Laura Piao v. William Smith and Jennings Smith Investigations, Inc. , 683 F. App'x 55 ( 2017 )

15-426-cv
Laura Piao v. William Smith and Jennings Smith Investigations, Inc.,
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of March, two thousand seventeen.
PRESENT: JOSÉ A. CABRANES,
RICHARD C. WESLEY,
Circuit Judges.
WILLIAM K. SESSIONS III,
Judge.*
LAURA PIAO,
Plaintiff-Appellant, 15-426-cv
v.
WILLIAM SMITH AND JENNINGS SMITH
INVESTIGATIONS, INC.,
Defendants-Appellees.
FOR PLAINTIFF--APPELLANT: BRITTANY B. PAZ (Norman A. Pattis on the
brief), Pattis & Smith, LLC, New Haven,
CT.
*
Judge William K. Sessions III, of the United States District Court for the District of Vermont,
sitting by designation.
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FOR DEFENDANTS-APPELLEES: DANIEL J. KRISCH, (Stephen P. Fogerty on
the brief), Halloran & Sage LLP, Hartford,
CT.
Appeal from the judgment of the United States District Court for the District of
Connecticut (Holly B. Fitzsimmons, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Laura Piao appeals the December 23, 2014 judgment of the district court,
granting a motion for judgment as a matter of law in favor of the defendants, pursuant to Rule 50(a)
of the Federal Rules of Civil Procedure.1 On appeal, Piao argues that the district court erred in
entering judgment as a matter of law that no reasonable jury could have found that William Smith
and Jennings Smith Investigations, Inc. (jointly, the “defendants”) engaged in unfair or deceptive
conduct or caused the plaintiff an ascertainable loss in violation of the Connecticut Unfair Trade
Practices Act (“CUTPA”). See Conn. Gen. Stat. § 42-110b(a).
For the reasons set forth in the district court’s thorough opinion, we find these arguments to
be without merit. We assume the parties’ familiarity with the underlying facts, procedural history of
the case, and issues on appeal.
***
We review de novo a district court's dismissal pursuant to Rule 50(a) of the Federal Rules of
Civil Procedure. “Rule 50 allows a district court to grant a motion for judgment as a matter of law in
favor of the defendant if, at the close of the plaintiff’s case, a reasonable jury would not have a
legally sufficient basis to find for the plaintiff on an issue essential to her claim.” Legg v. Ulster Cty.,
820 F.3d 67, 72 (2d Cir. 2016). “When evaluating a motion under Rule 50, courts are required to
‘consider the evidence in the light most favorable to the party against whom the motion was made
and to give that party the benefit of all reasonable inferences that the jury might have drawn in its
favor from the evidence.’” ING Glob. v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97 (2d Cir.
2014) (citation omitted); accord Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
Judgment as a matter of law “should be granted cautiously and sparingly . . . .” Meloff v. N.Y. Life Ins.
Co., 240 F.3d 138, 145 (2d Cir. 2001). “The court cannot assess the weight of conflicting evidence,
1 At trial, Piao brought four claims: breach of contract, breach of the implied covenant of good faith and
fair dealing, violation of CUTPA, and negligent infliction of emotional distress. The defendants countersued
for breach of contract, libel, and intentional and negligent infliction of emotional distress. The trial court
granted judgment as a matter of law on the CUTPA claim, and the other claims were submitted to the jury.
See App’x 1088-93. The jury found for Piao on the breach of implied covenant of good faith and fair dealing
claim, and rejected the defendants’ counterclaims. See App’x 1146-49. Piao was awarded $8,250 in
compensatory damages. See App’x 1149.
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pass on the credibility of the witnesses, or substitute its judgment for that of the jury, and must
disregard all evidence favorable to the moving party that the jury is not required to believe.” ING
Glob., 757 F.3d at 97 (internal quotation marks omitted)
***
The CUTPA prohibits any person from engaging in “unfair methods of competition and
unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat.
§42-110b(a). To establish a CUTPA violation, a plaintiff “must prove that (1) the defendant engaged
in unfair or deceptive acts or practices in the conduct of any trade or commerce; and (2) [he or she]
has suffered an ascertainable loss of money or property as a result of the defendant’s acts or
practices.” Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18 (2008) (citations and
internal quotations omitted). Upon independent review of the record, we find that the district court
appropriately granted judgment to the defendants as a matter of law on the CUTPA claim.
Piao does not provide specific allegations of “unfair or deceptive” conduct sufficient to
establish a CUTPA violation. “[A] ‘claimant’s evidence must establish that the conduct at issue falls
within one of three criteria … (1) offends public policy, (2) is immoral, unethical, oppressive or
unscrupulous or (3) causes substantial injury to consumers, competitors or other businessmen.’”
Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 2012 WL 1078011 at *11 (D. Conn. Mar. 30, 2012)
(quoting Johnson Elec. Co v. Salce Contracting Assocs., 72 Conn. App. 342, 356 (2002)). None of the
alleged conduct meets these criteria.
For example, Piao claims that the defendants’ false billing practices were deceptive and
“immoral, unethical, oppressive or unscrupulous.” Yet, the trial evidence was insufficient to show
false billing invoices and the parties’ written contract explicitly said that the retainer was non-
refundable. Failure to credit the retainer and “excessive rounding up” of telephone bills resulting in
an extra $270 charge to the plaintiff (out of the $13,550 total bill) is not a “substantial injury.” See
Web Press Srvs Corp. v. New London Motors, Inc., 205 Conn. 479, 484 (1987) (finding plaintiff could not
“satisfy the first test of the substantial injury” factor by reason of a defect of $300 or 3.7 percent of
the cost of the vehicle); see also Gaynor v. Hi-Tech Homes, 149 Conn. App. 267, 279-80 (2014).
Similarly, Piao argues that the Jennings Smith Investigations, Inc. website was deceptive
because it would lead a reasonable person to believe that it had a management team consisting of
nationally-recognized employees—when, in reality, at most these individuals were independent
contractors. Not only did the trial evidence show that the website never claimed that members of
the management team of “employees,” it also established that Mr. Smith never represented to Piao
that the firm had national offices. Not “every misrepresentation rises to the level of a CUTPA
violation. There must be some nexus with a public interest, some violation of a concept of what is
fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that
offends public policy.” Milford Paintball, LLC v. Wampus Milford Assocs., LLC, 156 Conn. App. 750,
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765 n.11 (2015). Piao’s other examples of deceptive conduct are equally unpersuasive for the reasons
laid out in the district court’s exhaustive opinion. See Piao v. Smith, Jennings Smith Investigations, Inc.,
Civ. No. 3:11CV1853 at 15-30 (Dec. 23, 2014).
A breach of contract absent any of the aggravating factors is insufficient to establish a
CUTPA claim. See Greene v. Orsini, 50 Conn. Supp. 312, 315 (2007) (citations omitted); see also Naples
v. Keystone Bldg. & Dev. Corp., 295 Conn. 214, 228 (2010) (compiling cases for proposition that
contractual breach does not rise to the level of a CUTPA violation absent proof of unethical,
unscrupulous, willful or reckless conduct). Accordingly, we hold that the district court correctly
decided as a matter of law that there was no CUTPA violation.
CONCLUSION
We have considered all of appellant’s claims on appeal and found them to be without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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