United States District Court, D. Connecticut
RULING ON THIRD-PARTY DEFENDANTS' MOTION TO
DISMISS (DOC. NO. 36)
C. Hall United States District Judge
and third-party plaintiff Ana Purcell (“Purcell”)
filed a Counterclaim and Third-Party Complaint alleging ten
causes of action against plaintiff and third-party defendant
Robert Pressman (“Pressman”), and third-party
defendants Triton Equity Partners, LLC (“Triton”)
and LA Bob, Inc. (“LA Bob”), (collectively
third-party defendants have filed a Motion to Dismiss (Doc.
No. 36) the First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, and Tenth Counts. For the reasons that
follow, the Motion to Dismiss is granted in part.
STANDARD OF REVIEW
withstand a motion to dismiss filed pursuant to Federal Rule
of Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The
plausibility standard is not a probability requirement; the
pleading must show, not merely allege, that the pleader is
entitled to relief. Id. Legal conclusions and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” are
not entitled to a presumption of truth. Id. However,
when reviewing a motion to dismiss, the court must accept the
factual allegations in the operative complaint as true and
draw all reasonable inferences in the non-movant's favor.
See Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.
of fraud must be stated with particularity. Fed.R.Civ.P.
9(b). The Complaint must "(1) detail the statements (or
omissions) that the plaintiff contends are fraudulent, (2)
identify the speaker, (3) state where and when the statements
(or omissions) were made, and (4) explain why the statements
(or omissions) are fraudulent." Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d
160, 171 (2d Cir. 2015).
a motion to dismiss, “matters outside the pleadings are
presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56.”
Fed.R.Civ.P. 12(d). However, extrinsic evidence that is
attached to the pleadings or incorporated by reference may be
considered on a motion to dismiss, as well as matters of
which judicial notice may be taken. See New York Pet
Welfare Ass'n, Inc. v. City of New York,
850 F.3d 79, 86 (2d Cir. 2017).
and Purcell met in Puerto Rico in April 2017. See
Purcell's Verified Answer and Counter-Claim (Doc. No. 30)
(“Purcell Counterclaim”) ¶ 19. According to
Purcell, Pressman approached her in the lounge area of a
hotel in a manner that “could be characterized as an
attempt to pick her up, and begin some sort of romantic
and/or sexual relationship.” Id. ¶ 20.
Pressman sent Purcell several emails shortly thereafter,
expressing his affections. Id. ¶¶ 27-28.
Pressman and Purcell thereafter pursued a relationship;
Pressman regularly purchased gifts for Purcell, including,
inter alia, a ring, travel for Purcell and her son,
tickets to Broadway shows, and stays at hotels in New York.
See id. ¶¶ 33-34. During this time,
Pressman indicated he wished to marry Purcell. Id.
alleges she entered a contract with the third-party
defendants as an inducement to her moving to Connecticut.
Id. ¶ 35. According to the contract, Triton
would pay for all rent and utilities on a property in
Connecticut and would provide Purcell with a sizeable lump
sum payment and monthly stipend. Id. ¶ 39.
Purcell co-signed a lease based on her agreement with the
third-party defendants. Id. ¶ 42. Purcell and
Pressman moved into the apartment in late August 2017.
Id. ¶ 44. Shortly thereafter, Pressman suffered
a medical emergency, and he was transported to a local
hospital. Id. ¶ 45. Purcell alleges that it was
after Pressman's hospitalization that she first
discovered that Pressman, contrary to his assertions, was
married. Id. ¶ 46. Following the discovery of
Pressman's marital status, the relationship between
Pressman and Purcell quickly dissolved. Pressman commenced a
lawsuit against Purcell alleging that Purcell denied him
access to the rental property. Id. ¶ 51. He
also filed suit against the landlords of the property related
to payment of rent, id. ¶ 55, and filed a
police report alleging that Purcell assaulted him,
id. ¶ 58. The police report did not lead to
arrest or criminal charges. Id. ¶ 85.
filed suit against Purcell in this court, seeking damages for
alleged fraud, conversion, and unjust enrichment. See
generally Pressman Compl. Purcell filed a Counterclaim
and Third-Party Complaint, seeking, inter alia,
damages for fraud, multiple torts, and breach of contract.
See generally Purcell Counterclaim. The third-party
defendants filed the Motion to Dismiss now before the court,
seeking partial dismissal of Purcell's claims.
Fraud in the Inducement and Fraudulent
Count One, Purcell alleges that the third-party defendants
are liable for fraud in the inducement. See Purcell
Counterclaim ¶¶ 60-67. In Count Five, Purcell
alleges that the third-party defendants are liable for fraud
and misrepresentation. Id. ¶¶ 98- 105. To
state a claim for fraudulent misrepresentation or fraudulent
inducement in Connecticut, the plaintiff must allege that (1)
the defendant made a representation of fact, (2) which was
untrue and known to be untrue by defendant; (3) it was made
to induce the plaintiff to act upon it; and (4) the plaintiff
did so act upon that false representation to his injury.
See Simms v. Seaman, 308 Conn. 523, 548 (2013);
Peterson v. McAndrew, 160 Conn.App. 180, 204 (2015).
The third-party defendants argue that (1) the fraud claims
against Pressman are barred by the Connecticut heart balm
statute, and (2) the fraud claims against LA Bob and Triton
should be dismissed for failure to plead with particularity,
pursuant to Rule 9(b). The court addresses each argument in
Fraud Claims Against Pressman
alleges, inter alia, that she was “induced to
forgo her then current employment . . . move her home, her
personal property, and uproot her child, based upon
representations as made by Pressman.” Purcell
Counterclaim ¶ 62. Purcell further alleges that
Pressman's representations “were premised upon (a)
a promise to marry [Purcell], there being no bar to the
execution of such promise, and (b) the contractual promise,
in writing . . . with Third-Party Defendant Triton.”
Id. ¶ 63. It is undisputed that Pressman was in
fact married at this time. Purcell alleges she suffered
damages because of this misrepresentation, including being
caused to pay a substantial sum in lease payments on a rental
property. Id. ¶¶ 64-66.
third-party defendants argue that the claims of fraud in the
inducement and fraudulent misrepresentation against Pressman
are barred by Connecticut's heart balm statute.
See Conn. Gen. Stat. Ann. § 52-572b. The
Supreme Court of Connecticut has explained that the purpose
of the heart balm statute was to prevent suits that sought
damages for “confused feelings, sentimental bruises,
blighted affections, wounded pride, mental anguish and social
humiliation; for impairment of health, for expenditures made
in anticipation of the wedding, for the deprivation of other
opportunities to marry and for the loss of the pecuniary and
social advantages which the marriage offered.”
Piccininni v. Hajus, 180 Conn. 369, 373 (1980). In
the same opinion, however, the Court stressed that
“Heart Balm statutes should be applied no ...