NEWTOWN HOUSEWRIGHTS, LLC v. CATINO, No. CV04-0351468 S (Jul. 28, 2004)

2004 Ct. Sup. 11543
No. CV04-0351468 SConnecticut Superior Court, Judicial District of Danbury at Danbury
July 28, 2004

MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION TO STRIKE ALL COUNTS
NADEAU, JUDGE.

Libel and slander claims against four Newtown residents brought by men and businesses involved in development of a parcel of land Defendant residents move to strike all counts, involving three different written communications the residents authored or caused to be lawyer-authored to the town’s director of health and its wetlands commission.[1]

This court denies the motions to strike in all facets urged. Generally speaking, no dispositive determination can be made with assurance on the sparse factual setting revealed in the raw complaint.

The first ground urged for a strike is that of absolute privilege and its sweep covers all three communications (two of which are client to attorney to governmental recipient of a letter and one direct defendant-citizen letter to government recipient).

This claim must be rejected because the facts at hand require the court to be able to pronounce whether the setting was one inside the parameters of a quasi-judicial proceeding. As to this, only more evidence can provide more bases for such a determination regarding intentions which lay behind authorship and the nature and powers of the governmental recipient. See, e.g., Albert v. Shaikh, Superior Court, judicial district of Hartford, CV03 0835352 (November 25, 2003) (Sheldon, J.).

Next, defendants press another “privilege,” the so-called “litigation” privilege. This cannot avail defendants at this point because its efficacy, like the “absolute” privilege discussed above, depends upon the existence of a quasi-judicial proceeding. See, Smith v. Rosenstein Barnes, Superior Court, judicial district of Fairfield at Bridgeport, CV95 0326698 (May CT Page 11544 4, 2000) (Skolnick, J.).

This court assumes the likely applicability of th Noerr-Pennington doctrine to this lawsuit’s action against activity which may well be found to be in the nature of petitioning for redress. If that is not the fact, however, if defamation is the heart of a communication, Noerr-Pennington
does not apply, it has been held. See, e.g., In re IBP Confidential Business Documents Litigation, 755 F.2d. 1300 (8th Cir. 1985). But that remains to be resolved in a setting more factually developed than this motion to strike setting. Further, this limited factual posture renders it close to impossible to determine whether the doctrine’s “sham exception” would possibly provide for liability. This cannot be discerned in this phase and may even be (although this is for another day) not well suited to summary judgment.

The arguments discussed above are with regard to the three letter-type communications.

There is one further argument of more limited application, to wit: as to the two lawyer letters, defendant citizens, the clients of the lawyers, suggest that they cannot be held for libel because the attorney, via letter, and not the client-citizen-defendant was the “author/publisher.” Thus, this argument portrays an escape-hatch regarding libel counts on two writings, based on purported lack of authorship.

This claim almost certainly misreads the law. It appears that one who orally delivers a “defamation” to one who passes it on in writing may be held liable in libel where, in the modern view, it is reasonably foreseeable that the statement will be passed on. See cases cited in 1 R. Sack, Sack on Defamation: Libel, Slander, and Related Problems (3d Ed. 2004) § 2.7.2, pp. 2-99.

As a result, on the grounds thus far placed before the court, this matter is inappropriate for resolution upon motions to strike and they are hereby denied.

Nadeau, J.

CT Page 11545