Opinion
No. CV07-5013397S
March 25, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #107
This motion to strike raises the threshold question as to whether the defendant, Webster Bank, adequately specified on the face of its motion the reasons for moving to strike as legally insufficient counts one, three, four, five and six, as well as the third prayer for relief, of the plaintiff's revised complaint. Because the defendant failed to separately set forth the specific reasons for each claim of legal insufficiency on the face of its motion, the court is obliged to deny the defendant's motion to strike, as more fully explained below.
Given the technical nature of the legal principles requiring this outcome, only a brief recitation of the facts and procedural history is required. The plaintiff, Matthew Braffman, filed a six-count revised complaint on November 21, 2007, asserting various claims stemming from the defendant's alleged refusal to redeem a mature certificate of deposit in the amount of $29,850. The defendant filed its motion to strike on December 6, 2007, stating that counts one, three, four, five and six of the plaintiff's revised complaint should be stricken "for the reason that they fail to state a claim upon which relief can be granted." The defendant further moved to strike the plaintiff's third prayer for relief, seeking treble damages, as similarly being "legally insufficient." Although the defendant supported its motion to strike with a memorandum of law asserting the specific legal insufficiencies of the revised complaint, the motion itself employed only generic language stating that the revised complaint failed to state a claim for which relief could be granted.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Finally, "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 701, 723, 661 A.2d 973 (1995).
Notwithstanding these standards, when considering a motion to strike that raises a claim of insufficiency, a court is obligated to adhere to the rules of practice, which require that such motions "shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41. Indeed, "[m]otions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Emphasis added.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007), quoting Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13-14, 779 A.2d 198 (2001); accord Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991); Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986); King v. Board of Education, 195 Conn. 90, 94 n. 4, 486 A.2d 1111 (1985).
Although obdurate reliance on the technical pleading requirements set forth in our rules of practice may appear to frustrate substantive legal analysis, our courts have convincingly reiterated the need for such formalism. Practice Book § 10-41 "clearly places the burden on the party filing the motion to strike to state the grounds of the claimed insufficiency in the text of the motion. As correctly noted by the Superior Court in Bucon, Inc . v. ARC Icesports Danbury, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-99-0160473-S (February 8, 2001) [29 Conn. L. Rptr. 421], if that procedure is not followed, it puts the party opposing the motion and the court to the task of trying to locate in the accompanying memorandum of law the various claims of insufficiency that are being made. In poorly organized briefs, such a hunt for grounds presents the hazard of missing claims or responding to observations that the movant does not actually assert as grounds." (Internal quotation marks omitted.) Stuart v. Freiberg, supra, 102 Conn.App. 862 n. 2.
Like the defendant in Stuart v. Freiberg, supra, 102 Conn.App. 857, the defendant in the present case has failed to specify in the motion itself the legal insufficiency giving rise to the motion to strike, which is a fatal defect. "Simply stating that all of the counts are `legally insufficient' and that they `fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10-41." Stuart v. Freiberg, supra, 102 Conn.App. 862. Moreover, the plaintiff in this case has clearly not waived the motion's noncompliance with Practice Book § 10-41. Unlike the plaintiffs in either Bouchard v. People's Bank, supra, 219 Conn. 465, or in Morris v. Hartford Courant Co., supra, 200 Conn. 676, the plaintiff in this case has objected to the defendant's motion on the ground that it is procedurally defective. Additionally, while the defendant has offered greater specificity regarding the revised complaint's legal deficiency in its supporting memorandum of law, its motion still fails because "the reasons for the claimed pleading deficiency [must] be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, supra, 102 Conn.App. 861. Accordingly, the court is without discretion to consider the defendant's motion to strike in the form presented to this court.
Indeed, this court is without discretion to reach the merits of the defendant's motion to strike because the defendant failed to state the specific legal insufficiency at issue in its motion and because the plaintiff objected to that procedural inadequacy. See Stuart v. Freiberg, supra, 102 Conn.App. 863 (reversing and remanding lower court decision for failing to dismiss motion to strike on procedural grounds where defendant failed to state grounds of legal insufficiency in motion itself, plaintiff objected, and court proceeded to decide case on merits).
Because Practice Book § 10-41 is not jurisdictional in nature, a court may consider a motion to strike that fails to specify the complaint's legal insufficiency if the opposing party does not object. See Bouchard v. People's Bank, supra, 219 Conn. 468 n. 4. In the absence of a waiver, though, our Supreme Court has held that failing to "specify the grounds of insufficiency [is] `fatally defective' and . . . [the motion to strike] should not be granted. Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13-14, 779 A.2d 98 (2001), quoting Lubas v. McCusker, 153 Conn. 250, 253, 216 A.2d 289 (1965).
CONCLUSION
For the reasons set forth above, the defendant's motion to strike counts one, three, four, five and six, as well as the third prayer for relief, of the plaintiff's revised complaint is denied.