Jason Harrelle v. Wendy's Old Fashioned Hamburgers of New York, Inc. (2015)

MEMORANDUM OF DECISION RE (Motion to Strike, # 122 Short Calendar, April 27, 2015)

The defendant, Adel Martini–Crowley, moves to strike count five of the revised complaint filed by the plaintiff, Jason Harrelle, on the ground that the plaintiff has not alleged sufficient facts to sustain a claim of defamation per se.

“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.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)  Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).

Courts have addressed whether a motion to strike is a speaking motion when a document is referenced or incorporated in the complaint in the context of contract claims.  “[C]ontract terms also can be considered by a court when they are quoted or paraphrased directly within the pleading.”   Murphy v. Day Publishing Co., Superior Court, judicial district of New London, Docket No. CV–12–6013939–S (June 5, 2013, Devine, J.).   Moreover, “[n]othing in our cases suggests ․ that every argument in a motion to strike is rendered defective by the moving party's allegation of some fact not contained in the pleadings, regardless of whether that fact is relevant for each argument in the motion.”   Liljedahl Bros., Inc. v. Grisby, 215 Conn. 345, 348–49, 576 A.2d 149 (1990).

“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published the defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Internal quotation marks omitted.)   Gambardella v. Apple Health Care Inc., 291 Conn. 620, 627–29, 969 A.2d 736 (2009).  “Whether words are actionable per se is a question of law for the court ․ All of the circumstances connected with the publication of defamatory charges should be considered in ascertaining whether a publication was actionable per se.”  Nelson v. Tradewind Aviation, LLC, 155 Conn.App. 519, 532 (2015).

“It is well settled that a libel 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.”  (Internal quotation marks omitted.)  Id. “Spoken words are actionable per se only if they charge a general incompetence or lack of integrity.   They are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity.”  Proto v. Bridgeport Herald Corp., 136 Conn. 557, 567, 72 A.2d 820 (1950).

“[D]efamation should be alleged with some degree of specificity ․ In claiming defamation, certainty is required in the allegations as to the defamation and as to the person defamed;  a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were [made], by whom, and to whom.   A complaint is insufficient ․ where, other than the bare allegation that the defendant's action cause injury to plaintiff's reputation, the complaint sets forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they may have been made.”  (Citations omitted;  internal quotation marks omitted.)   Tax Data Solutions, LLC v. O'Brien, Superior Court, judicial district of New Haven, Docket No. CV–10–6016263–S (February 6, 2013, Zemetis, J.).

When the plaintiff “does not specifically identify the individual ․ to whom statements were made, the identification of a particular group has been determined to be sufficient in the context of a motion to strike.”  Id.;  see also Dean v. Liberation Programs, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–13–6018607–S (November 13, 2013, Tobin, J.T.R.);   Churchill v. Farmington Woods Master Ass'n, Inc. Golf Club, Superior Court, judicial district of New Britain, Docket No. CV–11–6010999–S (July 1, 2013, Cobb, J.).  “[P]ursuant to the doctrine of intracorporate communication—the element of publication may be satisfied where the statement about the [employee] ha[s] been communicated among the [employee's] supervisors and ha[s] been included in the [employee's] personnel file.”  (Internal quotation marks omitted.)  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 544 n.23, 722 A.2d 197 (1999).

In the present case, the plaintiff alleges that the defendant told human resources, management, and/or other employees of the defendant that the plaintiff had called her a “greedy bitch” and said he would like to “punch her in the face” and has been dying to for years.   The defendant also allegedly told human resources, management, and/or other employees that the plaintiff is “hostile with anyone who crosses him.”   These statements could be said to implicate improper conduct or lack of skill or integrity in one's business as well as general incompetence or lack of integrity.   The plaintiff alleges that the defendant filed a complaint with human resources stating the same and the complaint was filed in the plaintiff's personnel file.   The plaintiff further alleges that the plaintiff suffered and will continue to suffer financial and emotional distress.   Therefore, the allegations in the complaint are sufficient to state a defamation claim against the defendant.

The defendant's motion to strike count five of the revised complaint is denied.

THE COURT

Calmar, J.

Calmar, Harry E., J.