Preview
DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT
:
IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM
CENTRAL HYUNDAI :
:
VS. : AT PUTNAM
:
BRENT MATTSON : NOVEMBER 1, 2021
REPLY BRIEF RE MOTION TO STRIKE
The defendant, Brent Mattson, submits this reply brief in response to the
plaintiff’s objection (111.00) (the “Objection”) to Mr. Mattson’s motion to strike
(109.00). References to “Supporting Brief” are to the memorandum of law (110.00) that
Mr. Mattson filed with the motion.
1. Conversion and statutory theft.
The plaintiff asserted, at page 5 of the Objection, that “[o]ur appellate courts do
not appear to have addressed the question of whether the torts of conversion and statutory
theft include intangible property rights. See Hi-Ho Tower, Inc., 255 Conn. at 44.” That
is a puzzling assertion, given that our Supreme Court said, at that very page 44 of Hi-Ho
Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20 (2000):
In Connecticut, intangible property interests have not traditionally been subject
to the tort of conversion, except for those intangible property rights evidenced in
a document. See, e.g., Aetna Life & Casualty Co. v. Union Trust Co., 230 Conn.
779, 790 n. 6, 646 A.2d 799 (1994) (conversion of trust account); Devitt v.
Manulik, 176 Conn. 657, 662–63, 410 A.2d 465 (1979) (conversion applicable to
account passbook).
(Emphasis added.) That certainly addresses the question. And indeed, Mr. Mattson
provided this very citation in the Supporting Brief.
In the Objection, the plaintiff then pointed out that Superior Court decisions are
non-binding (Objection, p. 5), but went on nonetheless to cite two (2) Superior Court
decisions. Even assuming arguendo that those cases were correctly decided, both are
readily distinguishable from the situation at hand.
The decision in ReNew Windows & Siding, LLC v. Anderson, 2013 WL 1406232
(Conn.Super. Mar. 18, 2013) was a memorandum of decision after a courtside trial. The
case involved a former employee who, the court determined, committed conversion (as
well as unfair trade practice and tortious interference) when he “took lead sheets and
customer lists belonging to ReNew Windows,” (id. at *5) and, using the information
therein, diverted nine (9) customers to his new company. It is clear that the defendant in
that case had misappropriated physical documents. That is unlike the case at bar, in
which the plaintiff alleges only that Mr. Mattson “view[ed] data belonging to the
Plaintiff, which data was resident on the Plaintiff’s DMS computer network.” (Id., ¶ 22.)
(Emphasis added.) There is no allegation that Mr. Mattson actually took documents or
data away from the plaintiff. The plaintiff alleges only that Mr. Mattson read something
that he should not have read.
The plaintiff also cited Health Communications, Inc. v. Chicken Soup for the Soul
Publishing, LLC, 2011 WL 2611826 (Conn.Super. June 14, 2011). In that case, the
plaintiff, Health Communications, Inc. (“HCI”), was a book publisher that had published
2
numerous iterations of the “Chicken Soup for the Soul” book series pursuant to a series
of contracts with the creators of the series. When the last of those contracts expired, the
creators sold the rights to a different publisher, while the plaintiff retained “backlist”
rights to the previously published books. The new publisher published various new
compilations of “reshuffled” short stories drawn from the earlier books.
HCI sued, alleging “that by publishing the 21 Books, the defendants are liable to
HCI for conversion and theft and royalties, by assuming dominion and control over
Chicken Soup books on HCI’s backlist, in violation of its contractual rights.” Id. at *8.
In denying the defendant’s motion to strike, the court found “The disputed property, the
Chicken Soup stories originally published by HCI and that were later republished in the
21 Books by CSSP, are all unique and readily identifiable intangible property rights
evidenced in a document. They are specific enough to make them the proper subject of
conversion and theft allegations.” Id.
This narrow carve-out does not apply to the case at bar. The subject matter of the
present case is general business information, not “unique and readily identifiable
intangible property rights evidenced in a document” such as copyrighted material. As
such, the general rule that “intangible property interests have not traditionally been
subject to the tort of conversion”; Hi-Ho Tower, Inc., supra, 255 Conn. at 44; applies
here.
3
2. Fiduciary duty and the employee duty of loyalty.
The plaintiff has also failed to effectively rebut Mr. Mattson’s argument, in the
Supporting Brief, that the plaintiff’s claims for breach of fiduciary duty and breach of the
employee duty of loyalty are meritless, given that they are based entirely on events that
postdated Mr. Mattson’s termination date. That is, Mr. Mattson’s legal duties to the
plaintiff had ended, and the plaintiff cannot base claims on the breach of duties that no
longer exist.
More particularly, the plaintiff alleges that on March 12, 2021, three (3) days
after the end of Mr. Mattson’s employment,1 he wrongfully contacted Hyundai Motor
America, and talked his way into gaining access to the plaintiff’s computerized Dealer
Management System. (Revised Complaint, ¶¶ 18, 19.) The plaintiff further alleges that
Mr. Mattson maintained wrongful access to the system “from the time that he entered the
system on March 12, 2021 until … April 2, 2021…” (Id., ¶ 20.) The entire time frame is
after Mr. Mattson changed jobs.
The plaintiff does not allege that Mr. Mattson misused data that he acquired while
still its employee. All the conduct complained of came after the conclusion of Mr.
Mattson’s employment with the plaintiff. Thus, in the Supporting Brief, Mr. Mattson
1
The plaintiff alleged in paragraph 15 of the Revised Complaint, and has thus judicially
admitted, that Mr. Mattson’s employment terminated on March 9, 2021. Thus, the
plaintiff’s suggestion, at pages 9 and 10 of the Objection that Mr. Mattson should be
“estopped” from denying that he was no longer the plaintiff’s employee on March 12 th is
a head-scratcher.
4
pointed out, “An agent’s fiduciary duty to a principal is generally coterminous with the
duration of the agency relationship”; Essex Insurance Company v. William Kramer &
Associates, LLC, 331 Conn. 493, 511 (2019); and once employees resign their
employment, they are “no longer subject to a fiduciary obligation” to the employer.
Republic Systems & Programming, Inc. v. Computer Assistance, Inc., 322 F.Supp. 619,
627 (D.Conn. 1970) (applying Connecticut law).
In the Objection, at pages 8 through 12, the plaintiff tries to salvage these claims
by citing cases in which the defendant ex-employee misuses trade secrets that the
employee acquired while still an employee. But those cases are readily distinguishable
from the allegations at bar. Here, the plaintiff’s claim is based entirely on business data
that Mr. Mattson allegedly obtained after he had changed jobs.
Thus, the plaintiff’s reliance on, for example, Elm City Cheese Co. v. Federico,
251 Conn. 59 (1999), is completely misplaced. At page 8 of the Objection, the plaintiff
quotes from that decision as follows: “Even after employment has ceased, however, the
employee remains subject to a duty not to use trade secrets, or other confidential
information, which he has acquired in the course of his employment, for his own benefit
or that of a competitor to the detriment of his former employer.” (Emphasis added.) That
is all well and good – but irrelevant to the present case, as the plaintiff has pled it.
This is not to suggest that the plaintiff would be left without a remedy if it could
prove its case. The plaintiff has stated statutory claims for improper use of computer
data, and for unfair trade practice. The defendant has not moved to strike those claims.
5
The problem here is that the plaintiff is needlessly complicating the pleadings by trying to
force square pegs into round holes.
For these further reasons, the defendant’s Motion to Strike should be granted.
DEFENDANT,
BRENT MATTSON
By 403444
William J. O’Sullivan
O’Sullivan McCormack Jensen & Bliss PC
180 Glastonbury Boulevard, Suite 210
Glastonbury, CT 06033
Phone: (860) 258-1993
Fax: (860) 258-1991
wosullivan@omjblaw.com
Juris # 407344
His Attorneys
6
CERTIFICATION
I hereby certify that on November 1, 2021, a copy of the above was or will
immediately be mailed or delivered electronically or non-electronically to all counsel and
self-represented parties of record and that written consent for electronic delivery was
received from all counsel and self-represented parties of record who were or will
immediately be electronically served.
Service list:
John Wolfson, Esq.
Feiner Wolfson LLC
One Constitution Plaza
Hartford, CT 06103
jwolfson@feinerwolfson.com
403444
William J. O’Sullivan
7
Preview
DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT : IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM CENTRAL HYUNDAI : : VS. : AT PUTNAM : BRENT MATTSON : NOVEMBER 1, 2021 REPLY BRIEF RE MOTION TO STRIKE The defendant, Brent Mattson, submits this reply brief in response to the plaintiff’s objection (111.00) (the “Objection”) to Mr. Mattson’s motion to strike (109.00). References to “Supporting Brief” are to the memorandum of law (110.00) that Mr. Mattson filed with the motion. 1. Conversion and statutory theft. The plaintiff asserted, at page 5 of the Objection, that “[o]ur appellate courts do not appear to have addressed the question of whether the torts of conversion and statutory theft include intangible property rights. See Hi-Ho Tower, Inc., 255 Conn. at 44.” That is a puzzling assertion, given that our Supreme Court said, at that very page 44 of Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20 (2000): In Connecticut, intangible property interests have not traditionally been subject to the tort of conversion, except for those intangible property rights evidenced in a document. See, e.g., Aetna Life & Casualty Co. v. Union Trust Co., 230 Conn. 779, 790 n. 6, 646 A.2d 799 (1994) (conversion of trust account); Devitt v. Manulik, 176 Conn. 657, 662–63, 410 A.2d 465 (1979) (conversion applicable to account passbook). (Emphasis added.) That certainly addresses the question. And indeed, Mr. Mattson provided this very citation in the Supporting Brief. In the Objection, the plaintiff then pointed out that Superior Court decisions are non-binding (Objection, p. 5), but went on nonetheless to cite two (2) Superior Court decisions. Even assuming arguendo that those cases were correctly decided, both are readily distinguishable from the situation at hand. The decision in ReNew Windows & Siding, LLC v. Anderson, 2013 WL 1406232 (Conn.Super. Mar. 18, 2013) was a memorandum of decision after a courtside trial. The case involved a former employee who, the court determined, committed conversion (as well as unfair trade practice and tortious interference) when he “took lead sheets and customer lists belonging to ReNew Windows,” (id. at *5) and, using the information therein, diverted nine (9) customers to his new company. It is clear that the defendant in that case had misappropriated physical documents. That is unlike the case at bar, in which the plaintiff alleges only that Mr. Mattson “view[ed] data belonging to the Plaintiff, which data was resident on the Plaintiff’s DMS computer network.” (Id., ¶ 22.) (Emphasis added.) There is no allegation that Mr. Mattson actually took documents or data away from the plaintiff. The plaintiff alleges only that Mr. Mattson read something that he should not have read. The plaintiff also cited Health Communications, Inc. v. Chicken Soup for the Soul Publishing, LLC, 2011 WL 2611826 (Conn.Super. June 14, 2011). In that case, the plaintiff, Health Communications, Inc. (“HCI”), was a book publisher that had published 2 numerous iterations of the “Chicken Soup for the Soul” book series pursuant to a series of contracts with the creators of the series. When the last of those contracts expired, the creators sold the rights to a different publisher, while the plaintiff retained “backlist” rights to the previously published books. The new publisher published various new compilations of “reshuffled” short stories drawn from the earlier books. HCI sued, alleging “that by publishing the 21 Books, the defendants are liable to HCI for conversion and theft and royalties, by assuming dominion and control over Chicken Soup books on HCI’s backlist, in violation of its contractual rights.” Id. at *8. In denying the defendant’s motion to strike, the court found “The disputed property, the Chicken Soup stories originally published by HCI and that were later republished in the 21 Books by CSSP, are all unique and readily identifiable intangible property rights evidenced in a document. They are specific enough to make them the proper subject of conversion and theft allegations.” Id. This narrow carve-out does not apply to the case at bar. The subject matter of the present case is general business information, not “unique and readily identifiable intangible property rights evidenced in a document” such as copyrighted material. As such, the general rule that “intangible property interests have not traditionally been subject to the tort of conversion”; Hi-Ho Tower, Inc., supra, 255 Conn. at 44; applies here. 3 2. Fiduciary duty and the employee duty of loyalty. The plaintiff has also failed to effectively rebut Mr. Mattson’s argument, in the Supporting Brief, that the plaintiff’s claims for breach of fiduciary duty and breach of the employee duty of loyalty are meritless, given that they are based entirely on events that postdated Mr. Mattson’s termination date. That is, Mr. Mattson’s legal duties to the plaintiff had ended, and the plaintiff cannot base claims on the breach of duties that no longer exist. More particularly, the plaintiff alleges that on March 12, 2021, three (3) days after the end of Mr. Mattson’s employment,1 he wrongfully contacted Hyundai Motor America, and talked his way into gaining access to the plaintiff’s computerized Dealer Management System. (Revised Complaint, ¶¶ 18, 19.) The plaintiff further alleges that Mr. Mattson maintained wrongful access to the system “from the time that he entered the system on March 12, 2021 until … April 2, 2021…” (Id., ¶ 20.) The entire time frame is after Mr. Mattson changed jobs. The plaintiff does not allege that Mr. Mattson misused data that he acquired while still its employee. All the conduct complained of came after the conclusion of Mr. Mattson’s employment with the plaintiff. Thus, in the Supporting Brief, Mr. Mattson 1 The plaintiff alleged in paragraph 15 of the Revised Complaint, and has thus judicially admitted, that Mr. Mattson’s employment terminated on March 9, 2021. Thus, the plaintiff’s suggestion, at pages 9 and 10 of the Objection that Mr. Mattson should be “estopped” from denying that he was no longer the plaintiff’s employee on March 12 th is a head-scratcher. 4 pointed out, “An agent’s fiduciary duty to a principal is generally coterminous with the duration of the agency relationship”; Essex Insurance Company v. William Kramer & Associates, LLC, 331 Conn. 493, 511 (2019); and once employees resign their employment, they are “no longer subject to a fiduciary obligation” to the employer. Republic Systems & Programming, Inc. v. Computer Assistance, Inc., 322 F.Supp. 619, 627 (D.Conn. 1970) (applying Connecticut law). In the Objection, at pages 8 through 12, the plaintiff tries to salvage these claims by citing cases in which the defendant ex-employee misuses trade secrets that the employee acquired while still an employee. But those cases are readily distinguishable from the allegations at bar. Here, the plaintiff’s claim is based entirely on business data that Mr. Mattson allegedly obtained after he had changed jobs. Thus, the plaintiff’s reliance on, for example, Elm City Cheese Co. v. Federico, 251 Conn. 59 (1999), is completely misplaced. At page 8 of the Objection, the plaintiff quotes from that decision as follows: “Even after employment has ceased, however, the employee remains subject to a duty not to use trade secrets, or other confidential information, which he has acquired in the course of his employment, for his own benefit or that of a competitor to the detriment of his former employer.” (Emphasis added.) That is all well and good – but irrelevant to the present case, as the plaintiff has pled it. This is not to suggest that the plaintiff would be left without a remedy if it could prove its case. The plaintiff has stated statutory claims for improper use of computer data, and for unfair trade practice. The defendant has not moved to strike those claims. 5 The problem here is that the plaintiff is needlessly complicating the pleadings by trying to force square pegs into round holes. For these further reasons, the defendant’s Motion to Strike should be granted. DEFENDANT, BRENT MATTSON By 403444 William J. O’Sullivan O’Sullivan McCormack Jensen & Bliss PC 180 Glastonbury Boulevard, Suite 210 Glastonbury, CT 06033 Phone: (860) 258-1993 Fax: (860) 258-1991 wosullivan@omjblaw.com Juris # 407344 His Attorneys 6 CERTIFICATION I hereby certify that on November 1, 2021, a copy of the above was or will immediately be mailed or delivered electronically or non-electronically to all counsel and self-represented parties of record and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served. Service list: John Wolfson, Esq. Feiner Wolfson LLC One Constitution Plaza Hartford, CT 06103 jwolfson@feinerwolfson.com 403444 William J. O’Sullivan 7