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Flynn v. Directv, LLC

United States District Court, D. Connecticut

August 22, 2016

JEAN M. FLYNN et al., Plaintiffs,
v.
DIRECTV, LLC and MAS TEC, INC., Defendants

          RULING ON DEFENDANTS’ MOTIONS TO DISMISS AND TO STRIKE CLASS ALLEGATIONS

          Jeffrey Alker Meyer United States District Judge

         Plaintiffs are owners of a residential rental property with tenants who have purchased television services from defendant DIRECTV, LLC (DIRECTV). Plaintiffs claim that DIRECTV and its contractor, defendant Mas Tec Inc. (Mas Tec), installed satellite dishes on the exterior of plaintiffs’ property without their consent and in accordance with a business practice that was designed to circumvent their right to withhold consent. Plaintiffs seek to represent a class of similarly situated property owners, alleging state law claims of common law trespass and violation of the Connecticut Unfair Trade Practice Act (CUTPA).

         Defendants have now moved to dismiss plaintiffs’ CUTPA claim on the ground that plaintiffs have not pleaded a requisite business relationship with defendants. For the reasons set forth below, I will deny the motion to dismiss the CUTPA claim on the ground that plaintiffs have adequately alleged facts that suffice to meet any business relationship requirement that may be required to sustain a CUTPA claim.

         Defendants have further moved to strike plaintiffs’ class action allegations on the ground that plaintiffs cannot meet the so-called “commonality” and “ascertainability” requirements to maintain a class action under Rule 23 of the Federal Rules of Civil Procedure. For the reasons set forth below, I will grant the motion to strike insofar as plaintiffs seek class-action status to litigate their claim of common law trespass, because it is clear that individual issues of consent will predominate over the adjudication of any trespass claims. I will otherwise deny the motion to strike insofar as plaintiffs seek class-action status to litigate their CUTPA claim, because it is premature to conclude that plaintiffs cannot satisfy the commonality and ascertainability requirements for their CUTPA claim.

         Background

         Plaintiffs are joint owners of a multi-unit building that they rent out to tenants in Waterbury, Connecticut. DIRECTV furnishes satellite-based television programming by means of signals that it broadcasts through the air to satellite receptor “dishes” that are installed at its customers’ locations. Mas Tec installs DIRECTV’s dishes by means of drilling holes in the exterior walls or roof of the property where dishes are installed.

         Plaintiffs allege that defendants installed at least one satellite dish on their property without their consent. According to plaintiffs, this was a product of DIRECTV’s business practices that are designed to circumvent a landlord’s consent. DIRECTV allegedly provides the tenant customer with a form that instructs the customer to obtain consent from his or her landlord to place a satellite dish on the property. The new customer must then sign the form, which represents that the customer has obtained landlord consent. DIRECTV does not, however, independently confirm with the landlord that consent was actually given. Plaintiffs further contend that Mas Tec technicians are trained never to seek any kind of approval from landlords while installing the dishes. After a customer terminates her service, DIRECTV allegedly has a policy of abandoning the dishes, leaving the landlords to expend the effort to remove and dispose of them.

         Plaintiffs claim that DIRECTV and Mas Tec have installed and subsequently abandoned dishes without landlord consent on numerous buildings in Connecticut. Accordingly, they seek to bring this action on behalf of all others similarly situated, with the following class definition:

All persons and/or entities (“Landlords”) that own and lease residential multiple dwelling units (“MDU’s”) in the State of Connecticut, upon which Defendants, by their agents, servants and/or employees have, on at least on occasion during the applicable statutory period [3 years prior to filing], without first receiving prior written Landlord authorization and/or permission, installed DIRECTV equipment on the roof and/or exterior walls of said MDU.

         Amended Complaint, Doc. #28, ¶ 7.

         On behalf of themselves and the class, plaintiffs allege two causes of action: that defendants have trespassed on plaintiffs’ and the class members’ property (Counts 1 and 3) and that defendants have violated CUTPA with respect to plaintiffs and the class as a whole (Counts 2 and 4). Defendants now move to dismiss the CUTPA claims and move to strike the class allegations. Docs. #22; #47.[1]

         Discussion

         The principles governing this Court’s consideration of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) are well established. First, the Court must accept as true all factual matter alleged in a complaint and draw all reasonable inferences in the plaintiffs’ favor. See Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013). But, “‘[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         Motion to Dismiss CUTPA Claims

         CUTPA prohibits the use of “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat. § 42-110b(a). The statute “provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice.” Harris v. Bradley Mem'l Hosp. & Health Ctr., Inc., 296 Conn. 315, 351 (2010). CUTPA claims can be based on either an “actual deceptive practice” or an unfair practice-that is, a “practice amounting to a violation of public policy.” Ulbrich v. Groth, 310 Conn. 375, 409 (2013). Here, plaintiff claims that defendants’ practices as recounted above amount to a violation of public policy.

         Connecticut law has long recognized three factors that determine whether a ...


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