United States District Court, D. Connecticut
RULING ON PLAINTIFF'S PARTIAL MOTION FOR SUMMARY
JUDGMENT (DOC. NO. 49), THIRD-PARTY DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DOC. NO. 54), AND THIRD-PARTY
DEFENDANTS' MOTION TO STRIKE RESPONSE (DOC. NO.
C. Hall United States District Judge
Defendant Robert Pressman (“Pressman”) brought
the present action alleging fraud, conversion, and three
counts of unjust enrichment, against Defendant-Third-Party
Plaintiff Ana Purcell. See Complaint
(“Compl.”) (Doc. No. 1). Purcell filed an Answer
and alleged multiple counterclaims, including claims of
fraud, breach of contract, and slander, against Pressman and
Third-Party Defendants LA Bob, Inc. and Triton Equity
Partners. See Answer and Third-Party Complaint
(“Purcell Compl.”) (Doc. No. 30). The court
previously granted, in part, the Third-Party Defendants'
Motion to Dismiss. See Order (Doc. No. 52).
before the court are Pressman's Partial Motion for
Summary Judgment (Doc. No. 49), the Third-Party
Defendants' Motion for Summary Judgment (Doc. No. 54),
and a Motion to Strike (Doc. No. 58). For the reasons stated
below, Pressman's Partial Motion for Summary Judgment is
denied, and the Third-Party Defendants' Motion for
Summary Judgment is granted in part and denied in part.
STANDARD OF REVIEW
judgment is proper only where, construing the evidence in the
light most favorable to the non-movant, “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). On a motion for summary judgment, the moving party
bears the burden of establishing the absence of any genuine
issue of material fact. Zalaski v. City of Bridgeport
Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). If
the moving party satisfies that burden, the nonmoving party
must set forth specific facts demonstrating that there is
‘a genuine issue for trial. Wright v. Goord,
554 F.3d 255, 266 (2d Cir. 2009). A genuine issue exists
where the evidence is such that a reasonable jury could
decide in the non-moving party's favor. See,
e.g., Rojas v. Roman Catholic Diocese of
Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
court's role at summary judgment “is to determine
whether genuine issues of material fact exist for trial, not
to make findings of fact.” O'Hara v. Nat. Union
Fire Ins. Co. of Pittsburgh, 642 F.3d 110, 116 (2d Cir.
2011). Unsupported allegations do not create a material issue
of fact and cannot overcome a properly supported motion for
summary judgment. See Weinstock v. Columbia Univ.,
224 F.3d 33, 41 (2d Cir. 2000). The non-moving party
“may not rely on mere conclusory allegations nor
speculation, but instead must offer some hard evidence
showing that [their] version of the events is not wholly
fanciful.” D'Amico v. City of N.Y., 132
F.3d 145, 149 (2d Cir.1998) (collecting cases). Additionally,
the evidence the court considers in ruling on a motion for
summary judgment must be admissible evidence, or evidence
that could be readily reduced to an admissible form at trial.
See LaSalle Bank National Ass'n v. Nomura Asset
Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005);
Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001)
(“Affidavits submitted to defeat summary judgment must
be admissible themselves or must contain evidence that will
be presented in an admissible form at trial.”)
and Purcell met on or about Apri1 4, 2017, in Puerto Rico,
and thereafter began a romantic relationship. Defendant's
Local Rule 56(a)(2) Statement of Facts in Opposition to
Summary Judgment (“Purcell 56(a)(2)”) (Doc. No.
53) ¶¶ 1-2. At the time, Pressman was married.
Id. ¶ 3. In June 2017, Pressman asked Purcell
to marry him; Purcell agreed. Id. ¶ 4. Pressman
told Purcell he was unmarried and that he wanted to be a
“total open book.” Id. On June 23, 2017,
Pressman and Purcell travelled to a Cartier store in New York
City, where Pressman purchased a sapphire and diamond ring by
cashier's check in the amount of $127, 300. Id.
¶ 7. Pressman proposed marriage to Purcell again in the
Cartier store, and Purcell again accepted the ring.
Id. ¶¶ 9-10. Purcell's understanding
was that the ring was an engagement ring. See
Deposition of Ana Purcell (Doc. No. 49-2) (“Purcell
Dep.”) at 56:23-25.
and Purcell made wedding plans during the course of their
relationship, including discussing potential dates and
locations for a wedding. See id. at 57:5-7,
57:19-25. They moved into a rental home in Greenwich,
Connecticut on or about August 28, 2017. Purcell 56(a)(2)
¶ 18. The monthly rental payment on the property was
$17, 000. Id. ¶ 39. On July 17, 2017, Pressman
paid a security deposit on the property in the amount of $34,
000, advanced rent in the amount of $19, 194, plus
five-months additional rent in the amount of $85, 000, for a
total payment of $138, 194. Id. ¶ 41. The
payment was made by wire transfer from Pressman's
business bank account. Id.
he suffered a serious, multi-day illness, Pressman was
transported by ambulance to a nearby hospital on August 31,
2017. Id. ¶¶ 19, 44. While Purcell was
visiting Pressman in the hospital, Pressman terminated their
relationship, and no marriage took place. Id.
¶¶ 23-24. On September 6, 2017, Purcell sent an
email to Mitch Baker, a friend of Pressman, which stated that
“per [Baker's] request, ” she had put
together a list of items promised to her. See Email,
Ex. 4 (Doc. No. 49-2) at 82-83. The list of 21 items
included, inter alia, a mortgage payment on a home
in North Carolina, two years of rent for the Greenwich home
so that Purcell's son could finish school, a $10, 000 per
month allowance for Purcell, tuition at Yale Law School, and
$12 million. See id. In return for the items
requested, Purcell agreed to “release all claims and
indemnify and hold harmless” Pressman and his wife, and
to refrain from “publish[ing] or shar[ing] information
regarding the situation which names either family.”
Id. at 83. Pressman did not give Purcell the items
requested. Purcell 56(a)(2) ¶ 33. Purcell has not
returned the ring. Id. ¶ 34.
Motion to Strike
and Triton Equity Partners (“Triton”)
(collectively “Third-Party Defendants”) filed a
Motion to Strike the Declaration of Alan Berlin, offered by
Purcell in her Opposition to the Third-Party Defendants'
Motion for Summary Judgment on the Third-Party Complaint.
See Motion to Strike (Doc. No. 58) at 1. The
District of Connecticut Local Rules expressly state that
“Motions to strike (a) statements made in a Rule 56(a)
statement or (b) the supporting evidence are
prohibited.” D. Conn. L. Civ. R. 56(a)(4). The Berlin
Declaration was submitted in support of Purcell's Rule
56(a)(2) Statement in Opposition to Summary Judgment. The
Motion to Strike is denied.
Motion for Summary Judgment as to Purcell's
Third-Party Defendants seek summary judgment in their favor
as to Purcell's remaining counterclaims. See
Third-Party Defendants' Motion for Summary Judgment on
Purcell's Third-Party Complaint (“Defs.' MSJ
Purcell Compl.”) (Doc. No. 54) at 1. While LA Bob, Inc.
was previously a party to this action, all claims against LA
Bob were dismissed in this court's earlier Ruling on the
Third-Party Defendants' Motion to Dismiss. See
Ruling (Doc. No. 52). The court also grants the motion to
dismiss as to Count One and Five as to Triton. The remaining
counterclaims are: Count One, alleging fraudulent inducement
against Pressman; Count Four, alleging breach of contract
against Pressman and Triton; Count Five, alleging fraud and
misrepresentation against Pressman; Count Six, alleging
breach of the covenant of good faith against Pressman and
Triton; and Count Nine, alleging slander per se
Fraud in the Inducement (Count One) and Fraudulent
Misrepresentation (Count Five).
One of the Third-Party Complaint alleges that Pressman is
liable for fraud in the inducement. See Purcell
Compl. ¶¶ 60-67, 98-105. To state a claim of
fraudulent inducement or fraudulent misrepresentation, a
plaintiff must prove that (1) the defendant made a
representation of fact; (2) the statement was untrue and
known to be untrue by defendant; (3) the statement 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).
alleges in her Complaint that she “was induced to forgo
her then[-]current employment, a possible new position at a
higher rate of pay, move her home, her personal property, and
uproot her child, based upon representations . . . made by
Pressman.” Purcell Compl. ¶ 62. She also alleges
that “[a]n essential and material part of . . . her
agreeing to move to Connecticut with all that that involved,
was Pressman's representation that he was not
married.” Id. ¶ 99.
Third-Party Defendants argue that summary judgment is
warranted as a matter of law because there is no genuine
issue of fact as to whether: (1) Purcell was induced to forgo
her current employment by a promise to marry or a contractual
promise; (2) the marriage proposal was a false statement made
to induce Purcell to move; (3) the draft written contract
exchanged between Pressman and Purcell induced Purcell to
move; or (4) false statements were made which induced Purcell
to enter into a lease. See Third Party
Defendants' Memorandum in Support of Mot. S.J.
(“Defs.' Joint Mem. in Supp.”) (Doc. No.
54-1) at 4-9. As to Count Five, the Third-Party Defendants
argue that Purcell cannot establish that Pressman
misrepresented that he was unmarried, and that Purcell cannot
prove damages. Id.17 at 19-20.
Opposition to summary judgment as to Count One relies almost
entirely on the argument that, because credibility issues
remain to be determined, summary judgment is inappropriate.
Purcell Memorandum in Opposition to Plaintiffs' Motion
for Summary Judgment (“Purcell Opp.”) (Doc. No.
55-1) at 8 (“The Court here is confronted with a matter
of the credibility of Pressman. To grant the relief requested
for any of the Counts challenged is error as these belong in
the bailiwick of a jury of Ms. Purcell's peers to
determine.”); id. at 24 (“As credibility
is a fact for the jury, this Court's evaluation of her
credulity, especially on a Rule 56 Motion, is not
the undisputed evidence establishes that Purcell's
employment terminated on May 16, 2017, and that she signed a
separation agreement with her former employer on June 8,
2017. See Separation Agreement Letter (Doc. No.
54-2) at 24. The undisputed evidence further establishes that
Pressman first proposed to Purcell during a vacation in
Antigua, which vacation occurred in June 2017. See
Purcell 56(a)(2) ¶ 4; id. at 14 ¶ 7;
Affidavit of Robert Pressman (Doc. No. 54-2) at 13 ¶ 11.
Therefore, there is no genuine issue of fact as to whether
Purcell was induced to forego her employment based on a
promise to marry-she had already left her employment when any
such promise was made to her.
Third-Party Defendants correctly argue that “[t]he
written contract in Exhibit A [between Triton and Purcell] is
dated August 20, 2017, ” and that “[t]here is no
evidence that there were any drafts or other written
agreements prior to August 20, 2017.” Defs.' Joint
Mem. in Supp. (Doc. No. 54-1) at 5. Instead, “[t]he
evidence of record demonstrates that as of August 20, 2017,
the terms of the written contract were still being negotiated
between Pressman and Purcell.” Id. Moreover,
because the draft was dated after Purcell left her job, there
is no issue of fact as to whether it induced Purcell to leave
her employment. See Purcell Deposition (Doc. No.
54-2) at 62:13- 63:09 (reflecting Purcell's admission
that, by the time any contractual agreement between Pressman
and Purcell was proposed, she had already left her job).
testified during her deposition that she was induced to
forego alternate job opportunities, to give up her career,
and to move from North Carolina to Connecticut, based upon
discussions with Pressman regarding a contract between
himself and Purcell. Id. at 62:13-19
(“[Purcell:] It is fair to say that that contractual
proposal was made and affected my decision about whether or
not to leave my career, and whether to move and uproot my
minor son.”). As the Third-Party Defendants argue,
“the promises in the draft written contract . . . could
not have induced Purcell to move since the decision to move
had already been made prior to August 20th, ” given
that “[t]he parties signed a lease dated July 14, 2017,
with a move in date of August 28th .” Defs.'
Joint Mot. in Supp. at 8; Purcell ...