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Carter v. Edge Fitness Gym

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

February 16, 2017

Joseph Carter
v.
Edge Fitness Gym

          MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 105

          Barbara N. Bellis, J.

         FACTS

         On May 2, 2016, the plaintiff, Joseph Carter, filed a four-count amended complaint against the defendant, Edge Fitness Gym. In the amended complaint, the plaintiff alleges the following. On February 19, 2014, an off-duty police officer observed a man appear to be taking cans of baby formula off of a pharmacy shelf and putting them into his coat. He attempted to stop the man, causing the man to drop his keys, cell phone and the baby formula before slipping out of the coat and fleeing the scene. An investigating officer responded to the scene and, upon taking custody of the man's possessions, noticed a loyalty card for the defendant on the key ring. The investigating officer drove to the location of the defendant, presented the loyalty card to an employee, and asked to whom it belonged. The defendant's employee scanned the loyalty card and provided the investigating officer with a print-out of the personal information on file for the plaintiff, including his name, date of birth, and home address. The plaintiff alleges that, as a direct result of the disclosure of his personal information, the investigating officer unlawfully entered the plaintiff's home and detained him.

         In count one of the amended complaint, the plaintiff alleges a cause of action for breach of contract, stating that when the plaintiff entered into a contract with the defendant he had a reasonable expectation of privacy with regard to the disclosure of his personal information and that the defendant, by disclosing that information, breached the contract and put the plaintiff in undue harm without reasonable justification. In count two, the plaintiff alleges a cause of action for violation of his fourth and fourteenth amendment rights, stating that the defendant illegally disclosed the plaintiff's private information. In count three, the plaintiff alleges a cause of action for negligence, stating that the defendant, by disclosing the plaintiff's private information, neglected his personal safety and expectation of privacy. In count four, the plaintiff alleges a cause of action for deliberate indifference, stating that when the defendant's employee willingly decided to disclose the plaintiff's private information, the employee should have been aware that it violated the plaintiff's expectation of privacy.

         On July 1, 2016, the defendant filed a motion to strike counts one, two, three, and four of the plaintiff's amended complaint on the ground that each count fails to state a legally sufficient claim upon which relief can be granted. In support of its motion, the defendant filed a memorandum of law. On July 25, 2016, the plaintiff filed an objection and memorandum of law in opposition to the defendant's motion to strike, and attached four exhibits. On August 9, 2016, the defendant filed a reply to the plaintiff's objection to the motion to strike, and attached two exhibits. On August 26, 2016, the plaintiff filed a response to the defendant's reply, and attached one additional exhibit. The court heard oral arguments at short calendar on November 14, 2016.

         DISCUSSION

         " 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). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on motion to strike, court cannot resort to information outside of complaint); Beck & Beck, LLC v. Costello, 159 Conn.App. 203, 207, 122 A.3d 269 (2015) (trial court will not look beyond challenged pleading for facts not alleged, or necessarily implied).

         " It 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). Nevertheless, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

         In its memorandum of law in support of the motion to strike, the defendant argues that counts one, two, three, and four should be stricken because the plaintiff fails to state legally sufficient claims upon which relief can be granted. Specifically, the defendant argues: (1) as to count one, the claim of breach of contract, the plaintiff fails to allege the existence of a contract between himself and the defendant; (2) as to count two, the claim of violation of the fourth and fourteenth amendments, the plaintiff cannot establish the applicability of the aforementioned constitutional provisions because the defendant is a private actor and was not acting as an agent of the state during the events in question; (3) as to count three, the claim of negligence, the plaintiff fails to allege the necessary elements, namely, causation and damages; and (4) as to count four, the claim of deliberate indifference, the plaintiff cannot establish the applicability of such a claim because the defendant is not a state actor and, in addition, the plaintiff failed to allege the requisite mental state, conduct, or context. The defendant further argues that if count one is reasonably construed as a claim for invasion of privacy, rather than breach of contract, the plaintiff fails to sufficiently allege facts to support a theory of unreasonable intrusion upon the seclusion of another, appropriation of another's name or likeness, unreasonable publicity given to another's private life, or false light.

         In response, in his memorandum of law in opposition to the motion to strike, the plaintiff argues: (1) as to count one, the plaintiff was added to an existing member's account with the defendant, and therefore entered into a binding contract agreement with the defendant by way of receiving a membership loyalty card; (2) as to count two, the defendant's employee acted in conspiracy and in concert with the investigating officer, and the investigating officer's illegal actions caused the plaintiff to suffer losses; (3) as to count three, the defendant had a contractual duty to keep the plaintiff's personal information from disclosure; the defendant's employee breached said duty by scanning the plaintiff's loyalty card and providing the investigating officer with a print-out of his information; and the defendant's employee's actions proximately caused the plaintiff's unlawful arrest by adding to the chain of events; (4) as to count four, the defendant's employee was subjectively reckless by unlawfully cooperating with a government official, and that the defendant acted in concert with said government official to cause the plaintiff to suffer cruel and unusual punishment. The plaintiff further argues that, although count one is a breach of contract claim, he had a expectation of privacy in the membership loyalty card; the personal information contained therein was secluded; and that disclosure of the information was offensive to the plaintiff.[1]

         I. COUNT ONE--BREACH OF CONTRACT

         The defendant argues that the plaintiff fails to allege the existence of a contract or agreement between the two aforementioned parties or any terms of an agreement that were allegedly breached and therefore, fails to state a claim upon which relief may be granted. Moreover, the defendant argues that the plaintiff has also not alleged sufficient facts to show causation. In response, the plaintiff asserts facts not alleged in the operative complaint, specifically, that he was added to an existing member's account and therefore, he had an agreement with the defendant. The plaintiff further asserts that the defendant's disclosure of his personal information to the investigating officer proximately caused his subsequent illegal arrest.

         " The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81, 887 A.2d 420 (2006). " [A] bald assertion that the defendant has a contractual obligation, without more, is insufficient to survive a motion to strike." (Internal quotation marks omitted.) Comm'r of Labor v. C.J.M. Servs., 268 Conn. 283, 293, 842 A.2d 1124 (2004). In Commissioner of Labor v. C.J.M. Services, Inc., supra, 293, the Supreme Court found that the plaintiff had set forth a specific contractual obligation sufficient to survive a motion to strike where the allegation stated " [the general contractor] was required to pay prevailing wages to all mechanics, laborers, and workmen on said project pursuant to the contract for said public works project." Id.

         In the present case, in count one of the plaintiff's amended complaint, the plaintiff alleges that he " entered into a contract with [the defendant]" and had a " reasonable expectation of privacy in regards to the disclosure of his personal information." The plaintiff further alleges that the defendant breached said contract by disclosing his personal information and putting the plaintiff in " undue harm without reasonable justification." Nonetheless, the plaintiff has not provided, in the amended complaint, any factual allegations to support an allegation that the defendant had a contractual obligation to keep the plaintiff's personal information private. The plaintiff has only alleged that he had a reasonable expectation of privacy with regard to disclosure of the information; the plaintiff has not alleged, in the amended complaint, that the defendan ...


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