 of the Restatement, which, as noted, applies to intentional torts as well as to negligence.   Although count one has been stricken, count two remains and, since either defendant could prevail on count two, counts three and four remain legally sufficient as to the defendants' aiding and abetting of each other's intentional infliction of emotional distress.

For the foregoing reasons, the defendants' motion to strike is granted as to the first count of the complaint and denied as to the third and fourth counts.

Cole–Chu, J.

FOOTNOTES

FN1. Most of the parties' filings in this case, including the original complaint, list Adriane Schwartz, Eric Walzer and Style Search and Consulting, LLC, in that order, in the first page “caption.”   The court's electronic filing system identifies cases based on the plaintiff and defendant first named in the plaintiffs' summons.   The court's caption here follows this convention:  Style Search and Consulting, LLC, is the plaintiff first named in the summons..  FN1. Most of the parties' filings in this case, including the original complaint, list Adriane Schwartz, Eric Walzer and Style Search and Consulting, LLC, in that order, in the first page “caption.”   The court's electronic filing system identifies cases based on the plaintiff and defendant first named in the plaintiffs' summons.   The court's caption here follows this convention:  Style Search and Consulting, LLC, is the plaintiff first named in the summons.

FN2. The allegations in the plaintiffs' complaint consist of 88 paragraphs.   Paragraphs are numbered sequentially, but none of the counts explicitly incorporates any preceding allegations.   The title “Parties” is followed by paragraphs 1–5.   The title “Factual Background” is followed by paragraphs 6–53.   The title “First Count (Negligent Infliction of Emotional Distress)” is followed by paragraphs 54–61.   The title “Second Count (Intentional Infliction of Emotional Distress)” is followed by paragraphs 62–65.   The title “Third Count (Aiding A Tort—Defendant Ashley)” is followed by paragraphs 66–68.   The title “Fourth Count (Aiding A Tort—Defendant McGowan)” is followed by paragraphs 69–71.   The remaining counts follow suit.   To their credit, the defendants have focused on substance over form by not claiming the perfunctoriness of the subject counts as a basis for the present motion.   Construing the complaint in the manner most favorable to sustaining its legal sufficiency;  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013);  the court will construe each count as incorporating all of the allegations in the complaint which precede it.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN2. The allegations in the plaintiffs' complaint consist of 88 paragraphs.   Paragraphs are numbered sequentially, but none of the counts explicitly incorporates any preceding allegations.   The title “Parties” is followed by paragraphs 1–5.   The title “Factual Background” is followed by paragraphs 6–53.   The title “First Count (Negligent Infliction of Emotional Distress)” is followed by paragraphs 54–61.   The title “Second Count (Intentional Infliction of Emotional Distress)” is followed by paragraphs 62–65.   The title “Third Count (Aiding A Tort—Defendant Ashley)” is followed by paragraphs 66–68.   The title “Fourth Count (Aiding A Tort—Defendant McGowan)” is followed by paragraphs 69–71.   The remaining counts follow suit.   To their credit, the defendants have focused on substance over form by not claiming the perfunctoriness of the subject counts as a basis for the present motion.   Construing the complaint in the manner most favorable to sustaining its legal sufficiency;  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013);  the court will construe each count as incorporating all of the allegations in the complaint which precede it.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN3. The plaintiffs allege, at paragraph 23 of the complaint, that the defendants' “behavior also entailed multiple calls to the Old Lyme Police Department.”   Although the subject of that sentence is the defendants' behavior and the verb is “entailed,” the sentence immediately follows the allegation of McGowan's “indicating” he intended to have Schwartz and Walzer's family killed.   In context, the court cannot tell who called the Old Lyme Police.   The court does not regard this as well pleaded or, therefore, admitted by the present motion..  FN3. The plaintiffs allege, at paragraph 23 of the complaint, that the defendants' “behavior also entailed multiple calls to the Old Lyme Police Department.”   Although the subject of that sentence is the defendants' behavior and the verb is “entailed,” the sentence immediately follows the allegation of McGowan's “indicating” he intended to have Schwartz and Walzer's family killed.   In context, the court cannot tell who called the Old Lyme Police.   The court does not regard this as well pleaded or, therefore, admitted by the present motion.

FN4. Paragraph 54 of the complaint alleges that the defendants' conduct towards Schwartz and Walzer was foreseeable.   To rule on the present motion, the court does not need to analyze the effect of that admission..  FN4. Paragraph 54 of the complaint alleges that the defendants' conduct towards Schwartz and Walzer was foreseeable.   To rule on the present motion, the court does not need to analyze the effect of that admission.

FN5. To whom the alleged duty was owed is not stated in the complaint.   Construing the complaint in the manner most favorable to sustaining its legal sufficiency;  Santorso v. Bristol Hospital, supra, 308 Conn. 349;  the court infers that the plaintiffs mean to allege a duty owed to them..  FN5. To whom the alleged duty was owed is not stated in the complaint.   Construing the complaint in the manner most favorable to sustaining its legal sufficiency;  Santorso v. Bristol Hospital, supra, 308 Conn. 349;  the court infers that the plaintiffs mean to allege a duty owed to them.

FN6. The “resulting tort” is not specified.   What is clear, albeit by inference favoring the plaintiffs, is that the third and fourth counts are based on the same conduct alleged in the preceding “Factual Background” and first two counts.   See footnote 2..  FN6. The “resulting tort” is not specified.   What is clear, albeit by inference favoring the plaintiffs, is that the third and fourth counts are based on the same conduct alleged in the preceding “Factual Background” and first two counts.   See footnote 2.

FN7. The allegation in the second sentence of paragraph 14 of the complaint that, “[o]ther similar threats were made in electronic mail [to] Schwartz” is not clear as to whether the electronic mail was during or after employment.   From this unclarity, and disregarding any privilege McGowan had to file the complaints with the state Commission on Human Rights and Department of Labor alleged in paragraph 15, it is not clear when those complaints were filed..  FN7. The allegation in the second sentence of paragraph 14 of the complaint that, “[o]ther similar threats were made in electronic mail [to] Schwartz” is not clear as to whether the electronic mail was during or after employment.   From this unclarity, and disregarding any privilege McGowan had to file the complaints with the state Commission on Human Rights and Department of Labor alleged in paragraph 15, it is not clear when those complaints were filed.

Cole–Chu, Leeland J., J.