LLC v. William O'Brien (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 168

FACTS

Before the court is the defendant's third motion to strike in this case.   On November 23, 2010, the plaintiff, Tax Data Solutions, LLC, commenced this action against the defendant, William O'Brien.   On September 29, 2011, the plaintiff filed a seven-count revised amended complaint.   On December 12, 2011, the defendant filed a motion to strike the revised amended complaint on the ground that, inter alia, the plaintiff did not plead its defamation claims with the requisite specificity.   On February 6, 2013, the court issued a memorandum of decision in which it denied the motion to strike as to the defamation claims.   On April 26, 2013, the plaintiff filed a fourth amended complaint.   In response to a request to revise, the plaintiff filed a fifth amended complaint on July 26, 2013.   On September 30, 2013, the court granted the defendant's motion to strike the fifth amended complaint on the ground that it failed to comply with the majority of the request to revise.   On October 10, 2013, the plaintiff filed a two-count sixth revised complaint, which is the operative complaint.   The allegations of the complaint are as follows.

During the week beginning April 5, 2009, the defendant made oral statements to New Haven Tax Assessor's office employees Alex Pullen, David Ambrose and others in which he accused the plaintiff's members of incompetence, ignorance, and improper grammar and composition.   The defendant also threatened to terminate the plaintiff's contract because the plaintiff had committed typographical errors.   On April 8, 2009, the defendant made the same false accusations in an e-mail he sent to Ambrose.

During the week beginning October 18, 2009, the defendant made oral statements to Pullen, Ambrose, Mark Riordan and Mark Pietrosimone in which he falsely accused the plaintiff of (1) attempting to steal from the city of New Haven (city) by submitting personal property accounts that city employees had already investigated;  (2) stealing from city employees' investigative efforts;  (3) fraudulently attempting to receive payment for investigative accounts that city employees had already conducted;  and (4) attempting to overbill the city for accounts previously investigated by city employees.   On October 19, and 20, 2009, the defendant sent e-mails to Pullen, Ambrose, Riordan, Pietrosimone and Laurence Risconi in which he again falsely alleged that the plaintiff was attempting to overbill the city.   The defamatory and false written and oral statements damaged the plaintiff's professional relationships with city personnel.   The plaintiff alleges claims for slander per se and libel per se in counts one and two, respectively.¹

The defendant filed the present motion to strike and a supporting memorandum of law on October 17, 2013.   The defendant moves to strike the entire complaint on two grounds:  (1) the statute of limitations has lapsed, and (2) the plaintiff failed to plead its defamation claims with legally sufficient specificity.   On November 7, 2013, the plaintiff filed a memorandum of law in opposition to the motion.   On November 8, 2013, the defendant filed a reply memorandum.   The matter was heard at short calendar on November 12, 2013.

DISCUSSION

“A motion to strike shall be used 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 ․” ² Practice Book § 10–39.  “[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 ․ 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.  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).

“[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).   One exception to this rule applies “when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.”  (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).³  “Moreover, courts have permitted a motion to strike to raise the issue of the statute of limitations when the parties do not agree, but only if it is patent that all the facts necessary to a determination of whether the plaintiff's complaint against the ․ defendant is timely and sustainable are apparent on the record ․” (Internal quotation marks omitted.)   Phills v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield, Docket No. CV–09–4027290–S (March 25, 2009, Bellis, J.).

In his memorandum of law, the defendant advances two arguments in support of the motion to strike.   First, the defendant argues that the action is barred because the two-year statute of limitations for defamation claims set forth in General Statutes § 52–597 ⁴ has lapsed.   The defendant asserts that the operative complaint, which is the first to provide a date on which each allegedly defamatory statement was made, is untimely because each alleged statement was made in 2009.   Moreover, the complaint does not relate back to a prior, timely complaint because (1) the original complaint did not contain allegations of slander or libel;  (2) the first and second amended complaints did not allege that any defamatory statements were made in April or October of 2009;  and (3) the third, fourth, and fifth amended complaints were filed after the statute of limitations had run.   Therefore, the relation back doctrine does not save the complaint from the statute of limitations.

Second, the defendant argues that the plaintiff does not plead its defamation claims with sufficient-specificity.   The defendant asserts that Connecticut courts require a plaintiff to allege a defamatory statement's exact language.   He argues that the plaintiff's failure to do so renders its claims legally insufficient.

The plaintiff objects to both grounds for the motion to strike.   First, the plaintiff argues that the statute of limitations ground is both procedurally and substantively defective.   On procedural grounds, the plaintiff argues that the defendant waived its ability to raise the statute of limitations by its failure to do so in a prior motion to strike.⁵  With respect to the merits of the defendant's statute of limitations argument, the plaintiff asserts that the complaint relates back to the second amended complaint, which was timely filed on December 13, 2010.⁶  Therefore, the plaintiff argues, its claims are not vulnerable to a motion to strike on statute of limitations grounds.   Second, the plaintiff argues that the ground of insufficient specificity is procedurally defective.   The plaintiff asserts that the law of the case doctrine precludes the defendant from moving to strike on this ground because the court rejected the same argument in its February 6, 2013 memorandum of decision denying the defendant's prior motion to strike.

With respect to the first ground for the motion to strike, the plaintiff argues that the statute of limitations is an improper ground for the motion because the defendant could have raised it in a prior motion to strike.   The defendant argued at the short calendar hearing that neither the revised amended complaint nor the fifth amended complaint furnished dates that were specific enough to form the basis of a motion to strike on statute of limitations grounds.  “[A]lthough the appellate courts have not ruled on the issue, in numerous cases, the judges of the Superior Court have concluded that the rules of practice preclude a party from filing successive motions to strike when the grounds raised in a later motion could have been raised in the initial motion.”  (Internal quotation marks omitted.)   Kaithamattam v. Walnut Hill, Inc., Superior Court, judicial district of Hartford, Docket No. CV–11–6022262–S (September 11, 2013, Peck, J.) (56 Conn. L. Rptr. 821, 822).   “[T]he judges reason that Practice Book [§ 10–41] provides that each motion to strike shall set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each claimed insufficiency ․ ⁷ Practice Book [§ 10–43] provides that a judge deciding a motion to strike in which more than one ground is asserted shall specify the ground relied upon in striking a claim ․” Grazioli v. Nichols, Superior Court, judicial district of New Haven, Docket No. CV–06–5001604 (October 2, 2007, Lopez, J.) (44 Conn. L. Rptr. 273, 275).  “[Because] [t]he Practice Book provides for pleading multiple grounds in a single motion to strike and, further, provides that pleadings are to advance after the adjudication of each enumerated pleading, a defendant may not impede the progress of the suit by dividing his grounds and pleading them in consecutive motions to strike ․ [Therefore], a defendant who has failed to raise all grounds for striking a complaint may not [later] file a second motion to strike asserting additional grounds.”   Stuart v. Freiberg, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–04–0200508–S (July 9, 2008, Tobin, J.).  “[A] second motion to strike may be appropriate in limited circumstances.   For example, when a plaintiff, pursuant to Practice Book § 10–44, files a subsequent pleading alleging new facts ․ Additional motions to strike, however, are not allowed when the grounds asserted therein could have been raised in an earlier motion.”  Kaithamattam v. Walnut Hill, Inc., supra, 56 Conn. L. Rptr. 822.

Other trial court judges have allowed successive motions to strike.   See, e.g., Chinnici v. Breakwater Key, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–92–295110–S (August 8, 1995, Tobin, J.) (14 Conn. L. Rptr. 587, 587).  “[Disallowing] multiple motions to strike makes good sense in terms of case management and judicial economy.   Nevertheless, the court will consider the substantive grounds raised in [a] motion to strike because if the court were to deny the ․ motion based on the plaintiffs' procedural objection, the defendants might attempt to raise their arguments by way of a subsequent motion for summary judgment.”  Id.

Thus, in the view of the majority of trial court judges to consider the issue, the defendant is not permitted to raise the statute of limitations as a ground for the present motion if “[i]t is found that the defendant had sufficient information ․ when he filed his initial motion to strike, upon which to base [the] argument that [he now raises]”;  Grazioli v. Nichols, supra, 44 Conn. L. Rptr. 275.   In the revised amended complaint, the plaintiff did not allege a date on which a defamatory statement was made.   Thus, the defendant did not have sufficient information upon which to base a statute of limitations argument in its first motion to strike.   In the fifth revised complaint, however, the plaintiff alleged that the defendant made defamatory oral statements on various dates in April 2009 and that the defendant made defamatory written statements in e-mails dated April 8, 2009, and October 19 and 20, 2009.   These dates provided sufficient information upon which the defendant could have based a statute of limitations ground for its second motion to strike.   Under the majority view, therefore, the defendant may not base the present motion on the statute of limitations.   Nevertheless, if the court were to decline to consider this ground, the defendant would likely raise the statute of limitations by way of a motion for summary judgment.   Accordingly, this court shall proceed to the merits of the defendant's statute of limitations argument.

Turning to the merits of this ground, General Statutes § 52–597 sets forth the statute of limitations applicable to defamation claims and provides:  “No action for libel or slander shall be brought but within two years from the date of the act complained of.”  “The statute of limitations for a defamation claim begins on the date of publication ․” (Internal quotation marks omitted.)   Cweklinski v. Mobil Chemical Co., 267 Conn. 210, 224, 837 A.2d 759 (2004).   In the operative complaint, the plaintiff alleges that the defendant made defamatory statements during the weeks beginning April 5, 2009, and October 15, 2009.   The plaintiff filed the complaint on October 2, 2013, approximately four years after the alleged statements were made and approximately two years after the statute of limitations lapsed.   The complaint is therefore untimely.

Accordingly, the court shall grant the motion to strike unless the complaint relates back to a complaint filed within the limitations period.   Under the well established doctrine of relation back, “[a] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ․ If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed ․ A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ․ A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant.   The facts which establish the existence of that right and that delict constitute the cause of action.”  Sherman v. Ronco, 294 Conn. 548, 555, 985 A.2d 1042 (2010).  “[I]n determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence.”  Id., 556.

Because the plaintiff first asserted causes of action in libel per se and slander per se in the amended complaint, which was timely filed on December 8, 2010, the allegations of the present complaint will relate back if they merely expand or amplify the facts alleged in support of those causes of action.   The plaintiff alleged the following facts in the amended complaint.   The defendant chastised the plaintiff on repeated occasions in e-mails and during telephone conversations and meetings.   The defendant made false oral and written statements to city employees in which he accused the plaintiff of fraudulent attempts to receive payment for investigations that city employees had already conducted and of attempts to over-bill the city.   In false written statements, the defendant accused the plaintiff of improper conduct or lack of skill in its profession.

The operative complaint merely expands upon these facts with allegations specifying the dates on which the statements were made.   These allegations provide additional factual support for the plaintiff's defamation claims and neither assert a new cause of action nor require the presentation of new or different evidence.   Therefore, the operative complaint relates back to the amended complaint and is not barred by the applicable statute of limitations.

The defendant's reliance on the factually distinguishable case of Lebby v. Klingberg Family Center, Superior Court, judicial district of New Britain, Docket No. CV–09–5014141 (May 25, 2010, Pittman, J.), is misplaced.   In Lebby, the plaintiff had alleged defamatory statements occurring on various dates in prior complaints.   The defendant moved for summary judgment, arguing that the plaintiff's defamation claim was time-barred because in no prior complaint did she allege a statement that occurred on November 3, 2007.   In its decision granting the motion, the court stated:  “From a reading of all the complaints, it appears that the particular defamatory conduct alleged in the [present] complaint is not the same as that alleged in any other complaint, that is, that the [present] complaint does not simply correct the date of conduct that was already alleged in an earlier pleading.”  (Emphasis added.)   Id. In other words, the complaint's failure to relate back arose not from the fact that it was the first in which the plaintiff alleged a specific date on which the act of defamation occurred, but rather from the fact that it was the first in which the plaintiff alleged that the particular act had occurred at all.   Lebby is distinguishable because in the present complaint, the plaintiff does not newly allege any defamatory statement;  it merely specifies the dates on which the already alleged defamatory acts occurred.

With respect to the second ground for the motion to strike, the plaintiff argues that the court's prior determination that it pleaded its defamation claims sufficiently is the law of the case.  “The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided ․ New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. ․  Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․

“A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he [or she] has the same right to reconsider the question as if he [or she] had himself [or herself] made the original decision ․ This principle has been frequently applied to an earlier ruling during the pleading stage of a case ․ According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)  Brown and Brown, Inc. v. Blumenthal, 288 Conn. 646, 656–57, 954 A.2d 816 (2008).

Here, another judge already decided that the plaintiff pleaded its defamation claims with sufficient specificity.   In its memorandum of decision denying the prior motion to strike as to these claims, the court stated:  “[A]lthough the plaintiff has not identified the exact language allegedly used by the defendant in defaming the plaintiff, the plaintiff has pleaded the subject matter of the statements ․ [T]he plaintiff has pleaded what defamatory statements were made generally ․ Thus the plaintiff has pleaded slander per se and libel per se with the requisite level of specificity.”   Tax Data Solutions, LLC, v. O'Brien, Superior Court, judicial district of New Haven, Docket No. CV–10–6016263 (February 6, 2013, Zemetis, J.).   Moreover, the plaintiff now alleges more specifically what statements were made.   The defamation claims in the operative complaint are sufficiently specific to survive a motion to strike.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to strike.

Brian T. Fischer, Judge

FOOTNOTES

FN1. Defamation “is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business [or] if it charges a crime involving moral turpitude or to which an infamous penalty is attached.”  (Internal quotation marks omitted.)   Mercer v. Cosley, 110 Conn.App. 283, 294 n.9, 955 A.2d 550 (2008) (defining libel per se);  see also Zeller v. Mark, 14 Conn.App. 651, 655, 542 A.2d 752 (1988) (defining slander per se)..  FN1. Defamation “is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business [or] if it charges a crime involving moral turpitude or to which an infamous penalty is attached.”  (Internal quotation marks omitted.)   Mercer v. Cosley, 110 Conn.App. 283, 294 n.9, 955 A.2d 550 (2008) (defining libel per se);  see also Zeller v. Mark, 14 Conn.App. 651, 655, 542 A.2d 752 (1988) (defining slander per se).

FN2. Practice Book § 10–39 was amended on June 14, 2013, effective January 1, 2014.   In general, changes in the rules of practice should be applied retroactively “to all actions whether pending or not at the time the [rule] became effective” if the changes are procedural in nature.   (Internal quotation marks omitted.)  Narayan v. Narayan, 305 Conn. 394, 403, 46 A.3d 90 (2012).   The disposition of the present motion to strike is the same regardless of whether the changes are applied..  FN2. Practice Book § 10–39 was amended on June 14, 2013, effective January 1, 2014.   In general, changes in the rules of practice should be applied retroactively “to all actions whether pending or not at the time the [rule] became effective” if the changes are procedural in nature.   (Internal quotation marks omitted.)  Narayan v. Narayan, 305 Conn. 394, 403, 46 A.3d 90 (2012).   The disposition of the present motion to strike is the same regardless of whether the changes are applied.

FN3. “The second [exception] is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right ․ it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Id., 239–40.  “[A] claim for libel originates at common law ․” (Internal quotation marks omitted.)   Phills v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield, Docket No. CV–09–4027290–S (March 25, 2009, Bellis, J.).   Because a statutory right of action is not alleged, the second exception is not applicable..  FN3. “The second [exception] is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right ․ it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Id., 239–40.  “[A] claim for libel originates at common law ․” (Internal quotation marks omitted.)   Phills v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield, Docket No. CV–09–4027290–S (March 25, 2009, Bellis, J.).   Because a statutory right of action is not alleged, the second exception is not applicable.

FN4. General Statutes § 52–597 provides:  “No action for libel or slander shall be brought but within two years from the date of the act complained of.”.  FN4. General Statutes § 52–597 provides:  “No action for libel or slander shall be brought but within two years from the date of the act complained of.”

FN5. The defendant replies that because “there was no complaint and/or cause of action pending as of September 4, 2013,” the date on which the court granted the defendant's prior motion to strike the complaint in its entirety, “the [plaintiff's claim] that the motion is somehow untimely as to the argument pertaining to the statute of limitations” is without merit.   The defendant appears to misunderstand the plaintiff's argument, which is that the defendant has waived its ability to invoke the statute of limitations by way of a motion to strike, not that the motion to strike is untimely..  FN5. The defendant replies that because “there was no complaint and/or cause of action pending as of September 4, 2013,” the date on which the court granted the defendant's prior motion to strike the complaint in its entirety, “the [plaintiff's claim] that the motion is somehow untimely as to the argument pertaining to the statute of limitations” is without merit.   The defendant appears to misunderstand the plaintiff's argument, which is that the defendant has waived its ability to invoke the statute of limitations by way of a motion to strike, not that the motion to strike is untimely.

FN6. The second amended complaint is identical in all material respects to the amended complaint filed on December 8, 2013..  FN6. The second amended complaint is identical in all material respects to the amended complaint filed on December 8, 2013.

FN7. This provision is now contained in Practice Book § 10–39(b)..  FN7. This provision is now contained in Practice Book § 10–39(b).

Fischer, Brian T., J.