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Pressman v. Purcell

United States District Court, D. Connecticut

November 20, 2018

ROBERT PRESSMAN, Plaintiff, Third-Party Defendant
ANA PURCELL, Defendant, Third-Party Plaintiff


          Janet C. Hall United States District Judge


         Defendant 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”).

         The 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.


         To 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. 2012).

         Allegations 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).

         If, on 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).

         III. FACTS [1]

         Pressman 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. ¶ 34.

         Purcell 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.

         Pressman 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.


         A. Fraud in the Inducement and Fraudulent Misrepresentation

         In 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 turn.

         1. Fraud Claims Against Pressman

         Purcell 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.

         The 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 ...

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