Pressman v. Purcell

          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. 58).

          Janet C. Hall United States District Judge

         I. INTRODUCTION

         Plaintiff-Third-Party 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).

         Pending 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.

         II. STANDARD OF REVIEW

         Summary 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 (1986)).

         The 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.”) (citation omitted).

         III. FACTS

         Pressman 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.^[1]

         Pressman 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.

         After 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.

         IV. DISCUSSION

         A. Motion to Strike

         Pressman 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.

         B. Motion for Summary Judgment as to Purcell's Counterclaims

         The 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.^[2] 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 against Pressman.

         1. Fraud in the Inducement (Count One) and Fraudulent Misrepresentation (Count Five).

         Count 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).

         Purcell 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.

         The 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.

         Purcell's 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 proper.”).

         However, 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.

         The 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).

         Purcell 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 [2017].” Defs.' Joint Mot. in Supp. at 8; Purcell ...