Opinion
No. LLI CV 106002542S
October 26, 2011
MEMORANDUM OF DECISION
The issue before the court is the defendant Charlotte Hungerford Hospital's nunc pro tunc motion to plead out of order (#212), thus permitting the merits of Charlotte Hungerford Hospital's motion to dismiss to be heard by the court. For the reasons stated, the nunc pro tunc motion must be denied.
I FACTS
This is a medical malpractice action that was commenced on June 1, 2010, against three defendants, Mary Zozulin, M.D., Litchfield County Obstetrics and Gynecology, PC, and Charlotte Hungerford Hospital ("Charlotte Hungerford"). The complaint was originally brought in nine counts, with counts seven through nine being directed at Charlotte Hungerford. On July 21, 2010, Charlotte Hungerford filed a request to revise the original complaint. One day earlier, however, the plaintiffs had filed an amended complaint. The amended complaint set forth the same general allegations as the original complaint, but included additional specifications of negligence. The amended complaint relies on the same written opinion of a healthcare provider that was attached to the original complaint. On July 26, 2010, Charlotte Hungerford withdrew its request to revise the original complaint.
On August 16, 2010, Charlotte Hungerford filed a request to revise the amended complaint (#125) seeking clarification of the plaintiffs' theory of relief. On September 28, 2010, the plaintiffs filed an objection to the request to revise. The hearing on the request to revise was held on March 14, 2011. The court, Danaher, J, issued a ruling on May 9, 2011 (#203).
On October 6, 2010, with the request to revise still pending, Charlotte Hungerford filed a motion to dismiss (#152) on the ground that the written opinion attached to the amended complaint was insufficient, pursuant to General Statutes § 52-190a, as to Charlotte Hungerford. The plaintiffs filed an objection to the motion to dismiss on November 5, 2010 (#164), followed by a supplemental memorandum on July 7, 2011 (#211). In the supplemental memorandum, the plaintiffs brought to the court's attention a recent decision by our Supreme Court, Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011), which the plaintiffs contend necessitates denial of Charlotte Hungerford's motion to dismiss.
On July 25, 2011, Charlotte Hungerford filed the present nunc pro tunc motion to plead out of order, requesting that the court exercise its discretion to consider the merits of its motion to dismiss. On August 26, 2011, the plaintiffs filed an objection to the nunc pro tunc motion. The matter was heard on the October 11, 2011 short calendar. Additional facts will be presented as necessary.
II DISCUSSION
In Morgan v. Hartford Hospital, supra, 301 Conn. 401, our Supreme Court recently found that the failure to attach a written opinion letter of a similar healthcare provider, pursuant to General Statutes § 52-190a, "renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction." The Supreme Court held that, pursuant to Practice Book § 10-32, a defendant waives its right to file such a motion to dismiss by not complying with the timing and sequence requirements provided in Practice Book §§ 10-6, 10-7 and 10-30. Id., 404.
Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Secs. 10-6 and 10-7 and within the time provided by Sec. 10-30."
Practice Book § 10-6 provides: "The order of pleading 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. (5) The defendant's answer (including any special defenses) to the complaint. (6) The plaintiff's request to revise the defendant's answer. (7) The plaintiff's motion to strike the defendant's answer. (8) The plaintiff's reply to any special defenses." Practice Book § 10-7 provides: "In 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."
In the present case, Charlotte Hungerford concedes that it did not file its motion to dismiss within thirty days of entering an appearance or in the sequence required by the Practice Book, having previously filed a request to revise. Nonetheless, Charlotte Hungerford requests that the court exercise its discretion to consider the merits of its motion to dismiss, arguing that the court has inherent authority to permit it to plead out of order and after the thirty-day requirement. According to Charlotte Hungerford, no decision prior to Morgan indicated that General Statutes § 52-190a(c) implicated personal jurisdiction, or that the provision was jurisdictional in nature. Thus, at the time Charlotte Hungerford filed its request to revise and subsequent motion to dismiss, and up until Morgan was decided, there was no indication from the appellate case law suggesting that Charlotte Hungerford should challenge the sufficiency of the complaint on personal jurisdiction grounds. Charlotte Hungerford argues that, "[g]iven [its] intent . . . to seek dismissal of only a portion of the plaintiffs' complaint, and the state of the law at the time of [Charlotte Hungerford's] motion, [Charlotte Hungerford] acted reasonably in filing its request to revise which sought clarification and separation of the plaintiffs' allegations before seeking its statutory remedy of dismissal of those portions of the complaint which fail to comply with the statute" and this court should exercise its discretion and hear the merits of the motion to dismiss.
In opposition, the plaintiffs argue, first, that Charlotte Hungerford's nunc pro tunc motion is procedurally flawed in that a nunc pro tunc motion is properly used to correct a mistake made by the court, a situation that does not exist in the present case. Next, the plaintiffs argue that Morgan is binding on this court and Charlotte Hungerford waived its right to file a motion to dismiss by filing it late and out of the proper pleading sequence; the thirty-day requirement for challenging personal jurisdiction is mandatory and cannot be extended.
In Morgan, the Supreme Court explained that "[t]he plain language of the statute clearly provides that the legislature contemplated a dismissal being filed early in the proceedings." Morgan v. Hartford Hospital, supra, 301 Conn. 397. The Supreme Court explained that "[i]nstead of allowing a defendant to wait until the last minute to file a motion to dismiss after much time and effort has been expended, it is certainly preferable that the issue be determined early in the proceedings before the parties have expended substantial sums of money. The Practice Book requirement that motions to dismiss be filed within thirty days of the filing of an appearance ensures that the parties will have an early resolution of the matter and will not have expended large sums of money before being informed that the case is deficient, in some aspect, at the nineteenth hour." Id., 403-04.
The defendants in Morgan argued that forcing them to adhere to the timing and sequence requirements of the Practice Book "would lead to bizarre, unworkable results." Id., 403. The Supreme Court responded that, "[i]n the interim approximate nineteen months [between the filing of the complaint and the motion to dismiss], numerous motions were filed that required the attention of the attorneys. We are uncertain as to the number of depositions that were taken, but the possibility exists that there were many depositions at a substantial cost to the parties. Contrary to the argument of the defendants, this is the absurd result that should be avoided." (Emphasis in original.) Id.
In the present case, in the sixteen months since the plaintiffs filed their action, there has been a significant amount of activity in the case. While this court is not unsympathetic to the position Charlotte Hungerford now finds itself in, it would be, nonetheless, unfair to permit Charlotte Hungerford to challenge personal jurisdiction at this point in the case. Although the state of our case law on this issue may have been unclear to Charlotte Hungerford, and it may have required Charlotte Hungerford to exercise creativity in presenting a new or untested legal theory to the court, Charlotte Hungerford was, nonetheless, not precluded from challenging personal jurisdiction based on any insufficiency of the written opinion at the beginning stages of the case. "Unless the issue of personal jurisdiction is raised by a timely motion to dismiss any challenge to the court's personal jurisdiction over the defendant is lost." (Internal quotation marks omitted.) Rock Rimmon Grange No. 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16, 885 A.2d 768 (2005). Accordingly, the nunc pro tunc motion to file out of order is denied.