Docket No. AAN-CV—l9-6034483 S
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`ATLANTIC BABY GROUP
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`v.
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`:
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`1
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`SUPERIOR COURT
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`7
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`JUDICIAL DISTRICT OF
`ANSONIA—MILFORD AT DERBY
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`TREBCO SPECIALTY PRODUCTS, INC.
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`MARCH 16, 2020
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`MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 102)
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`STATEMENT OF THE CASE
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`This action involves a commercial dispute. According to the complaint, the plaintiff,
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`Atlantic Baby Group, is a corporation registered and located in Denmark. Fiuther according to
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`the complaint, the defendant, Trebco Specialty Products, Inc., is a domestic corporation, duly
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`licensed by the state of Connecticut, having a principal place of business in Orange, Connecticut.
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`The plaintiff alleges that on October 11, 2010, the plaintiff and the defendant entered into
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`a written “Distributorship Agreement” (agreement) regarding products of the defendant defined as
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`a “WubbaNub Infant Pacifier & marketing materials” (products). The plaintiff further alleges that
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`with respect to the products, the agreement gave the plaintiff the exclusive right to sell within a
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`defined geographical area (territory). The agreement defined the territory to include a list of
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`countries in Europe, including Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia,
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`Finland, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, the
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`Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the
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`United Kingdom. Thereafter, the defendant added Switzerland, the Middle East, Australia, and
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`certain countries in South America, Africa, and Asia to the territory.
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`The plaintiff further claims that pursuant to the agreement, the defendant agreed to sell the
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`products to the plaintiff at wholesale prices and that these prices would not deviate greatly from
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`prices offered to other distributors. The plaintiff also alleges that the defendant was required to
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`sell the products to the plaintiff for resale within the territory.
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`The plaintiff goes on to claim that the defendant breached the agreement in three respects:
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`(1) by allowing other distributors to sell products in the territory;1 (2) by charging the plaintiff
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`wholesale prices that were higher and deviated greatly from prices offered to other distributors;
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`and (3) by failing to sell products to the plaintiff for resale within the territory since approximately
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`September, 2018. The plaintiff alleges that these breaches have prevented the plaintiff from
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`continuing to engage in its business and has caused it to suffer harm.
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`In addition to alleging a breach of contract (Count One), the plaintiff asserts claims in
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`unjust enrichment (Count Two), tortious interference with business expectancies (Count Three),
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`and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.
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`(CUTPA) (Count Four). Additional allegations are recited below, as necessary.
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`On October 15, 2019, the defendant filed a motion to strike Counts Three and Four of the
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`complaint. Docket Entry No. 102. The plaintiff filed an objection on November 25, 2019. Docket
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`Entry No. 106. Oral argument was heard by the court on December 2, 2019, on which date the
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`matter was taken under advisement.
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`DISCUSSION
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`“[A] motion to strike challenges the legal sufficiency of a pleading .
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`.
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`.
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`.
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`(Internal
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`,7
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`quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000); see also
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`Practice Book § 10-39 (a); Cadle (70. v. D ’Addario, 131 Conn. App. 223, 230, 26 A.3d 682 (201 l).
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`1 More specifically, the plaintiff claims that the defendant allowed other distributors, United States-
`based retailers, and “e-tailers” to sell products in the territory.
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`-2-
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`It is the proper procedural vehicle to test a counterclaim. JP Morgan Chase Bank, Trustee V.
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`Rodrigues, 109 Conn. App. 125. 131, 952 A.2d 56 (2008). The standard of review applicable to
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`motions to strike is well established. As the motion is directed to the viability of a party’s pleading
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`as a matter of law, the court’s inquiry is limited to the facts alleged in the challenged pleading.
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`Novametrix Medical Systems, Inc. v. BOC Group, Inc, 224 Conn. 210, 214—15, 618 A.2d 25
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`(1992). Any consideration of matters outside the pleadings is generally prohibited. Liljedahl
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`Bros, Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990) (“[i]n deciding upon a motion to
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`strike .
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`.
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`. a trial court must take the facts to be those alleged in the [pleadings] .
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`.
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`. and cannot be
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`aided by the assumption of any facts not therein alleged” [citations omitted; internal quotation
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`marks omitted]).
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`So-called “speaking” motions to strike, which import facts from outside the pleadings, have
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`long been prohibited in our practice. Mercer v. Cosley, 110 Conn. App. 283, 292 n.7, 955 A.2d
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`550 (2008). “It is well established that a motion to strike must be considered within the confines
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`of the pleadings and not external documents .
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`.
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`. .” Zirinsky v. Zirinsky, 87 Conn. App. 257, 268
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`n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). The trial court may not rely
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`upon evidence outside the four comers of a challenged pleading in determining its legal
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`sufficiency. Beck & Beck, LLC v. Costello, 159 Conn. App. 203, 207—208, 122 A.3d 269 (2015).
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`“Where the legal grounds for .
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`.
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`. a motion [to strike] are dependent upon underlying facts not
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`alleged in the .
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`.
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`. pleadings, the [moving party] must await the evidence which may be adduced at
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`trial, and the motion should be denied.” (Internal quotations marks omitted.) Commissioner of
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`Labor v. C.J.M. Services, Inc, 268 Conn. 283, 293, 842 A.2d 1124 (2004). Although the court is
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`thus limited to an examination of the pleadings on a motion to strike, “[w]hat is necessarily implied
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`[in an allegation] need not be expressly alleged”; (internal quotation marks omitted) Pamela B. v.
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`Ment, 244 Com. 296, 308, 709 A.2d 1089 (1998); and the court is required to “read the allegations
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`of the [challenged pleading] generously to sustain its viability .
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`.
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`.
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`(Internal quotation marks
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`omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000); see also
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`Faulkner v. United Technologies Corp, 240 Conn. 576, 580, 693 A.2d 293 (1997) (in keeping
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`with its obligation to interpret pleading generously, court “must construe the facts in the
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`[challenged pleading] most favorably to the [claimant]” [internal quotation marks omitted]).
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`Even so, a motion to strike “does not admit legal conclusions or the truth or accuracy of
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`opinions stated in the pleadings.” (Emphasis omitted.) Mingachos v. CBS, Inc, 196 Conn. 91,
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`108, 491 A.2d 368 (1985). Thus, the motion must be granted “if the complaint alleges mere
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`conclusions of law that are unsupported by the facts alleged.” Novametrix Medical systems, Inc.
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`v. BOC Group, Inc, supra, 224 Conn. 215. “For the purpose of ruling upon a motion to strike, the
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`facts alleged in a [challenged pleading] .
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`.
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`. are deemed to be admitted.” (Internal quotation marks
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`omitted.) DeConti v. McGlone, 88 Conn. App. 270, 271 n.1, 869 A.2d 271, cert. denied, 273
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`Conn. 940, 875 A.2d 42 (2005). “[I]f facts provable in the complaint would support a cause of
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`action, the motion to strike must be denied.” (Internal quotation marks omitted.) Lombard v.
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`EdwardJ. Peters, Jr, P. C, 252 Conn. 623, 626, 749 A.2d 630 (2000).
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`II
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`A
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`Count Three purports to state a claim in tortious interference with business expectancies.
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`“It
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`is well established that
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`the elements of a claim for tortious interference with business
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`expectancies are: (1) a business relationship between the plaintiff and another party; (2) the
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`defendant’s intentional
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`interference with the business relationship while knowing of the
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`relationship; and (3) as a result of the interference, the plaintiff suffers actual loss.” (Citations
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`omitted.) Hi-Ho Tower, Inc. V. Com—Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).
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`Connecticut
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`law requires that
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`the plaintiff plead the defendant tortiously interfered with an
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`“existing or prospective business relationship.” Id., 31.
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`The defendant moves to strike Count Three of the plaintiff‘s complaint on the ground that
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`it is barred by the economic loss doctrine. The argument is rejected.
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`In doing so, the court adopts
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`the reasoning of Klewin v. Highland Hills Apartments, LLC, Superior Court, judicial district of
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`New London at New London, Docket No. CV166026603 (Mar. 15, 2018, Calmar, J.), in which
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`the court held: “‘[T]he economic loss doctrine bars negligence claims that arise out of and are
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`dependent on breach of contract claims that result only in economic loss.” Ulbrich v. Groin, [310
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`Conn. 375, 410, 78 A.3D 76 (2013)]. Nevertheless, ‘the economic loss doctrine does not bar
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`claims arising from a breach of contract
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`when the plaintiff has alleged that the breach was
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`accompanied by intentional, reckless, unethical 0r unscrupulous conduct.’ Id., 412. Tortious
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`interference is an intentional tort. Landmark Investment Group, LLC v. CALCO Construction &
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`Development Co, [318 Conn. 847, 868—69, 124 A.3d 847 (2()15)].” (Emphasis added.)
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`In this case, Count Three states all
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`the necessary elements of a claim in tortious
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`interference,
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`including,
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`inter alia,
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`that the defendant acted intentionally and with malice in
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`allowing other distributors to sell products in the territory. Klewin v. Highland Hills Apartments.
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`LLC, supra, Superior Court, judicial district of New London at New London, Docket No.
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`CV166026603 (Mar. 15, 2018, Calmar, J.) (“In the present case, because the plaintiffs complaint
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`sufficiently alleges intentional conduct for count three, tortious interference, the economic loss
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`doctrine does not bar the claim”). The motion to strike is denied as to Count Three.
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`B
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`The defendant moves to strike Count Four, alleging a violation of CUTPA, on two grounds:
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`(1) CUTPA prohibits only unfair trade practices occurring within the state of Connecticut and (2)
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`Count Four fails to allege any requisite aggravating factors. Each argument is considered in turn.
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`First, the defendant contends that Count Four must be stricken because it fails to allege
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`the conduct of any trade or commerce within the state of Connecticut. CUTPA prohibits any
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`person “from engaging in unfair methods of competition and unfair or deceptive acts or practices
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`in the conduct of any trade or commerce.” General Statutes § 42-110b (a).
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`“‘Trade’ and
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`‘commerce’ means the advertising, the sale or rent or lease, the offering for sale or rent or lease,
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`or the distribution of any services and any property, tangible or intangible, real, personal or mixed,
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`and any other article, commodity, or thing of value in this state.” (Emphasis added.) General
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`Statutes § 42—1 10a (4). The defendant argues that Count Four does not allege sufficiently that the
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`defendant engaged in trade or commerce in Connecticut. Relying on Western Dermatology
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`Consultants, P. C. v. VitalWorks, Inc., 146 Conn. App. 169, 78 A.3d 167 (2013), aff’d but
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`criticized, 322 Conn. 541, 153 A.3d 574 (2016), the defendant urges the court to apply choice of
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`law principles and conclude that CUTPA is inapplicable to the plaintiff’s CUTPA claim. The
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`court declines this invitation.
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`While Count Four alleges international product sales involving a corporate defendant with
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`a principal place of business in Connecticut, it does not contain sufficient facts to allow the court
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`to determine the extent to which the trade and commerce at issue occurred within the state of
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`Connecticut. The facts alleged are simply inadequate to permit the court to reach the conclusion
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`urged by the defendant, and the court will not engage in a choice of law analysis at this stage of
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`the proceedings. “A growing number of [judges] .
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`.
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`. have refused to address choice of law issues
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`in a motion to strike because it
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`is premature to conduct the requisite searching case-by-case
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`contextual inquiry into the significance of the interests that the law of competing jurisdictions may
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`assert in the particular controversy. .
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`.
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`(Citations omitted; internal quotation marks omitted.)
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`DelMonaco v. Alberi Kemperle, Ina, Superior Court, judicial district of New Haven at New
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`Haven, Docket No. CV146045251$ (Nov. 26, 2014, Nazzaro, J.) (59 Conn. L. Rptr. 424); see also
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`The Calibre Fund. LLC v. BDO Seidman, LLP, Superior Court, judicial district of Stamford-
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`Norwalk, Complex Litigation Docket, Docket No. X05CV0950121 193 (Oct. 20, 2010, Blawie, J.)
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`(motion to strike denied because choice of law analysis is fact intensive inquiry requiring more
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`developed factual record). Moreover, and as noted above, “[where] the legal grounds for .
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`.
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`. a
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`motion [to strike] are dependent upon underlying facts not alleged in the .
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`.
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`. pleadings, .
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`.
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`. the
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`motion should be denied.” (Internal quotations marks omitted.) Commissioner ofLabor v. (“.JM.
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`Services, Inc, supra, 268 Conn. 293. The argument advanced by the defendant is better suited to
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`resolution by way of summary judgment, which procedure allows for the introduction of facts
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`outside the pleadings. Alternatively, the issue must await the time of trial.
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`Second, the defendant argues that Count Four alleges a simple breach of contract that
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`cannot serve as the basis for a CUPTA claim. It is well established that, “a breach of contract may,
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`but does not necessarily, rise to a level of a CUTPA violation. .
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`.
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`. [I]n the absence of aggravating
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`unscrupulous conduct, mere incompetence [in performing a contract] does not by itself mandate a
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`trial court to find a CUTPA violation.” (Citations omitted; internal quotation marks omitted.)
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`Ulbrz’ch v. Grorh, supra, 310 Conn. 432-33. “There must be some nexus with a public interest,
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`some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous
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`business practice or some practice that offends public policy.” Muniz v. Kravis, 59 Conn. App.
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`704, 715, 757 A.2d 1207 (2000). “When [Connecticut Superior Courts] have permitted a CUTPA
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`cause of action based on a breach of contract there generally has been some type of fraudulent
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`behavior accompanying the breach or aggravating circumstances. .
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`.
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`. Conduct that has been held
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`to be substantial aggravating circumstances sufficient
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`to support CUTPA claims includes
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`fraudulent representations, fraudulent concealment, false claims .
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`.
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`. and multiple breaches of
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`contract.” (Citation omitted; internal quotation marks omitted.) Always There Home Care v. Dube,
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`Superior Court, judicial district of Waterbury, Docket No. CV146022487S (March 17, 2015,
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`Brazzel—Massaro, J.) (59 Conn. L. Rptr. 958, 960).
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`In this case, the plaintiff has alleged aggravating circumstances sufficient to support its
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`CUTPA claimanamely,
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`the misrepresentations, malicious and otherwise wrongful conduct
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`alleged in paragraphs 15 and 17 of Count Four. See, e.g., Greene v. Orsini, 50 Conn. Supp. 312,
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`316, 926 A.2d 708 (2007) (“[a] misrepresentation can constitute an aggravating circumstance that
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`would allow a simple breach of contract claim to be treated as a CUTPA violation; it would, in
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`effect, be a deceptive act”). Moreover, “since CUTPA does not require proof of intent to deceive,
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`to mislead or to defraud, [even an] innocent misrepresentation can amount to a CUTPA violation.”
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`(Internal quotation marks omitted.) Reich v. Spencer, Superior Court, judicial District of Hartford,
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`Docket No. CV07012682-S (December 10, 2010, Peck, J.). Count Four alleges aggravating
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`circumstances sufficient to withstand the defendant’s motion.
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`CONCLUSION
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`For the foregoing reasons, the defendant’s motion to strike is DENIED.
`I
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`PIERSON. J.
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