Opinion
No. X10-UWYCV044010140S
November 20, 2006.
MEMORANDUM OF DECISION
This matter is before the court on two motions to strike, one by defendant Yale University ("University") and one by the defendant Yale-New Haven Hospital ("Hospital"). The University seeks to strike counts three, four and five of the First Amended Complaint dated July 17, 2006. All the counts sound in negligent infliction of emotional distress; the first is on behalf of the plaintiff Jeannine Fisher and the other two are on behalf of her husband and her son. The defendant Hospital seeks to strike counts one, two, three, seven and eight of that complaint. The first three counts referenced are for negligent infliction of emotional distress as well, on behalf of all three plaintiffs, counts seven and eight are on behalf of Jeannine Fisher, alleging first negligent misrepresentation and second, intentional misrepresentation.
These are not the first motions to strike filed by these two defendants yet these counts that they are now attacking have existed in substantially the same form since the inception of this case by complaint dated September 20, 2004. That complaint was superseded by a different complaint entitled First Amended Complaint, dated March 22, 2005. In that complaint these counts all could be found. Other counts were the subject of motions to strike by the defendants Hospital and University. When the plaintiff filed the present operative complaint after the court's ruling on those original motions to strike, the plaintiffs retained these causes of action with substantially the same allegations as the original complaint; they did add several additional factual allegations which did not, however, change substantially the counts pled from the original.
"Practice Book § 10-6 provides, in pertinent part: "The order of pleadings shall be as follows: (1) The plaintiff's complaint. (2) The defendant's motion to dismiss the complaint. (3) The defendant's request to revise the complaint. (4) The defendant's motion to strike the complaint." Further, Practice Book § 10-7 provides, "[i]n all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." Paulson v. Blake (Conn.Super. 2002), 33 Conn. L. Rptr. 17, 2002 WL 31235005 *1.
While the defendants acknowledge that they have already filed Motions to Strike they urge the court to ignore the settled case law on the order of pleadings by pointing out that the arguments they have raised will simply be incorporated in subsequent motions for summary judgment. They argue that the court can use its discretion and allow these new motions to strike. This issue came before the court as a part of the plaintiff's opposition memorandum. "If a party wishes to file a pleading out of order, they must seek the court's permission before doing so." Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 451, 352 A.2d 291 (1974). The defendants did not seek the court's permission to file the instant motions to strike.
The court has discretion to overlook the order of pleadings "where strict adherence to [the practice book rules] will work surprise or injustice because the very design of the rules is to facilitate business and advance justice." (Internal quotation marks omitted.) Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A .2d 1134 (1989). Paulson, op. cit. *2. The defendants do not argue that strict adherence to the rules will work an injustice or surprise to them. Indeed it is the plaintiffs who argue that they had the right to rely on the order of pleadings to expect that the defendants' next pleadings would be responsive to the complaint. The result the plaintiffs know is that they will face the same arguments raised in these motions to strike in motions for summary judgment. The defendants can point to no harm to themselves that will result from going through this exercise of observance of the order of pleadings in accordance with the rules.
While the court acknowledges it has the discretion to allow these motions to be heard on their merits though they have been filed out of order, Greathouse v. Greathouse (Conn.Super. 2002), 2002 WL 241320 *3, it declines to do so. The parties to litigation have the right to expect that the process provided for the orderly proceedings of cases will be observed, where it does not cause a substantial harm that would otherwise be unrequited.
Accordingly, the motions to strike of both the University and the Hospital are denied.