Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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Case 3:03-cv-00372-AVC Document 32-10 Filed 05/24/2004 Page1 of 3
%§TéT=;a$it§;&*eit i
Not Reported in A.2d Page 1
(Cite as: 1994 WL 15889l} (C0m1.Supe1·.))
Q of extreme and outrageous conduct; and (2) the
Oniy the Westlaw citation is currently available. claim for civil conspiracy is Eegeily insufficient for
Connecticut does not recognize civil conspiracy as a
separate and indiviciuai cause of action.
UNPUBLISHED OPINION. CHECK COURT
RULES BEFORE CITING. The purpose of the motion to strike is to challenge
the legal sufficiency of the eiiegations of any
‘ ¤01T1§i¤i11’€- Gordon v. Bridgeport Housing
Authgrify, 298 Conn. 161, 170. In guclgéng the
Superior Court of Connecticut, Iudiciai District of moiiozz, it does not matte; whether the party can
Danbmy. prove the allegations et trial. Levine v_ Begg and
Paul Sigel Hebrew Academy of Greater Hartford
J21t:eTARTAGLiA,eta]. [pm, 39 Conn.Sup. 129; 131. The motion admits
v. eil facts well pieaded, but does not admit lege?
Nancy MARINO, etal. conclusions or the truth or accuracy of opinions
stated in the pleadings. The sole inquiry is whether
No. 31 36 96. the plaintiffs’ aliegations, if proved, state a cause of
. action. Mzngachos v. CBS, Inc., 196 Conn. 91, 108.
April 25, $94. n
Count thirteen (intentional infiiction of emotional
distress as to James Marino).
MEMORANDUM GF DECISKJN -
" ’In order for the plaintiff to prevail in a cose for
MORAG1-iAN,Iudge. Eiabiiity under {the intentional infiiction of
emotional distress], four elements must be
*1 The plaintiffs (the singular shaii include the established. It must be shown: (1) that the actor
pluraij, Jane Tartaglia, Christopher Tertaglie, intended to inflict emotional distress; or that he
Andrew Tartaglia and James Marino, filed za, knew or should have known that emotiooei distress
twen1y—foui· count revised complaint seeking was 2. iikeiy result of his conduct; (2) that the
damages for, inter alia, emotional distress allegedly conduct was extreme and outrageous; (3) that the
suffered as a resuit of a pattern of harassing acts defendezifs conduct was the cause of the plaintiffs
allegedly orchestrated by Nancy Marino distress; and (4) that the ernotiooai distress
(hereinafter "defendent") and Damiei Kish ("Kish"). sustained by the plaintiff was severe. [Citations
Count thirteen and counts twenty—one through omitted.] Liabiiity for intentional infiicition of
twenty·foarareil1e counts at issue. emotional distress requires ’conduc1; exceeding all
bounds usually tolerated by decent society, of a
Count thirteen is brought by James Marino against namre which is especially calculated to cause, and
Nancy Marino, his ex—wife, and elieges intentional does cause, mental distress of e very serious kind} "
infiiction of emotional distress. Counts twenty—one Delaurentis v. New Haven, 220 Conn. 225,
through twenty—four are brought by the plaintiffs, 266-267(Citations omitted.)
respectively, and allege civil conspiracy as to the
defendant and Kish. In count thirteen, James Marino alleges that he was
harassed by the defendant between November, 1992
On February 22, 1994, the defendant filed a motion and June, 1993, in one or more of the following
to strike the subject counts on the grounds that (1) ways:
the claim for intentional infiiction of emotional *2 Repeatedly telephoning the Plaintiffs
distress is legally insufficient as it fails to allege residence at ali hours of the dey or night, and
conduct which, as zz matte; of law, rises to the ievel hanging up without speaking.
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1. (LEM J LL!. _\’
Case 3:03-cv-00372-AVC Document 32-10 Filed 05/24/2004 Page 2 of 3
Not Reported in A.2d Page 2
(Cite as: 1994 WL 158396 (Co1m.Super.)) ‘
Causing to he delivered to Plaintiffs home Giambatrista v. Hartford Courant, 3 CSCR S9, 90
unsoiicited food orders from neighboring food (November 23, 2987, Gill, 5.); Chipokas v. -
Suppiiers. Heritage Savings & Loan Association, Inc., 2 ,
Causing to be delivered to Plaintiffs home CSCR 895, 896 (July 2}, 1987, Kulawiz, 1).
unsolicited catalogues and niaiiings from third
party vendors and medical heaith care providers. In speaking to extreme and outrageous conduct, our
Repeatedly telephoning the Plaintiff in violation courts have noted that:
of Connecticut General Statutes, Sec. 53:1-183. It is not enough that the defendant has acted with
[FNI] an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress
or even that his conduct has been characterized
FN}. General Statutes Sec. 5321-183 by ‘rnalice,’ or a degree of aggravation which
provides, in part: wouid entitle the plaintiff to punitive damages for
A person is guilty of harassment in the another tort. Liabiiity has been found only where
second degree when: (I) By telephone, he the conduct has been so outrageous in character,
addresses another in or uses indecent or - and so extreme in degree, as to go beyond all
obscene language; or (3) with intent to possible bounds of decency, and to be regarded
harass, annoy or aiarni another person, he as atrocious, and utterly intoierable in a civilized
makes a telephone cali, whether or not a community. Generaliy, the case is one in which
conversation ensues, in a manner likely to the recitation of the facts to an average member
cause annoyance or harm. of the community would arouse his resentment
‘ against the actor, and lead him to exclaim,
(Plaintiffs Revised Complaint dated December 29, ’Outrageousl’ "
1993, para. S3.) The piaintiff claims that the MCG;-ath V, The Yale Corporation, Superior Court,
defendants conduct was extreme and outrageous, Judicial District of New Haven at New Haven, No.
and as a result of this conduct, the plaintiff suffered 326144 (May 17, 2993, Thompson, 3.), quoting 1 l
severe emotional distress. In her memorandum of Restatement (Second), Torts, Sec. 46, comment d.
law in support of her motion, the defendant, Nancy In addition, insults, indignities, or annoyances do
Marino, postulates that the plaintiffs allegation that not constimte extreme and outrageous behavior.
the defendants conduct was extreme and outrageous Brown v. Ellis, 40 C0nn.Sup. l65, 167. Tho
does not, as a matter of law, rise to the level of piaintiffs allegations as contained in the thirteenth
extreme conduct which would support a claim for count of the revised complaint do not rise to the
intentionai infliction ofemotionai distress. level of conduct so "extreme and outrageous" so as
to support a cause of action for intentional infiiction
The plaintiff argues in opposition that whether his of emotionai distress.
allegations set forth a iegally sufficient cause of
action in emotionai distress is not properly decided *3 The plaintiff has invited the court's attention to
on a motion to strike, but is better left as a factual the fact specific case of MacLanchZirz v. O’Cormor,
question for the jury. In the alternative, he opines Judicial District of Toliand at Rockville, No.
that the pattern of harassment alleged in count 040996 (May 24, i99i, Sclzeinhium, 3.) for the
thirteen is sufficient to satisfy the elements of an proposition that telephone calls for a mere two day
emotionai distress claim. period constituted the awarding of compensatory,
treble, and punitive damages. In MacLcmc}zlin, the
. in response to the plaintiffs first argument that court found as proven the fact that the defendant
"§w]iiile the question of whether a defendants computer generated, at the rate of every thirty
conduct is sufficiently ’extreme and outrageous' is seconds to one minute, over a totai of eight hundred
ordinarily a question of fct, it is for the court to (SOO) calls to the plaintiffs home/business
determine, in the first instance, whether the telephone in the space of a two day period. The
defendants conduct may be regarded as so extreme court found that the plaintiff was prevented from
and outrageous as to permit recovery." Satrembri conducting business during the time of the
v. AML Radio Delay League, 7 CSCR 483 (March telephone intrusion, and accordingly awarded
27, 1992, Schaller, J.); Mellabr v. Eastman Kodak damages for emotional distress. In the present
Co., 42 Conn.Sup. l7, 19 (Berdon, I.}; case, and in distinction to the facts of MacLa1.:ch!z'n,
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Case 3:03-cv-00372-AVC Document 32-10 Filed 05/24/2004 Page 3 ofg
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. (Cite as: 1994 WL 158890 (C011n.Super.)) _
the plaintiff has not alleged such a harassment or pursuant to, and as a result oi; the formed
intrusion which would support, as a threshold conspiracy which caused the plaintiffs' alleged
matter, a cause of action based on emotional emotional distress. The defendants motion to
distress as a result of the alleged actions of the suike counts twenty-one through twenty-four of the
defendant. Count thirteen is legally insufficient, plaintiffs revised complaint are, accordingly,
and is, therefore, stricken. granted.
Counts twenty-one through twenty-four (civil 1994 WL 158899 (Conn.Super.)
conspiracy as to all plaintiffs).
The contours of la civil action for conspiracy are: END OF DOCUMENT
(I) a combination between two or more persons,
(2) to do a criminal or an unlawful act or a lawful
act by criminal or unlawful means, (3) an act
done by one or more of the conspirators pursuant
to the scheme and in furtherance ofthe object, (4)
which act results in damage to the plaintiff
Mqrshgk v. Marsha]; 226 Conn. 652, 665, quoting
Williams v. Mofslan, li6 Conn. 433, 437, 165 A.
455 (1933). However, " ’there is no such thing as a
civil action for conspiracy. The action is for
damages caused by acts committed pursuant to a
formed conspiracy rather than by the conspiracy
itself} " id. 669, quoting Cale tg Agsggigted
Construction Co., 14l Conn. 49, 54, 103 A.2d 529
(i954).
ln counts twenty-one through twenty-four, the
plaintiffs allege that certain acts of the defendants
"objectively manifested their agreement to permit, ·
facilitate, and perpetuate the harassment of the .
plaintiff with the intent to inflict emotional distress,
and constituted a conspiracy whose purpose was
toward that end", and that the "defendants
agreement to subject the plaintiff to harassment
resulted in the Plaintiff suffering severe emotional
distress."
The defendant has responded to this allegation by
asserting that civil conspiracy is not a tort in and of
itseltQ and since the plaintiffs have failed to allege l
any additional acts or damages arising from the
alleged conspiracy which are not already recited in
other counts within the complaint, the referenced
counts should be stricken. Conversely, the _
plaintiffs assert that they have referenced the ‘
tortious acts undertaken by the defendant and have
properly alleged that those acts were taken in
furtherance of a conspiracy which damaged the
plaintiffs.
*4 While the plaintiffs have alleged that the
defendant agreed to conspire to harass the plaintiffs,
they have not alleged that it was the acts committed
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